MEYER v. ENGLE

2016 OK CR 1, 369 P.3d 37, 2016 Okla. Crim. App. LEXIS 1, 2016 WL 298838

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 22, 2016
• Docket: MA-2015-874
• Status: Published

Opinions

ORDER REJECTING APPLICATION : TO WITHDRAW RULING

T1 On the 23rd day of December, 2015, Petitioner, Kurt Meyer, filed his application requesting that this Court withdraw its order dismissing this matter as untimely filed.

T2 Petitioner is charged with murder in the District Court of Lincoln County Case No. CF-2015-09. On May 22, 2015, Petitioner filed his Motion to Disqualify seeking to have the Honorable Dawson R. Engle, Special Judge, recuse from presiding. over his preliminary hearing. Following evidentiary hearings, Judge Engle denied Petitioner's motion on July 10, 2015, Petitioner.filed his Request for Rehearing on July 15, 2015 seeking to have the Chief Judge grant his requested relief On Thursday, October 1, 2015, the Honorable Cindy Ferrell Ashwood, District Judge, entered an order denying Petitioner's rehearing request,. Petitioner did not-file his Petition for Writ of Mandamus'in this Court until Wednesday, October 7, 2015.

T3 On October 28, 2015, this Court dismissed Petitioner's petition as untimely because it exceeded the five-day limitation period established by District Court Rule 15(b). Mitchell v. State, 2006 OK CR 20, ¶ 84 n. 189, 136 P.3d 671, 705 n, 189; Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015). ¹ Petitioner did not file for an appeal out of time as provided for in our Rules. See Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015); Blades v. State, 2005 OK CR 1, ¶ 5, 107 P.3d 607, 608.

¶ 4 On November 4, 2015, Petitioner filed his Petition for Writ of Mandamus against the Court of Criminal Appeals and the individual judges currently comprising the Court of Criminal Appeals in Oklahoma Supreme Court Case Number 114,409. Petitioner sought to have the Oklahoma Supreme Court issue the writ directing this Court to withdraw its order dismissing his petition, determine that his petition before this Court was timely filed, and fairly consider the petition.

15 On December 14, 2015, the Oklahoma Supreme Court assumed original jurisdiction over Petitioner's case and issued its Order granting "[djeclaratory relief to provide for uniform computation of the time periods set forth in District Court Rule 15, 12 0.8.2011, Ch. 2, App." and announced that "(alll time periods shall be computed based upon business days whether disqualification is sought in a civil or criminal case." Although this Order did not direct this Court to take any action in his case, Petitioner asserts that the Oklahoma Supreme Court's Order requires this Court to now construe his appeal as timely filed.

T6 The Oklahoma Constitution provides for a bifurcated civil-eriminal system of justice. Carder v. Court of Criminal Appeals, 1978 OK 130, ¶ 1, 595 P.2d 416, 417. Article VII, § 4 of the Oklahoma Constitution sets forth the jurisdiction of the Oklahoma Supreme Court and the Oklahoma Court of Criminal Appeals. Id., 1978 OK 180, ¶¶ 10-12, 595 P.2d at 419. The OKka-homa Supreme Court's original jurisdiction extends to a general superintendent control over all inferior courts. Id. 1978 OK 180, 1 10, 595 P.2d at 419, The appellate jurisdiction of the Oklahoma Supreme Court is coextensive with the State and extends to all cases in law and equity except for criminal cases,. Id.; Dutton v. City of Midwest City, 2015 OK 51, ¶ 19, 353 P.3d 532, 540 ("[Thhe Oklahoma Supreme Court lost its jurisdiction to provide appellate review of a judgment on a 'criminal cause of action upon creation of the Criminal Court of Appeals."). Instead, the Court of Criminal Appeals has exclusive appellate jurisdiction in criminal cases and may exercise such other and further jurisdiction as may. be conferred by statute. Id., 1978 OK 130, ¶¶ 10-12, 595 P.2d at 417; Dutton, 2015 OK 51, ¶ 19, 353 P.3d at 540; 20 O.S.2011, § 40 ("The Court of Criminal Appeals shall have exclusive appellate jurisdiction, coextensive with the limits of the state, in all criminal cases appealed from the district, superior and county courts, and such other courts of record as may be established by law.")² These cireumstances require the two courts to maintain clear jurisdictional boundaries. Id., 1978 OK 180, ¶ 1, 595 P.2d at 417. In the event there is any conflict as to jurisdiction, the Supreme Court determines which court has jurisdiction and such determination shall be final. Id. 1978. OK 130, ¶ 10, 595 P.2d at 419. The Supreme Court further reserves the right to determine when the Court of Criminal Appeals has acted in excess of its authority. Dutton, 2015 OK 51, ¶ 25, 353 P.3d at 544.

