William Allen Pelican, Jr. v The State Of Oklahoma

C-2005-207

Filed: Jan. 19, 2006

Not for publication

Prevailing Party: William Allen Pelican, Jr.

Summary

William Allen Pelican, Jr., appealed his conviction for Rape by Instrumentation and Rape in the First Degree. The conviction and sentence were 22.5 years in prison, with the last five years suspended, for each of the three counts. The court found that Pelican did not get effective help from his lawyer because there was a conflict of interest when the trial judge did not allow the lawyer to withdraw. The court decided to send the case back so Pelican could get a new lawyer and have another hearing on whether he could take back his guilty pleas. Judge Chapel wrote the opinion, and all judges agreed with the decision.

Decision

The Petition for a Writ of Certiorari is GRANTED, and this case is REMANDED to the district court FOR APPOINTMENT OF NEW COUNSEL to represent Pelican in his application to withdraw his pleas, and for correction of the Judgment and Sentence document, through an order nunc pro tunc by the district court, in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a conflict of interest that prevented Mr. Pelican from receiving effective assistance of counsel?
• Did the trial court's refusal to allow counsel to withdraw create an actual conflict of interest?
• Was Pelican entitled to effective assistance of counsel at the hearing on his motion to withdraw his plea?
• Should the case be remanded for a proper hearing on Pelican's application to withdraw his pleas?
• Was there a need to correct the Judgment and Sentence document regarding the applicable statute for Count I?

Findings

• The trial court erred in not allowing defense counsel to withdraw, creating a conflict of interest that prevented effective assistance of counsel.
• The judgment and sentence document must be corrected to reflect the appropriate statute for Count I.
• The petition for a writ of certiorari is granted.
• The case is remanded to the district court for the appointment of new counsel.
• A new hearing on the motion to withdraw the plea is required.

C-2005-207

Jan. 19, 2006

William Allen Pelican, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING PETITION FOR CERTIORARI

CHAPEL, PRESIDING JUDGE:

William Allen Pelican, Jr., was charged in the District Court of Rogers County, Case No. CF-2002-592, by Amended Information, with Rape by Instrumentation, under 21 O.S.2001, § 1114(A)(4) (Count I); Rape in the First Degree, under 21 O.S.2001, § 1114 (Count II); and Rape in the First Degree, under 21 O.S.2001, § 1114 (Count III). On December 13, 2004, pursuant to a plea agreement, Pelican entered pleas of nolo contendere to all three counts, before the Honorable Dynda Post.¹ On January 20, 2005, the Honorable Dynda Post, in accordance with the plea agreement, sentenced Pelican to imprisonment for twenty-two and one half (22.5) years, with the last five (5) years suspended, on each of the three counts, to be served concurrently. Pelican was also ordered to pay a fine of $1,000 on each of the three counts.² Pelican is now properly before this Court on a petition for certiorari, seeking to have this case remanded for a proper hearing on his application to withdraw his pleas. Pelican raises the following proposition of error in support of his petition:

THE TRIAL JUDGE CREATED A CONFLICT OF INTEREST WHICH PREVENTED MR. PELICAN FROM RECEIVING EFFECTIVE ASSISTANCE OF COUNSEL.

On February 14, 2005, the trial court took up two matters: (1) Pelican’s application to withdraw his nolo contendere pleas; and (2) defense counsel’s motion to withdraw, based upon a conflict of interest with his client. Despite repeated requests from defense counsel to address his application to withdraw first, because he found himself in absolute conflict with his client, the trial court refused to do so. Instead, the trial court asked counsel numerous questions about his representation of Pelican and the circumstances surrounding Pelican’s pleas. The record establishes that the trial court’s actions effectively deprived Pelican of representation at the February 14, 2005, hearing.

In Carey v. State, this Court held that a criminal defendant is entitled to effective assistance of counsel at a hearing on the motion to withdraw his guilty plea.³ We also recognized that this right includes the correlative right to representation that is free from conflicts of interest.⁴ As in Carey, the trial court’s refusal to let trial counsel withdraw under these circumstances created an actual conflict of interest that prevented Pelican from receiving effective assistance of counsel at the hearing on his motion to withdraw his plea.⁵

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that the current petition for certiorari should be granted and that this case should be remanded to the district court for appointment of new counsel and a new hearing on the Motion to Withdraw his plea.

Decision

The Petition for a Writ of Certiorari is GRANTED, and this case is REMANDED to the district court FOR APPOINTMENT OF NEW COUNSEL to represent Pelican in his application to withdraw his pleas, and for correction of the Judgment and Sentence document, through an order nunc pro tunc by the district court, in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

M. BRYCE LAIR
414 N. WILSON, SUITE 4
P.O. BOX 352
VINITA, OK 74301

ATTORNEYS ON APPEAL

LISBETH L. McCARTY
APPELLATE DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR DEFENDANT

PATRICK ABITBOL
ASSISTANT DISTRICT ATTORNEY
ROGERS COUNTY COURTHOUSE
219 S. MISSOURI STREET
CLAREMORE, OKLAHOMA 74017

5 Id. at 19 9-10, 902 P.2d at 1118. We noted in Carey that in such situations, where an actual conflict of interest adversely affected [the] lawyer’s performance, the defendant does not need to show prejudice. Id. at IT 10, 902 P.2d at 1118 (citations omitted).

OPINION BY: CHAPEL, P. J.
LUMPKIN, V.P.J.: CONCUR IN RESULTS
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

Click Here To Download PDF

Footnotes:

1. 21 O.S.2001, § 1114(A)(4)
2. 21 O.S.2001, § 1114(A)(5)
3. Carey U. State, 1995 OK CR 55, 902 P.2d 1116
4. Carey U. State, 1995 OK CR 55, 902 P.2d at 1118
5. Carey U. State, 1995 OK CR 55, 902 P.2d at 1118
6. Carey U. State, 1995 OK CR 55, 902 P.2d at 1118

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114(A)(4) - Rape by Instrumentation
• Okla. Stat. tit. 21 § 1114 - Rape in the First Degree
• Okla. Stat. tit. 21 § 1114(A)(5) - Rape by Instrumentation involving a person under fourteen

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 5, 902 P.2d 1116, 1117
• Carey v. State, 1995 OK CR 55, I 8, 902 P.2d 1116, 1118
• Carey v. State, 1995 OK CR 55, I 10, 902 P.2d 1116, 1118