William Jackson Murray v The State Of Oklahoma

C-2009-89

Filed: Jan. 8, 2010

Not for publication

Prevailing Party: William Jackson Murray

Summary

William Jackson Murray appealed his conviction for Burglary in the First Degree and Aggravated Assault and Battery. His conviction and sentence were 25 years for burglary and 10 years for assault, totaling 35 years in prison. Judge Jacqueline P. Duncan sentenced him. Murray disagreed with not having a hearing for his request to take back his guilty plea. The court agreed with Murray and said he deserved a hearing. Judge Chapel wrote the opinion, and other judges concurred, agreeing with the decision.

Decision

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED to the District Court of Custer County for a hearing on Murray's Motion to Withdraw Pleas. 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 there error in the trial court's denial of a hearing on the Motion to Withdraw Plea of Guilty?
• did the trial court violate procedural rules regarding the requirement of a hearing on a motion to withdraw a guilty plea?
• was the lack of a hearing on the motion to withdraw a plea considered a critical stage of the criminal prosecution?
• did the defendant demonstrate entitlement to a hearing on his Motion to Withdraw Pleas?

Findings

• the court erred

C-2009-89

Jan. 8, 2010

William Jackson Murray

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION GRANTING CERTIORARI

MICHAEL S. RICHIE CHAPEL, JUDGE:

William Jackson Murray pled nolo contendere to Count I, Burglary in the First Degree in violation of 21 O.S.2001, § 1431, and pled guilty to Count II, Aggravated Assault and Battery in violation of 21 O.S.Supp.2006, § 646, each after one former felony conviction, in the District Court of Custer County, Case No. CF-2007-336. The Honorable Jacqueline P. Duncan sentenced Murray to twenty-five (25) years incarceration (Count I) and ten (10) years incarceration (Count II), to run consecutively, plus restitution.

Murray filed a timely Motion to Withdraw Pleas, which was denied by written Order on November 24, 2008. No hearing was held on the motion. In his single proposition of error, Murray claims that the trial court erred in failing to hold a hearing on his Motion to Withdraw Plea of Guilty. He is correct. Although a hearing date was set on the motion to withdraw, the trial court denied the motion by written order before the hearing could be held. Judgment and Sentence were entered after a sentencing hearing on November 14, 2008, and Murray filed his motion to withdraw on November 17. A hearing was set for December 15, but entered a written order denying the motion on November 24. As Murray had raised an ineffective assistance claim, conflict counsel had been appointed for the motion to withdraw. When counsel appeared for the hearing, he was told the motion had been denied by order. Counsel filed a brief in support of the motion to withdraw and asked that the hearing be reset for January 12, 2009; the State filed a response to counsel’s brief on January 9, 2009. Counsel received written notice that the motion had again been denied without a hearing. A second summary order denying the motion is dated January 12, 2009. Nothing in the record indicates a hearing was ever held. There is no hearing transcript, no docket entry reflecting a hearing, and no court minute regarding a hearing. The record shows neither party waived this hearing. According to our Rules, Murray is entitled to a hearing on his Motion to Withdraw.¹ A writ of certiorari is treated as an appeal of right from a guilty plea, and this Court’s procedural Rules governing the method of that appeal have the force of law.² This Court has held that a hearing on a motion to withdraw a guilty plea is a critical stage of a criminal prosecution.³

The Petition for Writ of Certiorari is granted, the Motion to Supplement Appeal Record and Brief in Support of Motion filed on June 30, 2009, is granted, and the case is remanded to the District Court of Custer County for a hearing on Murray’s motion to withdraw his pleas.

Decision

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED to the District Court of Custer County for a hearing on Murray’s Motion to Withdraw Pleas. 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.

ATTORNEYS AT TRIAL

RYAN D. RECKER
RECKER & RECKER
701 EAST MAIN STREET, SUITE D
WEATHERFORD, OKLAHOMA 73096

ATTORNEYS ON APPEAL
S. GAIL GUNNING
P.O. BOX 926
NORMAN, OKLAHOMA 73070

ATTORNEY FOR DEFENDANT AT PLEA HEARING
NO RESPONSE REQUIRED

ALBERT J. HOCH, JR.
803 ROBERT S. KERR
OKLAHOMA CITY, OKLAHOMA 73106

ATTORNEY FOR DEFENDANT ON MOTION TO WITHDRAW PLEA

RICKY A. McPHEARSON
ASSISTANT DISTRICT ATTORNEY
CUSTER COUNTY COURTHOUSE
603 B STREET
P.O. BOX 36
ARAPAHO, OKLAHOMA 73620

ATTORNEY FOR STATE

OPINION BY: CHAPEL, J.
C. JOHNSON, P.J.: CONCUR
A. JOHNSON, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR
LEWIS, J.: CONCUR

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Footnotes:

1. 21 O.S.2001, § 1431
2. 21 O.S.Supp.2006, § 646
3. Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009)
4. 22 O.S.2001, § 1051
5. Randall v. State, 1993 OK CR 47, 861 P.2d 314, 316
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 - Burglary in the First Degree
• Okla. Stat. tit. 21 § 646 - Aggravated Assault and Battery
• Okla. Stat. tit. 22 § 1051 - Motion to Withdraw Plea

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:

• Randall v. State, 1993 OK CR 47, 861 P.2d 314, 316