Jonathan Andrew McCubbin v State Of Oklahoma
C-2004-1108
Filed: Dec. 9, 2005
Not for publication
Prevailing Party: Jonathan Andrew McCubbin
Summary
Jonathan Andrew McCubbin appealed his conviction for four counts of Sexual Abuse of a Child. His conviction and sentence were for fifty years in prison, with the first thirty years of each count being served concurrently. McCubbin's attorney was seen as having a conflict of interest, which affected his right to effective legal help. The court agreed and decided that McCubbin should have a new hearing to try to withdraw his guilty plea. Judge Michael S. Richie dissented.
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.
Issues
- was there a violation of McCubbin's Sixth Amendment right to effective assistance of counsel during the evidentiary hearing?
- did an actual conflict of interest exist between McCubbin and his attorney that impaired the representation?
- should the district court have recognized the conflict of interest and appointed new counsel for McCubbin's application to withdraw his plea?
- is a new plea hearing required due to the violation of McCubbin's constitutional rights?
Findings
- The court erred in failing to appoint new counsel due to an actual conflict of interest between McCubbin and his attorney.
- The case is remanded for a new hearing on the application to withdraw the plea.
C-2004-1108
Dec. 9, 2005
Jonathan Andrew McCubbin
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
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 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, ¶ 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 ¶ 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.
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
ATTORNEY AT LAW
2621 SOUTH WESTERN
P.O. BOX 926
OKLAHOMA CITY, OK 73109
ATTORNEY FOR MCCUBBIN
KIMBERLY D. HEINZE
APPELLATE DEFENSE COUNSEL
NORMAN, OK 73070
ATTORNEY FOR MCCUBBIN
GAYLAND GIEGER
ASST. DISTRICT ATTORNEY
320 ROBERT S. KERR, RM. 505
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR APPELLEE
W.A. DREW EDMONDSON
ATTORNEY GENERAL
KEELEY L. HARRIS
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BLVD., STE. 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE
OPINION BY: A. JOHNSON, J.
CHAPEL, P.J.: Concurs
LUMPKIN, V.P.J.: Concurs in Results
C. JOHNSON, J.: Concurs
LEWIS, J.: Concurs
Footnotes:
- Okla. Stat. tit. 22 § 18
- Carey v. State, 1995 OK CR 55, 4, 902 P.2d 1116, 1118
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:
- Carey v. State, 1995 OK CR 55, I 4, 902 P.2d 1116, 1118