# SONNIER v. STATE

> Court of Criminal Appeals of Oklahoma · September 17, 2014 · 2014 OK CR 13

URL: https://www.frixlaw.com/law-library/cases/2734294

## Case

- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** September 17, 2014
- **Citations:** 2014 OK CR 13
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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SONNIER v. STATE
2014 OK CR 13
Case Number: F-2013-905
Decided: 09/17/2014
ANDREA LYNN SONNIER, Appellant, v. THE STATE OF OKLAHOMA, Appellee
Cite as: 2014 OK CR 13, __ __
SUMMARY OPINION
SMITH, VICE PRESIDING JUDGE:
¶1 Andrea Lynn Sonnier pled guilty to Count I, Possession of
a Controlled Dangerous Substance in violation of 63 O.S.2011, § 2-402; and Count II,
Possession of Drug Paraphernalia in violation of 63 O.S.2011, § 2-405, in the
District Court of Tulsa County, Case No. CF-2011-2148. Pursuant to a plea
agreement, Sonnier received a deferred sentence of two (2) years on both counts,
concurrent, with supervision by the Tulsa County District Attorney's Office. On
April 25, 2012, the State filed an application to accelerate judgment and
sentence, based on crimes alleged to have been committed in Tulsa County Case
No. CF-2012-1757. On July 16, 2012, Sonnier executed a confession of the
application to accelerate, admitting the State could prove the allegations in
the application. Sentencing was passed to offer Sonnier an opportunity to
complete the Women in Recovery (WIR) program. At a hearing on August 1, 2013,
Sonnier was terminated from the WIR program, and the Honorable Kurt G. Glassco
sentenced Sonnier to four (4) years imprisonment (Count I), and one (1) year
imprisonment in the county jail (Count II), to run concurrently with one another
and consecutively with Sonnier's sentences in CF-2012-1757. Sonnier appeals from
this acceleration of her deferred sentences under Rule 1.2(D)(5)(b), Rules of
the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2014).
¶2 Sonnier raises three propositions of error in support of
her appeal:
I. Trial counsel failed to subject the State's case to any
meaningful adversarial testing thereby constructively depriving Sonnier of
counsel as mandated by the U.S. Const. amend. XIV, and the Okla. Const. art 2,
§§ 7 and 20.
II. The trial court plainly erred in terminating Sonnier
from Women in Recovery without first offering to hold an adversarial evidentiary
hearing consistent with due process standards guaranteed to probationers by the
State and Federal Constitutions.
III. The trial court violated the separation of powers
provision of the Oklahoma Constitution, art. 4, § 1 by delegating to Women in
Recovery the authority to establish rules and conditions of probation.
¶3 After thorough consideration of the entire record before
us, including the original record, transcripts, exhibits and briefs, we find
that the law and evidence do not require relief.
¶4 We find in Proposition I that plea counsel was not
ineffective. Sonnier must show that counsel's performance was deficient and that
she was prejudiced by counsel's deficient performance. Wiley v. State , 2008 OK CR 30, ¶ 4,199 P.3d 877, 878; Strickland v.
Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984). Counsel's acts or omissions must have been so serious that she
was deprived of a fair trial with reliable results. Harrington v.
Richter , 562 U.S. 86, 131 S.Ct. 770, 787-88, 178 L.Ed.2d 624 (2011). We
review counsel's performance against an objective standard of reasonableness
under prevailing professional norms, and we will not second-guess strategic
decisions. Harris v. State , 2007 OK CR 28, ¶ 39, 164 P.3d 1103, 1118; Rompilla v.
Beard , 545 U.S. 374, 380-81, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005).
For the Court to reach Sonnier's claims of deficient performance, she must show
she was prejudiced by counsel's acts or omissions. Williams v. Taylor ,
529 U.S. 362, 394, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000);
Strickland , 466 U.S. at 693, 104 S.Ct. at 2067. This proposition turns on
the success of Proposition II. We find in Proposition II that Sonnier had no
right to a judicial due process hearing on her termination from WIR. Therefore,
trial counsel cannot have been ineffective in failing to prepare properly for
such a hearing.
¶5 We find in Proposition II that Sonnier was not denied due
process of law when she was terminated from the WIR program. She did not raise
this below and has waived all but plain error. Plain error is an actual error,
that is plain or obvious, and that affects a defendant's substantial rights,
affecting the outcome of the trial. Barnard v. State , 2012 OK CR 15, ¶ 13, 290 P.3d 759, 764. Given the
constitutional nature of the claim, we must decide whether any error was
harmless beyond a reasonable doubt. Miller v. State , 2013 OK CR 11, ¶ 106, 313 P.3d 934, 971-72; Chapman v.
