Rodney Taylor Glenn v State Of Oklahoma

C-2003-1334

Filed: May 10, 2005

Not for publication

Prevailing Party: Rodney Taylor Glenn

Summary

Rodney Taylor Glenn appealed his conviction for multiple charges including unlawful possession of a controlled substance and assault and battery with a deadly weapon. His convictions and sentences included 35 years for unlawful possession and 20 to 35 years for the assault charges. One judge, known as Lumpkin, dissented from part of the opinion.

Decision

The Judgment and Sentence of the trial court is AFFIRMED in PART and REVERSED in PART. The petition for a writ of certiorari is GRANTED with respect to the three counts of Assault and Battery with a Deadly Weapon and the one count of Possession of a Firearm While Committing a Felony in Case No. CF-2003-215 and DENIED as to the counts in Case Nos. CF-2003-140 and CF-2003-214. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient inquiry into the petitioner's competence to enter the pleas?
• Was there a sufficient factual basis for the charges to support the pleas?
• Were the pleas knowingly and voluntarily entered given the misadvice about the ranges of punishment?
• Did the sentence imposed for possession of a firearm during the commission of a felony exceed the time authorized by statute?
• Did the petitioner receive the benefit of his bargain as part of the plea negotiations?
• Did fundamental error occur due to the failure to have a post-evaluation competency hearing?
• Was there a denial of the right to effective assistance of counsel?

Findings

• the court did not err in assessing competency to enter plea
• evidence was not sufficient for the charge of assault and battery with a deadly weapon
• the plea was not entered knowingly and voluntarily due to misadvice on range of punishment for assault and battery with a deadly weapon
• the sentence imposed for possession of a firearm during the commission of a felony was incorrect due to misadvice on range of punishment
• the petitioner was not denied the benefit of his bargain
• no fundamental error occurred regarding post-evaluation competency hearing
• the ineffective assistance of counsel claim required no additional relief

C-2003-1334

May 10, 2005

Rodney Taylor Glenn

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Rodney Taylor Glenn, Petitioner, was charged in three separate cases with various crimes in the District Court of Washington County. Plea negotiations culminated in an agreement whereby the State dismissed several charges in exchange for Glenn waiving preliminary hearing and entering a plea of nolo contendere. Sentencing was left to the Court. Ultimately, the Honorable Janice Dreiling accepted Glenn’s pleas and sentenced him as follows:

Case No. Charge Sentence
CF-2003-140 Unlawful Possession 35 years
Of a Controlled Dangerous Substance
CF-2003-214 Possession of a Firearm, AFCF 20 years
CF-2003-215 Assault & Battery with a 35 years
Deadly Weapon
CF-2003-215 Assault & Battery with a 35 years
Deadly Weapon
CF-2003-215 Assault & Battery with a 35 years
Deadly Weapon
CF-2003-215 Possession of a Firearm While 20 years
Committing a Felony

The trial court ordered each of the 35-year sentences to run consecutively to each other, but concurrently with Glenn’s 20-year sentences. Glenn filed a timely motion to withdraw his plea. Following the prescribed hearing, the trial court denied Glenn’s request. From the district court’s order denying his motion to withdraw guilty plea, Petitioner seeks a Writ of Certiorari.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we grant the petition for a writ of certiorari in part and deny the petition in part. In reaching our decision we considered the following propositions of error:

I. Petitioner should be allowed to withdraw his pleas because the court did not sufficiently inquire into his competence to enter them;
II. Because the record is void of a factual basis, Petitioner should be allowed to withdraw his pleas;
III. The pleas were not knowingly and voluntarily entered because the Petitioner was not advised of the correct ranges of punishment on several of the crimes;
IV. The sentence imposed for possession of a firearm during the commission of a felony exceeds the time authorized by statute;
V. Petitioner should be allowed to withdraw his plea because he did not get the benefit of his bargain;
VI. Fundamental error occurred when the trial court failed to have a post-evaluation competency hearing; and
VII. Petitioner was denied his right to the effective assistance of counsel.

As to Proposition I, we find the trial court sufficiently ascertained that Glenn was competent to enter his plea. See Ocampo v. State, 778 P.2d 920, 923 (Okl.Cr. 1989). As to Proposition II, we find, after reviewing the entirety of the record, that there was a sufficient factual basis established for all of the charges, except Glenn’s charge of assault and battery with a deadly weapon for shooting at his girlfriend. The amended Information only pleads an assault occurred and that Glenn only intended to do bodily harm to his girlfriend. As such, the Information actually charges Glenn with Assault with a Dangerous Weapon in violation of 21 O.S.2001, § 645. Therefore, based on the charge alleged in the Information, there was an insufficient factual basis for this charge and we must allow Glenn to withdraw his plea as to that count.

