Daniel Paul Buckley v The State of Oklahoma

F 2000-0310

Filed: Apr. 6, 2001

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Daniel Paul Buckley appealed his conviction for Burglary Second Degree. His conviction and sentence were modified to five years in prison. Judge Reta M. Strubhar dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, by a four (4) to zero (0) vote, after hearing oral argument, that the acceleration of Appellant's deferred sentence in the District Court of Canadian County in Case No. CF-98-4 is AFFIRMED, but the sentence is MODIFIED to run concurrently with Oklahoma County District Court Case No. CF-98-8376. IT IS SO ORDERED.

Issues

• Was the case properly remanded to allow the Appellant to request to withdraw his guilty plea and hold a hearing on such request?
• Was the District Court's acceleration of the Appellant's deferred sentence to five years excessive given the circumstances of the case?

Findings

• the court erred in failing to allow Appellant an opportunity to request to withdraw his plea of guilty
• the District Court's acceleration of Appellant's deferred sentence was not excessive and is affirmed
• the sentence should be modified to run concurrently with Oklahoma County Case No. CF-98-8376

F 2000-0310

Apr. 6, 2001

Daniel Paul Buckley

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

Daniel Paul Buckley, Appellant, v. The State of Oklahoma, Appellee.

ACCELERATED DOCKET ORDER

Appellant pled guilty July 31, 1993, to Burglary Second Degree in the District Court of Canadian County, Case No. CF-98-4, and received a five year deferred sentence, with rules and conditions of probation. On January 26, 2000, the State filed an Amended Application to Advance Deferred Sentence. Following a hearing March 3, 2000, Judgment and Sentence was entered and Appellant was sentenced to five years imprisonment. The Honorable Edward C. Cunningham, District Judge, ordered Appellant’s sentence to be served consecutively to Oklahoma County Case No. CF-98-8376. Appellant appeals the acceleration of his deferred sentence.

Pursuant to Rule 11.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2000), the appeal was automatically assigned to the Accelerated Docket of this Court. Appellant raised the following propositions of error on appeal:
1. This case should be remanded to the District Court with instructions to allow Appellant an opportunity to request that he be allowed to withdraw his plea of guilty and to hold a hearing on such request.
2. The District Court’s acceleration of Appellant’s deferred sentence to five years was excessive under the facts of this case and should be modified.

Oral argument was held March 29, 2001, pursuant to Rule 11.2(F). At the conclusion of oral argument, the parties were advised of the decision of this Court. If Appellant believes he has been deprived of his right to seek to withdraw his guilty plea, the proper procedure is to file an Application for Post-Conviction Relief in the District Court requesting an appeal out of time. Rule 2.1(E)(1). This procedure is specifically designed to allow a hearing wherein it can be determined whether Appellant was in fact unaware of his rights, and whether counsel was ineffective in advising Appellant and in preserving those rights. Lewis v. State, 2001 OK CR 6, I 6, P.2d.

However, we do find under the facts and circumstances of this case that Appellant’s sentence should be modified to run concurrently, and not consecutively, with Oklahoma County District Court Case No. CF 98-8376.

IT IS THEREFORE THE ORDER OF THIS COURT, by a four (4) to zero (0) vote, after hearing oral argument, that the acceleration of Appellant’s deferred sentence in the District Court of Canadian County in Case No. CF-98-4 is AFFIRMED, but the sentence is MODIFIED to run concurrently with Oklahoma County District Court Case No. CF-98-8376.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 6th day of April, 2001.

CHARLES A. JOHNSON, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
RETA M. STRUBHAR, Judge
STEVE LILE, Judge

ATTEST: Clerk

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Footnotes:

1. Okla. Stat. tit. 22 § 11.2
2. Okla. Stat. tit. 22 § 2.1(E)(1)
3. Lewis v. State, 2001 OK CR 6, ¶ 6.
4. Okla. Stat. tit. 22 § 11.2(F)
5. Okla. Stat. tit. 22 § 11.3

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 11.2 (2000) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Criminal Procedure Regarding Deferred Sentences

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Lewis v. State, 2001 OK CR 6, I 6, P.2d