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C-2017-684

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Bryan Lee Guy v The State Of Oklahoma

C-2017-684

Filed: May 31, 2018

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Bryan Lee Guy appealed his conviction for possessing a stolen vehicle, driving with a suspended license, and using an unauthorized license plate. He was sentenced to a total of eight years in prison, along with additional jail time for the other charges. He was not happy with the way his plea deal was handled and wanted to withdraw his guilty plea. The court reviewed his reasons for wanting to withdraw the plea. Guy claimed he didn’t understand his plea or the sentences. He also argued that he was not given effective help from his lawyer and that he should not have to pay for his incarceration costs because he might be mentally ill. The appeals court decided that Guy did not prove he was mentally ill at the time of his plea. It ruled that he could not withdraw his guilty plea because he did not provide enough evidence to support his claims. However, they said the lower court must look into whether he is mentally ill for the purpose of the costs of incarceration. The decision was to deny his appeal but remand (send back) the case to determine his mental health status in relation to those incarceration costs. No judges disagreed with this opinion.

Decision

The Petition for a Writ of Certiorari is DENIED. The case is REMANDED to the District Court of Payne County for a determination whether Petitioner is a mentally ill person as defined by 43A O.S.Supp.2016, § 1-103 and thus exempt from the assessment of the costs of incarceration under 22 O.S.2011, § 979a. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was Petitioner allowed to withdraw his pleas which were not knowingly, intelligently, and voluntarily made?
  • Were incarceration costs assessed to Petitioner in violation of 22 O.S.2011, § 979a(A)?
  • Was Petitioner deprived of his right to effective assistance of counsel?

Findings

  • the court did not err in denying the petitioner's motion to withdraw guilty pleas
  • the assessment of incarceration costs was upheld as the issue was waived by the petitioner
  • the claim of ineffective assistance of plea counsel was denied due to waiver of specific challenges
  • the claim of ineffective assistance of withdrawal counsel was partially granted as the court remanded for a determination of the petitioner's mental illness status

C-2017-684

May 31, 2018

Bryan Lee Guy

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

DENYING CERTIORARI

LUMPKIN, PRESIDING JUDGE: Petitioner, Bryan Lee Guy, was charged by Amended Information in District Court of Payne County Case No. CF-2016-629 with Possession of Stolen Vehicle (Count 1) (47 O.S.2011, 4-103) After Two or More Prior Felony Convictions; Driving While License Under Suspension (Count 2) (47 O.S.Supp 2016, § 6-303); and Affixing Unauthorized License Plate (Count 3) (47 O.S.2011, § 4-107(d)). On May 18, 2017, Petitioner entered a negotiated plea of guilty to each of these counts. The Honorable Phillip C. Corley, District Judge, accepted Petitioner’s plea and sentenced him to imprisonment for eight (8) years in Count 1, incarceration in the county jail for one (1) year in Count 2, and incarceration in the county jail for six (6) months in Count 3. The District Court also imposed a term of nine (9) months post imprisonment supervision in Count 1, granted Petitioner credit for time served and ordered all of the sentences to run concurrently. The District Court further ordered Petitioner to pay any costs of incarceration and the court costs in each count.

On May 23, 2017, the Petitioner filed his handwritten Motion to Withdraw Guilty Plea. Petitioner alleged within the motion that Defendant was not well advised by counsel at the time said plea was entered. Defendant didn’t fully understand Defendant’s plea or sentencing. On June 9, 2017, the District Court held a hearing on Petitioner’s motion. Petitioner appeared with conflict-free counsel at the hearing. The District Court denied Petitioner’s motion.

Petitioner raises the following propositions of error in support of his appeal.

I. Petitioner should be allowed to withdraw his pleas which were not knowingly, intelligently, and voluntarily made because they were entered as the result of inadvertence, ignorance, misunderstanding, and misapprehension.

II. Incarceration costs were assessed Petitioner in violation of 22 O.S.2011, § 979a(A).

III. Petitioner was deprived of his right to effective assistance of counsel.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we find that this case must be remanded to the District Court of Payne County for a determination whether Petitioner is a mentally ill person as defined by 43a O.S.Supp.2016, § 1-103 and thus exempt from the assessment of the costs of incarceration under 22 O.S.2011, § 979a. The decision to allow the withdrawal of a plea is within the sound discretion of the trial court and we will not interfere unless we find an abuse of discretion. Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998.

