author: LAVENDER, J.

text:
    2002 OK 84
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Jim D. SHOFNER, Respondent.
    No. SCBD 4672.
    Supreme Court of Oklahoma.
    Oct. 29, 2002.

      Nathan A. Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Complainant.
    William G. LaSorsa, Tulsa, for respondent.
   LAVENDER, J.

¶ 1 Complainant, the Oklahoma Bar Association (OBA), by an October 29, 2001 letter (with attached documentation) from its General Counsel’s Office, notified us respondent, Jim D. Shofner, a licensed attorney, was convicted of the federal felony crime of conspiracy, 18 U.S.C. § 371 (2000), after being charged and pleading guilty thereto in the United States District Court for the Northern District of Oklahoma. Section 371 provides in pertinent part:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Materials accompanying the OBA’s letter included the charging information and the “judgment in a criminal case” entered in October 2001. In essence, the charge involved respondent’s participation, along with a client, in fraudulently concealing assets in the client’s bankruptcy proceeding from the appointed trustee and creditors, including the Internal Revenue Service (IRS). Respondent was sentenced to eighteen (18) months imprisonment (commencing on November 5, 2001), two years supervised release after serving his prison term, plus he was fined $4,000.00, and ordered to pay restitution in the amount of $121,328.46 (which has been paid in full according to the federal judgment) and a $100.00 special assessment to the United States.

¶ 2 Pursuant to Rule 7.1 (Criminal Conviction of Lawyer) and Rule 7.3 (Interim Suspension from Practice) of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch.l, Appll-A, we issued an interim suspension suspending respondent from the practice of law by a December 3, 2001 Order because the conviction appeared to facially demonstrate respondent’s unfitness to practice law. See State ex rel. Oklahoma Bar Ass’n v. Badger, 1993 OK 43, 901 P.2d 790, 791 (interim suspension order required when crime for which a respondent lawyer stands convicted facially demonstrates unfitness to practice law) and State ex rel. Oklahoma Bar Ass’n v. Armstrong, 1990 OK 9, 791 P.2d 815, 818 (conviction of some crimes will facially demonstrate lawyer’s unfitness to practice while conviction of others will not). The December 2001 Order — consistent with Rule 7.4 (Conviction Becoming Final Without Appeal), RGDP — also directed respondent to show cause in writing why final discipline should not be imposed and to inform us whether he desired a hearing. Thereafter, he made a written request for a hearing. The OBA General Counsel’s Office filed an amended response to the request informing us it had no objection to this Court directing a hearing to allow respondent the opportunity to present evidence tending to mitigate the severity of discipline to be imposed. By a March 4, 2001 Order we referred the matter to a Professional Responsibility Tribunal (PRT) trial panel for such a hearing. The March 4th Order also allowed the OBA to appropriately respond to any mitigating evidence offered and to adduce proof in aggravation of the discipline to be imposed.

¶ 3 The PRT trial panel hearing was held in April 2002 and its written report was filed with this Court in June, as was the hearing transcript. In July 2002 the parties submitted briefs on their positions concerning discipline. The PRT trial panel report recommends a suspension of two years and one day, respondent requests a suspension of two years or less and complainant argues for disbarment. After de novo review, we find the appropriate discipline to be disbarment. We also hold respondent should pay the costs of these proceedings.

¶ 4 In disciplinary proceedings this Court acts as a licensing court in the exercise of our exclusive original jurisdiction, not as a reviewing tribunal. State ex rel. Oklahoma Bar Ass’n v. Downing, 1990 OK 102, 804 P.2d 1120, 1122. It is our nondele-gable, constitutional responsibility to decide the discipline warranted when an attorney is found to have engaged in professional misconduct. Id.; State ex rel. Oklahoma Bar Ass’n v. Barnett, 1997 OK 61, ¶ 2, 940 P.2d 493, 495 (Court’s duty in misconduct cases is to independently determine the proper discipline). Recommendations of a PRT trial panel are merely advisory.

¶ 5 Our responsibility is not to punish the offending lawyer, but to assess his/her continued fitness to practice law. State ex rel. Oklahoma Bar Ass’n v. Meek, 1994 OK 118, 895 P.2d 692, 699. In misconduct cases, we are required to exercise our responsibility with a view to safeguarding the interests of the public, the courts and the legal profession. Id. In determining the proper discipline this Court compares the circumstances of the involved case with those of similar previous disciplinary cases involving other attorneys and we examine the respondent’s previous disciplinary record— both inquiries geared to determining how best to serve the welfare of the public and the integrity of the bar. Meek, supra, 895 P.2d at 700. Also, to arrive at appropriate discipline, a fit factor to consider is the deterrent effect upon both the offending respondent and other attorneys who might contemplate similar conduct in the future. State ex rel. Oklahoma Bar Ass’n v. McMillian, 1989 OK 16, 770 P.2d 892, 899; State ex rel. Oklahoma Bar Ass’n v. Hall, 1977 OK 117, 567 P.2d 975, 978.

¶ 6 Mitigating circumstances are also often considered when assessing the appropriate measure of discipline. State ex rel. Oklahoma Bar Ass’n v. Thomas, 1995 OK 145, 911 P.2d 907, 913. Also, although discipline should be administered fairly (i.e.evenhandedly), this Court has recognized that the extent of discipline must be decided on a case-by-case basis because each situation will usually involve different transgressions and different mitigating circumstances. See State ex rel. Oklahoma Bar Ass’n v. Rozin, 1991 OK 132, 824 P.2d 1127, 1130.

¶ 7 There is no question respondent stands convicted of a crime that, on its face, shows his unfitness to practice law. The information in the federal criminal case sets out the circumstances which underlie respondent’s conviction. In essence, the charging information sets out facts that indicate respondent knowingly and fraudulently assisted a client — Barbara Jean Tillman, a/k/a Barbara Jean Hale, a/k/a Barbie Hale, and a/k/a B. Hale (Tillman) — in concealing a piece of real property and/or the proceeds of its sale from the appointed trustee and creditors, including the Internal Revenue Service, in Tillman’s bankruptcy case where respondent was acting as her attorney. The information also shows that respondent was an active participant in the fraudulent, deceitful conduct. The information sets out that the scheme to conceal involved the client’s use of a pseudonym and deposit of the sale proceeds into respondent’s trust aecount(s). Said proceeds were eventually paid to the client, or other persons for her use and benefit, by respondent. Rule 7.2 (Transmittal of Record Relating to Conviction), RGDP, provides that the information and the judgment and sentence of conviction shall be conclusive evidence of the conviction of the crime upon which the judgment and sentence is based. At a minimum, respondent’s conduct violated Rule 8.4(b) and (c) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch.l, App. 3-A, which provide: “[i]t is professional misconduct for a lawyer to ... (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects [or] (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation .... ”

¶ 8 Respondent did not testify at the PRT hearing, as he is serving his prison sentence at the federal penal facility in El Reno, Oklahoma. His case in mitigation was presented by his attorney, who called numerous witnesses. The witnesses included other attorneys, two district court judges, a special judge and others who have known him for various lengths of time professionally and/or socially. More than one of these witnesses have known him for over thirty (30) years. Letters were also submitted on his behalf, including letters from his children, one of whom is an attorney practicing in Atlanta, .Georgia. The OBA called no witnesses and it relies on the nature of the crime committed for its recommendation of disbarment.

¶ 9 Without exception the witnesses presented by respondent had favorable opinions of him. His honesty and integrity were vouched for, as was his ability as a lawyer. The evidence at the hearing also showed that respondent has been a licensed practicing attorney in Oklahoma for more than thirty-three (33) years and, but for this criminal conviction and the conduct leading to it, he has never been the subject of a grievance filed against him with the OBA. Those who had talked to him concerning the crime he committed also indicated respondent acknowledged his wrongful conduct and the witnesses were generally shocked at learning of his involvement in such behavior (because of his reputation for honesty and integrity). Witnesses also expressed a view that the criminal activity involved was aberrational and would not be repeated. However, no witness, save one, had any detailed explanation for why respondent would engage in such serious wrongdoing on behalf of a client.

¶ 10 The one witness who expressed any type of detailed view of why respondent engaged in such serious and reprehensible misconduct, misconduct directly engaged in in his capacity as an attorney, was another lawyer that has known him for over twenty (20) years and is representing him in some type of civil case tied to the Tillman matter. Essentially, this attorney expressed the view that respondent, although now realizing the wrongfulness of his conduct, initially believed the proceeds of the real estate sale that were concealed in the involved bankruptcy proceeding were subject to some type of reporting exemption and that the client, Tillman, being a particularly manipulative person, somehow convinced respondent to engage in the wrongful conduct. Evidence was also presented that respondent did not engage in the criminal misconduct for his own personal financial gain. Further, as previously noted, respondent has made restitution in regard to the money concealed in the bankruptcy proceeding.

¶ 11 This Court, on occasion, has administered discipline less than disbarment when an attorney has been convicted of a crime involving dishonest conduct. See e.g. State ex rel. Oklahoma Bar Ass’n v. Dennison, 1994 OK 33, 872 P.2d 403 (31 month suspension after conviction for making false statements to federally insured financial institution); State ex rel. Oklahoma Bar Ass’n v. Willis, 1993 OK 138, 863 P.2d 1211 (15 month suspension after conviction of felony charge of obtaining controlled drugs by misrepresentation); State ex rel. Oklahoma Bar Ass’n. v. Simms, 1978 OK 153, 590 P.2d 184 (20-24 month suspension after conviction for willfully making and subscribing individual tax returns believing same to not be true). Dennison, Willis and Simms, however, did not involve convictions intimately tied to the respondents’ role as attorney. Here, the very nature of respondent’s conviction involves active fraud and deception on behalf of a client.