California , 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
¶6 Sonnier confessed the acceleration of her deferred
sentence in this case, No. CF-2011-2148, and entered a blind plea of guilty in
No. CF-2012-1757. In both cases sentencing was passed for her to try to
successfully complete the Women in Recovery program. In both cases, there was an
understanding that Sonnier would go to prison if she did not complete WIR, but
at the time of each plea there was no specific sentence recommended or imposed.
This case turns on the nature of Sonnier's participation in WIR. Sonnier
compares WIR to drug court, mental health court, probation revocation hearings,
and acceleration hearings. She argues that WIR is like drug court, and drug
court is like deferred sentencing, so WIR is like deferred sentencing. Thus, she
claims, she should be afforded the protections required on a deferred sentence,
including notice of the reasons for her termination and an opportunity to
contest those reasons. This Court has held that a defendant who is terminated
from participating in a diversionary program is entitled to due process. Tate
v. State , 2013 OK CR 18, ¶
20, 313 P.3d 274, 280-81;
Alexander v. State , 2002 OK
CR 23, ¶ 8, 48 P.3d 110,
112-13. This includes termination from drug court or mental health court, or the
acceleration of a deferred sentence. Tate , 2013 OK CR 18, ¶ 20, 313 P.3d at
280-81.
¶7 This comparison is misleading. When Sonnier entered a
guilty plea and confessed the acceleration of her deferred sentence in these
cases, she did not receive a deferred sentence in either case. In both cases,
the trial court accepted Sonnier's plea of guilty and confession to acceleration
(finding her guilty of the charged crime and allegation supporting
acceleration), and simply passed the sentencing proceedings. Sonnier was not put
on probation, nor was completion of WIR made a condition of her release. She did
sign a standard document stating rules and conditions of pretrial release, in
order to receive electronic monitoring through the court services system. In
neither case do the conditions of pretrial release mention WIR; the electronic
monitoring agreement in each case does state that WIR will pay the cost of
monitoring. Furthermore, in this case, CF-2011-2148, Sonnier's confession of
acceleration explicitly states: "pass to get into WIR, or sentencing by ct [sic]
if passed out of WIR due to pregnancy or any other reason."
¶8 Moreover, despite Sonnier's comparisons, completion of
the WIR program is not analogous to drug court or mental health court programs.
Drug and mental health courts formally and explicitly establish structured
judicial intervention processes for treatment of eligible offenders. 22
O.S.Supp.2014, §§ 471-471.11; 22
O.S.2011, § 472; Alexander , 2002 OK CR 23, ¶ 8, 48 P.3d at
112-13. These programs are based in the district courts, which hold regular
progress hearings. The reviewing courts must recognize relapses and restarts
because the alternative court statute provides for this consideration. 22 O.S.2011, § 471.7(E);
Tate , 2013 OK CR 18, ¶
23, 313 P.3d at 281-82. 1 Defendant participants who fail to complete the
programs are, of necessity, terminated through order of the drug or mental
health court judge. In deciding whether to terminate a defendant from one of
these programs, a trial court must afford at least the minimum due process
requirements, including written notice of the violations and disclosure of the
evidence, a hearing at which the defendant has an opportunity to be heard and to
confront and cross-examine witnesses, before a neutral and detached body, with a
written statement of findings and conclusions. 22 O.S.2011, § 471.7(F);
Tate , 2013 OK CR 18, ¶¶
22, 27, 313 P.3d at 281-82; Morrissey v. Brewer , 408 U.S. 471, 488-89, 92
S.Ct. 2593, 2603-04, 33 L.Ed.2d 484 (1972).
¶9 WIR is more like community service or a rehabilitation
program than a drug court or mental health court. It is not created separately
by statute, provides for no specific judicial intervention process, and is not
controlled by the trial court. No statutory provisions safeguard a defendant's
due process rights connected with her liberty interest as it relates to
acceptance into or termination from the program. Rather, WIR is a private
community provider program, which diverts a woman from prison, and which is
accessed through the trial court's sentencing powers. Unstructured
public-private partnerships are relatively new to the criminal justice system.
WIR began as a private/public experimental partnership with the Tulsa County
District Court system through the George F. Kaiser Foundation and Family and
Children's Services, a certified private service provider in the Tulsa area. The
program was designed to offer certain women not eligible for some other
diversionary program an opportunity to avoid incarceration in prison. To enter
the WIR program, an offender must approach WIR for a determination that she is
eligible and for acceptance into the program. The offender then petitions the
trial court, after entering a plea of guilty, to be allowed the opportunity to
complete the WIR program before sentence is imposed. If the trial court accepts
the plea, sentencing is passed until completion of the WIR program. When Sonnier
agreed to the acceleration of her deferred sentence in this case in order to
enter WIR, she agreed not only to entry into WIR, but to rules and conditions of
pretrial release, including participation in an electronic monitoring program
administered by the Tulsa County District Court division of Court Services. By
so agreeing, Sonnier agreed to keep the trial court informed of her progress
through regular, periodic court dates at which both WIR and Court Services
presented status reports.
