Norton v. State

¶1Dissenting:

¶2{1 In 1987 this Court considered whether denial of counsel at preliminary hearing could be harmless error. In Cleek v. State,1 we determined that, as the Oklahoma constitution provides for preliminary hearing, this was a critical stage of trial and a defendant must be afforded counsel. We considered the corresponding United States Supreme Court case law holding a denial of counsel potentially harmless,2 and determined that the provisions of our state constitution differed significantly enough to compel a different result. We decided that, under the Oklahoma constitution, denial of counsel at preliminary hearing was reversible error.3 Although nothing has changed in the intervening years, the majority proposes we revisit Cleek and reach the opposite conclusion.

¶3[2 I believe Cleek is correctly decided on state constitutional grounds. I see no inconsistency in saying that a defendant may not be denied counsel at preliminary hearing, but may waive preliminary hearing under certain cireumstances. Indeed, one may waive counsel at preliminary hearing. However, a defendant's choice to waive either counsel or preliminary hearing itself cannot be compared to denial of the right to representation at a critical stage of criminal proceedings. I might go along with an argument that Norton waived his right to counsel, but the majority finds no waiver, and I will not disagree In that case I 'think reversal is required.