¶ 12 Even when the fraudulent activity involved an attorney’s personal or family business dealings and not the representation of an outside party, we deemed disbarment the appropriate discipline for convictions of crimes similar to that which this respondent attorney stands convicted. State ex rel. Oklahoma Bar Ass’n v. Crabtree, 1995 OK 123, 907 P.2d 1045. In Crab-tree the attorney was convicted of four federal counts concerning bankruptcy fraud and money laundering, the charges growing out of bankruptcy proceedings of the attorney, his wife, certain trusts set up for his children and a family partnership. United States v. Crabtree, 7 F.3d 1045 (10th Cir.1993)(table of decisions without reported opinions)(unpublished order and judgment found at 1993 WL 359689)(Case No. 92-6330). The situation in Crabtree, as here, involved concealment of assets relating to bankruptcy proceedings. We also disbarred an attorney convicted of two related felonies in two different federal district courts in State ex rel. Oklahoma Bar Ass’n v. Hornung, 1991 OK 56, 813 P.2d 1041, 1041-1042. The crimes were related and one was for conspiring with a client to defraud the United States by concealing taxable income of the client, her deceased husband and his brother (the brothers were involved in drug smuggling activities) in violation of 18 U.S.C. § 371. United States v. Hornung, 848 F.2d 1040 (10th Cir.1988), cert. denied 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989). The other conviction was for interstate travel to promote, manage, establish, carry on and facilitate an unlawful business enterprise involving cocaine. United States v. Green, 882 F.2d 999 (5th Cir.1989).

¶ 13 As we view the matter, this case does not neatly fit into any of our prior cases. However, it is clear to us that respondent’s criminal conduct was of an extremely serious nature. It involved fraudulent conduct in his capacity as an attorney, conduct intended to defraud creditors in his client’s bankruptcy, including the IRS. It also involved fraud upon a bankruptcy court. Even considering the evidence presented by respondent in mitigation, we conclude that disbarment is the appropriate discipline in this case and that disbarment is the discipline that will best serve the welfare of the public and the integrity of the bar.

¶ 14 IT IS ORDERED THAT RESPONDENT IS DISBARRED AND HIS NAME SHOULD BE STRICKEN FROM THE ROLL OF ATTORNEYS, THE DISBARMENT TO BE EFFECTIVE FROM THE DATE RESPONDENT WAS SUSPENDED BY THIS COURT’S DECEMBER 3, 2001 ORDER. FURTHER, RESPONDENT IS ORDERED TO PAY THE COSTS OF THIS DISCIPLINARY PROCEEDING IN THE AMOUNT OF $1,473.68 WITHIN NINETY (90) DAYS FROM THE DATE THIS OPINION BECOMES FINAL.

¶ 15 HARGRAVE, C.J., WATT, V.C.J., HODGES, KAUGER, SUMMERS and WINCHESTER, JJ., concur.

¶ 16 OPALA, J., concurs in respondent’s disbarment, but would prefer to make its effective date coincidental with the time the court’s opinion becomes final.

¶ 17 BOUDREAU, J., disqualified.

      . Rule 7 (Summary Disciplinary Proceedings Before Supreme Court) of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch.l, App.l-A, sets out the procedures for summary disciplinary proceedings before this Court. State ex rel. Oklahoma Bar Ass'n v. Willis, 1993 OK 138, 863 P.2d 1211, 1212. Rule 7.1 thereof provides that an attorney who has been convicted of a crime demonstrating their unfitness to practice law shall be subject to discipline. Rule 7.4 provides that if the conviction becomes final without appeal (as here) this Court shall order the lawyer to show cause why a final order of discipline should not be made, and the lawyer may in the interest of explaining his conduct or by way of mitigating the discipline to be imposed submit a brief and evidence tending to mitigate the severity of discipline. Rule 7.4 also allows the attorney's response to the show cause order to make a request for a hearing. In a post-conviction bar disciplinary hearing facts that gave rise to the criminal charge cannot be relit-igated. State ex rel. Oklahoma Bar Ass’n v. Livshee, 1994 OK 12, 870 P.2d 770, 772. In such a hearing, the range of permissible inquiry is confined to issues germane to mitigation or severity of the bar disciplinary sanction to be visited upon the respondent lawyer. Id.

      . An attorney suspended for a period longer than two years or that is disbarred must file a petition for reinstatement with the Clerk of this Court. Rule 11.1 (Petition for Reinstatement), RGDP. Rules 11.1 through 11.7, RGDP, set out detailed procedures regarding the petition and the manner of its handling, including the placement of the burden of proof, by clear and convincing evidence, on the attorney seeking reinstatement. These Rules also make plain that reinstatement is not automatic and a lawyer suspended for more than two years or that is disbarred may be reinstated only upon an order/decision of this Court. In contrast, an attorney suspended for two years or less upon disciplinary charges may resume practice upon expiration of the suspension period by filing with the Clerk an original and two copies of an affidavit affirming they have not engaged in the unauthorized practice of law, otherwise violated the Oklahoma Bar Association (OBA) rules or the terms of the suspension, and no order of this Court is necessary. Rule 11.8 [Reinstatement Without Order After Suspensions of Two (2) Years or Less], RGDP. Material deletions or misrepresentations in the affidavit are grounds for subsequent discipline. Id.

      . When discipline is imposed Rule 6.16, RGDP, provides the costs of the investigation, record and disciplinary proceedings shall be surcharged against the disciplined lawyer, unless remitted for good cause by this Court. No good cause for remission has been shown.

      . We note that at page two of respondent’s response to complainant's brief in chief (filed July 24, 2002) it is stated, "[i]n the interest of judicial economy, respondent adopts the facts contained in the Plea Agreement at pages 5 through 7 previously filed with this Court.” We assume the "Plea Agreement” referred to is a document connected with, submitted in or filed in the federal criminal case. No such "Plea Agreement” has previously been filed with this Court. Nor was it admitted at the Professional Responsibility Tribunal (PRT) trial panel hearing held in April 2002.

      . Although respondent has made restitution, judicial consideration of restitution as a mitigating factor in disciplinary proceedings is apt to create an impression that sanctions are proportioned with one's ability to pay, rather than reviewed upon the seriousness of the misconduct. State ex rel. Oklahoma Bar Ass’n v. Raskin, 1982 OK 39, 642 P.2d 262, 267. Thus, though we have considered his restitution, we do not believe that fact is entitled to much weight.


source: Caselaw Access Project

author: KAUGER, J.

license: Public Domain

text:
    2002 OK 86
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. David C. PHILLIPS III, Respondent.
    No. SCBD 4650.
    Supreme Court of Oklahoma.
    Oct. 29, 2002.

      Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Complainant.
    Allen M. Smallwood, Tulsa, for Respondent.
   KAUGER, J.

¶ 1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, David C. Phillips III, with four counts of professional misconduct: misappropriation of funds; mismanagement of a trust account; misrepresentation in the investigative proceedings; and an unwillingness to cooperative in the grievance process. The trial panel found, and the Bar concedes, that there is insufficient evidence to support the charges of misappropriation and misrepresentation.

¶ 2 Upon a de novo review, we agree and determine that: 1) clear and convincing evidence supports the charges of mismanagement of a trust account and uncooperativeness in the investigative process by being untimely in responding and neglecting to make a full and fair disclosure; and 2) in consideration of the respondent’s misconduct, his lack of a prior disciplinary history, and discipline administered in similar cases, we determine that the respondent should be suspended for thirty days and pay costs of $1,758.91.

FACTS

¶ 3 All counts arise from a relationship with a single client, Dan Cates (Cates), and his medical provider, Kenneth R. Trinidad, D.O. (Trinadad), who filed the grievance. After being injured in an automobile accident on April 23, 1996, Cates retained the respondent who referred him to Trinidad for treatment. Cates incurred approximately $1,500 in medical bills associated with the accident — $440.00 of which were for Trinidad’s services.

¶ 4 The respondent settled Cates’ personal injury case on November 14, 1996, for $3,500.00 and he deposited the settlement cheek in his trust account. According to the respondent’s settlement sheet, disbursals were to be made as follows: $1,038.50 to Cates; $1,166.65 retained for fees; and $1,294.85 withheld as the “total due providers.”

¶ 5 Nevertheless, it is unclear how the settlement funds were actually distributed. Cates’ testimony at the hearing was so confused and contradictory about the settlement transactions that the trial panel and the Bar Association agreed that it was not credible. Although Cates indicated that he only received $436.00 from the respondent, a check was produced which had been drawn on the respondent’s trust account for $1,038.50 and which Cates had endorsed over to a used car dealer. When questioned about the events relating to his relationship with the respondent and the disbursal of funds, Cates admitted that his memory regarding the transaction was faulty. However, he did not allege that the respondent had retained any funds to which he was not entitled.

¶ 6 The respondent testified that although the computations on the settlement sheet reflected the manner in which he intended to disburse the settlement funds, Cates insisted that he be given all funds not earmarked as attorney fees. The respondent agreed and extracted a promise from Cates that he would pay the medical providers. Although the respondent could not produce any documentation to support his testimony either in the form of a check drawn on his trust account or an updated settlement sheet, his version of the facts was bolstered by affidavits and testimony from two of his employees — each of them indicated that the money originally earmarked for disbursal to the medical providers was given to Cates at his insistence and upon his promise that he would take responsibility for making the appropriate payments.

¶ 7 The respondent became aware that Cates had not paid the doctors and hospitals when he began receiving solicitations for payment at his office. Originally, the bills were forwarded to Cates. However, Dr. Trinidad contacted the respondent in 1999 concerning his outstanding bill for $440.00. Although the respondent believed it was Cates’ responsibility to pay the sum, he felt obligated to Dr! Trinidad because he had referred his client to the doctor. Therefore, he tendered a check for $440.00 on his trust account to the doctor on August 17, 1999. The check was returned stamped “unavailable funds.”