¶10 Under the statutes providing for sentencing, a trial
court may suspend a sentence in whole or in part, and order a defendant to
comply with any provision specifically ordered by the court. 22 O.S.2011, § 991a(A)(1)(hh). When
imposing a deferred sentence on a verdict or plea of guilty, a trial court may
defer further proceedings upon specific conditions, and may order a defendant to
complete any conditions which can be imposed for a suspended sentence under §
991a(A)(1). 22 O.S.2011, §
991c(A)(10). Although Sonnier refers to these sentencing provisions, the
discussion above shows that they do not apply here. Initially, when Sonnier
first entered a plea in this case (CF-2011-2148), she did receive a deferred
sentence. However, when she confessed the State's application to accelerate that
deferred sentence, she did not receive another deferred sentence; sentencing was
merely passed to give her a chance to complete WIR. She was not ordered to
complete the WIR program as a condition of her release, though she did agree to
be sentenced by the court if WIR terminated her. In addition, Sonnier's plea of
guilty in CF-2012-1757 followed the same process and did not result in a
deferred sentence.
¶11 Trial courts may also sentence eligible offenders to the
Community Service Sentencing Program under 22 O.S.2011, § 991a-4.1. This provision allows offenders
to be sentenced to the program, administered by the DOC or counties which have
existing community service programs, and which may include community service or
education programs, substance abuse, mental health and medical treatment
programs, as well as testing for controlled substances and payment of
restitution. 22 O.S.2011, §
991a-4.1(C). Under Community
Service sentencing, the DOC establishes a list including "federal, state and
local government agencies, community service agencies, nonprofit organizations,
educational programs and other treatment programs willing to participate in the
program to which offenders may be referred". 22 O.S.2011, § 911a-4.1(G).
Additionally, DOC must periodically contact these organizations to monitor an
offender's progress. DOC must ensure that the trial court and prosecutor are
notified in writing if the offender either successfully completes or fails to
complete the program. 22 O.S.2011, §
991a-4.1(H). These general
sentencing provisions allow trial courts alternatives to incarceration by
diverting eligible defendants to community service programs such as WIR.
¶12 The specific statutory authority for expanded use of
programs such as WIR comes from 57
O.S.2011, § 510.8b. This statute authorizes the Department of Corrections to
establish public/private partnerships in pilot diversionary programs for
nonviolent offenders who are the primary caregivers of minor children, and to
provide reentry services for inmates with minor children. 57 O.S.2011, § 510.8b(A). The
Department of Corrections is tasked with developing or modifying community
diversion and reentry programs, developing community partnerships, and
promulgating rules necessary to implement the statutory provisions. 57 O.S.2011, § 510.8b(B),(C),(D).
While the statute allows DOC to partner with WIR, nothing in any statute
suggests that a trial court has the authority to order WIR to accept an offender
where WIR has determined that the offender does not meet its admission
requirements. In addition, although a trial court may terminate an offender from
the WIR program and sentence her to prison, nothing suggests that a trial court
could reject a WIR termination recommendation and require WIR to continue to
treat an offender once WIR determines the offender has violated the terms of the
program and should be terminated. In other words, the trial court has the
authority to pass an offender's case to allow her to complete WIR, and the
authority to impose sentence if she is removed from the program. However, the
WIR, not the trial court, may accept an offender into the program or determine
that she continues to be eligible for the program.
¶13 WIR is not comparable to drug court, mental health
court, deferred sentencing, or any other statutorily established structured
diversionary judicial intervention programs which provide an alternative to
incarceration. The absence of any statute which could support a right to due
process when a person is terminated from WIR is dispositive of this claim of
error. In the context of parole and probation revocation (both judicial
proceedings), the United States Supreme Court has confirmed that minimal due
process is required, but declined to prescribe a particular procedure for those
proceedings. Gagnon v. Scarpelli , 411 U.S. 778, 781-82, 93 S.Ct. 1756,
1759-60, 36 L.Ed.2d 656 (1973); Morrisey , 408 U.S. at 488-89, 92 S.Ct. at
2604. This Court has held that, in that context, a defendant must be
"sufficiently apprised" of the grounds on which probation or a suspended
sentence is revoked. Tate , 2013 OK CR 18, ¶ 33, 313 P.3d at
283-84. The trial court here accepted Sonnier's confession to acceleration of
her deferred sentence (and, in CF-2012-1757, her guilty plea) and passed her
sentencing date to allow her the opportunity for treatment in a community-based
program. In doing so, the trial court was participating in a public-private
partnership, in which Sonnier's eligibility for treatment was determined by the
private provider, rather than the court. We find that Sonnier had no
constitutional due process right to a judicial hearing on the private provider's
determination that she is no longer eligible for the program.
