Robert Lee Richardson, Jr. v The State Of Oklahoma

C-2007-1009

Filed: Feb. 24, 2009

Not for publication

Prevailing Party: Robert Lee Richardson, Jr.

Summary

# Robert Lee Richardson, Jr. appealed his conviction for Assault and Battery and Malicious Injury to Property. Conviction and sentence: one year in jail for each charge and fines of $100 and $50. No judges dissented.

Decision

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED to the District Court for a hearing on Richardson's Motion to Withdraw Plea of guilty. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in the trial court's failure to hold a hearing on the Motion to Withdraw Plea of Guilty?
• Did the parties waive their right to a hearing on the Motion to Withdraw Plea of Guilty?
• Is the hearing on a motion to withdraw a guilty plea a critical stage of a criminal prosecution?

Findings

• the trial court erred in failing to hold a hearing on Richardson's Motion to Withdraw Plea of Guilty
• the Petition for Writ of Certiorari is granted
• the case is remanded to the District Court for a hearing on Richardson's Motion to Withdraw Plea of Guilty

C-2007-1009

Feb. 24, 2009

Robert Lee Richardson, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Robert Lee Richardson pled guilty to Count I, Assault and Battery (Misdemeanor) in violation of 21 O.S.2001, § 644(C), and Count II, Malicious Injury to Property (Misdemeanor) in violation of 21 O.S.2001, § 1760, in the District Court of Blaine County, Case No. CM-2007-99. The Honorable Mark A. Moore sentenced Richardson to one (1) year incarceration on each of Counts I and II, a $100 fine on Count I, and a $50 fine on Count II. Richardson filed a timely Motion to Withdraw Plea of Guilty, which was denied on October 2, 2007.

Richardson claims, in his single proposition of error, that the trial court erred in failing to hold a hearing on his Motion to Withdraw Plea of Guilty. Richardson is correct. Rather than set a hearing on the motion to withdraw, the trial court denied the motion on the pleadings. The record shows neither party waived this hearing; both the State and Richardson asked for a hearing on the motion. According to our Rules, Richardson 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, and the case is remanded to the district court for a hearing on Richardson’s motion to withdraw his plea.

Decision

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED to the District Court for a hearing on Richardson’s Motion to Withdraw Plea of Guilty. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

W. MARK HIXSON
800 WEST MAIN
YUKON, OKLAHOMA 73099
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

DANNY G. LOHMANN
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR PETITIONER

BARRY RETHERFORD
ASSISTANT DISTRICT ATTORNEY
BLAINE COUNTY COURTHOUSE
212 NORTH WEIGLE
WATONGA, OKLAHOMA 73772
ATTORNEY FOR STATE

OPINION BY: CHAPEL, J.

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

¹ Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), provides: The trial court shall hold an evidentiary hearing and rule on the application within thirty (30) days from the date it was filed.
² 22 O.S.2001, § 1051.
³ Randall v. State, 1993 OK CR 47, 861 P.2d 314, 316.

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Footnotes:

1. 1 Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), provides: "The trial court shall hold an evidentiary hearing and rule on the application within thirty (30) days from the date it was filed."
2. 2 22 O.S.2001, § 1051.
3. 3 Randall v. State, 1993 OK CR 47, 861 P.2d 314, 316.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 644(C) - Assault and Battery
• Okla. Stat. tit. 21 § 1760 - Malicious Injury to Property
• Okla. Stat. tit. 22 § 1051 - Motion to Withdraw Plea

Oklahoma Administrative Rules citations:

• Okla. Admin. Code § 715:10-15-10(3) ({ date if needed })
• Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009)
• Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009)

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