Anthony Frank Monaco v The State Of Oklahoma

C-2010-260

Filed: Jul. 20, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Anthony Frank Monaco appealed his conviction for ten counts of Child Sexual Abuse. Conviction and sentence: 25 years imprisonment for each count, running concurrently, and an additional 10 years for the last count to run consecutively. Judge Lumpkin dissented. In this case, Monaco entered a guilty plea but later argued that he didn’t know all the important facts about the charges against him. Specifically, he claimed he was never told he needed to be a "person responsible for the child's health, safety, or welfare," which is necessary to be convicted of these crimes. The court agreed that this was a serious issue and decided that Monaco should get new lawyers for a hearing about his guilty plea. This means that he has a chance to explain why he thinks his plea should be withdrawn and if it was done in a way that he understood. The case will be reviewed again with this new information.

Decision

Monaco's petition for certiorari is GRANTED, and this case is REMANDED to the district court FOR APPOINTMENT OF NEW COUNSEL ON MONACO'S MOTION TO WITHDRAW HIS GUILTY PLEA. The district court is directed to determine the adequacy of Monaco's guilty plea consistent with the principles and discussion contained herein.

Issues

• Was there a valid factual basis for Anthony Frank Monaco's guilty plea?
• Did the trial court err in denying Monaco's motion to withdraw his guilty plea due to ineffective assistance of counsel?
• Was Monaco's guilty plea entered knowingly, intelligently, and voluntarily considering the missing element of being a "person responsible for the child's health, safety, or welfare"?
• Did the trial court violate Monaco's right to conflict-free representation by allowing his original counsel to represent him during the motion to withdraw his plea?
• Is Monaco entitled to a modification of his sentence on the grounds of it being excessive?

Findings

• the court erred in accepting Monaco's guilty plea as it was not entered knowingly, intelligently, and voluntarily
• the trial court's failure to appoint new counsel on Monaco's motion to withdraw his plea constituted a conflict of interest
• the claim regarding the adequacy of the factual basis for the plea was not ripe for consideration
• Monaco's petition for certiorari was granted, and the case was remanded for appointment of new counsel on the motion to withdraw his guilty plea

C-2010-260

Jul. 20, 2011

Anthony Frank Monaco

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

On November 12, 2009, Anthony Frank Monaco was charged by Information in the District Court of Canadian County, Case No. CF-2009-575, with ten counts of Child Sexual Abuse, under 21 O.S.Supp.2009, § 843.5(E) (Counts 1-10). Less than three months later, on January 27, 2010, Monaco entered a blind plea of guilty to all ten counts before the Honorable Jack D. McCurdy, Special Judge. No preliminary hearing was held in the case, and very few specific facts were established at the time of Monaco’s plea. On March 3, 2010, the Honorable Jack D. McCurdy sentenced Monaco to imprisonment for 25 years on each of Counts 1 through 9, to run concurrently, and to imprisonment for 10 years on Count 10, to be served consecutively to the other counts.

Counts 1 through 5 charged Monaco with knowingly and willfully penetrating the vagina of a child, known as S.M., who was under the age of 14, with his finger. Counts 6 through 10 charged Monaco with knowingly and willfully touching the body or private parts of the same child, in a lewd and lascivious manner on or about the vagina. All of the acts were charged as occurring during the time period from November 16, 2005, to August 31, 2008, while the victim was between 10 and 12 years old. During this entire time period, the applicable statute was actually 10 D.S.Supp.2002(through 2008), § 7115, which in 2009 was renumbered to become 21 O.S.Supp.2009, § 843.5 (effective May 21, 2009).

Monaco was represented by counsel (Mark Hixson) at this blind guilty plea. Monaco was also ordered to pay costs, fees, and a Victim’s Compensation Assessment of $450. On March 5, 2010, the same counsel who represented Monaco in the taking of his blind guilty plea filed a motion to withdraw this guilty plea. A hearing was held on the motion on March 16, 2010. This hearing was not transcribed, and Monaco’s counsel at the plea withdrawal hearing was again the same attorney who had represented him when he entered his blind guilty plea. At the conclusion of the hearing, the Honorable Jack D. McCurdy denied the motion. Monaco is now properly before this Court on a petition for certiorari.