¶ 8 Trinidad filed a grievance with the Bar Association on November 23,1999, based on the returned check. The Bar Association forwarded the complaint to the Tulsa County Bar Association (County Bar) for investigation. The County Bar sent the respondent a copy of the complaint on November 24, 1999, requesting a written response within twenty days and explaining that failure to respond timely would result in a referral to the Bar Association for further consideration. On December 20, 1999, the respondent called the County Bar and told the investigator that Trinidad had been paid. The investigator again asked for a written response. When none was forthcoming, the investigator wrote the respondent with a third plea on January 11, 2000. A fourth request was forwarded on March 21, 2000. The respondent finally wrote the County Bar on April 25, 2000. However, the letter contains no information regarding the facts surrounding the grievance. Rather, it simply provides that “appropriate measures have been made and the problem has been corrected.”

¶ 9 With little cooperation from the respondent, the County Bar returned the respondent’s file to the Bar Association which contacted him on January 17, 2001, advising him of Trinidad’s complaint and again asking for a full and fair response within 20 days. The respondent answered the following day — again with a letter simply stating that he thought the matter had been resolved, and that Trinidad had been paid. This letter was followed by two letters from the Bar Association dated February 13th and 15th, 2001. The February 15th letter specifically advised the respondent that his response did not satisfy the requirement for a full and fair disclosure and listed the specific items which the respondent should include in reply. The respondent answered this request by faxing the Bar Association a copy of his settlement computation sheet and a letter to Cates forwarding him one of Trinidad’s bills. The only explanation accompanying the response was a handwritten note on the front of the transmittal sheet indicating that the respondent was “in the process” of ordering the original check made out to Cates and that he was “still looking” for the physical file.

¶ 10 Because of his lack of diligence in responding, the Bar Association took the respondent’s deposition on April 17, 2001. At that time, the Bar Association again requested trust account records and the respondent indicated that he would provide them. On June 5, 2001, the respondent wrote the Bar Association indicating that he had attempted to obtain the trust account records, but that he had been advised by a bank employee that the records were “illegible.” Nevertheless, the Bar Association subpoenaed trust account records from the respondent’s bank for the months of October through December of 1996. When received, the records were easily readable and revealed that the respondent had been using the trust account as his personal checking account and during the time period, four checks had been returned due to insufficient funds. The respondent did supply trust account records for the months of July and August of 1999. These records reflect that a total of fourteen checks were returned for insufficient funds during the two-month period.

¶ 11 The respondent’s only reply of any substance is dated July 11, 2001 — and was supplied only after almost eight months of inquiries and the taking of the his deposition. In the letter, the respondent explained that at least a portion of the checks denied in 1999 resulted from a $9,000.00 deposit which had been put on hold. He also stated that when he was originally contacted about the grievance, he was involved in a complex criminal trial and was out of the office for the majority of a four-month period.

¶ 12 On September 13, 2001, the Bar Association filed this cause as a Rule 6 proceeding. A hearing was conducted before the trial panel on April 17, 2001. On June 10, 2002, the trial panel filed its report. It found clear and convincing evidence to support the charges of mishandling of the trust account and failure to make a full, fair and timely response to the investigation. It recommended that: the respondent be suspended for thirty days; publicly reprimanded; and costs be imposed. The trial panel and the Bar Association agree that the discipline recommended is appropriate and that there is insufficient evidence to support the charges of misappropriation and misrepresentation. The Court ordered briefing cycle was concluded with the Bar Association’s waiver of a reply brief filed on July 30, 2002. On August 1, 2002, the Bar Association’s unopposed application to assess costs was received.

I.

¶ 13 CLEAR AND CONVINCING EVIDENCE SUPPORTS DETERMINATIONS OF MISMANAGEMENT OF A TRUST ACCOUNT AND FAILURE TO COOPERATE IN THE GRIEVANCE PROCESS.

¶ 14 The trial panel and the Bar Association recognize that there is insufficient evidence to support charges of misappropriation and misrepresentation. The respondent, the trial panel and the Bar Association agree that clear and convincing evidence supports the charges of mismanagement of a trust account and uncooperativeness in the investigative process by being untimely in responding and neglecting to make a full and fair disclosure. Upon a de novo review, we agree.

¶ 15 In disciplinary matters, this Court possesses exclusive original jurisdiction. We are not bound by agreed findings, conclusions of law or recommendations for discipline. Rather, the ultimate responsibility for imposition of professional discipline is ours alone. The Court’s review is de novo in considering the record presented as well as the recommendations for discipline. Before we may impose discipline upon an attorney, the charges must be established by clear and convincing evidence.

¶ 16 Three levels of culpability are employed when an attorney mishandles client funds with ascending degrees of seriousness. The least offensive — commingling—occurs when an attorney fails to keep client moneys in an account separate from that of the attorney. The next serious offense — simple conversion — exists when the attorney uses client funds for a purpose other than that for which they are intended. Finally, an attorney commits misappropriation when the lawyer purposefully deprives a client of moneys through deceit and fraud.

¶ 17 The Bar Association failed to establish that the respondent converted or misappropriated client funds or monies earmarked for the payment of providers’ bills. Further, it did not establish that the respondent misrepresented the facts surrounding the settlement procedure. Cates, the only witness presented on the Bar Association’s behalf, was unconvincing. He admitted not having a clear memory of the facts nor did he believe that the respondent appropriated any of his funds. Additionally, the respondent’s testimony was supported by that of two of his employees. By June, 2001, all medical bills had been paid.

¶ 18 A review of bank records reveals clearly that the respondent used his trust account as a personal checking account — commingling client monies with his personal funds and paying ordinary household and other expenses from the account and that he has — with some regularity — issued checks for which there were insufficient funds available. Further, despite a minimum of eight inquiries from investigating officials, the respondent repeatedly failed to respond with detailed facts and circumstances surrounding the grievance. He delayed the provision of trust account records. His explanation that some delay was caused by “illegible” copies is unconvincing considering the Bar Association’s success in retrieving readable records from his banking institution under subpoena. Therefore, we determine that there is clear and convincing evidence of the respondent’s mismanagement of his trust account and his failure to cooperate in the grievance process.

II.

¶ 19 THE MISCONDUCT WARRANTS A THIRTY-DAY SUSPENSION AND THE IMPOSITION OF COSTS.

¶20 Although the Bar Association originally sought a two-year suspension, it now is in agreement with the trial panel that the respondent should be publicly censured, suspended for thirty days and required to pay costs. The respondent asserts that suspension is unwarranted. We disagree.

¶ 21 Discipline is administered to preserve public confidence in the bar. Our responsibility is not to punish but to inquire into and gauge a lawyer’s continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and of the legal profession. Discipline is imposed to maintain these goals rather than as punishment for the lawyer’s misconduct. Disciplinary action is also administered to deter the attorney from similar future conduct and to act as a restraining vehicle on others who might consider committing similar acts. Discipline is fashioned to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct. Although this Court strives to be evenhanded and fair in disciplinary matters, discipline must be decided on a case-by-case basis because each situation involves unique transgressions and mitigating factors.

¶ 22 Discipline in attorney misconduct proceedings with facts similar to those present here has ranged from a public reprimand to a two-year suspension. Discipline should be sufficient to persuade the attorney that such conduct will not be tolerated. Mitigating circumstances may be considered in evaluating both the attorney’s conduct and assessing the appropriate discipline.

¶ 23 In mitigation, we may consider that: no grave economic harm occurred and all medical care providers have now been paid; the respondent has not been previously disciplined; the respondent admits that he engaged in the charges involving mishandling of funds and failure to respond accurately and fully; and the respondent no longer accepts client or third-party funds which negates the need for a trust account. On the other hand, the respondent was never able to produce his client’s file; gave confusing or unconvincing answers concerning his ability to reproduce the settlement sheet; delayed the provision of trust records; used his trust account as a personal checking account; issued a number of checks when funds were unavailable; and was not diligent in responding to the grievance inquiries and repeatedly provided woefully insufficient information.

¶ 24 This Court is the ultimate arbiter of appropriate sanctions in bar discipline cases. We may choose to reject or to accept the trial panel’s recommendations. Here, the trial panel’s suggested sanctions are appropriate. Therefore, we determine that the respondent’s misconduct, his lack of a prior disciplinary history and discipline administered in similar cases warrants a thirty-day suspension and the payment of $1,758.91 in costs.

CONCLUSION

¶25 The nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law is solely vested in this Court. Upon a de novo review of the record, we determine that the respondent mismanaged his trust account and failed to cooperate in the grievance process. The respondent’s misconduct warrants a thirty-day suspension and the payment of $1,758.91 in costs.

RESPONDENT SUSPENDED; COSTS IMPOSED.

All Justices concur.

      . Rules 1.5(b) and 8.4(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A; Rule 1.4(b), Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . Rule 1.15(a) and (b), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A; Rule 1.4(b), Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . Rule 8.1, Rules of Professional Conduct, 5 O.S. 2001, Ch. 1, App. 3-A; Rule 5.2, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . Id.

