James G. Willeford v The State Of Oklahoma

C-2006-693

Filed: Dec. 8, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

James G. Willeford appealed his conviction for two counts of robbery in the first degree. Conviction and sentence were modified to run concurrently instead of consecutively. Lumpkin dissented.

Decision

The Petition for the Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court of Garvin County in Case No. CF-2005-232 is MODIFIED to run concurrently with the Judgment and Sentence in Case No. CF-2005-231. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there a failure to advise the defendant of the statutory "85% Rule" affecting parole eligibility?
• did the Court determine that the failure to advise rendered the plea involuntary?
• was the proper remedy to modify the sentences to run concurrently instead of vacating the plea?
• did the dissent argue that the plea was not involuntary and that the defendant waived claims regarding the sentence?

Findings

• the court erred in not advising the petitioner of the statutory "85% Rule," affecting the voluntariness of the plea
• the judgment and sentence in Case No. CF-2005-232 is modified to run concurrently with Case No. CF-2005-231
• the petition for a writ of certiorari is denied

C-2006-693

Dec. 8, 2006

James G. Willeford

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: James G. Willeford, Petitioner, pled guilty in the District Court of Garvin County, Case Nos. CF-2005-231 and CF-2005-232, to two (2) counts of robbery in the first degree, in violation of 21 O.S.2001, § 797, after former conviction of three (3) or more felonies. The District Court, Honorable Gary Barger, Special Judge, sentenced Petitioner to consecutive terms of twenty (20) years imprisonment in each count and restitution of the robbery proceeds. Petitioner timely moved to withdraw his pleas. After evidentiary hearing, the District Court denied the application. Petitioner seeks the writ of certiorari to vacate the judgment of the District Court. 22 O.S.2001, § 1051 (a).

The Court finds from an examination of the record that Petitioner was not advised at the time of plea or sentencing of the statutory 85% Rule, limiting his parole eligibility for these offenses. See 21 O.S.Supp.2003, § 13.1. In Ferguson v. State, 2006 OK CR 36, P.3d, this Court held the failure to advise the defendant of this statutory limitation on parole eligibility rendered the plea involuntary. After consideration of the record as a whole, the Court finds the proper remedy here is to modify the sentences imposed to run concurrently.

DECISION

The Petition for the Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court of Garvin County in Case No. CF-2005-232 is MODIFIED to run concurrently with the Judgment and Sentence in Case No. CF-2005-231. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF GARVIN COUNTY THE HONORABLE GARY BARGER, SPECIAL JUDGE

APPEARANCES AT TRIAL

BILLY D. VANDEVER
113 NORTH WILLOW
PAULS VALLEY, OK 73075

APPEARANCES ON APPEAL

S. GAIL GUNNING
OKLA. INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070

ARLAN BULLARD
ATTORNEY FOR APPELLANT

BRANT ELMORE
ASSISTANT DISTRICT ATTORNEYS
GARVIN COUNTY COURTHOUSE
201 W. GRANT STREET
PAULS VALLEY, OK 73075
ATTORNEYS FOR THE STATE

OPINION BY LEWIS, J.

CHAPEL, P.J.: Concurs
LUMPKIN, V.P.J.: Dissents
A. JOHNSON, J.: Concurs
C. JOHNSON, J.: Concurs

LUMPKIN, VICE-PRESIDING JUDGE: DISSENT

I dissent to the decision reached in the Court’s summary opinion, which purports to follow Ferguson v. State, 2006 OK CR 36, P.3d, but instead misapplies. I did not agree with Ferguson, and my writing in that case is a vivid example of the types of problems I foresaw, problems like the one occurring today.

In this case, the defendant entered a blind plea. That being so, the defendant agreed to allow the trial judge to sentence him within the range of punishment without any sort of agreement or understanding or expectation of what that sentence might ultimately be. So long as the sentence was within the range of punishment set out by our legislature, which it was, then the defendant allowed the judge to set the punishment. As such, he has waived any claim with respect to the sentence levied, especially when there has been no showing of a lack of voluntariness on his part. Moreover, the defendant received the minimum sentence available for the crime charged. Consecutive sentences are presumed under our statutes and are to be expected when a defendant has eight prior felony convictions. The defendant states no real basis for modification to concurrent sentences. He does not even state that he was not told about the applicability of the 85% rule. Rather, he says the record does not show he was informed of it. It is highly likely his attorney informed him of the parameters of that rule, and we must presume that was the case, unless we are willing to say that defendants must forego the attorney-client privilege if they are hopeful for relief.

And finally, while I do not agree with Ferguson, today’s decision does not even follow it. The only possible outcome when a plea is shown to be involuntary is to vacate the plea and sentence and remand the case so that the defendant may prepare for trial. We cannot say, yes, the plea was involuntary, but we’ll overlook that and simply modify the sentence. In this case, I would affirm the judgment and sentence.

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Footnotes:

1. 21 O.S.2001, § 797
2. 22 O.S.2001, § 1051 (a)
3. 21 O.S.Supp.2003, § 13.1
4. Ferguson v. State, 2006 OK CR 36, P.3d

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 797 (2001) - Robbery in the first degree
• Okla. Stat. tit. 22 § 1051 (2001) - Withdrawal of plea
• Okla. Stat. tit. 21 § 13.1 (2003) - Parole eligibility

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:

• Ferguson v. State, 2006 OK CR 36, P.3d