As noted, no preliminary hearing was held in this case, and very few specific facts were established at the time of Monaco’s plea. His guilty plea form states the following factual basis for his plea: In Canadian County on or between 11/16/2005 and 8/31/2008 I touched S.M. on or about the vagina in a lewd and lascivious manner at least 10 times. The transcript of Monaco’s guilty plea hearing is 12 pages long. The entire discussion of the factual basis for his guilty plea (to ten counts of child sexual abuse) was as follows:

THE COURT: Did you in fact commit the acts as charged in the Information?
THE DEFENDANT: Yes.
THE COURT: This factual basis that is written here says that in Canadian County on or between the 16th day of November, 2005, and the 31st day of August, 2008, you touched a minor by the initials of SM on or about the vagina in a lewd and lascivious manner at least ten different times. Is that a true statement?
THE DEFENDANT: Yes, sir.

Monaco’s motion asserted twelve reasons that he should be allowed to withdraw his plea, including: 1) that he lacked close assistance of counsel, 2) that he lacked effective assistance of counsel, 3) that his plea was entered through inadvertence, ignorance, mistake, or coercion, and 4) that his plea was not voluntarily and intelligently entered. The trial court’s failure to appoint Monaco new counsel on his motion to withdraw his plea, even though the motion was challenging the effectiveness of this same counsel, is the basis for Monaco’s claim in Proposition II and is addressed infra.

No other facts were presented or referenced as the factual basis for the plea. In Proposition I, Monaco argues that the trial court erred in accepting his guilty plea, because it was not entered knowingly, intelligently, and voluntarily. This Court reviews a trial court’s denial of a defendant’s motion to withdraw a guilty plea for an abuse of discretion. Monaco argues that his plea was not knowing and intelligent because the Information failed to allege a required element of the crime of child sexual abuse, namely, that he was a person responsible for the child’s health, safety, or welfare and because this required element was not addressed at the time of his plea or previously. Monaco maintains that because the State failed to charge him with this required element of child sexual abuse and because nothing in the record suggests that he was otherwise informed, prior to pleading guilty, that being a person responsible for the child’s health, safety, or welfare was an element of each of the ten counts to which he was pleading, his guilty plea was not knowing and intelligent.

The State asserts waiver regarding Monaco’s Proposition I claim on two grounds: (1) a guilty plea waives all non-jurisdictional defects in the Information, and (2) Monaco failed to raise his person responsible claim within his motion to withdraw his plea. This Court begins by noting that Monaco’s Proposition I claim is a challenge to the validity of his plea, not to the sufficiency of the Information. The adequacy of the Information is discussed herein insofar as it relates to whether Monaco was informed of all the elements of the crimes charged against him, in order to evaluate the validity of his plea.

As for Monaco’s failure to assert the person responsible claim within his original motion to withdraw, Monaco’s motion did assert that his plea was not voluntarily and intelligently entered, that it was entered through inadvertence, ignorance, mistake, or coercion, and that he was not provided effective assistance of counsel at the time of his plea. This Court will not ignore the reality of the current situation by a finding of waiver here, particularly since a showing of ineffective assistance due to conflict of interest on Proposition II excuses Monaco’s failure to raise this issue in his original motion to withdraw.

Furthermore, this Court has never held that a defendant can waive being informed—in some fashion and at some point prior to pleading guilty—of all the elements of the crime(s) to which he or she is pleading guilty. Thus we turn to Monaco’s claim in Proposition I. In Cox v. State, this Court held that an essential element of the offense of child sexual abuse when charged under 10 O.S.Supp.2002, § 7115(E) is that the defendant must have been a person responsible for the child’s health, safety, or welfare. Hence Monaco is correct (and the State concedes) that being a person responsible for the health, safety, or welfare of the child was an element of all ten counts of child sexual abuse charged in this case.

