Arnett v. State ( 1982 )

OPINION

BUSSEY, Judge:

Michael Eugene Arnett and Richard Erick Arnett appeal from a conviction for Unlawful Delivery of Marijuana, in violation of Laws 1975, ch. 22, § 1, now 63 O.S.Supp.1980, § 2-401, in the District Court of Custer County, Case No. CRF-79-36. The trial court sentenced the appellants in accordance with the jury’s verdict of three (3) years’ imprisonment.

After the appellants were arrested, they pleaded guilty before the Honorable Charles Wilson. A presentence report was prepared that recommended probation for both defendants. However, Judge Wilson imposed a sentence of three (3) years. Thereafter, the appellants filed a motion to withdraw their guilty plea and a motion requesting that Judge Wilson disqualify himself because of his personal prejudice against the person who had prepared the presentence report. The motion to disqualify was denied, but the appellants were allowed to withdraw their guilty pleas. The Honorable Charlie W. Barton presided at the appellants’ trial.

The sole issue raised on appeal alleges that reversible error occurred because Judge Wilson participated in the selection of Judge Barton contrary to the provisions of 20 O.S.Supp.1980, ch. 1, app. 2, rule 9 which states:

(e) No judicial officer of the district court who

I. is requested to disqualify,

II. has disqualified himself, or

III. has been ordered disqualified

in a case shall participate in the selection of another judicial officer for assignment to that case.

The appellants have presented no evidence to support their assertion that Judge Wilson participated in the selection of Judge Barton. This Court will not consider alleged error not reflected in the record. Knowlton v. State, 574 P.2d 1059 (Okl.Cr.1978).

Even assuming proof had been presented that Judge Wilson did participate in the selection of Judge Barton, there has been no demonstration of how such an act could have possibly prejudiced the substantial rights of the appellants. It is well established that, on appeal, the burden is on the defendants to demonstrate prejudice by reason of the alleged error. Sallee v. State, 544 P.2d 902 (Okl.Cr.1975).

For the above and foregoing reasons, the judgment and sentence appealed from is AFFIRMED.

BRETT, P.J., and CORNISH, J., specially concurring.