Lee Otis Robinson, Jr. v The State Of Oklahoma

C-2009-317

Filed: Jan. 1, 2010

Not for publication

Prevailing Party: Lee Otis Robinson, Jr.

Summary

Lee Otis Robinson, Jr. appealed his conviction for a crime he did not fully understand. His conviction and sentence were sent back for a new hearing. Judge Lewis wrote the opinion, and Judges Johnson and Lumpkin agreed with the decision. Judge Chapel agreed with the result but had a different reasoning.

Decision

Robinson's Petition for Certiorari is GRANTED and this cause shall be REMANDED to the District Court for a new hearing on Robinson's motion to withdraw plea. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was Mr. Robinson's no contest plea entered without sufficient deliberation and not knowing and voluntary?
• did Mr. Robinson receive ineffective assistance of counsel due to an inherent conflict of interest?
• did Mr. Robinson receive ineffective assistance of counsel on the day of his plea hearing?
• did the cumulative effect of these errors deprive Mr. Robinson of a fair and impartial proceeding?

Findings

• the court erred in denying the motion to withdraw plea
• the court found ineffective assistance of counsel due to a conflict of interest
• the court found evidence was not sufficient to support the plea's knowing and voluntary nature
• the cumulative effect of errors deprived the Petitioner of a fair and impartial proceeding

C-2009-317

Jan. 1, 2010

Lee Otis Robinson, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI AND REMANDING FOR A NEW HEARING ON THE MOTION TO WITHDRAW PLEA

Lee Otis Robinson, Jr., Petitioner, entered pleas of no contest in Oklahoma County District Court Case No. CF-2007-6280, before the honorable Virgil C. Black, District Judge. He filed a motion to withdraw, which was denied by the trial court. He is now before this Court on Certiorari appeal from that decision raising the following propositions of error:

1. Mr. Robinson should be allowed to withdraw his no contest plea which was entered without sufficient deliberation and was not knowing and voluntary. Rather, this plea was the result of ignorance, inadvertence, confusion and misunderstanding of the consequences and nature of the proceedings.
2. Mr. Robinson received ineffective assistance of counsel due to the inherent conflict of interest when the same attorney represented him for his plea and then appeared with him at the hearing on the motion to withdraw his plea.
3. Mr. Robinson received ineffective assistance of counsel on the day of his plea hearing.
4. The cumulative effect of all of these errors deprived Petitioner of a fair and impartial proceeding.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we grant the petition for writ of certiorari, and remand the case to the district court with orders to conduct a new hearing on the motion to withdraw. Our decision is based on the failure to have effective counsel to represent him at the withdraw hearing. This Court has long held that the motion to withdraw hearing is a critical stage and a defendant is entitled to an effective attorney at the hearing. Carey U. State, 1995 OK CR 55, T 5, 902 P.2d 1116, 1117.

We note that Robinson filed a pro se motion to withdraw stated basically that he wanted to withdraw his plea. His retained counsel filed no motions on Robinson’s behalf. Robinson entered his plea in this case on the same day he had other cases set for revocation hearings. Apparently all of the cases were tied together for plea negotiation. In a letter to the court and during the withdraw hearing, Robinson indicated that he did not know that he was entering a plea to the instant offense. Robinson was represented at the plea hearing and at the motion to withdraw hearing by the same attorney. At the hearing on the motion to withdraw, Robinson’s attorney became a witness against him disputing his knowledge of the events. Further, this attorney did not present any argument, nor did she present any witnesses.

We find based on the record that an actual conflict existed between Robinson and counsel at the motion to withdraw hearing, because counsel became a witness adverse to her client. See Carey, 1995 OK CR 55, I 10, 902 P.2d at 1118, and Rule 1.7(b), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A. Therefore, we remand this case to the district court for a new hearing on Robinson’s motion to withdraw. The trial court shall appoint conflict free counsel to represent Robinson at this hearing, if Robinson remains indigent as previously found by the trial court.

DECISION
Robinson’s Petition for Certiorari is GRANTED and this cause shall be REMANDED to the District Court for a new hearing on Robinson’s motion to withdraw plea. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Carey U. State, 1995 OK CR 55, T 5, 902 P.2d 1116, 1117.
2. See Carey, 1995 OK CR 55, I 10, 902 P.2d at 1118, and Rule 1.7(b), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A.
3. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Aiding and Abetting
• Okla. Stat. tit. 22 § 22 - Right to Counsel
• Okla. Stat. tit. 5 § 1.7(b) - Rules of Professional Conduct

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:

• Carey v. State, 1995 OK CR 55, I 5, 902 P.2d 1116, 1117
• Carey v. State, 1995 OK CR 55, I 10, 902 P.2d at 1118