In fact, it is this requirement of a special relationship between the defendant and the child victim that sets Oklahoma’s crime of child sexual abuse apart from the more general crimes of rape, incest, and lewd or indecent acts or proposals to a child—which are included within child sexual abuse, but for which no special relationship between the defendant and the victim would otherwise be required. The fact that a defendant had a special relationship with the child victim and responsibility for that child’s welfare makes Oklahoma’s crime of child sexual abuse especially despicable. This Court has likewise recognized that under 10 O.S.Supp., § 7102(B), which § 7115(E) explicitly incorporates, the term person responsible for a child’s health, safety or welfare includes the following: a parent; a legal guardian; a custodian; a foster parent; a person eighteen (18) years of age or older with whom the child’s parent cohabitates or any other adult residing in the home of the child; an agent or employee of a public or private residential home, institution, facility or day treatment program; or an owner, operator, or employee of a child care facility.

Hence a defendant can only be convicted of child sexual abuse under 10 O.S., § 7115(E)—and its successor provision, 21 O.S., § 843.5(E)—if the defendant fits into at least one of these specific categories of persons who are responsible for the child victim’s health, safety, or welfare. The Information in this case totally fails to allege that Monaco was a person who was responsible for the health, safety, or welfare of the child he was charged with sexually abusing, i.e., S.M., who was his step-granddaughter.

Even the Information’s statutory reference to the crime charged did not give any kind of notice regarding this element, since Monaco was (incorrectly) charged with violating 21 O.S.Supp.2009, § 843.5(E)—the renumbered version of 10 O.S.Supp., § 7115(E). Unfortunately, when this provision was renumbered in 2009, the reference to the definition of child sexual abuse was not adjusted and continued to refer to § 7102(B)(6) of this title, i.e., title 21, which did not then and does not now exist. Thus the Information did not correctly inform Monaco of the statute he was charged with violating or include all the elements of the crime he was charged with committing; nor did the Information even intelligibly reference the person responsible element. Furthermore, the person responsible element of child sexual abuse was not addressed or referenced in any way at the time Monaco actually pled guilty. The record currently before this Court contains no evidence that Monaco was ever given notice or advised—at the time of his plea or at any time prior to his plea—that being a person responsible for the child victim’s health, safety, or welfare was an element of all ten counts to which he was pleading guilty.

Guilty pleas, along with pleas of nolo contendere and Alford pleas, have become such a common and integral part of our criminal justice system that it is sometimes easy to forget the significance of what each plea represents and what the defendant is giving up thereby. As the Supreme Court recognized back in Boykin v. Alabama, a defendant who pleads guilty is relinquishing several constitutional protections guaranteed to all who are accused of a crime, including (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one’s accusers.

Although this Court has not always required the utmost solicitude of which courts are capable, we have not wavered in maintaining our commitment to the principle that in order to be constitutionally valid, guilty pleas be both voluntarily and intelligently entered. Furthermore, this Court has recognized that a plea cannot be truly voluntary unless the defendant possesses a basic understanding of the law in relation to the facts of the case. Hence in order to have knowingly and intelligently pled guilty to child sexual abuse in this case, Monaco needed to be informed and aware that his status as a person responsible for the health, safety, or welfare of the child victim was a requirement for his convictions.

This Court notes that the record for evaluating the validity of a plea is not limited to evidence actually put on at the time of the plea. This Court has recognized, in particular, that evidence presented during a plea withdrawal hearing can be considered as part of an evaluation of whether a defendant’s plea was both intelligent and voluntary, since evidence is often presented in such hearings about the specific circumstances of a particular plea that was not part of the formal record of that plea. In the current case, however, Monaco’s plea withdrawal hearing was not transcribed.