¶14 Upon determining that Sonnier should be terminated from
WIR, based on WIR's recommendation, the trial court properly proceeded to
sentencing. There was no error in the trial court's action. Because there was no
error, there was no plain error.
¶15 We find in Proposition III that there was no violation
of the separation of powers doctrine. The trial court has statutory authority to
order a defendant to comply with any provision specifically ordered by the
court, including participation in community-based sentencing or diversion
programs. 22 O.S.2011, §
991a(A)(1)(hh); 22 O.S.2011, §
991a-4.1(C); 57 O.S.2011, § 510.8b(A). The trial
court was within its authority in granting Sonnier's request to apply to enter
the WIR program before sentence was imposed, and there was no separation of
powers violation.
DECISION
¶16 The Judgment and Sentence of the District Court of Tulsa
County is AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court
of Criminal Appeals , Title 22, Ch.18, App. (2014), the MANDATE is
ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE
HONORABLE KURT G. GLASSCO, DISTRICT JUDGE
ATTORNEYS AT PLEA HEARING
ANGELA BONILLA
TULSA COUNTY PUBLIC
DEFENDER'S OFFICE
423 SOUTH
BOULDER, STE. 300
TULSA, OK 74103-3805
COUNSEL FOR DEFENDANT
ANDREA BROWN
ASSISTANT DISTRICT ATTORNEY
TULSA COUNTY
COURTHOUSE
500 SOUTH DENVER
TULSA, OK 74103
COUNSEL FOR
STATE
ATTORNEYS ON APPEAL
ERIC L. REYNOLDS
TULSA COUNTY
PUBLIC DEFENDER'S OFFICE
423
S. BOULDER AVE., STE. 300
TULSA, OK 74103-3805
COUNSEL FOR
APPELLANT
E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA
JAY
SCHNIEDERJAN
ASSISTANT ATTORNEY GENERAL
313 NE 21ST
STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR
APPELLEE
OPINION BY: Smith, V.P.J.
Lewis, P.J.: CONCUR
Lumpkin, J.:
CONCUR IN RESULTS
A. Johnson, J.: CONCUR
FOOTNOTES
1 In
Tate , this Court held that, because the statute authorizing mental health
courts did not require those courts to recognize relapses and restarts, trial
courts were not required to do so. Tate , 2013 OK CR 18, ¶¶ 26-27, 313 P.3d
at 282. The Legislature has since amended 22 O.S., § 472 to include such a
requirement, effective November 1, 2014. 2014 Okla. Sess. Laws
180.
Citationizer © Summary of Documents Citing This Document Cite
Name
Level
None Found.
Citationizer: Table of Authority Cite
Name
Level
Oklahoma Court of Criminal Appeals Cases
Cite Name Level
2002 OK CR 23, 48 P.3d 110, ALEXANDER v. STATE Discussed at Length
2007 OK CR 28, 164 P.3d 1103, HARRIS v. STATE Discussed
2008 OK CR 30, 199 P.3d 877, WILEY v. STATE Discussed
2012 OK CR 15, 290 P.3d 759, BARNARD v. STATE Discussed
2013 OK CR 11, 313 P.3d 934, MILLER v. STATE Discussed
2013 OK CR 18, 313 P.3d 274, TATE v. STATE Discussed at Length
Title 22. Criminal Procedure
Cite Name Level
22 O.S. 991a-4.1, Community Service Sentencing Program Discussed at Length
22 O.S. 472, Anna McBride Act Discussed
22 O.S. 991c, Deferred Sentence Cited
22 O.S. 471.7, Progress Reports and Periodic Reviews Discussed
22 O.S. 991a, Sentence - Powers of the Court Discussed
Title 57. Prisons and Reformatories
Cite Name Level
57 O.S. 510.8b, Pilot Diversion and Reentry Programs for Nonviolent Offenders who are Primary Caregivers of Minor Children Discussed at Length
Title 63. Public Health and Safety
Cite Name Level
63 O.S. 2-402, Prohibited Acts B - Penalties Cited
63 O.S. 2-405, Prohibited Acts E- Penalties Cited

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2734294. Public record. Not legal advice.