      . Trial Panel Report, June 10, 2002, providing in pertinent part at p. 2:
      "... Complainant did not carry its burden of proofing [sic] that the Respondent knowingly and willfully misrepresented facts or that Respondent misappropriated funds to his own use...."
      Bar Association’s Brief-in-Chief, July 1, 2002, providing in pertinent part:
      at p. 11 "... The Complaint in this matter was drafted in the belief that (1) the Respondent’s personal and business expenses were being paid out of his trust account with clients' funds and that (2) the Respondent converted the funds retained towards payment of Cates’ medical care providers. The Complainant concedes that these allegations were not established by clear and convincing evidence.... [T]he Complainant has failed to establish the more serious allegations of misappropriation and conversion....”
      at p. 14 "... Upon consideration of Cates’ confusing and contradictory testimony, and the corroboration of two witnesses, the Complainant has not established by clear and convincing evidence that the Respondent was to pay Trinidad. The Complainant has, consequently, failed to establish the serious allegations (1) that the Respondent misappropriated those funds, and (2) then misrepresented the facts of the matter to the Bar.... ”
      Admissions in the brief may be regarded as a supplement to the appellate record. Keating v. Edmondson, 2001 OK 110, ¶ 9, 37 P.3d 882; World Publishing Co. v. White, 2001 OK 48, ¶ 19, 32 P.3d 835; Oklahoma Urban Renewal Auth. v. Medical Technology & Research Auth. of Oklahoma, 2000 OK 23, ¶ 14, 4 P.3d 677.

      . State ex rel. Oklahoma Bar Ass'n v. Erickson, 2001 OK 66, ¶ 14, 29 P.3d 550; State ex rel. Oklahoma Bar Ass’n v. Israel, 2001 OK 42, ¶ 13, 25 P.3d 909; State ex rel. Oklahoma Bar Ass’n v. Smolen, 2000 OK 95, ¶ 7, 17 P.3d 456.

      . Rule 6.12, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Wolfe, 1997 OK 47, ¶ 1, 937 P.2d 988; State ex rel. Oklahoma Bar Ass’n v. Meek, 1996 OK 119, ¶-, 927 P.2d 553; State ex rel. Oklahoma Bar Ass'n v. Holden, 1995 OK 25, ¶ 1, 895 P.2d 707.

      . Rule 6.12, Rules Governing Disciplinary Proceedings, see note 7, supra; Rules 6.6, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . The respondent also filed a chapter 13 bankruptcy proceeding on behalf of Cates and his wife on May 23, 1996. Because no chapter 13 plan was prepared, the cause was dismissed on June 19th of the same year. On the same day that the respondent settled the personal injury case, November 14, 1996, the respondent filed a chapter 7 bankruptcy for the Cates. Neither the lawsuit nor the settlement were listed in the bankruptcy forms and no amounts due to medical providers were itemized as debts. Whether the Bar Association initially intended to pursue these facts as an ethical violation is unclear. Nevertheless, it is apparent that, at the time of the hearing, no such contention was presented to the trial panel. Transcript of proceedings, April 2, 2002, providing in pertinent part at pp. 127-28:
      "... MR. MORGAN: Mr. Welch, let me ask you a couple of questions if I may. Is the Bar contending that Mr. Phillips violated any disciplinary rules by filing the petition in bankruptcy without listing the assets or the creditors? MR. WELCH: We did not allege that in the complaint. I am reluctant, as I have visited with Mr. Smallwood about in the past, to at a hearing generate new allegations of new violations of different rules of professional conduct. The Supreme Court has on at least one occasion called me to task for that. I try to pay attention. I also think the Supreme Court— you can recommend what you want. The Supreme Court can find what they choose. It could be argued that that is evidence of incompetence and I think it’s either incompetence or evidence as I mentioned in my closing argument to corroborate what we allege, that he obtained the funds for the medical care providers.
      MR. MORGAN: But there’s no separate allegation concerning those facts as a disciplinary violation of any particular disciplinary rule?
      MR. WELCH: That is correct, sir...."

      .Trial panel report, June 10, 2002, providing in pertinent part at p. 3:
      "... The Complainant called the former client, Dan Cates, as a witness. Mr. Cates’ testimony in [sic] unreliable and quiet [sic] confused. Mr. Cates testified that he only received $436 from the Respondent in connection with the settlements. This is contradicted by evidence that Mr. Cates took a check in the amount of $1,038.50 to a used car lot and purchased an automobile with that check.... When confronted by the documentary evidence Mr. Cates admitted that he and his wife endorsed the check in the amount of $1,038.50 over to a Clayton Jackson to purchase a car.... Mr. Cates’ testimony was so confused and contradictory that it is impossible to draw any meaningful conclusions from his testimony....”
      The Complainant’s brief in chief, July 1, 2002, provides in pertinent part at pp. 5-6:
      "... Only Cates disputes the testimony of the Respondent and his secretaries. And Cates’ testimony is contradictory and not believable. Cates recalled that the Respondent was responsible for all medical care providers.... He also testified that, although he endorsed the check for $1038.50, the Respondent retained that check ... and instead gave him a check for $436 ... which he used to buy a car.... The $1038.50 check from the Respondent to Cates was endorsed not by Respondent but by a Clayton Jackson ('Jackson').... Counsel for the Complainant established that Jackson, a used car dealer, endorsed the $1038.50 check and then applied that sum towards the purchase of an automobile.... Cates testified that he didn’t 'know how (Jackson’s signature) got there'.... Cates admitted that his memory was not real good ... and that he might not remember exactly what happened....”

      . Transcript of proceedings, April 2, 2002, Dan Cates testifying in pertinent part at:
      p. 37 "... Q Your memory is not real good about all this stuff, is it?
      A Huh-uh....”
      p. 39 "... Q If it was drawn on Mr. Phillips' trust account, it would be part of the trust account records. Could it be a lot of this stuff, Mr. Cates, you just don’t remember correctly because of the stress you were under?
      A It could be, you know. It could be on that because just what I can remember, you know, of what went on.... ”

      . Transcript of proceedings, April 2, 2002, Dan Cates testifying and providing in pertinent part at:
      p. 32 "... Q If that in fact happened, you're not claiming that Mr. Phillips kept any of your money at all?
      A No.
      Q So the only argument you have with Mr. Phillips is that you claim that Mr. Phillips said he would pay Dr. Trinidad and didn’t do so at least on a timely basis; is that correct?
      A Right....”
      p. 40 "... Q Just so the Record is clear, even if the facts are as you say they are, Mr. Phillips never kept any of your money?
      A Not that I recollect.... ” ■

      .Affidavit of Phyllis McConah, April 16, 2001, providing in pertinent part:
      ". . That at the time of Mr. Dan Cate’s settlement, he requested that he be allowed to pay his medical bills as he had a dire financial emergency.
      That I prepared the settlement computations sheet. That after preparing the sheet, Mr. Cates expressed the desire to pay the medical providers himself....”
      Affidavit of Beverly Jo Wagner, April 9, 2001, providing in pertinent part:
      "... That I was aware that, at the time of Mr. Dan Cate’s settlement, he requested that he be allowed to pay his medical bills as he had a dire financial emergency.
      That, due to his financial problems, David C. Phillips dispersed the monies to him with the understanding that he would make arrangements to pay the medical providers...."
      Transcript of proceedings, April 2, 2002, Beverly Wagner testifying and providing in pertinent part atpp. 96-97:
      "... Q What was your understanding of who was to be responsible for paying the medical providers?
      A Mr. Cates.
      Q And how did you arrive at that understanding?
      A The money was given to him because he was in such dire straits was my understanding.
      Q And he was supposed to use that to pay the medical providers?
      A Was to make arrangements with them to make the payments, yes.... ”
      Transcript of proceedings, April 2, 2002, Phyllis McConaha testifying and providing in pertinent part atpp. 106-07:
      "... Q And do you recall if there was any understanding with David Phillips and the Cates as to who was to be responsible for paying the medical providers, specifically including Dr. Kenneth Trinidad?
      A I will tell you what — tell the tribunal what I told you and Mr. Welch is I started to prepare that document and I was told by David not to do that, that David was going to just go ahead and give Mr. Cates the money and that Mr. Cates would then be responsible to pay the providers...”

      . Rule 3.2(i), Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . Rule 5.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . Complainant’s Exhibit 7 is a letter from Jeff McGrew, who evidently offices with the respondent, indicating that a check is being forwarded in the amount of $440.00 for payment of the Cates’ claim.

      . The Bar Association's February 15th, 2001, letter provides in pertinent part:
      "... I would suggest that your response include, but not be limited to, the following, which might prevent our need to take your deposition regarding this matter:
      1. Background information about the case and client involved.
      2. Complete information regarding the settlement of the case.
      3. Bank records showing deposit of any settlement checks, and copies of all monthly statements from time of deposit of the settlement checks until final payment of all amounts due to all parties.
      4. Copies of settlement statement and any releases.
      5. Copies of any relevant court documents, if a case was filed.
      6. Copies of checks for any and all distributions of settlement funds.
      7. A complete explanation of why you had a check drawn on your trust account returned for insufficient funds....”

      . Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . Rule 1.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Holden, see note 7, supra; State ex rel. Oklahoma Bar Ass’n v. McMillian, 1989 OK 16, ¶ 5, 770 P.2d 892.

      . State ex rel. Oklahoma Bar Ass'n v. Erickson, 2001 OK 66, ¶ 14, 29 P.3d 550; State ex rel. Oklahoma Bar Ass'n v. Israel, see note 6, supra.

      . State ex rel. Oklahoma Bar Ass’n v. Israel, see note 6, supra; State ex rel. Oklahoma Bar Ass’n v. Bolusky, 2001 OK 26, ¶ 14, 23 P.3d 268; State ex rel. Oklahoma Bar Ass’n v. Dershem, 2001 OK 7, ¶ 12, 21 P.3d 639.

      . Rule 6.12, Rules Governing Disciplinary Proceedings, see note 7, supra; State ex rel. Oklahoma Bar Ass’n v. Wolfe, see note 7, supra; State ex rel. Oklahoma Bar Ass'n v. Meek, see note 7, supra; State ex rel. Oklahoma Bar Ass’n v. Holden, see note 7, supra.

      . State ex rel. Oklahoma Bar Ass’n v. Dunlap, 1994 OK 81, ¶¶ 13-16, 880 P.2d 364; State ex rel. Oklahoma Bar Ass'n v. Cummings, 1993 OK 127, ¶¶ 23-25, 863 P.2d 1164.