17 Under this bifureated civil-criminal system of justice the Oklahoma Court of Criminal Appeals acts as the court of last resort for criminal matters and is empowered to adopt rules of appellate procedure in aid of its jurisdiction. The Oklahoma Supreme Court has determined that its original superintending control jurisdiction does not extend to appellate review of criminal cases. Dutton, 2015 OK 51, ¶¶ 33-36, 353 P.3d at 549-50. "There is no appeal or writ of error from the Court of Criminal Appeals to [the Oklahoma Supreme] Court." Dutton, 2015 OK 51, ¶ 34, 353 P.3d at 550. Instead, the Supreme Court has long recognized that the Court of Criminal Appeals has the "power and jurisdiction to review and correct those proceedings of inferior courts for determination in the manner provided by law." Carder, 1978 OK 130, ¶ 12, 595 P.2d at 419. This includes the issuance of writs of prohibition and mandamus in the exercise or aid of this jurisdiction, Id. '"Because the Court of Criminal Appeals has exclusive appellate jurisdiction in criminal matters and jurisdiction to issue supervisory writs in aid of its appellate jurisdiction, that Court is the court which uses a writ power to supervise a criminal matter in a criminal controversy or action that is proceeding in the District Court." Dutton, 2015 OK 51, ¶ 29, 353 P.3d at 546. Moreover, the Oklahoma Supreme Court further recognizes that, in the absence of a deficient statutory remedy, the Legislature's appellate procedure for criminal appeals shall not be cireumvented. Dutton, 2015 OK 51, ¶ 34, 353 P.3d at 549-50. The Oklahoma Legislature has specifically authorized the Court of Criminal Appeals to establish the procedure for filing an appeal within the Rules of the Court of Criminal Appeals. 22 0.8.2011, § 1051(b). These Rules have the foree and effect of statute. Id.

8 Under this authority, the Court of Criminal 'Appeals has adopted a rule concerning the computation of time. Rule 1.4, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), adopts the calendar day computation 'of time limits, 'Under this method, the first calendar day is excluded and the last calendar day is included to complete the time period. See Pitts v. State, 2003 OK CR 21, ¶ 5, 78 P.3d 551, 553. This is the traditional method by which time has been computed in this Court. The Court of Criminal Appeals' earliest rules adopted this time computation method. Rule 21(C), Rules of the Oklahoma Court of Criminal 'Appeals, Title 22, Ch. 19, App. (1951). This Court first published Rule 1,4 in 1981. Rule 14, Rules of the Oklahomo Court of Crimi-mal Appeals, Title 22. Ch. 19, App. (1981), We have consistently and uniformly applied this method of computing time for filing appeals and Rule 1.4 has given guidance and notice to litigants for decades. Banks v. State, 1998 OK CR 5, ¶ 5, 953 P.2d 344, 345 ("Practice in the Oklahoma Court of Criminal Appeals is governed by the Rules of the Court of Criminal Appeals, and guidance in applying those Rules is found in cases decided by the Court of Criminal Appeals.").

T9 This Court does not maintain Rule 1.4 solely for the sake of tradition. Instead, Rule 1.4 conforms to the many statutes that the Legislature has adopted relating to time limitations in criminal proceedings.

. 11 10 The Oklahoma Legislature has provided for fairly lenient computation of time in civil cases. Title 12 0.8.2011, § 2006 adopts the "business" day for the computation of time in civil cases. See Pitts v. State, 2003 OK CR 21, ¶ 7, 78 P.3d 551, 553-54 (recognizing computation of time pursuant to § 2006 only includes days when court clerk remains open for public business). However, the Legislature has explicitly limited § 2006 to "guits of a civil nature." Id., 2008 OK CR 21, T9, 78 P.8d at 554 (finding $ 2006 inapplicable to eriminal proceedings based upon explicit language of 12 0.$.2001, $ 2001). Title 12 0.9.2011, § 990A adopted the "mailbox rule" which recognizes that an appellate pleading is considered filed on the date of its mailing with the post office. See Hunnicutt v. State, 1997 OK CR 77, ¶ 5, 952 P.2d 988, 989 (recognizing § 990A as enacting the "mailbox rule."). However, the Legislature specifically limited $ 990A to appeals to the Supreme Court of Oklahoma. Id., (finding § 990A only applicable to appeals to Oklahoma Supreme Court), Both § 2006 and § 990A are located in the Oklahoma Pleading Code which 12 O.8.2011, § 2001 explicitly limits to "all suits of a civil nature." Pitts, 2003 OK CR 21, ¶¶ 9, 14, 78 P.3d at 554, 555 (overruling State v. Pratt,, 1991 OK CR 95, 816 P.2d 1149, based on failure to recognize significance of § 2001).

T11 In contrast, the Legislature has adopted the calendar day method of computation of time in criminal proceedings. See 22 0.8.2011, § 812.1 (time limit to begin trial), 22:0.8.2011, § 958 (time for applying for new trial} 22 0.8.2011, $ 9822 (time limit for modification of sentence). All of- the statutes relating to the time for taking a criminal appeal compute time in the same way. These statutes reference "days from the date of" the event which triggered the right to appeal, 22 O0.8.2011, §§ 1054, 1087, 1089(D)(1), 1089.2. The Legislature has not made provision for computation of time through "business" days or enacted .a "mailbox rule" in the Code of Criminal Procedure. Hunnicutt, 1997 OK CR 77, ¶ 6, 952 P.2d at 989; Pitts, 2003 OK CR 21, ¶¶ 11-14, 78 P.3d at 554-55.

