Philipe Jean Pace v State Of Oklahoma

C-2011-592

Filed: May 10, 2012

Not for publication

Prevailing Party: Philipe Jean Pace

Summary

Philipe Jean Pace appealed his conviction for Knowingly Concealing Stolen Property. Conviction and sentence were set at twenty years in prison, with ten years to be served and the rest suspended. Judge C. Steven Kessinger initially accepted his plea deal. Pace wanted to withdraw his plea later, saying he did not understand the situation and wasn't properly told about self-representation. The Court of Criminal Appeals agreed with him and stated he did not really understand how to represent himself without a lawyer. They decided he could withdraw his plea and go to trial instead. Judge Lewis dissented.

Decision

The Petition for Writ of Certiorari is GRANTED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a knowing, voluntary, and intelligent waiver of the right to counsel by the Petitioner?
• Did the district court err in not allowing the Petitioner to withdraw his plea due to ignorance, misunderstanding, and misapprehension?

Findings

• the court erred in denying Petitioner's motion to withdraw his plea due to an insufficient waiver of the right to counsel
• the trial court abused its discretion regarding the lack of proper advisement on the dangers of self-representation
• the record did not establish that Petitioner knowingly and intelligently waived his right to counsel
• Petitioner is allowed to withdraw his plea and proceed to trial

C-2011-592

May 10, 2012

Philipe Jean Pace

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

MAY 10, 2012

GRANTING CERTIORARI

MICHAEL S. RICHIE C. JOHNSON, JUDGE:

Petitioner, Philipe Jean Pace, was charged in Pontotoc County District Court, Case No. CF-2011-305, with Knowingly Concealing Stolen Property, After Former Conviction of Two or More Felonies. Petitioner entered a negotiated plea of nolo contendere to the crime charged. On June 13, 2011, the Honorable C. Steven Kessinger accepted Petitioner’s plea and pursuant to the plea agreement sentenced him to twenty years imprisonment with all but the first ten years suspended. His sentence was ordered to run concurrently with sentences revoked in Case Nos. CF-08-452, CF-08-367 and CF-08-247. Petitioner subsequently filed a motion to withdraw his no contest plea and the district court denied the motion after a hearing held on June 23, 2011. Petitioner now appeals the denial of his motion to withdraw.

Petitioner raises the following propositions of error:

I. The record fails to show that Petitioner’s pro se representation was the result of a knowing, voluntary, and intelligent waiver of the right to counsel made following a proper inquiry by the court into Mr. Pace’s ability to represent himself and advisement of the dangers of self-representation.

II. The district court erred in not allowing Mr. Pace to withdraw his plea which was entered as a result of ignorance, misunderstanding, misapprehension, and without deliberation.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs, we reverse the district court’s ruling and grant the petition for writ of certiorari.¹

Petitioner argues in his first proposition that he did not knowingly and voluntarily waive his right to be represented by counsel at his plea hearing. While the Sixth Amendment to the United States Constitution guarantees the right to counsel, a defendant may waive this right upon a showing that such waiver has been made knowingly, intelligently and voluntarily. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). A defendant’s knowing and voluntary waiver of the right to counsel requires that he or she be informed of the dangers and disadvantages of self-representation. Mathis v. State, 2012 OK CR 1, I 7, 271 P.3d 67, 71-72; Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.

[U]nder both the state and federal constitutions anything less than a record which shows that the defendant rejected the offer of counsel with knowledge and understanding of the perils of self-representation is not waiver. Nave v. State, 1991 OK CR 42, I 16, 808 P.2d 991, 994. Further, in order to validly waive the assistance of counsel and proceed pro se, a defendant must be competent to make this decision and must be clear and unequivocal in his desire to proceed pro se. See Fitzgerald v. State, 1998 OK CR 68, IT 6, 972 P.2d 1157, 1162. As waiver of counsel will not be lightly presumed, this Court must indulge every reasonable presumption against waiver. Norton v. State, 2002 OK CR 10, If 7, 43 P.3d 404, 407; Lineberry v. State, 1983 OK CR 115, I 3, 668 P.2d 1144, 1145. Whether a waiver of counsel was made knowingly, intelligently, and voluntarily depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). See also Braun v. State, 1995 OK CR 42, IT 12, 909 P.2d 783, 788.

Petitioner indicated in the Summary of Facts Form that he understood he had the right to have an attorney represent him and that he was waiving this right. The transcript of the plea hearing indicates that Petitioner had told the trial judge the week prior to the hearing that he wanted to work out a deal with the State and get this over with. During the plea hearing, Petitioner was advised that he had a right to counsel and the following was the extent to which the trial court discussed the waiver of this right with Petitioner:

THE COURT: Has anybody forced you, threatened you, or coerced you to get you to do that?

THE DEFENDANT: No, sir.

THE COURT: Do you believe that’s in your best interest?

THE DEFENDANT: I guess. I really don’t know.