An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

In Proposition One, Petitioner contends the District Court erred when it refused to allow him to withdraw his pleas of guilty to the charges. He argues that his pleas were not knowingly, intelligently, and voluntarily entered. Our primary concern in evaluating the validity of a guilty plea is whether the plea was entered voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969); Ocampo v. State, 1989 OK CR 38, ¶ 3, 778 P.2d 920, 921. The defendant must be advised of all constitutional rights he relinquishes with his plea. King v. State, 1976 OK CR 103, ¶ 11, 553 P.2d 529, 534-35. He must also be advised of the nature and consequences of such plea, including the maximum punishment provided by law for the crime of which he stands charged. Id.

Petitioner first argues that he was misadvised as to the minimum punishment for the felony offense of Possession of a Stolen Vehicle After Two or More Prior Felony Convictions. However, we find that this issue is not properly before us. Petitioner did not raise this claim in his Motion to Withdraw Guilty Plea. He did not present any testimony concerning this circumstance or argue the point at the hearing held on his motion. Therefore, we find that he has waived appellate review of the claim. Weeks v. State, 2015 OK CR 16, ¶ 27, 362 P.3d 650, 657 (refusing to review merits of claim which had not been raised in either application to withdraw plea); Walker v. State, 1998 OK CR 14, ¶ 3, 953 P.2d 354, 355 (We do not reach the merits of the first proposition, for Walker waived the issue by failing to raise it in his motion to withdraw guilty plea.); Rule 4.2(B), Rule 4.3, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017).

We refuse to review the merits of this claim. Second, Petitioner argues that he should have been permitted to withdraw his plea because he testified at the withdraw hearing: I was totally off my meds when this happened, sir. I didn’t have my meds in like two weeks. A defendant must be competent in order to understand the nature and consequences of his or her plea. Allen v. State, 1998 OK CR 25, ¶ 2, 956 P.2d 918, 919; King v. State, 1976 OK CR 103, ¶ 11, 553 P.2d 529, 534-35. All criminal defendants are presumed to be competent and bear both the burden of proof and the burden of going forward with evidence to establish incompetency. 22 O.S.2011, § 1075.4.

Reviewing the record, we find that the trial court’s determination that Petitioner’s pleas were voluntarily and intelligently entered was not clearly against the weight and effect of the facts presented. The record shows that Petitioner was not claiming to have been incompetent to enter the pleas. Petitioner clarified during the cited exchange that he was not asserting that he was off his medication at the time of his pleas but that he was off his medication at the time of the charged offenses. As nothing in the record suggests that Petitioner did not understand the nature and consequences of the proceeding, we find that the District Court did not abuse its discretion. Proposition One is denied.

In Proposition Two, Petitioner contends that the District Court abused its discretion when it ordered him to pay the costs of incarceration pursuant to 22 O.S.2011, § 979a because he was a mentally ill person as defined by 43A O.S.Supp.2016, § 1-103. Petitioner admits that he did not raise this claim in his Motion to Withdraw Guilty Plea. As such, we find that he has waived appellate review of the claim and do not reach its merits. Weeks, 2015 OK CR 16, ¶ 27, 362 P.3d at 657; Walker, 1998 OK CR 14, ¶ 3, 953 P.2d at 355; Rule 4.2(B), Rule 4.3, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017).

Proposition Two is denied.

In Proposition Three, Petitioner claims that he was denied the effective assistance of counsel. This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Mitchell v. State, 2011 OK CR 26, ¶ 39, 270 P.3d 160, 190. The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Ashton v. State, 2017 OK CR 15, ¶ 55, 400 P.3d 887, 900.

The Court begins its analysis with the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Petitioner must overcome this presumption and demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Ashton, 2017 OK CR 15, ¶ 57, 400 P.3d at 901. To demonstrate prejudice an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s unprofessional errors. Id. The likelihood of a different result must be substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011).

