APPEARANCES AT TRIAL DAVID KANEHL, 1111 WEST WILLOW AVE., SUITE 200, DUNCAN, OK 73533, COUNSEL FOR DEFENDANT.
ALAN D. ROSENBAUM, ASSISTANT DISTRICT ATTORNEY, 110 S.W. 2ND, SUITE 108, ANADARKO, OK 73005, COUNSEL FOR STATE.
APPEARANCES ON APPEAL NEILSON LEA, P. O. BOX 926, NORMAN, OK 73070-0926, COUNSEL FOR APPELLANT.
MIKE HUNTER, OKLAHOMA ATTORNEY GENERAL, ASHLEY L. WILLIS, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE.
SUMMARY OPINION
ROWLAND, J.:
*267¶1 Appellant Edward Anthony Taylor was convicted by jury in the District Court of Caddo County, Case No. CF-2016-56, of Possession of a Controlled Dangerous Substance with Intent to Distribute, in violation of 63 O.S.Supp.2012, § 2-401(A)(1). The jury assessed punishment at fifteen years imprisonment and a $20,000.00 fine. The Honorable Wyatt Hill, Associate District Judge, presided at trial and sentenced Taylor accordingly. Taylor appeals, raising the following issues:
(1) whether the district court erred in denying his motion to dismiss because he was denied his Fifth and Sixth Amendment right to counsel during custodial interrogation; and
(2) whether he was denied the effective assistance of counsel.
¶2 We find reversal is not required and affirm the Judgment and Sentence of the district court.
1. Motion to Dismiss
¶3 Taylor argues the district court erred in denying dismissal of his drug charge to remedy the violation of his Fifth and Sixth Amendment right to counsel during a pretrial custodial interrogation that occurred while he was represented by counsel. We review the district court's ruling on a motion to dismiss for an abuse of discretion. See Sanders v. State, 2015 OK CR 11, ¶ 4, 358 P.3d 280, 283. "An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented." Id.
¶4 Taylor filed a motion to dismiss the case because of the prosecutor's "flagrant" violation of his right to counsel. That motion alleged the prosecutor ordered a deputy sheriff to interview Taylor, knowing that Taylor had counsel, in violation of the rule in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Taylor simultaneously filed a motion to suppress any statements made during the interrogation. At the hearing on those motions, the prosecutor conceded that the proper remedy to correct the constitutional violation of Taylor's right to counsel was to suppress Taylor's statement. The district court sustained Taylor's motion to suppress, but denied his motion to dismiss. No evidence of the interrogation was admitted at trial.
¶5 It is undisputed that the deputy sheriff interviewed Taylor after criminal proceedings had begun on his drug charge and defense counsel had entered an appearance. Taylor maintains he is entitled to relief because the acquisition of information during the custodial interrogation in violation of his right to counsel resulted in the assigned prosecutor refusing to offer a more attractive plea bargain. This claim is without merit because there was no constitutional violation of Taylor's right to counsel.1
*268¶6 This case gives occasion to compare the rights to counsel embodied in the Fifth and Sixth Amendments, respectively. The Fifth Amendment right arises when one who is in custody is interrogated. See Miranda v. Arizona, 384 U.S. 436, 469-70, 86 S.Ct. 1602, 1625-26, 16 L.Ed.2d 694 (1966) (holding the Fifth Amendment right to interrogation counsel is triggered by the advice of constitutional rights that police must give before any custodial questioning.) Under Miranda , no statement obtained through custodial interrogation may be used against a defendant without a knowing and voluntary waiver of those rights. Id. , 384 U.S. at 444, 86 S.Ct. at 1612. The Sixth Amendment right to trial counsel is triggered by the initiation of adversarial judicial proceedings, which may be initiated by way of formal charge, preliminary hearing, indictment, information, or arraignment. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009) ; United States v. Gouveia, 467 U.S. 180, 187-88, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984). Both the Fifth and Sixth Amendment rights to counsel apply to custodial interrogations post initiation of adversarial judicial proceedings, and each is invoked and waived in exactly the same manner-under the Fifth Amendment prophylactic Miranda rules. See Montejo, 556 U.S. at 786-87, 129 S.Ct. at 2085. Here, it is neither disputed that Taylor was in custody and interrogated, nor is there any claim that his waiver was not voluntary. His complaint is that he was approached by law enforcement, after he had been appointed counsel, and asked to submit to an interview. Thus, this case is within the ambit of the Sixth Amendment right to assistance of counsel, which attaches once the adversary judicial process has been initiated. See Montejo, 556 U.S. at 786, 129 S.Ct. at 2085.