THE COURT: Well, if you don’t know, we’re not going any farther and I’ll just have you returned to the jail.

THE DEFENDANT: Yes. Yes. That’s fine. I believe it – – it’s my best counsel (sic).

THE COURT: Okay. It’s your best – – you believe it’s in your best interest?

THE DEFENDANT: Best – – best interest, yes.

THE COURT: The court finds the Defendant did knowingly, intelligently, and voluntarily waive his right to counsel.

Counsel was appointed to represent Petitioner at the hearing on the motion to withdraw his plea. Counsel asked Petitioner if he had waived his right to counsel and if he had ever requested an attorney, but Petitioner was not asked whether the trial judge or any other person had advised him of the dangers of self-representation. Defense counsel asked Petitioner if he had stopped the court at any time during the plea hearing and asked for counsel. Petitioner answered that he told the court he was confused but the judge responded that he would send him back to jail, so Petitioner agreed to go ahead and enter his plea. When asked about his prior convictions, Petitioner stated that he had been represented by counsel. Petitioner testified that he was confused in the present case and should have requested a lawyer. At the end of the hearing, defense counsel offered no comments in closing. The State argued that Petitioner understood the system and did not request counsel, so his motion to withdraw should be denied.

On this record, the district judge denied Petitioner’s motion to withdraw. The record before this court reflects no warnings given to Petitioner by the trial judge or any other person regarding the dangers of self-representation. While there is no laundry list of factors which the trial court must address when accepting a waiver of counsel, it is necessary that a defendant be made aware of the problems of self-representation so the record establishes that he understands that his actions in proceeding without counsel may be to his ultimate detriment [T]he defendant’s technical knowledge of the law and its operation at trial is totally irrelevant in the assessment of his knowing exercise of the right to defend himself. Mathis v. State, 2012 OK CR 1, I 8, 271 P.3d 67, 72, quoting Johnson v. State, 1976 OK CR 292, I 34, 556 P.2d 1285, 1294.

The record before this Court does not reflect that Appellant either clearly and unequivocally asserted his right of self-representation or knowingly and intelligently relinquished the benefits of representation by counsel. Thus, the mandatory record is not present and waiver cannot be presumed. We find that the trial court abused its discretion in denying Petitioner’s motion to withdraw. Coyle v. State, 1985 OK CR 121, I 5, 706 P.2d 547, 548; Cox v. State, 2006 OK CR 51, I 30, 152 P.3d 244, 255. Accordingly, we grant the writ and allow Petitioner to withdraw his plea and proceed to trial.

DECISION

The Petition for Writ of Certiorari is GRANTED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF PONTOTOC COUNTY

THE HONORABLE C. STEVEN KESSINGER, SPECIAL JUDGE

APPEARANCES AT PLEA

PHILIPE JEAN PACE
PRO SE
P.O. BOX 926
NORMAN, OK 73070

APPEARANCES ON APPEAL WITHDRAWAL HEARING

RICKI J. WALTERSCHEID
JOHN HUBBARD
ATTORNEY FOR PETITIONER
ASSISTANT DISTRICT ATTORNEY
105 W. 13TH STREET
E. SCOTT PRUITT
ADA, OK 74820
ATTORNEY GENERAL OF
OKLAHOMA

JAY SCHNIEDERJAN
ASSISTANT ATTORNEY GENERAL
313 N.E. 21st ST.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY: C. JOHNSON, J.

A. JOHNSON, P.J.: CONCUR

LEWIS, V.P.J.: CONCUR

LUMPKIN, J.: CONCUR

SMITH, J.: CONCUR

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Footnotes:

1. ¹ Because this case requires relief based upon error raised in Proposition I, Petitioner's second proposition will not be addressed.
2. ² Mathis v. State, 2012 OK CR 1, I 7, 271 P.3d 67, 71-72; Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.
3. ³ The defendant's technical knowledge of the law and its operation at trial is totally irrelevant in the assessment of his knowing exercise of the right to defend himself.
4. 4 Coyle v. State, 1985 OK CR 121, I 5, 706 P.2d 547, 548; Cox v. State, 2006 OK CR 51, I 30, 152 P.3d 244, 255.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 22 § 3.15 (2012) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 441 (2011) - Waiver of Counsel
• Okla. Stat. tit. 21 § 701.4 (2011) - Sentencing After Former Conviction

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:

• Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)
• Mathis v. State, 2012 OK CR 1, 271 P.3d 67
• Nave v. State, 1991 OK CR 42, 808 P.2d 991
• Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157
• Norton v. State, 2002 OK CR 10, 43 P.3d 404
• Lineberry v. State, 1983 OK CR 115, 668 P.2d 1144
• Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)
• Braun v. State, 1995 OK CR 42, 909 P.2d 783
• Johnson v. State, 1976 OK CR 292, 556 P.2d 1285
• Coyle v. State, 1985 OK CR 121, 706 P.2d 547
• Cox v. State, 2006 OK CR 51, 152 P.3d 244