Tamisha Nicole Walker v The State Of Oklahoma

C-2014-79

Filed: Jul. 8, 2014

Not for publication

Prevailing Party: Tamisha Nicole Walker

Summary

Tamisha Nicole Walker appealed her conviction for Assault and Battery on a Police Officer, Resisting an Officer, and Trespassing. Conviction and sentence were four years imprisonment, with the first year to be served in jail and fines totaling $1,000. Judge Lumpkin dissented, stating he believed the District Court had properly held a hearing on Walker's motion to withdraw her guilty plea and that her appeal was without merit.

Decision

DECISION Counsel's Motion to Withdraw is DENIED. The Petition for Writ of Certiorari is DISMISSED and the case is REMANDED for an evidentiary hearing with new counsel. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there ineffective assistance of plea counsel that made Walker's plea involuntary?
• Was Walker's sentence excessive considering the specific facts of her case?
• Was the trial court's denial of Walker's application to withdraw her guilty plea conducted without a proper evidentiary hearing?
• Was the appeal properly before the Oklahoma Court of Criminal Appeals?

Findings

• the court erred in summarily denying Walker's application to withdraw her plea without conducting an evidentiary hearing
• the court's decision to dismiss the petition for writ of certiorari was justified due to the improper handling of the appeal process
• the appeal was not wholly frivolous, contrary to appellate counsel's assertion

C-2014-79

Jul. 8, 2014

Tamisha Nicole Walker

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ORDER DENYING MOTION TO WITHDRAW AND DISMISSING CERTIORARI APPEAL

Smith, Vice Presiding Judge:

Tamisha Nicole Walker pled guilty to Assault and Battery on a Police Officer in violation of 21 O.S.2011, § 649(B) (Count I), Resisting an Officer in violation of 21 O.S. 2011, § 268 (Count II), and Trespassing in violation of 21 O.S.2011, § 1835 (Count III) in the District Court of Tulsa County, Case No. CF-2013-814. Following a presentence investigation report, the Honorable William C. Kellough sentenced Walker to four years imprisonment, with all but the first year to be suspended and with such term of imprisonment to be served in the county jail, and a fine of $600.00 on Count I, one year imprisonment in the county jail and a fine of $350.00 on Count II, and a fine of $50.00 on Count III. The court further ordered that the terms of imprisonment be served concurrently.

Walker filed a timely application to withdraw her plea of guilty which was denied by the trial court. After filing a timely Petition for Writ of Certiorari, on April 28, 2014, counsel for Walker filed a Motion to Withdraw and Brief in Support in accordance with Rule 3.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel for Appellant furnished Walker with a copy of the Motion to Withdraw and Brief in Support pursuant to Rule 3.6(B)(6). Walker has sixty (60) days from the filing of the motion to withdraw to file any additional propositions of error.

Our task is then to conduct a full examination of the record and briefs to determine whether (1) counsel has diligently searched the record for arguable claims and (2) the case is wholly frivolous. Rule 3.6(B)(7), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014). Although her deadline to do so has not expired, we find it unnecessary to await supplemental briefing in light of our determination that this appeal is not properly before us. Counsel avers that he has conducted a searching review of the record and concludes that the pending appeal is frivolous. In accordance with his obligations under our rules and Anders, counsel submits two claims which might arguably support an appeal.

I. WHETHER WALKER ENTERED HER PLEA INVOLUNTARILY DUE TO INEFFECTIVE ASSISTANCE OF PLEA COUNSEL.
II. WHETHER WALKER’S SENTENCE IS EXCESSIVE IN LIGHT OF THE SPECIFIC FACTS OF THIS CASE.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits, and brief of appellate counsel, we find that counsel’s motion to withdraw should be denied, as we cannot say an appeal is wholly frivolous. Rule 3.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014). However, based upon our full review of the record pursuant to Rule 3.6(B), we find that the instant appeal is not properly before us at this time.

Upon the filing of an application to withdraw a plea, a trial court must hold an evidentiary hearing and rule on the application. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014). The evidentiary hearing required under Rule 4.2 is a preliminary step in the certiorari appeal procedures, which is necessary to make a record of the evidence relied on by the parties to support their arguments on the motion to withdraw guilty plea. Roberts v. Morgan, 1998 OK CR 31, ¶10, 965 P.2d 382, 384. It is based on the record developed at the hearing that we determine whether the trial court abused its discretion in denying the appellant’s application. Tate v. State, 2013 OK CR 18, ¶15, 313 P.3d 274, 280. This preliminary step was not completed in the present case.

The record before this Court reflects that, upon the filing of Walker’s Application to Withdraw Plea of Guilty on November 12, 2013, the trial court set the matter for hearing on January 6, 2014. On that date, the trial court concluded that because Walker was sentenced on October 30, 2013, the application was filed out of time and summarily denied the application without conducting a hearing on the merits. Following an oral motion by defense counsel, the trial court determined that the Application to Withdraw Plea of Guilty was timely^1 and set the matter for hearing on January 13, 2014. After explaining the purpose of the hearing to Walker and receiving inadequate and ambiguous responses from her, the trial court again summarily denied the application.

During these proceedings, no witnesses were sworn, no evidence was offered or admitted, and no arguments were made by counsel concerning the merits of the claims raised in the application. Under these circumstances, the proceedings held on January 13, 2014, cannot be considered an evidentiary hearing as required by Rule 4.2. Failing this preliminary step of the appellate process, Walker’s appeal is not properly before this Court at this time.

Accordingly, we find it necessary to dismiss the petition for writ of certiorari and remand this matter back to the District Court to conduct an evidentiary hearing on Walker’s application to withdraw her plea of guilty. Because Walker has offered a claim of ineffective assistance of plea counsel as a possible basis for appellate relief, the District Court should appoint new counsel to represent Walker at the hearing on remand to avoid the possibility of a conflict of interest. If, after the evidentiary hearing, the District Court denies Walker’s request to withdraw her plea of guilty, Walker may file a petition for writ of certiorari and perfect an appeal in accordance with our Rules.

DECISION

Counsel’s Motion to Withdraw is DENIED. The Petition for Writ of Certiorari is DISMISSED and the case is REMANDED for an evidentiary hearing with new counsel. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2011, § 649(B)
2. 21 O.S.2011, § 268
3. 21 O.S.2011, § 1835
4. Rule 3.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)
5. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)
6. Rule 3.6(B)(7), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)
7. Roberts v. Morgan, 1998 OK CR 31, 10, 965 P.2d 382, 384
8. Tate v. State, 2013 OK CR 18, 15, 313 P.3d 274, 280
9. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)
10. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)
11. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967)
12. Rule 3.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 649(B) - Assault and Battery on a Police Officer
• Okla. Stat. tit. 21 § 268 - Resisting an Officer
• Okla. Stat. tit. 21 § 1835 - Trespassing
• Okla. Stat. tit. 22 § 3.6(B) - Withdrawal of Plea
• Okla. Stat. tit. 22 § 4.2(B) - Evidentiary Hearing on Withdrawal of Plea

Oklahoma Administrative Rules citations:

• Okla. Admin. Code § 715:10-15-10(3) (2014)
• Rule 3.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)
• Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)
• Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)
• Roberts v. Morgan, 1998 OK CR 31, 965 P.2d 382
• Tate v. State, 2013 OK CR 18, 313 P.3d 274