As to Proposition III, we agree with Glenn that he was misadvised on the range of punishment for his three counts of assault and battery with a deadly weapon. Assault and battery with a deadly weapon is not included in the violent crimes listed in 57 O.S.2001, § 571. Because it is not listed in § 571 and there is no minimum sentence, the range of punishment for a person with two or more prior convictions was four years to life rather than the twenty years to life that Glenn was told. 21 O.S.Supp.2002, § 51.1 (B) & (C). Because Glenn was misadvised on the range of punishment, he must be allowed to withdraw his plea on the assault and battery with a deadly weapon counts. Hunter v. State, 825 P.2d 1353, 1355 (Okl.Cr.1992). Glenn was also misadvised on the range of punishment for possessing a firearm while committing a felony, after two or more prior convictions (21 O.S.2001, § 1287). The State sought to enhance Glenn’s sentence and the Summary of Facts form states that the range of punishment was six years to life, which was apparently derived by tripling the minimum penalty for a first offense, pursuant to § 51.1 (C) of the general habitual offender statute. Title 21 O.S.2001, § 1287 does not criminalize simple possession of a firearm; rather it punishes the use of a weapon in conjunction with the commission or attempted commission of another felony. It is itself an enhancement statute, which creates a special enhancer for the underlying felony; an extra penalty is imposed in addition to the penalty provided by statute for the felony committed or attempted. 21 O.S.2001, § 1287. Therefore, a conviction under § 1287 cannot be enhanced under the general enhancement statute because that would result in double enhancement. The trial court in the instant case sentenced Glenn to twenty years imprisonment when the correct range of punishment was 2 to 10 years imprisonment. Consequently, Glenn must be allowed to withdraw his plea to the charge of possessing a firearm while committing a felony. Hunter, 825 P.2d at 1355.

As to Proposition IV, this claim was addressed and resolved in Proposition III. As to Proposition V, we find Glenn was not denied the benefit of his bargain by the prosecutor’s misstatement of the amended charges at sentencing and that the trial court did not abuse its discretion in denying Glenn’s application to withdraw his plea on this basis. See Carpenter v. State, 929 P.2d 988, 998 (Okl.Cr.1996); Frederick v. State, 811 P.2d 601, 603 (Okl.Cr.1991). As to Proposition VI, we find that the minute entered on the docket sheet on August 22, 2003 reflects a post-evaluation hearing was conducted and the issue of Glenn’s competency was not contested. As to Proposition VII, we have addressed the merits of the claims underlying Glenn’s ineffective assistance of counsel claim and have ordered the necessary relief. No other relief is required.

DECISION

The Judgment and Sentence of the trial court is AFFIRMED in PART and REVERSED in PART. The petition for a writ of certiorari is GRANTED with respect to the three counts of Assault and Battery with a Deadly Weapon and one count of Possession of a Firearm While Committing a Felony in Case No. CF-2003-215 and DENIED as to the counts in Case Nos. CF-2003-140 and CF-2003-214. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Ocampo v. State, 778 P.2d 920, 923 (Okl.Cr. 1989).
2. 21 O.S.2001, § 645.
3. 57 O.S.2001, § 571.
4. 21 O.S.Supp.2002, § 51.1 (B) & (C).
5. Hunter v. State, 825 P.2d 1353, 1355 (Okl.Cr. 1992).
6. 21 O.S.2001, § 1287.
7. Carpenter v. State, 929 P.2d 988, 998 (Okl.Cr. 1996).
8. Frederick v. State, 811 P.2d 601, 603 (Okl.Cr. 1991).
9. Rule 3.11 (B)(1), Rules of the Oklahoma Court of Criminal Appeals, Tit. 22, Ch. 18, App. (2004).
10. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005).
11. Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 - Assault with a Dangerous Weapon
• Okla. Stat. tit. 21 § 51.1(B) - Habitual Offender Statute
• Okla. Stat. tit. 21 § 51.1(C) - Habitual Offender Statute
• Okla. Stat. tit. 21 § 1287 - Possession of Firearm While Committing a Felony
• Okla. Stat. tit. 57 § 571 - Violent Crimes
• Okla. Stat. tit. 22 § 3.11(B)(1) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 4.2 - Rules of the Oklahoma Court of Criminal Appeals

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:

• Ocampo v. State, 778 P.2d 920, 923 (Okl.Cr. 1989)
• Hunter v. State, 825 P.2d 1353, 1355 (Okl.Cr. 1992)
• Carpenter v. State, 929 P.2d 988, 998 (Okl.Cr. 1996)
• Frederick v. State, 811 P.2d 601, 603 (Okl.Cr. 1991)