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IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA JONATHAN ANDREW MCCUBBIN, ) ) Petitioner, ) NOT FOR PUBLICATION ) V. ) No. C-2004-1108 ) FILED STATE OF OKLAHOMA, IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA ) Respondent. ) DEC – 9 2005 MICHAEL S. RICHIE SUMMARY OPINION CLERK A. JOHNSON, J.: Jonathan Andrew McCubbin, Petitioner, entered a blind plea of guilty to four counts of Sexual Abuse of a Child in the District Court of Oklahoma County, Case No. CF-2003-5483. The Honorable Susan P. Caswell accepted McCubbin’s plea and sentenced him to fifty (50) years imprisonment, suspending all but the first thirty (30) years on each count and ordering the sentences to be served concurrently. McCubbin filed a timely application to withdraw his guilty plea. Following the prescribed hearing, the district court denied McCubbin’s application. McCubbin now appeals the district court’s order denying his motion to withdraw plea and asks this court to issue a Writ of Certiorari allowing him to withdraw his plea of guilty and proceed to a trial, or to remand the matter for a proper hearing on his motion to withdraw plea. In Proposition I, McCubbin contends that his Sixth Amendment right to effective assistance of counsel at the evidentiary hearing was 1 violated because of an actual conflict of interest between his attorney and himself. At the hearing on the application to withdraw, McCubbin and his attorney were clearly placed in an adversarial position, with each offering statements meant to contradict the other’s claims. Part of the basis for McCubbin’s application to withdraw his plea was his claim that he had been unduly influenced or misadvised by counsel to give up the right to a jury trial and enter a guilty plea. The record supports a finding that McCubbin was not represented by an objective attorney. We have held a defendant’s right to effective assistance of counsel is violated where an actual conflict of interest exists between the defendant and counsel concerning a motion to withdraw plea. Carey v. State, 1995 OK CR 55, I 4, 902 P.2d 1116, 1118. A conflict of interest exists when a “petitioner’s own appointed defense counsel act[s] as his adversary.” Id. at I 8, 1118. Such a conflict existed here, as McCubbin and his attorney were pitted against each other and counsel was unable to zealously advocate his client’s position. These circumstances should have put the district court on notice that a conflict of interest did indeed exist between McCubbin and his attorney and new counsel was required to litigate McCubbin’s application to withdraw his plea. This error requires a new plea hearing in accordance with McCubbin’s constitutional right to effective assistance of counsel. The case is remanded for a new hearing on the application to withdraw plea. 2 DECISION The petition for Writ of Certiorari is GRANTED and the case is REMANDED to the trial court for a hearing on the Application to Withdraw Plea consistent with this Opinion. 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. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE SUSAN P. CASWELL, DISTRICT JUDGE APPEARANCES IN THE APPEARANCES ON APPEAL DISTRICT COURT IRVEN BOX KIMBERLY D. HEINZE ATTORNEY AT LAW APPELLATE DEFENSE COUNSEL 2621 SOUTH WESTERN P.O. BOX 926 OKLAHOMA CITY, OK 73109 NORMAN, OK 73070 ATTORNEY FOR MCCUBBIN ATTORNEY FOR MCCUBBIN GAYLAND GIEGER W.A. DREW EDMONDSON ASST. DISTRICT ATTORNEY ATTORNEY GENERAL 320 ROBERT S. KERR, RM. 505 OF OKLAHOMA OKLAHOMA CITY, OK 73102 KEELEY L. HARRIS ATTORNEY FOR THE STATE ASSISTANT ATTORNEY GENERAL 2300 N. LINCOLN BLVD., STE. 112 OKLAHOMA CITY, OK 73105 ATTORNEYS FOR APPELLEE OPINION BY: A. JOHNSON, J. CHAPEL, P.J.: Concurs LUMPKIN, V.P.J.: Concurs in Results C. JOHNSON, J.: Concurs LEWIS, J.: Concurs RB 3

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