Petitioner raises claims of ineffective assistance against both plea counsel and withdrawal counsel. He argues that plea counsel was ineffective for failing to raise the challenges that he now raises in Propositions One and Two. However, Petitioner did not raise these specific challenges in his Motion to Withdraw Guilty Plea. Therefore, we find that he has waived appellate review of his ineffective assistance of plea counsel claim and do not reach its merits. Weeks, 2015 OK CR 16, ¶ 27, 362 P.3d at 657; Walker, 1998 OK CR 14, ¶ 3, 953 P.2d at 355; Rule 4.2(B), Rule 4.3, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017).

Since this is Petitioner’s first opportunity to raise a claim of ineffective assistance against withdrawal counsel, we review the merits of his claim. Petitioner contends that withdrawal counsel was ineffective for failing to raise the challenge that he now raises in Proposition One. He argues that he was misinformed as to the minimum punishment for the felony offense of Possession of a Stolen Vehicle After Two or More Prior Felony Convictions in Count 1. The record shows Petitioner was misadvised as to the minimum punishment in Count 1. However, we find that Appellant has not shown a reasonable probability that the outcome of the withdraw hearing would have been different had withdrawal counsel challenged the mistake. The erroneous advisement of the range of punishment renders a guilty plea not voluntary and subject to withdrawal, unless the mistake was to the defendant’s benefit. Hunter v. State, 1992 OK CR 1, ¶ 5, 825 P.2d 1353, 1355, citing Chastain v. State, 1985 OK CR 117, ¶ 3, 706 P.2d 539, 539-40, overruled on other grounds by Luster v. State, 1987 OK CR 261, 746 P.2d 1159, 1160.

As the mistake inured to Petitioner’s benefit in the present case and did not impact the plea agreement which he accepted, we find that he has not shown a reasonable probability that the outcome of the hearing would have been different had withdrawal counsel raised this issue at the withdrawal hearing. We deny this claim of ineffective assistance of withdrawal counsel.

Petitioner further contends that withdrawal counsel was ineffective for failing to raise the claim that he now raises in Proposition Two. Alleging that he was a mentally ill person as defined by 43A O.S.Supp.2016, § 1-103, Petitioner argues that counsel should have challenged the District Court’s assessment of incarceration costs. The District Court is required by 22 O.S.2011, § 979a to order the defendant to reimburse all actual costs of incarceration, upon conviction or upon entry of a deferred judgment and sentence unless the defendant is a mentally ill person as defined by Section 1-103 of Title 43A of the Oklahoma Statutes. Section 1-103(3) defines Mental illness as a substantial disorder of thought, mood, perception, psychological orientation or memory that significantly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life.

Petitioner reported during the plea proceedings that he had been under the care of a doctor or mental health professional for mental illness since 2002. At the evidentiary hearing held on Petitioner’s motion, withdrawal counsel sought a continuance to determine if Tulsa County mental health court would accept Petitioner back. Therefore, counsel should have recognized that Petitioner was a mentally ill person for the purposes of § 1-103 and exempt from the payment of incarceration costs under § 979a.

The State argues that counsel’s representation was not deficient because this issue is collateral to the review afforded at a withdrawal hearing. We are not persuaded by this argument. This Court in Whitaker v. State, 2015 OK CR 1, 341 P.3d 87, found that the determination of whether a sentence imposed was legal properly fell within the scope of certiorari review. Id., 2015 OK CR 1, ¶ 7, 341 P.3d at 89. We noted that this Court has addressed and will continue to address, claims of excessive sentence when properly raised in a certiorari appeal. Id., 2015 OK CR 1, ¶ 9, 341 P.3d at 90.

Since a challenge to the legality of a sentence is within the scope of certiorari review, we find that withdrawal counsel had a duty to make certain that Petitioner’s sentence was lawful. Counsel’s failure to assure that Petitioner was not improperly assessed incarceration costs constitutes constitutionally deficient performance. Further, we find that there is a reasonable probability that the outcome of the proceeding would have been different had counsel challenged the imposition of incarceration costs in this case. The record shows that Petitioner was most likely mentally ill as defined by § 1-103. Petitioner reported that he had been under the care of a doctor or mental health professional for mental illness since 2002 and withdrawal counsel reported that he had been admitted to mental health court in Tulsa County. Therefore, we conclude that counsel’s failure to challenge the assessment of costs of incarceration prejudiced Petitioner, constituting ineffective assistance of counsel.

