Esther Servin v The State of Oklahoma

C-2003-858

Filed: Jul. 25, 2003

Not for publication

Prevailing Party: Esther Servin

Summary

Esther Servin appealed her conviction for two counts of Child Neglect. Conviction and sentence: 37 years and 10 years in prison, served one after the other. Lile and Lumpkin dissented.

Decision

The Petition for Writ of Certiorari is GRANTED.

Issues

• was the guilty plea entered by Ms. Servin knowing and voluntary?
• did the trial court's acceptance of the plea violate Ms. Servin's federal fourteenth amendment due process rights?
• did Esther Servin receive effective assistance of trial counsel as guaranteed by the Oklahoma and United States Constitutions?

Findings

• The court erred in denying Esther Servin's application to withdraw her guilty pleas.
• The guilty plea was not knowing and voluntary, violating Servin's federal fourteenth amendment due process rights.
• Esther Servin failed to receive effective assistance of trial counsel as guaranteed by the Oklahoma and United States Constitutions.

C-2003-858

Jul. 25, 2003

Esther Servin

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

GRANTING PETITION FOR WRIT OF CERTIORARI

CHAPEL, JUDGE: Esther Servin pled guilty to two counts of Child Neglect in violation of 10 O.S.2001, § 7115 in Carter County District Court, Case No. CF-2002-299. After a hearing on November 15, the Honorable Thomas S. Walker sentenced Servin to thirty-seven (37) years’ imprisonment on one count and ten (10) years on the other count to be served consecutively. Servin timely filed an Application to Withdraw her Plea on November 18, 2002, which was denied after a November 26, 2002 hearing. Servin failed to timely appeal but was granted an appeal out of time by this Court on July 25, 2003. Servin raises the following propositions of error:

I. The guilty plea entered by Ms. Servin was not knowing and voluntary. The trial court’s acceptance of the plea violated Ms. Servin’s federal fourteenth amendment due process rights.

II. Esther Servin failed to receive effective assistance of trial counsel as guaranteed by the Oklahoma and United States Constitutions.

The State dismissed one count of child neglect. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs, we find that reversal is required by the law and evidence. We find in Propositions I and II that Servin should be allowed to withdraw her pleas in the interests of justice.

Decision

The Petition for Writ of Certiorari is GRANTED.

ATTORNEYS AT TRIAL

DAVID PYLE
222 COLSTON BUILDING
ARDMORE, OKLAHOMA 73401

ATTORNEYS ON APPEAL

RICHARD H. WALL
216 EAST EUFAULA
NORMAN, OKLAHOMA 73069

ATTORNEY FOR DEFENDANT

CHARLES E. DOUGLAS
P.O. BOX 472
NORMAN, OKLAHOMA 73070

ASSISTANT DISTRICT ATTORNEY

CARTER COUNTY COURTHOUSE
20 B STREET SW
ARDMORE, OKLAHOMA 73401

ATTORNEYS FOR PETITIONER

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

NANCY E. CONNALLY
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BOULEVARD
STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105

ATTORNEYS FOR RESPONDENT

OPINION BY: CHAPEL, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: DISSENT
LUMPKIN, J.: DISSENT
STRUBHAR, J.: CONCUR

This plea was knowing and voluntary in every sense of the phrase. The sentence, although stiff, should be affirmed.

This record reveals no basis in law or fact for the Court to invalidate a valid plea. The trial court was thorough in the plea inquiry. Throughout the record, where it appeared the Petitioner did not understand a question being presented to her, she would indicate that she did not understand and the question would be either repeated or rephrased for the Petitioner to more easily understand and at which time she would answer the question appropriately. The wording of the Motion to Withdraw Plea puts this issue into perspective. Petitioner does not allege factual specifics. She only stated the Defendant feels that her lawyer misled her as to the severity of her probably (sic) sentence. And, feels She needed an interpreter and could not understand what was going on in Court or in conversations with her attorney. Rather than offering specific proof of a factual basis that the trial court erred, she only offered feelings. It appears the Court also relies on feelings rather than law and facts to reverse this case. I must therefore dissent.

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Footnotes:

1. 10 O.S.2001, § 7115
2. Stewart v. State, 568 P.2d 1297, 1300 (Okl. Cr. 1977)

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 - Child Neglect

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:

• Stewart v. State, 568 P.2d 1297, 1300 (Okl. Cr. 1977)