      . See ¶¶ 5-6 and accompanying footnotes, supra.

      . State ex rel. Oklahoma Bar Ass'n v. Smith, 1980 OK 126, ¶ 21, 615 P.2d 1014; State ex rel. Oklahoma Bar Ass’n v. Lowe, 1982 OK 20, ¶ 19, 640 P.2d 1361.

      . State ex rel. Oklahoma Bar Ass'n v. Cummings, see note 23 at ¶ 19, supra; State ex rel. Oklahoma Bar Ass’n v. Hall, 1977 OK 117, ¶ 12, 567 P.2d 975.

      . State ex rel. Oklahoma Bar Ass'n v. Patterson, 2001 OK 51, ¶ 29, 28 P.3d 551; State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, ¶ 0, 914 P.2d 644; State ex rel. Oklahoma Bar Ass'n v. Bolton, 1994 OK 53, ¶ 16, 880 P.2d 339.

      . State ex rel. Oklahoma Bar Ass’n v. Doris, 1999 OK 94, ¶ 38, 991 P.2d 1015; State ex rel. Oklahoma Bar Ass’n v. Rozin, 1991 OK 132, ¶ 10, 824 P.2d 1127.

      . State ex rel. Oklahoma Bar Ass'n v. Simank, 2001 OK 13, ¶ 20, 19 P.3d 860 [Persistent failure of an attorney to respond in grievance proceedings and uncooperativeness in the process sufficient for imposition of a public reprimand.]; State ex rel. Oklahoma Bar Ass'n v. Abbott, 2000 OK 64, ¶ 16, 11 P.3d 1239 [Public censure and payment of costs imposed for negligently commingling personal and trust account funds and failing to respond to the Bar Association's inquiry where the attorney also suffered from depression, acknowledged his wrongdoing and showed remorse.]; State ex rel. Oklahoma Bar Ass'n v. Taylor, 2000 OK 35, ¶ 36, 4 P.3d 1242 [Attorney suspended for thirty days for mishandling insurance settlement proceeds belonging to a physician, failing to properly supervise employees and failing to timely and accurately respond to a grievance.]; State ex rel. Oklahoma Bar Ass’n v. Dunlap, see note 23 at ¶¶ 23-25, supra [Mismanagement of a trust account warranted a public censure where the attorney fully cooperated in the grievance process.]; State ex rel. Oklahoma Bar Ass'n v. McManus, 1993 OK 66, ¶ 13, 852 P.2d 727.[Public censure and payment of costs imposed where attorney failed to respond to a grievance, commingled personal funds in a trust account and neglected client matters and the discipline was recommended by both the trial panel and the Bar Association.]; State ex rel. Oklahoma Bar Ass’n v. Payne, 1988 OK 1, ¶¶ 4-6, 748 P.2d 989 [Failure to deposit client funds in a trust account sufficient to impose a public reprimand and the payment of costs.]; State ex rel. Oklahoma Bar Ass’n v. Hensley, 1977 OK 23, ¶ 12, 560 P.2d 567 [Attorney suspended for two years on charges of commingling where clients were deprived of their funds for approximately four months.]; State ex rel. Oklahoma Bar Ass’n v. Kamins, 1977 OK 103, ¶¶ 7-8, 568 P.2d 627 [The same discipline was imposed under similar circumstances where the, client was deprived of funds for a period of one year.].

        .State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 1997 OK 55, ¶ 15, 938 P.2d 744.

      . State ex rel. Oklahoma Bar Ass’n v. Southern, 2000 OK 88, ¶ 35, 15 P.3d 1; State ex rel. Oklahoma Bar Ass'n v. Taylor 2000 OK 35, ¶ 33, 4 P.3d 1242.

      . Restitution, in and of itself, will not mitigate the need for discipline. State ex rel. Oklahoma Bar Ass’n v. Raskin, 1982 OK 39, ¶ 19, 642 P.2d 262.

      . State ex rel. Oklahoma Bar Ass’n v. Rennie, 1997 OK 108, ¶ 20, 945 P.2d 494; State ex rel. Oklahoma Bar Ass’n v. Butler, 1992 OK 150, ¶ 9, 848 P.2d 540.

      . State ex rel. Oklahoma Bar Ass’n v. Rennie, see note 34, supra; State ex rel. Oklahoma Bar Ass’n v. Wilkins, 1995 OK 59, ¶ 12, 898 P.2d 147.

      . The Bar Association, submitted an application to assess costs of $1,758.91. The costs are itemized and copies of the bills associated with the proceeding are attached to the application. The respondent has not filed a response to the application. He is responsible for the costs of the disciplinary proceeding. Rule 6.16, Rules Governing Disciplinary Proceedings, see note 8, supra.

      . State ex rel. Oklahoma Bar Ass'n v. Holden, see note 7, supra; State ex rel. Oklahoma Bar Ass’n v. Farrant, 1994 OK 13, ¶ 8, 867 P.2d 1279; Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, ¶ 4, 624 P.2d 1049.


author: HODGES, J.

text:
    2002 OK 91
    Jennifer Ann KERBY, Plaintiff/Appellee, v. Robert Christopher KERBY, Defendant/Appellant.
    No. 95,199.
    Supreme Court of Oklahoma.
    Nov. 26, 2002.

      M. Joe Crosthwait, Roger Terrell Reneau, Midwest City, OK, for the Appellant.

      William Edward Liebel, James Thomas Gorton, Oklahoma City, OK, for the Appel-lee.
   HODGES, J.

¶ 1 There are two issues presented for this Court’s review: (1) In cases where the parent’s combined income exceeds the child support guideline table (above table cases), whether a substantial increase in one parent’s income is a material change of circumstances allowing review of an existing child support award without a showing of change in children’s needs; and (2) Whether the appellee is entitled to appeal-related attorney fees. We answer both issues in the affirmative.

I. FACTS

¶2 When Jennifer Ann Kerby (Mother) and Robert Christopher Kerby (Father) were divorced in 1995, they had two minor children. At that time, the parties’ combined monthly income exceeded $10,000.00 per month, the maximum addressed by the child support guideline table. See Okla. Stat. tit. 43, § 119 (1991). Father’s income was approximately $125,000.00 a year, and Mother’s income was about $21,000.00 a year. Father’s share of support was calculated at ninety percent of the total. At the time of the ■ existing award, Father’s monthly payment to Mother for child support would have been more than $1,422.46 including the $216.00 payment for child care according to the child support guideline worksheet attached to the judgment. The parties entered into an agreement providing that Father would pay $1,500.00 per month in child support. Payment of the children’s medical insurance was deducted from the. amount owed Mother for support. Father additionally agreed to pay for the children’s college tuition and fifty percent of the their equestrian activities. Plus, he agreed to maintain a life insurance policy for the children’s benefit until both children reached twenty-two years of age. Mother’s income has not substantially changed since the $1,500.00 award. Father’s income has increased to about $500,000.00 a year. Father continues to pay the $1,500.00 even though Mother no longer pays child care fees.

¶ 3 In June of 1999, Mother filed a motion to modify the child support based on the increase in Father’s income. Mother asserted that this increase resulted in a material change of circumstances warranting modification of child support and that an increase in child support would be in the children’s best interest by enhancing their lifestyle.

¶ 4 Father filed a response and cross-motion to modify. Father asserted, among other things, that the current child support amount was more than sufficient to meet the children’s reasonable needs. Father claimed that because the needs of the children had not increased since the divorce, the court lacked authority to modify the existing award. The only issue presented for this Court’s review is the court’s authority to modify the existing award.

¶ 5 The trial court denied both parent’s motions to modify the monetary award of child support. Mother appealed the trial court’s decision again asserting that a substantial increase in one party’s income alone is a material change of circumstances warranting modification of the child support award. The Court of Civil Appeals agreed with Mother and remanded the issue back to the trial court for further proceedings. We granted Father’s petition for certiorari.

II. A DISTRICT COURT’S AUTHORITY TO MODIFY

¶ 6 There are two steps in the process of a child support award’s modification. Before a court has authority to review an existing child support award, there must have been a material change in circumstances. Okla. Stat. tit. 43, § 118(E)(16)(a)(l) (2001). After establishing a material change of circumstance, the moving party must show that, under the facts, modification of the existing award is warranted. Huchteman v. Huchteman, 1976 OK 174, ¶ 27, 557 P.2d 427, 430.

¶ 7 Oklahoma has established child support guidelines which follow the income-shares approach model for calculating child support amounts. See Okla. Stat. tit. 43, §§ 118, 119. (2001). The guideline table establishes the financial needs of children based on their parents’ ability to pay. Id.; Archer v. Archer, 1991 OK Civ App 28, ¶ 9, 813 P.2d 1059 (approved for publication by the Supreme Court). When parental income exceeds the guideline table, the children’s minimum financial needs are set by the guidelines and needs over the minimum are based upon the circumstances of each case. Okla. Stat. tit. 43, § 119(B) (2001); Archer, 1991 OK Civ App 28 at ¶ 10, 813 P.2d at 1061. Though not exhaustive, in cases where the combined income exceeds the table, the trial court should consider three factors in its initial award: (1) the children’s needs, (2) the parents’ ability to pay, and (3) prior standard of living. In cases that fall within the table, these factors are determined by use of the table with little discretion for deviation. Where the parents’ income exceeds the maximum addressed by the table, a determination of the children’s needs and the parents’ ability to pay in excess of the tables’ standards are within the trial court’s discretion. Okla. Stat. tit. 43, § 119(B) (2001).. In cases where the parents’ income falls within the guideline table, as well as those whose incomes exceed the table, each parent’s income is a factor in apportioning the responsibility for meeting the children’s needs. The parents’ income is a substantial factor considered in the initial child support award because it impacts the decision regarding the children’s needs and the determination of the amount of financial responsibility each parent should bear. Because the parents’ income is a fundamental factor in the initial award, a significant change in the income is material even where there is no change in the children’s needs.

