
	OSCN Found Document:SONNIER v. STATE

	
				

OSCN navigation



        Home

        Courts

        Court Dockets

        Legal Research

        Calendar

        Help





						Previous Case

						Top Of Index

						This Point in Index

						Citationize

						Next Case

						Print Only





SONNIER v. STATE2014 OK CR 13Case Number: F-2013-905Decided: 09/17/2014Cite 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 COUNTYTHE 
HONORABLE KURT G. GLASSCO, DISTRICT JUDGE


ATTORNEYS AT PLEA HEARING ANGELA BONILLATULSA COUNTY PUBLICDEFENDER'S OFFICE423 SOUTH 
      BOULDER, STE. 300TULSA, OK 74103-3805COUNSEL FOR DEFENDANT
 
ANDREA BROWNASSISTANT DISTRICT ATTORNEYTULSA COUNTY 
      COURTHOUSE500 SOUTH DENVERTULSA, OK 74103COUNSEL FOR 
      STATE

ATTORNEYS ON APPEAL
ERIC L. REYNOLDSTULSA COUNTYPUBLIC DEFENDER'S OFFICE423 
      S. BOULDER AVE., STE. 300TULSA, OK 74103-3805COUNSEL FOR 
      APPELLANT
 
E. SCOTT PRUITTATTORNEY GENERAL OF OKLAHOMAJAY 
      SCHNIEDERJANASSISTANT ATTORNEY GENERAL313 NE 21ST STREETOKLAHOMA CITY, OK 73105COUNSEL FOR 
      APPELLEE
OPINION BY: Smith, V.P.J.Lewis, P.J.: CONCURLumpkin, 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 DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Criminal Appeals Cases CiteNameLevel 2002 OK CR 23, 48 P.3d 110, ALEXANDER v. STATEDiscussed at Length 2007 OK CR 28, 164 P.3d 1103, HARRIS v. STATEDiscussed 2008 OK CR 30, 199 P.3d 877, WILEY v. STATEDiscussed 2012 OK CR 15, 290 P.3d 759, BARNARD v. STATEDiscussed 2013 OK CR 11, 313 P.3d 934, MILLER v. STATEDiscussed 2013 OK CR 18, 313 P.3d 274, TATE v. STATEDiscussed at LengthTitle 22. Criminal Procedure CiteNameLevel 22 O.S. 991a-4.1, Community Service Sentencing ProgramDiscussed at Length 22 O.S. 472, Anna McBride ActDiscussed 22 O.S. 991c, Deferred SentenceCited 22 O.S. 471.7, Progress Reports and Periodic ReviewsDiscussed 22 O.S. 991a, Sentence - Powers of the CourtDiscussedTitle 57. Prisons and Reformatories CiteNameLevel 57 O.S. 510.8b, Pilot Diversion and Reentry Programs for Nonviolent Offenders who are Primary Caregivers of Minor ChildrenDiscussed at LengthTitle 63. Public Health and Safety CiteNameLevel 63 O.S. 2-402, Prohibited Acts B - PenaltiesCited 63 O.S. 2-405, Prohibited Acts E- PenaltiesCited










