Eugene Paul Vivier v The State Of Oklahoma

C-2001-225

Filed: Sep. 6, 2001

Not for publication

Prevailing Party: Eugene Paul Vivier

Summary

Eugene Paul Vivier appealed his conviction for a crime he committed. The court decided that his earlier attorney did not help him well enough when he pleaded guilty, so they said he should get another lawyer for a new hearing. The conviction and sentence remain, but the court is letting him have another chance to explain why he wants to change his plea. Judge Strubhar disagreed with this decision.

Decision

This matter is REMANDED for a new hearing on Petitioner's Motion to Withdraw Plea and Petitioner must be provided counsel for that hearing. IT IS so ORDERED.

Issues

• was there a need for effective legal representation at the hearing on the motion to withdraw plea?
• did the claims regarding ineffective assistance of counsel warrant a new hearing?
• was the harmless error analysis applicable in this case?
• did the petitioner have the right to be represented by counsel at the new hearing on his motion to withdraw plea?

Findings

• The court erred by not providing counsel for the Petitioner during the motion to withdraw plea hearing.
• Harmless error analysis cannot be applied in this case.
• The matter is remanded for a new hearing on the Petitioner’s Motion to Withdraw Plea.

C-2001-225

Sep. 6, 2001

Eugene Paul Vivier

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ORDER REMANDING PETITIONER’S MOTION TO WITHDRAW PLEA FOR A NEW HEARING

Petitioner made nominal claims that his attorney at the time of his plea and sentencing was ineffective. Whenever such claims are made, one in Petitioner’s position is entitled to have another attorney represent him at the hearing on his motion to withdraw plea of guilty. Carey v. State, 1995 OK CR 55, 902 P.2d 1116. The record and Respondents arguments, although making a strong showing that any error was harmless, do not forestall the necessary result. Harmless error analysis can not be applied under these circumstances. Randall v. State, 1993 OK CR 47, 861 P.2d 314. Holloway v. Arkansas, 98 S.Ct. 1173, 435 U.S. 475, 55 L.Ed.2d 426. This matter is REMANDED for a new hearing on Petitioner’s Motion to Withdraw Plea and Petitioner must be provided counsel for that hearing.

IT IS so ORDERED.

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Footnotes:

1. Carey v. State, 1995 OK CR 55, 902 P.2d 1116.
2. Randall v. State, 1993 OK CR 47, 861 P.2d 314.
3. Holloway v. Arkansas, 98 S.Ct. 1173, 435 U.S. 475, 55 L.Ed.2d 426.

Oklahoma Statutes citations:

No Oklahoma statutes found.

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:

• Carey v. State, 1995 OK CR 55, 902 P.2d 1116
• Randall v. State, 1993 OK CR 47, 861 P.2d 314
• Holloway v. Arkansas, 98 S.Ct. 1173, 435 U.S. 475, 55 L.Ed.2d 426