In Proposition II, Monaco asserts that his right to conflict-free assistance of counsel was violated when the trial court failed to appoint him new counsel on his motion to withdraw his plea, even though he was asserting ineffective assistance of this same counsel and lack of close assistance of [this] counsel as two of the justifications for his motion. This Court recognizes that an actual conflict of interest exists where a defendant is asserting that his or her attorney’s ineffectiveness or coercion resulted in an invalid plea, yet this same attorney still represents the defendant. Consequently, when a defendant is asserting ineffective assistance or attorney coercion as a reason that his or her guilty plea is invalid, the trial court should automatically appoint new, conflict-free counsel on the defendant’s motion to withdraw the plea.

Thus, we remand this case for appointment of new counsel on Monaco’s motion to withdraw his guilty plea. Both parties will be free to present additional, relevant evidence on the issue of whether Monaco’s plea was voluntarily and intelligently entered, and whether there was an adequate factual basis for the plea, particularly regarding the person responsible element. The trial court is directed to make its determination regarding Monaco’s motion to withdraw his plea in accord with the discussion herein.

Decision

Monaco’s petition for certiorari is GRANTED, and this case is REMANDED to the district court FOR APPOINTMENT OF NEW COUNSEL ON MONACO’S MOTION TO WITHDRAW HIS GUILTY PLEA. The district court is directed to determine the adequacy of Monaco’s guilty plea consistent with the principles and discussion contained herein.

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Footnotes:

1. Okla. Stat. tit. 21 § 843.5(E)
2. Okla. Stat. tit. 10 § 7115
3. Okla. Stat. tit. 10 § 7102(B)
4. Okla. Stat. tit. 10A § 1-1-105(16)
5. Okla. Stat. tit. 10 O.S.Supp. 1995 § 7115
6. Okla. Stat. tit. 21 O.S.Supp.2010 § 843.5(E)
7. Okla. Stat. tit. 22 § 982
8. Okla. Stat. tit. 22 § 4.2(B)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(E) (2009) - Child Sexual Abuse
• Okla. Stat. tit. 10 § 7115 (2002) - Child Sexual Abuse
• Okla. Stat. tit. 10 § 7102(B) - Definitions concerning Child Sexual Abuse
• Okla. Stat. tit. 21 § 1123 (2010) - Lewd or Indecent Proposals

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969)
• Cox v. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251
• Carey v. State, 1995 OK CR 55, I 5-10, 902 P.2d 1116, 1117-18
• Parker v. State, 1996 OK CR 19, I 17-23, 917 P.2d 980, 985-86
• Townsend v. State, 2006 OK CR 39, I 3-6, 144 P.3d 170, 171-72
• Fields v. State, 1996 OK CR 35, 923 P.2d 624
• North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970)
• Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970)
• Hagar v. State, 1999 OK CR 35, I 4, 990 P.2d 894, 896
• Berget v. State, 1991 OK CR 121, I 24, 824 P.2d 364, 371
• Zakszewski v. State, 1987 OK CR 152, I 6-7, 739 P.2d 544, 545-46
• Durant v. State, 1980 OK CR 21, I 2-3, 609 P.2d 792, 793-94
• Ramirez v. State, 1967 OK CR 129, I 19, 430 P.2d 826, 829
• King v. State, 1976 OK CR 103, I 7, 553 P.2d 529, 532
• Ocampo v. State, 1989 OK CR 38, T 8, 778 P.2d 920, 923
• Wester v. State, 1988 OK CR 126, I 4, 764 P.2d 884, 887
• Mother of L. N., 1980 OK CR 72, I 4, 617 P.2d 239, 240
• Dennis v. State, 1999 OK CR 23, I 7, 990 P.2d 277, 289
• Childress v. State, 2000 OK CR 10, I 18, 1 P.3d 1006, 1011
• Leech v. State, 2003 OK CR 4, I 6, 66 P.3d 987, 993
• State v. Franks, 2006 OK CR 31, I 6, 140 P.3d 557, 558