Ricky Allen Rinker v The State Of Oklahoma

C 2005-608

Filed: Mar. 12, 2007

Not for publication

Prevailing Party: Ricky Allen Rinker

Summary

Ricky Allen Rinker appealed his conviction for sexual abuse and lewd acts against children. Conviction and sentence were vacated, and Rinker was allowed to withdraw his pleas. Judge Lumpkin dissented.

Decision

Rinker's Petition for Writ of Certiorari is GRANTED, the Judgment and Sentence of the district court is hereby VACATED, and the case is REMANDED for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there a violation of the plea agreement by the State when a more severe sentence was recommended?
• did Rinker knowingly and voluntarily enter his pleas despite being misadvised about the applicable sentence?
• did the plea of guilty and summary of facts form contain a sufficient factual basis for the pleas, and was due process violated by the lack of a record of the plea and sentencing hearing?
• was there sufficient evidence to establish Rinker's competency to enter his pleas?
• did the trial court's commentary during the hearing on the motion to withdraw the plea show bias and ill will, warranting a new hearing before a neutral judge?
• are the sentences imposed excessive and should they be modified or Rinker allowed to withdraw his pleas?

Findings

• Rinker's Writ of Certiorari is granted.
• The Judgment and Sentence of the district court is vacated.
• Rinker is allowed to withdraw his pleas.
• Remaining propositions presented by Rinker are rendered moot.

C 2005-608

Mar. 12, 2007

Ricky Allen Rinker

Appellant

v

The State Of Oklahoma

Appellee

OPINION GRANTING

LEWIS, JUDGE: Ricky Allen Rinker entered pleas of guilty and pleas of nolo contendere,¹ without an agreement as to the sentence he would receive, in Oklahoma County District Court Case No. CF-2004-99, before the Honorable Ray C. Elliott, District Judge. Rinker entered pleas of guilty to six (6) separate counts of the crime of Sexual Abuse of a Child, 10 O.S.2001, § 7115, (counts one through five and count nine). Rinker entered pleas of nolo contendere to three (3) separate counts of Indecent or Lewd Acts with a Child under Sixteen, 21 O.S.2001, § 1123, (counts 6-8). Rinker was sentenced on May 17, 2005, to forty (40) years on counts one through five and count nine; ten (10) years on count six; five (5) years on count seven; and ten (10) years on count eight. Counts one and four were ordered to run consecutively with each other; the remaining counts were ordered to run concurrently with each other and concurrently with count one. Rinker subsequently filed a motion to withdraw his pleas, which was denied at a hearing held before Judge Elliott. Rinker is now before this Court appealing Judge Elliott’s decision.

This Court ordered the State to respond on April 19, 2006. Rinker now seeks relief from this Court raising the following propositions:
1. The State violated its plea agreement with Petitioner by recommending a significantly more severe sentence when it had previously indicated to Petitioner’s counsel that it would stand on 40 (ask for a recommended sentence of forty (40) years to do).
2. The pleas were not knowingly and voluntarily entered because Rinker was misadvised by the court and counsel concerning the applicable sentence.
3. The plea of guilty and summary of facts form does not contain a sufficient factual basis upon which the pleas can be sustained; and Rinker was denied the right to due process of law when the trial court did not ensure that a record was made of the actual plea and the sentencing hearing in violation of the Fourteenth Amendment to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution.
4. The record is insufficient to establish that Rinker was competent to enter his pleas.
5. The commentary by the trial court during the hearing on the motion to withdraw plea evidences bias and ill will toward both Rinker, his crime, and defense counsel; and thus Rinker must be allowed to withdraw his plea, or in the alternative, be allowed a new hearing before a neutral judge.
6. The sentences imposed are excessive and must be modified; or, in the alternative, Rinker must be allowed to withdraw his pleas.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, motions and briefs of the parties, we grant Rinker’s Writ of Certiorari and order that he be allowed to withdraw his pleas. In deciding Rinker’s Petition, we note that our only concern is whether the plea was entered knowingly and voluntarily. Fields V. State, 1996 OK CR 35, ¶ 38, 923 P.2d 624, 631-32.

