Gilbert Paz v The State Of Oklahoma

C-2014-584

Filed: Aug. 6, 2015

Not for publication

Prevailing Party: Gilbert Paz

Summary

Gilbert Paz appealed his conviction for several crimes, including First Degree Felony Murder and Shooting with Intent to Kill. The court upheld his conviction and sentence, which involved life imprisonment with some time suspended. Judge Lumpkin disagreed with the decision.

Decision

The District Court's denial of Petitioner's Motion to Withdraw Plea is VACATED, and the case is REMANDED to the District Court for further proceedings not inconsistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in providing legal advice and participating in plea negotiations?
• Did Mr. Paz's plea result from misunderstanding and confusion, failing the standard of being knowingly, intelligently, and voluntarily entered?
• Was Mr. Paz denied his constitutional right to counsel during critical stages of the criminal proceedings against him?
• Was Mr. Paz denied his constitutional right to effective assistance of counsel?
• Did the cumulative errors deprive Mr. Paz of a fair hearing and due process of law?

Findings

• the court abused its discretion
• the court erred in determining the plea was knowingly, intelligently and voluntarily entered
• Petitioner was denied his constitutional right to counsel during critical stages of the criminal proceedings
• the court did not find any errors regarding effective assistance of counsel
• the errors did deprive Mr. Paz of a fair hearing and due process of law
• the District Court's denial of Petitioner's Motion to Withdraw Plea is VACATED
• the case is REMANDED to the District Court for further proceedings not inconsistent with this Opinion

C-2014-584

Aug. 6, 2015

Gilbert Paz

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SMITH, PRESIDING JUDGE:

On April 7, 2014, Petitioner, Gilbert Paz, entered negotiated guilty pleas to the following crimes, all After Conviction of a Felony, in Cleveland County District Court Case No. CF-2012-2150:

Count 1, First Degree Felony Murder (21 O.S.2011, § 701.7(B))
Count 2, Shooting with Intent to Kill (21 O.S.2011, § 652(A))
Count 3, Conspiracy (21 O.S.2011, § 421)
Count 4, Attempted Robbery with a Firearm (21 O.S.2011, § 801)
Count 5, Possession of a Firearm AFC (21 O.S.2011, § 1283(A))

1 When the parties appeared for formal sentencing on May 28, Petitioner’s counsel informed the court of Petitioner’s desire to withdraw his pleas. The court continued the sentencing hearing to give Petitioner time to file a written motion to withdraw plea, and to seek new counsel if necessary. On June 6, a motion to withdraw plea was filed by Petitioner’s original counsel, alleging that the pleas were entered without deliberation and through ignorance and inadvertence. On June 23, 2014, Petitioner told the court he had been trying (with the help of his family) to hire a new lawyer, apparently without success. Petitioner’s original counsel expressed his ethical discomfort at advocating Petitioner’s request to withdraw his pleas, having counseled him in accepting the plea agreement in the first place. The court administered the oath to Petitioner and let him explain, pro se, why he wanted to withdraw his pleas. The court denied the request, then received victim-impact evidence and sentenced Petitioner in accordance with his plea agreement: life imprisonment, with all but 38 years suspended, on Counts 1 through 4, and ten years imprisonment on Count 5, with all terms running concurrently. Petitioner timely sought a certiorari appeal from the district court’s ruling. The State was directed to file a response, which was filed May 18, 2015. Petitioner filed a reply brief June 5, 2015.2

Paz raises five propositions of error in support of his petition:

PROPOSITION I. THE TRIAL COURT ABUSED ITS DISCRETION BY PROVIDING THE EQUIVALENT OF LEGAL ADVICE TO MR. PAZ AND PARTICIPATING IN PLEA NEGOTIATIONS.

PROPOSITION II. MR. PAZ’S PLEA WAS A PRODUCT OF MISUNDERSTANDING AND CONFUSION AND WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED.

PROPOSITION III. MR. PAZ WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL DURING CRITICAL STAGES OF THE CRIMINAL PROCEEDINGS AGAINST HIM.

PROPOSITION IV. MR. PAZ WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

PROPOSITION V. THE ERRORS IN THIS CASE CUMULATIVELY DEPRIVED MR. PAZ OF A FAIR HEARING AND DUE PROCESS OF LAW.

After thorough consideration of the Petitioner’s claims, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we conclude that only Proposition III requires resolution at this time. Petitioner claims, and the State concedes, that he was entitled to the effective assistance of counsel in his quest to withdraw his guilty pleas, and that he did not receive it. See Randall v. State, 1993 OK CR 47, II 3-9, 861 P.2d 314, 315-16; Carey v. State, 1995 OK CR 55, I 8, 902 P.2d 1116, 1118; Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). The State contends that this omission was harmless beyond a reasonable doubt, but we cannot agree. Petitioner claimed his pleas were involuntary; while we express no opinion as to the possible merits of that claim, we decline to hold, on the record before us, that the lack of counsel was harmless. Randall, 1993 OK CR 47, I 7, 861 P.2d at 316.

DECISION

The District Court’s denial of Petitioner’s Motion to Withdraw Plea is VACATED, and the case is REMANDED to the District Court for further proceedings not inconsistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY
THE HONORABLE TRACY SCHUMACHER, DISTRICT JUDGE

ATTORNEYS AT PLEA HEARING AND HEARING ON MOTION TO WITHDRAW PLEA
ATTORNEYS ON APPEAL
KEVIN FINLAY
219 E. MAIN
NORMAN, OK 73069
COUNSEL FOR DEFENDANT
OKLA. INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070-0926

LORI PUCKETT
ZACK SIMMONS
COUNSEL FOR PETITIONER
ASSISTANT DISTRICT ATTORNEYS
201 SOUTH JONES
NORMAN, OK 73069
COUNSEL FOR STATE

OPINION BY: SMITH, P.J.
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
HUDSON, J.: CONCUR

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Footnotes:

1. Okla. Stat. tit. 21 § 701.7(B)
2. Okla. Stat. tit. 21 § 652(A)
3. Okla. Stat. tit. 21 § 421
4. Okla. Stat. tit. 21 § 801
5. Okla. Stat. tit. 21 § 1283(A)
6. Randall v. State, 1993 OK CR 47, ¶¶ 3-9, 861 P.2d 314, 315-16
7. Carey v. State, 1995 OK CR 55, ¶ 8, 902 P.2d 1116, 1118
8. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981)
9. Randall, 1993 OK CR 47, ¶ 7, 861 P.2d at 316
10. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 - First Degree Felony Murder
• Okla. Stat. tit. 21 § 652 - Shooting with Intent to Kill
• Okla. Stat. tit. 21 § 421 - Conspiracy
• Okla. Stat. tit. 21 § 801 - Attempted Robbery with a Firearm
• Okla. Stat. tit. 21 § 1283 - Possession of a Firearm AFC

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:

• Randall v. State, 1993 OK CR 47, I 3-9, 861 P.2d 314, 315-16
• Carey v. State, 1995 OK CR 55, I 8, 902 P.2d 1116, 1118
• Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981)