¶7 A defendant has the right to have counsel present at all "critical" stages of a criminal prosecution, including custodial interrogation. Randall v. State, 1993 OK CR 47, ¶ 3, 861 P.2d 314, 315. Formerly, once a criminal defendant requested the assistance of counsel based on his Sixth Amendment right, the police could not initiate questioning or attempt to induce a waiver of his right to counsel because that police interrogation and any waiver obtained was invalid under Michigan v. Jackson, 475 U.S. at 635-636, 106 S.Ct. at 1410-11. Jackson held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Jackson, 475 U.S. at 636, 106 S.Ct. at 1411. Unfortunately for Taylor, Jackson's prophylactic protection of the Sixth Amendment right to counsel is no longer available.
¶8 In Montejo v. Louisiana, the United States Supreme Court overruled Jackson and rejected its bright-line rule. Montejo, 556 U.S. at 797, 129 S.Ct. at 2091. The trial court in Montejo's case appointed him counsel at preliminary hearing to assist in the defense of his murder charge. Id., 556 U.S. at 781, 129 S.Ct. at 2082. Later that same day, the police, seemingly unaware that counsel had been appointed, approached the jailed Montejo, and requested that he accompany them to locate the murder weapon. Id., 556 U.S. at 781-82, 129 S.Ct. at 2082. The police read Montejo his Miranda rights, and he agreed to go with them. Id., 556 U.S. at 782, 129 S.Ct. at 2082. During the trip, Montejo wrote an inculpatory letter of apology to the victim's widow. Id. The letter was admitted at trial over objection, and Montejo was convicted. Id.
¶9 The Court in Montejo rejected the rationale for Jackson and its prophylactic rule, holding "it would be completely unjustified to presume that a defendant's consent to police-initiated interrogation was involuntary or coerced simply because [the defendant] had previously been appointed a lawyer." Id., 556 U.S. at 792, 129 S.Ct. at 2088. Once the right to counsel has attached, "a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but 'badgering' by later requests is prohibited." Id., 556 U.S. at 794-95, 129 S.Ct. at 2090. On balance, the Court found "that the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have *269been admitted) are dwarfed by its substantial costs (viz., hindering 'society's compelling interest in finding, convicting, and punishing those who violate the law')." Id., 556 U.S. at 793, 129 S.Ct. at 2089 (quoting Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986) ).
¶10 The Court explained further that without Jackson, few badgering-induced waivers, if any, would be admitted at trial because the Court had already taken substantial other, overlapping measures to exclude them. Id., 556 U.S. at 794, 129 S.Ct. at 2089. First, under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present during questioning. Id. Second, under Edwards v. Arizona, once such a defendant has invoked his Miranda rights, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) (discussed in Montejo, 556 U.S. at 794, 129 S.Ct. at 2090 ). And third, under Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), no subsequent interrogation may take place until counsel is present. Minnick , 498 U.S. at 153, 111 S.Ct. at 491 (discussed in Montejo, 556 U.S. at 794, 129 S.Ct. at 2090 ). Quoting Patterson v. Illinois, 487 U.S. 285, 296, 108 S.Ct. 2389, 2397, 101 L.Ed.2d 261 (1988), the Court reaffirmed that "an accused who is admonished with the warnings prescribed by this Court in Miranda ... has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one." Montejo, 556 U.S. at 786-87, 129 S.Ct. at 2085. The basis for Jackson's bright line rule, the Court found, was simply unsound. Id. , 556 U.S. at 794, 129 S.Ct. at 2089-90. A further safeguard against badgered confessions is the Fourteenth Amendment's requirement that all statements introduced against a criminal defendant, regardless of whether they are in custody or have secured counsel, be voluntarily made. Malloy v. Hogan , 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653 (1964) ; Young v. State , 1983 OK CR 126, ¶¶ 10-11, 670 P.2d 591, 594.
