Blog

FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA MAY 2 6 2004 IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA MICHAEL S. RICHIE CLERK CURTIS RANDALL FOOTE, ) ) Petitioner, ) NOT FOR PUBLICATION ) -VS- ) No. C-2003-845 ) STATE OF OKLAHOMA, ) ) Respondent. ) SUMMARY OPINION DENYING PETITION FOR WRIT OF CERTIORARI STRUBHAR, JUDGE: Petitioner, Curtis Randall Foote, entered a plea of no contest in the District Court of Grady County to the crimes of First Degree Burglary (Count I), Intimidation of a Witness (Count II), Domestic Abuse Assault and Battery (Counts III and V) and Threatening an Act of Violence (Count IV) in Case No. CRF-2002-215. The Honorable Oteka L. Alford accepted Petitioner’s plea and sentenced him to twenty years imprisonment on Count I, ten years imprisonment on Count II, one year on each of Counts III and V and six months on Count IV. The trial court ordered the sentences on Counts I and II run consecutively and the sentences on the remaining Counts run concurrently to the sentence on Count I. It also ordered five years of each of the sentences imposed in Counts I and II be suspended. Petitioner subsequently filed a motion to withdraw his plea which was denied by the district court. He now appeals the district court’s denial of his motion to withdraw. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm the district court’s ruling regarding Counts I, II, III and V but reverse Count IV with instructions to dismiss. In reaching our decision, we considered the following propositions of error and determined this result to be required under the law and the evidence: I. Petitioner’s convictions should be vacated because Petitioner did not actually enter a plea of no contest. II. It was error to sentence Petitioner as a habitual offender, because prior convictions were neither alleged nor proved, therefore his sentences on the two felony convictions should be modified. III. Petitioner’s convictions for intimidation of a witness, threatening acts of violence and assault and battery constitute double jeopardy and double punishment; therefore, all but one of the convictions should be vacated. IV. The alleged acts did not constitute the offense of intimidation of a witness, and therefore the conviction should be vacated. V. Petitioner was denied effective assistance of counsel. DECISION As to Petitioner’s first proposition, we find it clear from the record that Petitioner intended to enter the no contest plea and the trial court cannot be 2 found to have abused its discretion in accepting his plea. See Avance U. State, 497 P.2d 467, 470-71 (Okl.Cr.1972). With regard to Petitioner’s second proposition, we find that given the record before this Court and the facts of this case, the district court’s decision to sentence Petitioner to the maximum on each felony count as a first offender was neither excessive nor improper. Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001). However, because the notation in the Judgment and Sentence indicating that Petitioner was convicted after a former felony conviction is in error, the Judgment and Sentence should be remanded for an Order Nunc Pro Tunc to correct the error. See Demry U. State, 986 P.2d 1145, 1148-49 (Okl.Cr.1999). Petitioner’s argument in Proposition III does warrant some relief. We find that Petitioner’s misdemeanor conviction on Count IV, for threatening an act of violence, was part of the acts which supported his felony conviction on Count I, intimidation of a witness. Thus, his misdemeanor conviction on Count IV, must be reversed with instructions to dismiss. His other three convictions arose from separate and distinct acts which, although occurring in close proximity to one another, do not violate either the constitutional prohibition against double jeopardy or the statutory prohibition against double 3 punishment. See Davis V. State, 916 P.2d 251, 261 (Okl.Cr.1996); Hale U. State, 888 P.2d 1027, 1028 (Okl.Cr.1995). The error alleged in Proposition IV requires no relief as the factual basis stated in the Summary of Facts form which was read into the record and attested to by Petitioner provides sufficient evidence to support Petitioner’s conviction for intimidation of a witness. Spuehler V. State, 709 P.2d 202 (Okl.Cr.1988). Finally, Petitioner’s claim of ineffective assistance of counsel must fail. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984). The Petition for Writ of Certiorari is DENIED and the Judgment and Sentence of the trial court is AFFIRMED as to Counts I, II, III and V. The Judgment and Sentence on Count IV is REVERSED with instructions to DISMISS. The Judgment and Sentence is also REMANDED for an Order Nunc Pro Tunc to correctly reflect conviction after no prior felony convictions. 4 APPEARANCES AT MOTION TO APPEARANCES ON APPEAL WITHDRAW THOMAS PURCELL ALBERT J. HOCH, JR. P.O. BOX 926 2200 CLASSEN BLVD, STE. 17000 NORMAN, OKLAHOMA 73070 OKLAHOMA CITY, OKLAHOMA ATTORNEY FOR PETITIONER 73106 ATTORNEY FOR PETITIONER W.A. DREW EDMONDSON ATTORNEY GENERAL OF LESLIE SMITH MARCH OKLAHOMA GRADY COUNTY COURTHOUSE NANCY E. CONNALLY CHICKASHA, OKLAHOMA 73023 ASSISTANT ATTORNEY GENERAL ATTORNEY FOR THE STATE 112 STATE CAPITOL BUILDING OKLAHOMA CITY, OKLAHOMA 73105 ATTORNEYS FOR RESPONDENT OPINION BY: STRUBHAR, J. JOHNSON, P.J.: CONCUR LILE, V.P.J.: CONCUR LUMPKIN, J.: CONCUR CHAPEL, J.: CONCUR IN RESULT 5

Click Here To Download PDF