Brad Daniel Richards v The State Of Oklahoma

C-2005-1198

Filed: Aug. 14, 2006

For publication

Prevailing Party: Brad Daniel Richards

Summary

# Brad Daniel Richards appealed his conviction for burglary in the second degree and knowingly concealing stolen property. Conviction and sentence reversed. Judge Lumpkin dissented.

Decision

The Petition for the Writ of Certiorari is GRANTED. The judgment and sentence of the District Court of Blaine County is REVERSED and REMANDED. 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 conflict of interest that adversely affected the representation provided to the Petitioner during the evidentiary hearing on the motion to withdraw his guilty plea?
• Did the appointed counsel's failure to argue the case and present evidence constitute a violation of the Petitioner's Sixth Amendment right to effective assistance of counsel?
• Was the error in denying the motion to withdraw the guilty plea harmful beyond a reasonable doubt, considering the absence of clarity regarding the Petitioner's factual grounds for the motion?

Findings

• the court erred in denying the motion to withdraw the guilty plea due to a conflict of interest affecting counsel's representation
• the writ of certiorari is granted
• the judgment and sentence of the District Court of Blaine County is reversed and remanded for a new evidentiary hearing

C-2005-1198

Aug. 14, 2006

Brad Daniel Richards

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Brad Daniel Richards, Petitioner, pled guilty in the District Court of Blaine County, Case No. CF-2005-63, to Count 1, burglary in the second degree, in violation of 21 O.S. § 1435; and Count 2, knowingly concealing stolen property, in violation of 21 O.S. § 1713. Petitioner was represented by appointed counsel. The District Court, Honorable Mark A. Moore, accepted the plea and convicted Petitioner of both offenses. The District Court pronounced judgment and sentence as follows: Count 1, seven (7) years imprisonment, $2,200 restitution, and a $250 VCA assessment; Count 2, five (5) years imprisonment, suspended, consecutive to Count 1, and a $100 VCA assessment. Petitioner timely moved to withdraw his pleas. After evidentiary hearing, the District Court denied the application. Petitioner seeks the writ of certiorari from the judgment of the District Court.

We review the trial court’s denial of a motion to withdraw a guilty plea for abuse of discretion. Vuletich v. State, 1987 OK CR 61, ¶ 12, 735 P.2d 568, 570. In Proposition 1, Petitioner argues that appointed counsel’s representation at the hearing on the motion to withdraw his plea was adversely affected by a conflict of interest and violated his Sixth Amendment right to counsel. We agree.

At the evidentiary hearing, defense counsel indicated he would allow the motion to stand on its own merits. Counsel stated that in addition to the grounds alleged in the motion to withdraw the plea, there may be an additional ground of ineffective assistance of counsel, which defense counsel concluded he could not argue to the Court. Counsel presented no argument or evidence in support of the boilerplate allegations in his written motion. The District Court considered a letter from Petitioner (apparently containing the ineffective assistance allegation), but this letter is not included in the record on appeal. Counsel did not call Petitioner to give testimony supporting the motion to withdraw, nor did counsel seek to withdraw from representation after announcing that he could not advance Petitioner’s claim of ineffective assistance.

The evidentiary hearing on a motion to withdraw a plea of guilty is a critical stage of criminal proceedings where the defendant is entitled to effective assistance of counsel. To show a denial of this right arising from conflict of interest, a Petitioner must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Carey v. State, 1995 OK CR 55, ¶ 2, 10, 902 P.2d 1116, quoting Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980). Such conflicts of interest may be harmless beyond a reasonable doubt where: (1) the defendant neither alleges that he is innocent nor that his plea was involuntary; and (2) it is clear that the defendant is not entitled to withdraw his plea. Randall v. State, 1993 OK CR 47, ¶ 7, 861 P.2d 314, 316. The record before the Court does not suggest that Petitioner is innocent, but we cannot clearly find with certainty that appellant would not be entitled to withdraw his guilty plea. Randall, at ¶ 10, 861 P.2d at 316.

We are unable to discern from the record the factual grounds for Petitioner’s motion, as Petitioner did not testify and his appointed counsel declined to argue his case. Because counsel’s conflict of interest adversely affected the presentation of Petitioner’s factual and legal grounds for withdrawal of the guilty plea, we are precluded from finding the error harmless beyond a reasonable doubt. The writ of certiorari is GRANTED. The Judgment and Sentence of the District Court of Blaine County is REVERSED and REMANDED with instructions to conduct a new evidentiary hearing on Petitioner’s motion to withdraw his guilty plea after the appointment of conflict-free counsel.

DECISION

The Petition for the Writ of Certiorari is GRANTED. The judgment and sentence of the District Court of Blaine County is REVERSED and REMANDED. 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.

Click Here To Download PDF

Footnotes:

1. 21 O.S. § 1435
2. 21 O.S. § 1713
3. Vuletich v. State, 1987 OK CR 61, ¶ 12, 735 P.2d 568, 570.
4. Carey v. State, 1995 OK CR 55, ¶ 10, 902 P.2d 1116.
5. Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980).
6. Randall v. State, 1993 OK CR 47, ¶ 7, 861 P.2d 314, 316.
7. Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 - Burglary in the second degree
• Okla. Stat. tit. 21 § 1713 - Knowingly concealing stolen property
• Okla. Stat. tit. 22 § 3.15 - Rules of the Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 - Impairment of rights to counsel
• Okla. Stat. tit. 21 § 691 - Effective assistance of counsel

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:

• Vuletich v. State, 1987 OK CR 61, I 12, 735 P.2d 568, 570
• Carey v. State, 1995 OK CR 55, I 2 10, 902 P.2d 1116
• Randall v. State, 1993 OK CR 47, I 7, 861 P.2d 314, 316
• Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980)