Ed Dewayne McManus v The State of Oklahoma

C-2002-652

Filed: Sep. 27, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Ed Dewayne McManus appealed his conviction for multiple offenses including Second Degree Burglary, First Degree Burglary, Kidnapping, Larceny of an Automobile, and Robbery with a Weapon. His conviction and sentence consisted of twenty years imprisonment for each charge, to be served one after the other. A judge denied his request to withdraw his guilty plea, saying the sentences were not excessive. McManus claimed his lawyer did not help him properly and that he did not fully understand the punishments he could face. The court agreed that the way the sentences were originally set was not right, so they changed the sentences for the Second Degree Burglary and Larceny of an Automobile to six and nine years respectively. The rest of his sentences were still kept the same. The court approved his convictions but modified two of his sentences. No judges disagreed with the decision.

Decision

The Petition for Writ of Certiorari is hereby GRANTED. Petitioner's convictions are AFFIRMED, as are his sentences on Counts II, III, and V. His sentence on Count I (2nd Degree Burglary) is MODIFIED to six (6) years imprisonment, and his sentence on Count IV (Larceny of an Automobile) is MODIFIED to nine (9) years. All sentences shall run consecutively.

Issues

• Was there a denial of effective assistance of counsel due to the lack of reasonable grounds in support of Petitioner's Motion to Withdraw Pleas of Guilty?
• Did Petitioner’s plea to Counts I and IV lack knowing and voluntary consent because he was not advised of the correct range of punishment?

Findings

• the court granted the Petition for Writ of Certiorari
• convictions are affirmed for Counts II, III, and V
• the sentence on Count I (2nd Degree Burglary) is modified to six (6) years imprisonment
• the sentence on Count IV (Larceny of an Automobile) is modified to nine (9) years imprisonment
• all sentences shall run consecutively
• proposition one has some merit but entitles Petitioner to no further relief
• proposition two's arguments about the range of punishment resulted in sentence modifications

C-2002-652

Sep. 27, 2002

Ed Dewayne McManus

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI & MODIFYING SENTENCE

LUMPKIN, PRESIDING JUDGE:

Petitioner entered a blind guilty plea in Murray County District Court Case No. CF-2002-10, and was convicted of in violation of the following offenses: Second Degree Burglary, in violation of 21 O.S.2001, § 1435 (Count I), First Degree Burglary, in violation of 21 O.S.2001, § 1431 (Count II), Kidnapping, in violation of 21 O.S.2001, § 741 (Count III), Larceny of an Automobile, in violation of 21 O.S.2001, § 1720 (Count IV), and Robbery with a Weapon, in violation of 21 O.S.2001, § 801 (Count V).¹ All convictions were after former conviction of two or more felonies. Following the receipt of a pre-sentence investigation report, the trial judge sentenced Petitioner to twenty (20) years imprisonment on each of the five counts, to be served consecutively. Petitioner, through counsel, filed a motion to withdraw his plea in which he challenged his sentences as excessive. The motion was denied. Petitioner² appeals from the trial court’s denial of his motion to withdraw plea. Petitioner raises the following propositions of error in his Petition for Writ of Certiorari:

I. Petitioner was denied his right to effective assistance of counsel because his trial counsel offered no reasonable ground in support of Petitioner’s Motion to Withdraw Pleas of Guilty; and

II. Petitioner’s plea to Count I and IV were not knowingly and voluntarily made because Petitioner was not advised of the correct range of punishment. This constitutes fundamental error.

After thoroughly considering these propositions and the entire record before us, we find the Petition for Writ of Certiorari should be granted, as set forth below. We find proposition one has some merit but entitles Petitioner to no further relief beyond that addressed below. With respect to proposition two, the record indicates the trial attorneys did not consider statutory amendments to 21 O.S.2001, § 51.1, when filling out the plea paperwork. Those amendments require the minimum sentences on Counts I and IV to be reduced to six (6) years and nine (9) years respectively, rather than twenty (20) years. Because Petitioner waived transcription of the plea hearing, we cannot conclusively find the amendments were not discussed or considered. Under the circumstances, however, the sentences on Counts I and IV should be modified.

DECISION

The Petition for Writ of Certiorari is hereby GRANTED. Petitioner’s convictions are AFFIRMED, as are his sentences on Counts II, III, and V. His sentence on Count I (2nd Degree Burglary) is MODIFIED to six (6) years imprisonment, and his sentence on Count IV (Larceny of an Automobile) is MODIFIED to nine (9) years. All sentences shall run consecutively.

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Footnotes:

1. Although there was no plea agreement per se, the Murray County D.A. dismissed Count VI, Possession of Firearms After Former Conviction, and Case No. CF-02-34, which appears to have concerned Appellant spitting on a police officer. (M.H. at 6.)
2. Those amendments require the minimum sentences on Counts I and IV to be reduced to six (6) years and nine (9) years respectively, rather than twenty (20) years.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 (2011) - Second Degree Burglary
• Okla. Stat. tit. 21 § 1431 (2011) - First Degree Burglary
• Okla. Stat. tit. 21 § 741 (2011) - Kidnapping
• Okla. Stat. tit. 21 § 1720 (2011) - Larceny of an Automobile
• Okla. Stat. tit. 21 § 801 (2011) - Robbery with a Weapon
• Okla. Stat. tit. 21 § 51.1 (2011) - Statutory Amendments

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:

No case citations found.