Saul Perez v The State Of Oklahoma

C-2003-890

Filed: Aug. 23, 2004

Not for publication

Prevailing Party: Saul Perez

Summary

Saul Perez appealed his conviction for Child Neglect. Conviction and sentence modified to ten years in prison. Lile dissented.

Decision

The Application for Writ of Certiorari is GRANTED and Perez's sentence is MODIFIED to ten (10) years imprisonment.

Issues

• Was there a factual basis to support a finding that the petitioner, Saul Perez, was responsible for the neglected child?
• Was Perez's plea to child neglect voluntarily and knowingly entered?
• Was the eighteen-year sentence excessive, given the lack of showing that Perez had a duty to care for the child and that the neglect was willful?
• Should the case be remanded for a new hearing on the motion to withdraw the guilty plea due to the absence of a qualified and sworn interpreter?

Findings

• Proposition I is not properly before this Court and is not considered.
• Proposition II requires modification of his sentence due to an ambiguous record regarding Perez's understanding of the plea.
• Proposition III leads to modification of Perez's sentence due to lack of evidence showing a duty to care for the child and that the neglect was willful.
• Proposition IV is not considered as it was not raised in the appropriate context.
• Perez's sentence is MODIFIED to ten (10) years imprisonment.

C-2003-890

Aug. 23, 2004

Saul Perez

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Saul Perez pled guilty to one count of Child Neglect in violation of 10 O.S.2001, § 7115 in Carter County District Court, Case No. CF-2002-299B. After a hearing on July 16, 2003, the Honorable Thomas S. Walker sentenced Perez to eighteen (18) years’ imprisonment. Perez’s timely Motion to Withdraw Plea of Guilty was denied after an August 1, 2003, hearing. Perez raises four propositions of error in support of his petition:

I. Perez should be allowed to withdraw his plea to child neglect because there is no factual basis to support a finding that petitioner was responsible for the neglected child;

II. Perez should be allowed to withdraw his plea to child neglect because the plea was not voluntarily and knowingly entered;

III. The sentence of eighteen years is excessive, absent a showing that Perez had a duty to care for the child and that the neglect was willful; and

IV. The case should be remanded for a new hearing on the motion to withdraw the guilty plea because Perez was not provided with a qualified and sworn interpreter for this critical hearing, in violation of his constitutional rights.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs, we find that the law and evidence require modification of Perez’s sentence. Propositions I and IV are not properly before this Court, and we do not consider them.

We find in Propositions II and III that the ambiguous record regarding Perez’s understanding of the crime to which he entered a plea of guilty requires modification of his sentence. The child neglect statutes define neglect as failure or omission to (a) provide food, clothing, shelter, medical care and supervision; (b) provide any necessary special care; or (c) abandonment. As the State notes, this does not specifically require that the defendant have any duty to care for the child in question. However, the Oklahoma Uniform Jury Instructions do include the requirement that the defendant must be a person responsible for the child’s health or safety. The Committee Comments state this was included to prevent criminal liability for failure to provide food or shelter to a child the defendant had never met. This interpretation is reasonable, as it is highly unlikely the Legislature intended that result. This Court has not confirmed this requirement for child neglect. However, interpreting the child abuse statute, the Court has held that a conviction for permitting child abuse requires a showing that the defendant was responsible for the child’s health or welfare. We reached this conclusion because the statutory statement of public policy for the Child Abuse Reporting and Prevention Act announces: It is the policy of this state to provide for the protection of children who have been abused or neglected and who may be further threatened by the conduct of persons responsible for the health, safety or welfare of such children. This applies to the child neglect statute as well. The overarching statement of public purpose clearly indicates that these statutes are intended to apply to a defendant who is responsible for a child’s health, safety or welfare. We decline the State’s invitation to retreat from this interpretation. Perez’s sentence is MODIFIED to ten (10) years imprisonment.

Decision

The Application for Writ of Certiorari is GRANTED and Perez’s sentence is MODIFIED to ten (10) years imprisonment.

ATTORNEYS AT TRIAL

EDWARD FROCK PETERS
P.O. BOX 5972
ARDMORE, OKLAHOMA 73403
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

LEE ANN JONES
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR PETITIONER

CRAIG LADD
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
CARTER COUNTY COURTHOUSE
20 B STREET SW
ARDMORE, OKLAHOMA 73401
ATTORNEYS FOR RESPONDENT

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Footnotes:

1. 10 O.S.2001, § 7115
2. Rule 4.3(C),(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2004).
3. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1173, 22 L.Ed.2d 418 (1969). Cf. Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976).
4. 10 O.S.Supp.2002, § 7102(B)(3); 10 O.S.Supp.2 2002, § 7115(C).
5. OUJI-CR (2nd) 4-37.
6. Gilson U. State, 2000 OK CR 14, 8 P.3d 883, cert. denied, 532 U.S. 962, 121 S.Ct. 496, 149 L.Ed.2d 381 (2001).
7. 10 O.S.Supp.2002, § 7102(A)(1).

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 (2001) - Child Neglect
• Okla. Stat. tit. 10 § 7102 (Supp. 2002) - Definition of Neglect
• Okla. Stat. tit. 10 § 7102(A)(1) (Supp. 2002) - Public Policy for Child Abuse Reporting

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:

• Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)
• McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1173, 22 L.Ed.2d 418 (1969)
• Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976)
• Gilson U. State, 2000 OK CR 14, 8 P.3d 883, cert. denied, 532 U.S. 962, 121 S.Ct. 496, 149 L.Ed.2d 381 (2001)