Larnell Baucom, Jr. v The State Of Oklahoma

C-1999-766

Filed: Jan. 12, 2001

Not for publication

Prevailing Party: Larnell Baucom, Jr.

Summary

Larnell Baucom, Jr. appealed his conviction for trafficking in illegal drugs. Conviction and sentence were reversed, allowing him to withdraw his plea. Judge Lumpkin dissented.

Decision

The judgment and sentence of the trial court is REVERSED and REMANDED with instructions to give Petitioner the opportunity to withdraw his plea, if he so desires.

Issues

• Was it error for the trial court to deny Petitioner's application to withdraw his guilty plea?
• Did Petitioner enter his plea upon incorrect advice from counsel and was he prejudiced as a result?

Findings

• the trial court erred in denying Petitioner's application to withdraw his guilty plea
• Petitioner was prejudiced due to ineffective assistance of counsel
• the judgment and sentence of the trial court is reversed and remanded
• Petitioner is granted the opportunity to withdraw his plea if he desires

C-1999-766

Jan. 12, 2001

Larnell Baucom, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING WRIT OF CERTIORARI AND ALLOWING WITHDRAWAL OF PLEA

LILE, JUDGE: Petitioner, Larnell Baucom, Jr., entered a plea of guilty to the crime of Trafficking in Illegal Drugs (63 O.S.Supp.1993, § 2-415) in Case No. CF-97-6709 in the District Court of Oklahoma County. The Honorable Ray C. Elliot, District Judge, sentenced Petitioner to ten (10) years imprisonment and a $25,000 fine. The fine was suspended. Petitioner moved to withdraw his plea and a hearing was held on May 11, 1999, following which the motion was denied. Petitioner now requests that this Court take up the matter on appeal and grant relief.¹

After thorough consideration of the entire record before us on appeal including the original record, transcripts, and brief of Petitioner, we reverse the trial court’s ruling. In reaching our decision, we considered the following proposition of error:

I. It was error for the trial court to deny Petitioner’s application to withdraw his guilty plea.

The one abundantly clear conclusion that can be made from this record is that trial counsel was ineffective and that Petitioner was prejudiced. We find that his plea was entered upon incorrect advice from counsel and it should be withdrawn if he still desires to do so.

DECISION

The judgment and sentence of the trial court is REVERSED and REMANDED with instructions to give Petitioner the opportunity to withdraw his plea, if he so desires.

Petitioner sought mandamus relief from this Court requesting that Judge Elliot be ordered to sentence Petitioner pursuant to the Delayed Sentencing Program. 22 O.S.1991, § 996. We denied mandamus. Then, Petitioner sought an appeal through our fast-track procedure which was denied, with instructions to file a Petition for Writ of Certiorari with brief within 30 days. Petitioner’s late filing of his brief-in-chief was permitted by this Court on January 12, 2001.²

ATTORNEYS AT TRIAL
LORI COMBS
P O BOX 18782
OKLAHOMA CITY, OK 73154
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL
LORI COMBS
P O BOX 18782
OKLAHOMA CITY, OK 73154
ATTORNEY FOR PETITIONER

STACY SMITH
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR STATE

LORI S. CARTER
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR RESPONDENT

OPINION BY: LILE, J.
LUMPKIN, P.J.: DISSENTS
JOHNSON, V.P.J.: CONCURS
CHAPEL, J.: CONCURS IN RESULTS
STRUBHAR, J.: CONCURS

LUMPKIN, P.J.: DISSENT

Petitioner claims his plea was not knowingly and voluntarily entered because his counsel told him he would be sentenced under the Delayed Sentencing Program for Young Adults. Based on that fact, Petitioner argues the trial court abused its discretion by refusing to grant the Motion to Withdraw. This proposition has no basis in the law or fact that requires the granting of certiorari, and I therefore dissent.

First, Petitioner has failed to provide the plea hearing transcript to rebut validity of the plea agreement. It is Petitioner’s burden to provide a complete record for purposes of appeal. Ellis v. State, 795 P.2d 107, 109 (Okl.Cr.1990). This Court may not presume error from a silent record. Hiler v. State, 796 P.2d 346, 350 (Okl.Cr.1990).

Second, Petitioner is not eligible for probation due to the nature of his charge, trafficking in illegal drugs. A trafficking conviction shall not be subject to statutory provisions for suspension, deferral, or probation… 63 O.S.Supp.2000, § 2-415(D).

Third, there is nothing in the record to demonstrate Petitioner and his counsel were not fully aware that the district court would not sentence him under the Delayed Sentencing Program¹. At the plea hearing, the Assistant District Attorney stated Petitioner and his counsel had been informed Petitioner was not eligible for delayed sentencing. Petitioner was also informed his guilty plea would not allow him to be eligible for probation. Thus, Petitioner was not misled by the prosecutor or the district court as to what the punishment would be. Petitioner knowingly and voluntarily entered a blind plea to the charges to which he received the minimum sentence allowable, ten years, after acknowledging the district court could sentence him to this term.

Finally, this Court’s Summary Opinion finds Petitioner received ineffective assistance of counsel, which resulted from the giving of incorrect legal advice prior to the plea and lack of giving crucial evidence to the trial court for determination of the voluntariness of the plea. However, Petitioner’s only proposition for review is whether the plea was entered knowingly and voluntarily. There is no allegation of ineffective assistance of counsel. This Court improperly raises that basis, sua sponte, and then improperly grants certiorari, thereby allowing Petitioner to withdraw his plea when the record does not show coercion or lack of a knowing, voluntary plea. It is not our job to act as Petitioner’s lawyers.

Click Here To Download PDF

Footnotes:

1. 63 O.S.Supp.1993, § 2-415
2. 22 O.S.1991, § 996
3. 63 O.S.Supp.2000, § 2-415(D)
4. Lozoya v. State, 932 P.2d 22 (Okl.Cr.1996)
5. Ellis v. State, 795 P.2d 107 (Okl.Cr.1990)
6. Hiler v. State, 796 P.2d 346 (Okl.Cr.1990)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (1993) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 22 § 996 (1991) - Delayed Sentencing Program
• Okla. Stat. tit. 63 § 2-415(D) (2000) - Trafficking in Illegal Drugs

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:

• Ellis v. State, 795 P.2d 107, 109 (Okl.Cr.1990).
• Hiler v. State, 796 P.2d 346, 350 (Okl.Cr.1990).
• Lozoya v. State, 932 P.2d 22 (Okl.Cr.1996).