1 12 It is important to note that the procedures established for criminal proceedings in Oklahoma provide for an appeal out of time when, through no fault of the petitioner, an appeal was not timely, Banks v. State, 1998 OK CR 5, ¶ 6, 953 P.2d 344, 346; Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22. Ch. 18, App, (2016). This procedure provides greater protection to criminal defendants than the mechanisms in the civil procedure. Id.

€13 As to appeals seeking the disqualification of an assigned judge, this Court has determined that a party seeking such relief must file an original proceeding in mandamus with this Court, within five days of the adverse order, Mitchell, 2006 OK CR 20, ¶ 84 n. 189, 136. P.3d at 705 n. 189; Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch, 18, App. (2015). This Court will not entertain a mandamus action seeking disqualification of the assigned judge, unless it is shown that the relief sought was previously denied by the judge to whom the matter was re-presented in accordance with District Court Rule 15(b), 12 0.8.2011, Ch. 2, App. Id. This Court applies the same method of time computation consistent throughout the Court's rules and excludes the first calendar day but includes the last calendar day to complete the time period. Rule 1.4, Rules of the 'Okighoma Court of Criminal Appeals, Title 22, Ch 18, App. (2015),

114 Despite the fact that Petitioner's counsel were seasoned criminal law practitioners well versed in this Court's method of time computation, counsel omitted to timely file Petitioner's original mandamus action. The divergent methods of time computation employed in our State between civil and criminal matters have existed for decades. An innumerable number of attorneys have ably navigated this distinction for many years. Counsel's omission to timely file Petitioner's petition was not a byproduct of the lack of uniformity of time computation within the State, Instead, the responsibility for this Court's dismissal of Petitioner's case falls squarely at counsel's feet. And, rather than seeking the relief available in this Court through an application for an appeal out of time, Petitioner sought action from the Oklahoma Supreme Court. {

115 The Oklahoma Supreme Court refused to grant Petitioner the writ which he had requested. Instead, the Supreme Court granted declaratory relief. We note that the Supreme Court did not identify a conflict of Jurisdiction in the present cireumstances nor did the Supreme Court conclude that this Court had acted in excess of its authority in dismissing Petitioner's petition. In the absence of such a determination, we must respectfully conclude that the Order in Petitioner's case was a request for comity.

116 It appears that the Oklahoma Supreme Court's request was made without consideration of the conflict and confusion that would exist if we adopted conflicting methods of time computation for the taking of criminal appeals. As it stands, Rule 1.4 is the only method of time computation for the taking of a criminal appeal. However, this Court will review its rules for the sake of comity to determine whether the rules can be amended in such a manner as to prevent confusion to litigants in the many types of appeals brought to this Court in the future,

117 This Court's order dismissing Petitioner's appeal as untimely constitutes a final order, Leftwich v. Alcorn, 2011 OK CR 27, ¶ 4, 262 P.3d 770, 771; Rule 10.6(D), Rules of the Oklahoma Courtcof Criminal Appeals, Title 22, Ch. 18, App. (2015) ("Onee this Court has rendered its decision on an extraordinary writ, that decision shall constitute a final order."). A petition for rehearing is not allowed. Id., ("There is no petition for rehearing from an order denying a request for an extraordinary writ."). Petitioner has not presented any authority supporting the revival of his dismissed appeal, No provision in either the statutes or this Court's rules provides for such review. Id. As such, the application is REJECTED³

118 IT IS SO ORDERED.

/S/ Claney Smith CLANCY SMITH, Pres1dmg J udge

/s/ Gary L, Lumpkin - GARY L, LUMPKIN, Vice Presiding Judge

/s/ Arlene Johnson ARLENE JOHNSON, Judge

[/s/ David B. Lewis DAVID B. LEWIS, Judge

[/s/ Robert Hudson ROBERT HUDSON, Judge

CLANCY SMITH, Presiding Judge, DAVID B. LEWIS, ROBERT HUDSON JJ (specially concurs)

1 . Rule 10.6(B), which governs this Court's issuance of a writ of mandamus, is consistent with and complies with District Court Rule 15(b). Rule 10.6(B) provides that "in matters involving disqualification of judges in criminal cases, if a hearing before the second judge results in an order adverse to the movant, he/she shall have not more than five (5) days from the dateof the order to institute a proceeding in this Court." (emphasis added)

2 . Exclusive is defined as “Relating to or marked by exclusion. Not shared with others. Independent or single. Complete or whole, etc ...". Webster's II, 450 (New Riverside University Bdition}.

3 . The Clerk of this Court is directed to return to Petitioner his Application to Withdraw Ruling. Rule 10.6(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016). The Clerk is further directed to maintain a copy of the tendered application for record keeping purposes only. © -