In proposition two, Rinker complains that he was not advised of the statutory limitation (the 85% rule) on parole eligibility for his crimes. In Ferguson v. State, 2006 OK CR 36, ¶¶ 3-4, 143 P.3d 218, 219, this Court held the failure to advise the defendant of this statutory limitation on parole eligibility rendered the plea involuntary. The crimes for which Rinker was charged occurred sometime after September 30, 1999. The 85% rule, as it applies to the crimes charged herein, was enacted and became effective on July 1, 1999. See 21 O.S.Supp. 1999, § 13.1. Therefore, his terms of imprisonment will be subject to the 85% mandatory parole eligibility law. However, Rinker was not informed that he would be required to serve 85% of any term before becoming eligible for parole. This error results in pleas that are not entered into knowingly and voluntarily, thus Rinker must be allowed to withdraw the pleas. See Hunter v. State, 1992 OK CR 1, ¶ 3, 825 P.2d 1353, 1355. (a defendant who does not enter the plea knowingly and voluntarily must be allowed to withdraw it).

Our resolution of this issue renders Rinker’s remaining propositions moot.

DECISION

Rinker’s Petition for Writ of Certiorari is GRANTED, the Judgment and Sentence of the district court is hereby VACATED, and the case is REMANDED for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT TRIAL
JOHN W. BILLY COYLE
JOHN W. COYLE, III (PLEA, SENTENCING & WITHDRAW HEARING)
COYLE LAW FIRM
119 NORTH ROBINSON, SUITE 320
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR PETITIONER

APPEARANCES ON APPEAL
JOHN W. BILLY COYLE
ROBINSON RENAISSANCE
119 NORTH ROBINSON, SUITE 320
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR DEFENDANT

SUANNE CARLSON
SARAH McAMIS
ASSISTANT DISTRICT ATTORNEY
OKLAHOMA COUNTY
313 N.E. 21st STREET
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR RESPONDENT

W.A DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
WILLIAM R. HOLMES
ASSISTANT ATTORNEY GENERAL
505 COUNTY OFFICE BUILDING
320 ROBERT S. KERR AVE.
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR STATE

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

LUMPKIN, VICE-PRESIDING JUDGE: DISSENT
I dissent to the Court’s decision to grant certiorari in this case and thereby allow him to withdraw his pleas. There’s really no evidence that Rinker was not advised of the 85% rule; there is merely the absence of any evidence that he was SO advised in the record. This is partially because no transcript was made of the guilty plea. Petitioner waived that right. Petitioner entered blind pleas to the charges, and he was informed of the proper range of punishment for his crimes. The Court needs to remember a blind plea is just that, a plea of guilty without any guarantee as to what the sentence will be. All we really have is Petitioner’s bare claim that he did not understand his crimes were subject to the 85% rule, despite the fact that he was represented by a very competent, experienced attorney. He pled blind to the charges, admitted guilt, and waived a record being made of the proceedings. Under these circumstances, I see no reason to grant Petitioner any relief. At most, we should remand the case for an evidentiary hearing on this issue, where we hear from the attorney in question and actually obtain some evidence to back up or refute these claims. At times, the mere mention of Anderson’s 85% rule has caused the Court to order relief when no relief is warranted. Our jurisprudence requires more than that. In addition, this is just another case which proves the concerns I expressed in my separate writing to Ferguson v. State, 2006 OK CR 36, P.3d were valid.

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Footnotes:

1. 1 The record refers to the pleas in these counts as "Alford pleas."
2. 2 After thorough consideration of the entire record before us on appeal including the original record, transcripts, motions and briefs of the parties, we grant Rinker's Writ of Certiorari and order that he be allowed to withdraw his pleas.
3. 3 Our resolution of this issue renders Rinker's remaining propositions moot.
4. 4 See 21 O.S.Supp. 1999, § 13.1.
5. 5 See Hunter v. State, 1992 OK CR 1, I 3, 825 P.2d 1353, 1355.
6. 6 I dissent to the Court's decision to grant certiorari in this case and thereby allow him to withdraw his pleas.

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 - Sexual Abuse of a Child
• Okla. Stat. tit. 21 § 1123 - Indecent or Lewd Acts with a Child under Sixteen
• Okla. Stat. tit. 21 § 13.1 - 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:

• Fields v. State, 1996 OK CR 35, I 38, 923 P.2d 624, 631-32
• Ferguson v. State, 2006 OK CR 36, 11 3-4, 143 P.3d 218, 219
• Hunter v. State, 1992 OK CR 1, I 3, 825 P.2d 1353, 1355