¶ 8 In Stephen v. Stephen, 1997 OK 53, ¶ 12, 937 P.2d 92, 97, this Court recognized that a significant change of income, without a showing of change in need, warranted modification of a child support award. In Stephen, the mother had been awarded primary custody of the children with the parents agreeing to the amount of support the father would pay. Subsequently, the mother decided to remove the children from the public school system and home school them. The decision resulted in her income decreasing from $50,000.00 at the time of the existing award to no income. She moved to increase the monetary amount of child support. The trial court imputed $50,000.00 income to the mother, the amount allocated to her under the existing award. This Court found that imputing $50,000.00 income to the mother was an abuse of discretion, reversed the trial court, and ordered the trial court to set a fair and equitable amount of child support. By implication, the significant decrease in the mother’s income was a circumstance warranting review and modification of the existing award in a case falling within the guideline table. Similarly, a significant increase in a parent’s income is a material change of circumstance warranting review of an existing award. Because income is a factor used for setting child support in cases falling within the guideline table as well as cases where the parents’ income exceeds the table, a significant change in a parent’s income alone is a material change of circumstance warranting review of an existing child support award.

¶ 9 Some jurisdictions have legislatively defined the amount of income variation which would give rise to a material change in circumstances. Oklahoma does not have a statutorily defined amount of change in a parent’s income, deviation from an existing award, or deviation from the guideline table which would constitute a material change of circumstance. The Oklahoma Legislature has left the courts with discretion to determine the amount of change in income which would be material. Okla. Stat. tit. 43, § 119(B) (2001). In the present case, Father’s income has increased four hundred percent from about $125,000.00 a year to $500,000.00 a year. This significant increase is a material change in circumstances allowing review of the existing award.

¶ 10 Father argues the mere change in income does not require modification of the monetary award. We agree. A trial court is not obligated to modify an award when a material change has occurred but must consider all the relevant factors including the needs of the children at the time of the modification and the parents’ income.

¶ 11 Father’s income has increased nearly four times what it was at the time of the divorce. Courts are not required to provide opulence and excess in an award for child support. If a custodial parent’s income significantly increases, the children will surely benefit by an enhanced lifestyle. Likewise, the children should benefit from a significant increase in a non-custodial parent’s income. Therefore, it was error for the trial court to exclude Mother’s evidence of the children’s projected needs. Okla. Stat. tit. 12, § 2402 (2001). On remand, the trial court should consider the children’s needs at the time of the modification, not at the time of the decree and determine whether modification of the current amount of child support is warranted.

III. APPEAL-RELATED ATTORNEY FEES

¶ 12 Mother has filed a motion for appeal-related attorney fees. “Appeal-related attorney fees are recoverable when there is statutory authority for the award of attorney fees in the trial court.” Daniel v. Daniel, 2001 OK 117, ¶ 24, 42 P.3d 863, 872. Title 43, subsection 110(D) of the Oklahoma Statutes provides: “Upon granting a decree of divorce or separate maintenance, the court may require either party pay such reasonable expenses of the other as may be just and proper under the circumstances.” This provision has been applied in requests for modification of existing orders for child support. Daniel, 2001 OK 117, 42 P.3d 863.

¶ 13 An award of appeal-related attorney fees is not dependant on prevailing party status but whether equities warrant the award. Id. .at 2001 OK 117 at ¶ 24, 42 P.3d at 872. Relevant factors are the financial means of a party and whether one party’s claims are frivolous. Abbott v. Abbott, 2001 OK 31, ¶ 12, 25 P.3d 291, 294.

¶ 14 In the present case, Mother asserts that an award for appeal-related attorney fees is warranted based on the non-frivolous nature of her claim and her current financial condition. While Father, on the other hand, asserts that an award for appeal-related services is not warranted. Without citing authority, Father claims that the financial condition of the parties should play no role in the Court’s determination of an award.

¶ 15 In the present case, Mother’s motion to modify was not frivolous. Father’s increase in income was a significant change in circumstances, giving rise to Mother’s motion to modify. Further, there is considerable disparity in the respective incomes and net worth of the parties. Based on these equitable considerations, we find that appeal-related attorney fees should be awarded Mother at an amount determined by the trial court on remand.

IV. CONCLUSION

¶ 16 The significant increase in Father’s income was a material change of circumstances allowing the court to review the existing child support award. Although a factor in determining whether a change in the amount of child support is appropriate, a showing of the change in the children’s needs was not necessary for the court to have authority to review the existing award. The trial court erred in excluding evidence of the children’s projected needs based on the increase in Father’s income. The Court of Civil Appeals’ opinion is vacated. The judgment of the trial court is reversed. The matter is remanded to the trial court for a determination of whether a modification of the existing child support order is warranted and, if so, in what amount considering evidence of the children’s projected expenses.

COURT OF CIVIL APPEALS’ OPINION VACATED; JUDGMENT OF TRIAL COURT REVERSED; CASE REMANDED WITH INSTRUCTIONS.

¶ 17 WATT, V.C.J., LAVENDER, OPALA, BOUDREAU, WINCHESTER, JJ., concur.

¶ 18 KAUGER, SUMMERS, JJ., concur in result.

      . Ariz.Rev.Stat. § 25-320(b) (2001) (Fifteen percent or more deviation from amount of existing award "is considered prima facie evidence of substantial and continuing change of circumstances.”); Colo.Rev.Stat. § 14-10-122 (2001) (A less than ten percent change in amount of monthly support is "deemed not to be a substantial and continuing change of circumstances” implies that a change of ten percent or more is a substantial and continuing change of circumstance.); Conn. Gen.Stat. § 46b-86(a) (2001) (A fifteen percent or more deviation from the guidelines creates a rebuttable presumption.); D.C.Code Ann. § 16-916.01 (2001) (A deviation which results in a fifteen percent or more variation from the previous award creates a presumption of "a substantial or material change of circumstances warranting- a modification."); 750 Ill. Comp. Stat. 5/510 (2001) ("An order for child support may be modified ... upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines."); Ky. Rev.Stat. Ann. § 403.213(2) (Banks-Baldwin 2001) (A modification which would result in a fifteen percent or more monthly award "shall be rebuttably presumed to be a material change in circumstances.”); Me.Rev.Stat. Ann. tit. 19A, § 2009 (2001) (A fifteen percent variation from support obligation determined under the state’s guidelines is considered a substantial change in circumstances.); Minn.Stat. § 518.64 (2001) (A minimum of twenty percent and $50 a month difference between the existing award and an award calculated under the guidelines creates a presumption of a substantial change in circumstances.); Mo.Rev.Stat. § 210.845 (2001) (A twenty percent deviation from existing amount of support is prima facie evidence of change of circumstances.); N.M Stat. Ann. § 40-4-11.4(A) (2001) (A deviation of more than twenty percent of existing support obligation after one year from previous award creates presumption of material and substantial change in circumstance.); Tex. Fam.Code Ann. § 156.401(a)(2) (2001) (Modification of support is warranted by twenty percent or $100 deviation from current monthly guidelines.); Utah Code Ann. § 78 — 45—7.2(7)(b)(iii) (2001) (A substantial change in circumstances include "material changes of 30% or more in the income of a parent.''); Wyo. Stat. Ann. § 20-2-311 (Michie 2001) (If application of "presumptive child support” to parents' circumstances changes current monthly amount by twenty percent or more, "the court shall consider there to be a change of circumstances sufficient to justify the modification.”). Of these, only the Texas statute addresses a change in income. The other statutes apply only if there is a deviation from the states' guideline.


text:
    2002 OK CR 38
    W.L.A., Appellant, v. STATE of Oklahoma, Appellee. J.L.W., Appellant, v. STATE of Oklahoma, Appellee.
    Nos. J-2002-875, J-2002-874.
    Court of Criminal Appeals of Oklahoma.
    Dec. 4, 2002.
   ACCELERATED DOCKET ORDER

¶ 1 On February 11, 2002, W.L.A. and J.L.W. were charged as Youthful Offenders in Oklahoma County District Court Case No. CF-2002-765 with the following crimes:

Counts I, II and III — Rape in the First Degree
Counts IV, Y and VI — Kidnapping
Count VII — Robbery with Firearms
Counts VIII (W.L.A.) and IX (J.L.W.)— Assault while Masked or Disguised
Count X (W.L.A.) — Concealing Stolen Property
Counts XI and XII (W.L.A.) — Possession of a Controlled Dangerous Substance (Cocaine and Marijuana)
Count XIII (W.L.A.) — Unauthorized Use of a Vehicle
Count XIV — Attempted Kidnapping
Count XV — Attempted Robbery with Firearms

¶2 On May 30, 2002, the State filed an Amended Information adding the following counts against “W.L.A. acting jointly with an unknown Black male”:

Count XVI (W.L.A.) — Robbery with Firearms
Count XVII (W.L.A.) — Kidnapping
Count XVIII (W.L.A.) — Assault While Masked or Disguised
Count XIX (W.L.A.) — Attempted Robbery with Firearms

Appellants appeal the District Court’s order denying their motions to be certified as juveniles and the District Court’s order granting the State’s motions for imposition of adult sentences.

¶3 Pursuant to Rule 11.2(A)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002), this appeal was automatically assigned to the Accelerated Docket of this Court. The propositions of error were presented in oral argument on October 3, 2002, pursuant to Rule 11.2(F). At the conclusion of oral argument, this Court voted to AFFIRM the order of the trial court.

