MILLS v. STATE
This text of 2024 OK CR 22 (MILLS v. STATE) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
MILLS v. STATE
2024 OK CR 22
Case Number: F-2023-469
Decided: 08/15/2024
JACQUELINE MARJONNIE MILLS, Appellant v. THE STATE OF OKLAHOMA, Appellee
Cite as: 2024 OK CR 22, __ __
SUMMARY OPINION
¶1 Appellant Jaqueline Marjonnie Mills, through counsel, appeals from the acceleration of her deferred sentence in Tulsa County District Court Case No. CF-2019-5868. Appellant entered a blind plea of guilty to Robbery with a Dangerous Weapon, in violation of 21 O.S.2011, § 801 (Count 1), Trafficking in Illegal Drugs -Methamphetamine, in violation of 63 O.S.Supp.2019, § 2-415 (Count 2), Possession of a Firearm While in the Commission of a Felony, in violation 21 O.S.Supp.2012, § 1287 (Count 3), and Obstructing an Officer, in violation 21 O.S.Supp.2015, § 540 (Count 5). The trial court withheld a finding of guilt for Appellant to complete the Women In Recovery program.
¶2 Upon successful completion of the Women In Recovery program, Appellant was placed on a two year deferred sentence with the Department of Corrections until April 5, 2024.
¶3 The State filed an application to accelerate the judgment and sentence alleging Appellant committed the new crimes of felony murder first degree, use of a vehicle in the discharge of a weapon, and possession of a firearm while under the supervision of the Department of Corrections. After an acceleration hearing, Appellant's deferred sentence was accelerated and she was sentenced to life imprisonment on Count 1, twenty years imprisonment on Count 2, ten years imprisonment on Count 3, and one year in county jail on Count 5. All counts were ordered to run concurrently. Appellant appeals, raising the following propositions of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN ACCELERATING MS. MILLS DEFERRED SENTENCE BECAUSE MS. MILLS WAS DENIED HER STATUTORY RIGHT TO AN EVIDENTIARY HEARING ON THE MERITS OF THE STATE'S APPLICATION TO ACCELERATE.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN ACCELERATING MS. MILLS DEFERRED SENTENCE BECAUSE THE EVIDENCE RELIED UPON WAS INSUFFICIENT TO PROVE EACH ELEMENT OF THE ALLEGED OFFENSE.
¶4 The record in this case shows the State presented two pieces of evidence in support of its application to accelerate judgment and sentence. The first was the testimony of the Appellant, who was called as a witness by the State. The second was evidence presented at the preliminary hearing in Tulsa County District Court Case No. CF-2022-2673 held on May 7, 2023, before the Honorable Loretta Radford, Special Judge. At the acceleration hearing, the Honorable Dawn Moody, District Judge, took judicial notice of the preliminary hearing evidence over the defense's objection.
¶5 The Appellant testified she entered a plea of guilty in this case on April 6, 2022, and was placed on probation. She stated she was present for the preliminary hearing in CF-2022-2673, that she was the subject of the preliminary hearing, and that the alleged incident at issue in the preliminary hearing occurred in July 2022. No additional testimony was solicited by the State, and the defense did not cross-examine Appellant. All the additional evidence argued by the State in support of its application came from Judge Moody taking judicial notice of the preliminary hearing evidence.
¶6 A trial court's decision to accelerate a deferred sentence is reviewed for an abuse of discretion. Whitaker v. State, 2015 OK CR 1, ¶ 5, 341 P.3d 87, 89. "An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the issue; a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts." State v. Farthing, 2014 OK CR 4, ¶ 4, 328 P.3d 1208, 1209.
¶7 A presiding judge, during one hearing, cannot take judicial notice of evidence presented before him or her in another hearing, when the parties in the present hearing have not stipulated to that evidence. Linscome v. State, 1978 OK CR 95, ¶ 4, 584 P.2d 1349, 1350. "[N]o matter that has been put in issue by the pleadings can be considered undisputed for purposes of judicial notice." Id., 1978 OK CR 95, ¶ 6, 584 P.2d at 1350.
¶8 This case is slightly different from Linscome because Judge Moody was not the presiding judge at the preliminary hearing in Case No. CF-2022-2673. The record shows she attended the preliminary hearing as a spectator, not in her capacity as a sitting judge. In the acceleration hearing, there was no stipulation between the parties to the preliminary hearing evidence. It was, in fact, the opposite. The Appellant strenuously objected to the trial court taking judicial notice of the preliminary hearing evidence on multiple grounds. Judge Moody indicated for the record that because she witnessed the preliminary hearing and reviewed the exhibits, she was able to consider all the evidence from the preliminary hearing in the acceleration hearing. We disagree. Without a stipulation by the parties, it was an abuse of discretion for Judge Moody to take judicial notice and consider any of the preliminary hearing evidence at the acceleration hearing.
¶9 So long as the defendant had an opportunity to cross-examine the witnesses, this Court has allowed the State to admit a transcript of a preliminary hearing at a revocation hearing and for the presiding judge to consider that evidence when deciding if there is sufficient, competent evidence to find a defendant has violated his or her probation. See Wortham v. State, 2008 OK CR 18, ¶ 15, 188 P.3d 201, 206. However, this case is distinguishable in that Judge Moody was a spectator at the preliminary hearing and was relying upon her observations and recollection of the preliminary hearing evidence, not a transcript of the proceedings. Furthermore, there is nothing contained in the record showing Judge Moody reviewed a transcript of the preliminary hearing either before or during the acceleration hearing and relied upon that transcript in making the court's finding.
¶10 "[A]t an acceleration hearing, the court only makes a factual determination involving the existence of a violation of the terms of the deferred sentence." Hagar v. State, 1999 OK CR 35, ¶ 10, 990 P.2d 894, 898. The factual determination need only be supported by a preponderance of the evidence. See Edwards v. State, 1987 OK CR 276, ¶ 8, 747 P.2d 968, 970. Where the State's application to accelerate is based on a claim the defendant committed a new offense, the State must present evidence of either a final judgment and sentence or sufficient evidence to show that the defendant committed each element of the offense. See Kern v. State, 1974 OK CR 54, ¶¶ 7-8, 521 P.2d 412, 415 (opinion on rehearing).
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2024 OK CR 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mills-v-state-oklacrimapp-2024.