Curtis Randall Foote v State Of Oklahoma

C-2003-845

Filed: May 26, 2004

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Curtis Randall Foote appealed his conviction for multiple crimes, including First Degree Burglary and Intimidation of a Witness. His conviction and sentence were for a total of twenty years in prison for the more serious charges. Foote claimed he wanted to withdraw his no contest plea, arguing he wasn't given a fair trial and that his lawyer didn't help him properly. The court decided to keep the convictions for the burglary and intimidation but reversed his conviction for Threatening an Act of Violence, saying it was unfair to charge him for that along with other crimes. Many judges agreed with the decision, although one judge disagreed with the outcome.

Decision

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.

Issues

• Was there a valid no contest plea entered by the petitioner?
• Did the trial court err in sentencing the petitioner as a habitual offender?
• Did the petitioner's convictions constitute double jeopardy and double punishment?
• Do the alleged acts support the conviction for intimidation of a witness?
• Was the petitioner denied effective assistance of counsel?

Findings

• the court did not err in accepting the no contest plea
• the court's decision to sentence Petitioner as a habitual offender was improper, requiring modification
• the conviction for threatening an act of violence must be reversed with instructions to dismiss due to double jeopardy
• the conviction for intimidation of a witness was supported by sufficient evidence
• the claim of ineffective assistance of counsel must fail

C-2003-845

May 26, 2004

Curtis Randall Foote

Appellant

v

State Of Oklahoma

Appellee

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 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 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.

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Footnotes:

1. Avance v. State, 497 P.2d 467, 470-71 (Okl.Cr.1972).
2. Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001).
3. Demry v. State, 986 P.2d 1145, 1148-49 (Okl.Cr.1999).
4. Davis v. State, 916 P.2d 251, 261 (Okl.Cr.1996); Hale v. State, 888 P.2d 1027, 1028 (Okl.Cr.1995).
5. Spuehler v. State, 709 P.2d 202 (Okl.Cr.1988).
6. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984).

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:

• Avance v. State, 497 P.2d 467, 470-71 (Okl.Cr.1972)
• Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001)
• Demry v. State, 986 P.2d 1145, 1148-49 (Okl.Cr.1999)
• Davis v. State, 916 P.2d 251, 261 (Okl.Cr.1996)
• Hale v. State, 888 P.2d 1027, 1028 (Okl.Cr.1995)
• Spuehler v. State, 709 P.2d 202 (Okl.Cr.1988)
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984)