¶11 Post- Montejo, a court can no longer presume that a waiver of a right to counsel executed after the right to counsel has attached is invalid. The represented defendant may make a clear assertion of the right to counsel when officers initiate interrogation or may waive that right provided the relinquishment of the right is voluntary, knowing and intelligent. See Id., 556 U.S. at 786, 129 S.Ct. at 2085. And, "the decision to waive [the right to counsel] need not itself be counseled." Id. Hence, once "a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and [knowingly] agrees to waive those rights," that advice of rights and waiver is sufficient to comply with the Fifth and Sixth Amendments. Id. , 556 U.S. at 786-87, 129 S.Ct. at 2085.2 This Court's decisions in Warner v. State, 2006 OK CR 40, ¶ 55, 144 P.3d 838, 866 ; Miller v. State, 2001 OK CR 17, ¶ 10, 29 P.3d 1077, 1080 ; Valdez v. State, 1995 OK CR 18, ¶ 33, 900 P.2d 363, 374 ; Walker v. State, 1990 OK CR 44, ¶ 12, 795 P.2d 1064, 1067 ; Ake v. State, 1989 OK CR 30, ¶ 40, 778 P.2d 460, 469 ; and McCaulley v. State, 1988 OK CR 25, ¶ 9, 750 P.2d 1124, 1126 are overruled to the extent they are inconsistent with this opinion.
¶12 The record shows that the deputy sheriff began Taylor's custodial interrogation by asking Taylor if he had made an initial appearance and had spoken to an attorney and Taylor answered affirmatively. The deputy read Taylor his Miranda rights and asked if Taylor wished to speak with him. Taylor asked if he should speak to the deputy without counsel present and the deputy informed him that it was his right to have an *270attorney present if he so desired. Taylor stated unequivocally that he wanted to speak to the deputy. The deputy asked Taylor to review the rights previously read to him and to print and sign his name on the Advice of Rights form if he wanted to waive his rights and talk to the deputy. Taylor waived his rights.
¶13 Taylor undoubtedly had a right to counsel for the custodial interrogation under the Fifth and Sixth Amendments, but knowingly and voluntarily waived his rights. The statement he made was admissible. Nevertheless, the statement was suppressed because all parties erroneously believed that Jackson was still the law. Under Montejo, there was no violation of Taylor's constitutional rights to counsel because of his valid waiver. Because his statement was not acquired unlawfully, Taylor can show neither that constitutional violations of his right to counsel affected the plea bargaining process nor that the district court abused its discretion in denying his motion to dismiss. This claim is denied.
2. Ineffective Assistance of Counsel
¶14 Taylor claims the cumulative effect of defense counsel's ineffective assistance deprived him of a fair trial. He argues that defense counsel's inappropriate and unprofessional conduct during the motion hearing alienated the judge and caused the judge to rule against him on his motion to dismiss. Taylor also complains that defense counsel failed to competently and effectively present evidence and argument in support of his motion to dismiss further causing the judge to reject his motion.
¶15 This Court reviews claims of ineffective assistance of counsel to determine: (1) whether counsel's performance was constitutionally deficient; and (2) whether counsel's performance prejudiced the defense so as to deprive the defendant of a fair trial with reliable results. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ; Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. Under this test, Taylor must affirmatively prove prejudice resulting from his attorney's actions. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067 ; Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148. To accomplish this, Taylor must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Head, 2006 OK CR 44, ¶ 23, 146 P.3d at 1148. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. This Court need not determine whether counsel's performance was deficient if the claim can be disposed of based on lack of prejudice. Malone, 2013 OK CR 1, ¶ 16, 293 P.3d at 207.
¶16 As discussed in Proposition 1, supra , the district court did not err in denying Taylor's motion to dismiss because there was no violation of his right to counsel during the custodial interrogation. Moreover, the court suppressed Taylor's statement to remedy the alleged constitutional violation. Taylor has not shown that reversible error occurred. Hence, he cannot establish the necessary prejudice to prevail on his ineffective assistance of counsel claim. This claim is denied.
DECISION
¶17 The Judgment and Sentence of the district court is AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.
LUMPKIN, P.J.: CONCUR
LEWIS, V.P.J.: CONCUR
HUDSON, J.: CONCUR
KUEHN, J.: CONCUR