Under the circumstances of this case, Petitioner was entitled to a determination whether he is a mentally ill person as defined by 43A O.S.Supp. 2016, § 1-103 and thus exempt from the assessment of the costs of incarceration under 22 O.S.2011, § 979a. This case is remanded to the District Court of Payne County to make such a determination.

DECISION

The Petition for a Writ of Certiorari is DENIED. The case is REMANDED to the District Court of Payne County for a determination whether Petitioner is a mentally ill person as defined by 43A O.S.Supp.2016, § 1-103 and thus exempt from the assessment of the costs of incarceration under 22 O.S.2011, § 979a. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon deliver and filing of this decision.

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Footnotes:

  1. 47 O.S.2011, § 4-103
  2. 47 O.S.Supp 2016, § 6-303
  3. 47 O.S.2011, § 4-107(d)
  4. 22 O.S.2011, § 979a(A)
  5. 43A O.S.Supp.2016, § 1-103
  6. 22 O.S.2011, § 979a
  7. Hunter v. State, 1992 OK CR 1, 825 P.2d 1353
  8. Chastain v. State, 1985 OK CR 117, 706 P.2d 539
  9. Luster v. State, 1987 OK CR 261, 746 P.2d 1159
  10. Strickland v. Washington, 466 U.S. 668 (1984)
  11. Whitaker v. State, 2015 OK CR 1, 341 P.3d 87
  12. Ashton v. State, 2017 OK CR 15, 400 P.3d 887
  13. Boykin v. Alabama, 395 U.S. 238 (1969)
  14. Ocampo v. State, 1989 OK CR 38, 778 P.2d 920
  15. King v. State, 1976 OK CR 103, 553 P.2d 529
  16. Weeks v. State, 2015 OK CR 16, 362 P.3d 650
  17. Walker v. State, 1998 OK CR 14, 953 P.2d 354
  18. Allen v. State, 1998 OK CR 25, 956 P.2d 918
  19. Neloms v. State, 2012 OK CR 7, 274 P.3d 161

Oklahoma Statutes citations:

  • Okla. Stat. tit. 47 § 4-103 (2011) - Possession of Stolen Vehicle
  • Okla. Stat. tit. 47 § 6-303 (2016) - Driving While License Under Suspension
  • Okla. Stat. tit. 47 § 4-107(d) (2011) - Affixing Unauthorized License Plate
  • Okla. Stat. tit. 22 § 979a (2011) - Costs of Incarceration
  • Okla. Stat. tit. 43A § 1-103 (2016) - Mentally Ill Person Definition
  • Okla. Stat. tit. 22 § 1075.4 (2011) - Competency to Stand Trial

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:

  • Carpenter v. State, 1996 OK CR 56, I 40, 929 P.2d 988, 998
  • Neloms v. State, 2012 OK CR 7, "I 35, 274 P.3d 161, 170
  • Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969)
  • Ocampo v. State, 1989 OK CR 38, I 3, 778 P.2d 920, 921
  • King v. State, 1976 OK CR 103, "I 11, 553 P.2d 529, 534-35
  • Weeks v. State, 2015 OK CR 16, IT 27, 362 P.3d 650, 657
  • Walker v. State, 1998 OK CR 14, "I 3, 953 P.2d 354, 355
  • Allen v. State, 1998 OK CR 25, I 2, 956 P.2d 918, 919
  • Mitchell v. State, 2011 OK CR 26, 139, 270 P.3d 160, 190
  • Ashton v. State, 2017 OK CR 15, I 55, 400 P.3d 887, 900
  • Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011)
  • Hunter v. State, 1992 OK CR 1, I 5, 825 P.2d 1353, 1355
  • Chastain v. State, 1985 OK CR 117, "I 3, 706 P.2d 539, 539-40
  • Luster v. State, 1987 OK CR 261, 746 P.2d 1159, 1160
  • Whitaker v. State, 2015 OK CR 1, 341 P.3d 87

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