¶ 4 In their first assignment of error, Appellants argue the trial court committed error in failing to rule on their motions to be certified as juveniles before binding them over for trial.

¶ 5 The record reveals that at the preliminary hearing on May 17, 2002, the Honorable Nan J. Patton, Associate District Judge, overruled demurrers to the evidence from both defendants and found probable cause existed for all the counts alleged in the Information. The court then observed that motions to be certified as juveniles, filed by both Appellants, required a hearing to be held before a formal bind-over could occur. Neither defense counsel entered an objection to' the procedure announced by the court.

¶ 6 The next appearance of the parties was June 7, 2002, wherein the motions for juvenile certification were argued. Again, no objections were entered at this hearing by either Appellant. During that hearing, the question was raised by defense counsel as to whether Judge Patton, being the same court hearing the preliminary hearing and ruling on the motions to certify as a juvenile, could also hear and rule on the state’s motions to impose adult sentences. The court took the matter under advisement. At the conclusion of that hearing, the court denied both Appellants’ motions to be certified as juveniles, but made no bind-over order.

¶ 7 The matter was continued to July 2, 2002, and the court entered a bindover order for both Appellants at the beginning of the hearing. At the conclusion of the same hearing, the court granted the State’s motions for imposition of adult sentences for both Appellants.

¶ 8 Appellants argue the trial court erred when it made a finding of probable cause, before entertaining their motions to be certified as juveniles. Appellants equate the court’s finding of probable cause to a defacto bind-over order, and argue that in binding them over for trial, the court lost jurisdiction over the case. In further support of their argument, Appellants cite 10 O.S.2001, § 7306-2.5(D) which provides “the court shall rule on any motions for certification as a youthful offender or juvenile before ruling on whether to bind the accused over for trial.”

¶ 9 The record reveals the trial court did make a finding of probable cause for the charges before hearing the motions to certify as juveniles. The record also reveals the trial court did not bind Appellants over for trial until after denying their motions to certify. Thus, as required by statute, the trial court ruled on the motions to certify before making any bind-over order. In addition, we reject Appellants’ argument as a non sequi-tur. We find the trial court was correct in making a finding that probable cause existed before proceeding with the motions to certify. Obviously, if the State had not established probable cause, some or all of the • charges would have been dismissed, and there would have been no reason to proceed with the motions to certify. This proposition of error is without merit.

¶ 10 In the second assignment of error, Appellants argue that after binding them over for trial, the court, acting as magistrate, erred in hearing the State’s motion to impose adult sentences, rather than allowing that decision to be made by the trial court.

¶ 11 The procedure utilized by Judge Patton presents an issue of first impression for this Court. Typically, the State of Oklahoma files its motion(s) for imposition of adult sentence no later than thirty (30) days following a defendant’s formal arraignment, pursuant to 10 O.S.2001, § 7306-2.8(A)(l). After that filing is made, a hearing is then scheduled by the trial court to hear the State’s motion. See 10 O.S.2001, § 7306-2.8(B). Once that hearing in concluded, the order certifying or denying certification for imposition of an adult sentence is appealable to this Court. See 10 O.S.2001, § 7306-2.8(E). This procedure often involves delays and takes several months to complete, which is never to a juvenile’s advantage. In that vein, this Court has repeatedly criticized such delays and stressed that time is of the essence and the purpose of the statutory scheme is to accelerate juvenile proceedings. See J.R.L. v. State, 2000 OK CR 26, ¶ 11, 17 P.3d 1041, 1043.

¶ 12 In the case at bar, the State filed its motions for imposition of adult sentences before formal arraignment, indeed, before a bind-over order had even been entered by Judge Patton. Thus, the State’s motions for imposition of adult sentences and Appellants’ motions for certification as juveniles were both pending before Judge Patton before a bind-over order had been entered. During her ruling overruling defense counsel’s objections, Judge Patton expressed reservations about passing the State’s motions to another court that had not observed the witnesses and heard the preliminary hearing testimony/evidence.

¶ 13 The advantages of the procedure utilized in this case are obvious! First, the timeframe for the decision(s) to be made, i.e., certification as a juvenile and/or certification for imposition of adult sentence, is greatly accelerated. This is undoubtedly to the juvenile’s advantage because it increases the chance of having meaningful time remaining for amenability to treatment and/or rehabilitation. Secondly, this procedure eliminates the redundancy inherent in the current process wherein once the State files a motion for imposition of adult sentence, the trial court has to schedule a hearing and revisit the evidence already presented and heard by the magistrate.

¶ 14 Some are concerned that the disadvantage of the procedure utilized in this case is the opportunity for judge shopping. However, we believe this to be a straw man argument. First, under the current procedure in Oklahoma County, the State has no control over which District Judge is assigned to a felony case and generally would not know the assigned judge until formal arraignment. Secondly, it appears to be to a juvenile’s advantage that a judge more familiar with the juvenile justice system make the decision of amenability to treatment and/or rehabilitation. Thirdly, it is not the procedure utilized in this case that creates an opportunity for judge shopping. That opportunity, to the extent it even exists, is already present. The State merely waits until after formal arraignment to file its motion and is thereby guaranteed the motion will be heard by a District Court judge. Finally, as dis-

cussed above, the current procedure often leaves a juvenile little time, if any, for treatment and/or rehabilitation — a factor always weighed against the juvenile. See 10 O.S. 2001, § T306 — 2.8(C)(2)(f)*

¶ 15 While this Court has recognized that a written bind-over order in a preliminary hearing involving an adult exhausts the jurisdiction of a magistrate over a criminal matter, juvenile cases are uniquely different from routine criminal cases. Historically, our case law was developed prior to court reorganization in 1968 when courts had delineated jurisdiction. Once our unified district court, with general jurisdiction, was established much of that distinction no longer exists. However, we continue to apply that case law in adult felony prosecutions, as it has become an accepted part of our criminal jurisprudence. Juvenile cases involve statutory guidelines, requirements and timelines not applicable to adult felony cases. See 10 O.S.2001, § 7306-1.1, et seq.

¶ 16 As such, we FIND that if the State elects to file a motion for imposition of adult sentence while the matter is still pending before a magistrate, that magistrate has jurisdiction'to decide the motion by making the requisite findings of fact and conclusions of law. However, any such motion SHALL be filed at least fourteen (14) days prior to the start of the preliminary hearing. Any ruling by the magistrate certifying or denying certification for imposition of an adult sentence shall be a final order, appealable to this Court when entered. See 10 O.S.2001, § 7306-2.8(E). Further, the State can only file the motion for adult sentencing one time, and, if a motion is filed and argued to the magistrate, such motion cannot later be refiled and heard by another judge, i.e., the trial court after formal arraignment. However, if the State elects to file the motion for adult sentencing in the District Court after bind over, it must be filed no later than thirty (30) days following formal arraignment as required by 10 O.S.2001, § 7306-2.8(A)(l).

¶ 17 In their third assignment of error, Appellants argue the trial court erred in not completing the preliminary hearing within the 90 days allotted by 10 O.S.2001, § 7306-2.5(0(2). The record reveals the criminal Informations were filed against Appellants on February 11, 2002. While commenced within the statutory time frame, the preliminary hearing was concluded on May 17, 2002, 95 days later. The record reveals no objection was ever entered by either Appellant to the five extra days. Therefore, we find this issue has been waived. Moreover, Appellants have neither argued, nor demonstrated any prejudice in the slight delay. See J.R.L, 2000 OK CR 26, ¶ 11, 17 P.3d at 1043.

¶ 18 Finally, W.L.A. argues the trial court erred in allowing a written' statement by the State’s expert witness to be entered into evidence, over objection that the statement violated W.L.A’s constitutional rights.

¶ 19 The record reveals Dr. Jones’ neurop-sychological report on W.L.A. was admitted, without objection, as Defendant’s Exhibit 1. Later, the State moved to introduce the addendum to Dr. Jones’ certification study, which contained the following finding, “[W.L.A.] was moderately open in discussing his background and behavior but he displayed a strong tendency to describe himself in the best possible light and to minimize involvement in perceived negative actions. This could represent relative innocence, but if he is guilty of the charges, would demonstrate an exceptionally strong defense system which would reduce his amenability to treatment.”

¶ 20 Appellant objects to this addendum on 5th Amendment grounds because Appellant had been instructed “to not talk about this charge.” We find no error. The purpose of this report/addendum at this hearing was not for determining W.L.A.’s guilt or innocence, but rather, his possible amenability to treatment.

¶ 21 IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Oklahoma County is AFFIRMED.

¶ 22 IT IS SO ORDERED.

¶ 23 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 4th day of December, 2002.

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge

/s/ Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge, concurs in result.

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

/s/ Steve Lile STEVE LILE, Judge

      . We observe there is no statutory prohibition to filing a Motion for Adult Sentencing with a magistrate prior to the preliminary hearing.

      . We likewise prefer that the court that heard the evidence be the court to rule on the motion.

      . We believe this procedure to be uniform across Oklahoma.


author: LUMPKIN, Presiding Judge:

text:
    2002 OK CR 42
    Doyle Michael SANDERS, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2001-1350.
    Court of Criminal Appeals of Oklahoma.
    Dec. 19, 2002.

      Rob L. Pyi’on, Brad Carter, Seminole, OK, Counsel for Defendant at trial.
    William Peterson, District Attorney, Linda Evans, Terry Bard, Assistant District Attorneys, Holdenville, OK, Counsel for the State at trial.
    Danny G. Lohmann, Norman, OK, Counsel for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, Oklahoma City, OK, Counsel for Appellee on appeal.
   SUMMARY OPINION

LUMPKIN, Presiding Judge:

¶ 1 Appellant Doyle Michael Sanders was tried by jury and found guilty of four counts of Second Degree Felony Murder (Counts IIV) (21 O.S.1991, § 701.8(2)), and Causing a Personal Injury Accident while Under the Influence of Alcohol (Count V) (47 O.S.Supp. 1999, § 11-904), in Case No. CF-2000-55, in the District Court of Hughes County. The jury recommended as punishment fifty (50) years imprisonment in each count. The trial court sentenced accordingly, ordering the sentences in Counts I, II, and III to run concurrent to each other, and that the sentences in Counts IV and Y run consecutively to each other and to Counts I, II, and III. It is from this judgment and sentence that Appellant appeals.

¶ 2 Appellant raises the following proposition of error in support of his appeal:

I. Appellant was improperly convicted because of the admission of evidence regarding a blood alcohol test.
II. The trial court erred in failing to properly instruct on all of the
elements of the offenses.
III. The trial errors cumulatively deprived Appellant of a fair trial and reliable verdicts.
IV. Appellant’s sentence is excessive and should be modified.

¶ 3 After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that neither reversal nor modification is warranted under the law and the evidence.

¶ 4 Appellant was the driver of a vehicle involved in an accident, which caused the death of four people and caused severe injuries to a fifth person. The results of his blood alcohol test showed his blood alcohol content to be .188. In his first proposition of error, Appellant contends the results of the blood alcohol test should not have been admitted at trial, as he was not under arrest at the time his blood was withdrawn.

¶ 5 In Guest v. State, 42 P.3d 289 (Okl.Cr.2002), this Court held that under 47 O.S.Supp.1999, § 752(B) a person does not have to be placed under arrest before his or her blood can be withdrawn for drug or alcohol testing. Id. at 291. Appellant recognizes Guest but argues it is distinguishable from his case. First, he argues that unlike the first degree manslaughter charge in Guest, his charges of second degree felony murder have an underlying offense of driving while intoxicated. He asserts that 47 O.S.Supp.1999, § 11-902(A) specifically requires that a blood alcohol test be administered within two hours after the arrest of the person. He argues this requirement was not applied to the defendant in Guest. Therefore, as Guest did not adhere to 47 O.S.Supp. 1999, § 11-902(A), it violates the principle of stare decises and should be overruled. Appellant further asserts that the specific provisions of 47 O.S.Supp.1999, § 11-902(A), driving while intoxicated, override the general provisions of 47 O.S.Supp.1999, § 10-104(B)

¶ 6 Both the present case and Guest involved fatality accidents. Although an alcohol related driving offense was the predicate crime in Guest, the charge was first degree manslaughter and the driving under the influence (DUI) provisions of 47 O.S.Supp.1999, § 11-902(A) were not an issue in the case. Therefore, the Court did not discuss any apparent conflicts between 47 O.S.Supp.1999, § 11-902(A) and 47 O.S.Supp. 1999, § 10-104(B). The present case appears to offer this Court the first opportunity to address the two statutes.

¶ 7 By its very language, § 10-104(B) specifically addresses fatality accidents, and recognizes the competing concerns involved in such a situation. By stating that the driver of any vehicle involved in a fatality accident must submit to drug or alcohol testing “as soon as practicable after such accident occurs,” the Legislature seems to have recognized the unique circumstances of fatality accidents and the importance of getting medical treatment to all those injured as soon possible. The circumstances of the accident may require the providing of medical treatment to the injured to take precedence over any investigation into the cause of the accident.

¶ 8 Further, the statutory language referring to any driver involved in a fatality accident “who could be cited for any traffic offense” recognizes that it may not always be possible to issue a traffic citation or affect an arrest at the accident scene. Due to the circumstances of the particular accident, it may not be possible to come to a conclusion there at the site as to who caused the accident thereby providing a basis for the issuance of a traffic citation or arrest. Section 10-104(B) recognizes the State’s need to secure and preserve evidence in an exigent situation where such evidence could otherwise be lost. As this case involves a fatality accident, § 10-104(B) is more specific than § 11-902, and is therefore the applicable provision.

¶ 9 Further, the facts of this case make the two hour provision of § 11-902 inapplicable as Appellant was not arrested until approximately one month after the accident. Section 11-902 applies in a situation where the defendant is placed under arrest at the accident scene or shortly after the accident occurred (for instance at the hospital). Section 11-902 does not come into effect until the person has been arrested. Once the arrest has been made, the police have two hours in which to withdraw the blood for the blood alcohol test. In the case of a fatality accident, where the person is not arrested at the scene or shortly thereafter (at the hospital), the police are under a duty to conduct the blood alcohol test as soon as practicable.

¶ 10 This interpretation is consistent with Guest. In Guest, this Court said § 10— 104(B) is applied to all drivers involved in fatality accidents. In finding that the defendant’s blood was properly withdrawn in Guest, this Court stated “under section 10-104(B), it is enough that Appellant was the driver of a vehicle involved in an accident, that he could be cited for a traffic offense and that the accident resulted in the immediate death of a person.” 42 P.3d at 291.

¶ 11 Here, as Appellant was the driver of a vehicle involved in a fatality accident, and as he could have been cited for a traffic offense at the scene, but was not, his blood was properly withdrawn under the provisions 47 O.S.Supp.1999, § 10-104(B). Therefore, the results of Appellant’s blood alcohol test were properly admitted at trial.

¶ 12 In his second proposition of error, Appellant contends that the jury was not properly instructed that the blood alcohol test had to be performed within two hours of the arrest. In his argument, Appellant asserts that as he was charged with second degree felony murder with the underlying offense being a violation of 47 O.S.Supp.1999, § 11-902(A), driving while intoxicated, the provisions of 47 O.S.Supp.1999, § 11-902(A) became an element of the offense of second degree felony murder. Appellant asserts the trial court erred in failing to include the provisions of § 11-902(A), administration of the blood test within two hours of the arrest, in the instruction on the elements of second degree felony murder. This objection was raised at trial and overruled. Therefore, the issue has been properly preserved for appellate review.

¶ 13 As discussed in Proposition I, this case involved a fatality accident where Appellant could have been cited and/or arrested for a traffic offense at the scene of the accident, but was not. Therefore, the two hour after arrest provision of 47 O.S.Supp.1999, § 11-902(A) in which to draw blood for a blood alcohol test, not analyze it, is not applicable and the jury need not be instructed as to that provision.

¶ ? 14 The jury in this case was given a modified version of Oklahoma Uniform Jury Instructions—Criminal (2d) (hereinafter OUJI-CR) 6-24 which stated that the chemical analysis of the defendant’s blood had to have been performed within two hours of the accident in order for the result of the analysis to be considered by the jury. Although no legal authority has been provided or found for this modification, it appears to be based upon the two hours after arrest provision for the drawing of the blood in the unmodified version of OUJI-CR (2d) 6-24. The modification in this case was based on evidence that Appellant’s blood was withdrawn approximately one hour and twenty minutes after the collision, just prior to his being medif-lighted to a Tulsa hospital. As Appellant has failed to show how he was prejudiced by the modified instruction, we find no error. See Cook v. State, 650 P.2d 863, 868 (OM.Cr.1982) (the burden is upon the appellant to establish to the appellate court the fact that he was prejudiced in his substantial rights by the commission of the error).

¶ 15 In Proposition III, Appellant argues the accumulation of errors denied him a fair trial. In regards to specific errors, he contends that in the first stage of trial, the trial court misled the jury by failing to give proper instructions on the elements of the offense and by improperly admitting blood alcohol evidence. These allegations were addressed in Propositions of Error I and II, and no error warranting reversal was found.

¶ 16 As for the second stage of trial, Appellant argues the trial court erred in failing to instruct the jury that he would have to serve 85% of any sentence imposed before he could be considered for parole. Appellant has failed to offer any authority requiring such an instruction. Absent plain error we will not address assertions unsupported by legal authority. Romano v. State, 909 P.2d 92, 117 (Okl.Cr.1995). Finding no plain error, we do not address the merits of this claim.

¶ 17 This Court has held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Clayton v. State, 892 P.2d 646, 657 (Okl.Cr.1995); Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989). None of the assignments of error herein have merit; therefore, this assignment of error is rejected.

¶ 18 In Proposition IV, Appellant contends his sentence is excessive and that if his convictions are affirmed, his sentences should be reduced. Appellant admits his sentences are within statutory limits but he contends that under a proportionality analysis, the sentences do not bear a direct relationship to the nature and circumstances of the offense.

¶ 19 This Court has repeatedly held that if a sentence is within the statutory guidelines, we will not disturb that sentence unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Bartell v. State, 881 P.2d 92, 101 (Okl.Cr.1994). This Court has previously rejected requests for a proportionality analysis. Rea v. State, 34 P.3d 148 (Okl.Cr.2001).

¶ 20 In the present case, Appellant was driving with a blood alcohol content of .188, after having been previously convicted of two DUIs and two non-driving related felonies. Appellant’s conduct caused the deaths of the two people riding with him. His conduct also caused the death of the unsuspecting driver and passenger of an approaching van. As result, a 9 year old child was severely injured

and left an orphan only days before Christmas. Appellant’s extremely dangerous conduct and disregard for human life, along with his prior criminal record warrant the sentence imposed in this case. Accordingly, modification of the sentence imposed is not warranted.

¶ 21 Accordingly, this appeal is denied.

DECISION

¶22 The Judgment and Sentence is AFFIRMED.

JOHNSON, V.P.J., STRUBHAR and LILE, JJ. concur.

CHAPEL, J., concur in result.

      . OUJI-CR (2d) 6-24 (without the modification) reads in pertinent part:
      If you find that a chemical analysis of the defendant’s blood/breath was performed within two hours of his/her arrest, then the results of this analysis may be considered by you as to the issue of whether (the defendant was under the influence of alcohol)/(the defendant’s ability to drive a motor vehicle was impaired).