Chad D. Fourkiller v The State Of Oklahoma

C-2006-1192

Filed: May 8, 2007

Not for publication

Prevailing Party: Chad D. Fourkiller

Summary

Chad D. Fourkiller appealed his conviction for attempting to elude a police officer, possession of a sawed-off shotgun, and feloniously possessing a firearm. His conviction and sentence included five years for attempting to elude and two years for possession of a sawed-off shotgun, with both of these sentences to be served at the same time, and another five years for the firearm charge to be served afterward. The court decided that Fourkiller did not get good help from his lawyer when he tried to take back his guilty plea. The court agreed that his lawyer shouldn’t have testified against him during the hearing. They granted his petition and sent the case back for a new hearing about his plea. Justices Lumpkin, C. Johnson, A. Johnson, and Lewis agreed with the decision.

Decision

The Petition for Writ of Certiorari is GRANTED, and the case is REMANDED for a new 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. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was Fourkiller's guilty plea entered knowingly and voluntarily, and did the trial court abuse its discretion in denying his motion to withdraw that plea?
• Was Fourkiller denied effective assistance of counsel at the hearing on his application to withdraw his guilty plea?
• Did Fourkiller's convictions for possession of a sawed-off shotgun and feloniously possessing a firearm violate protections against double jeopardy and double punishment?
• Did the sentence for Count II exceed the statutory range of punishment and was it imposed in error?

Findings

• The court erred in denying Fourkiller's motion to withdraw his guilty plea as he was denied effective assistance of counsel.
• The other propositions raised by Fourkiller are moot.
• The convictions for possession of both a sawed-off shotgun and felonious possession of a firearm appear to violate double jeopardy protections.
• The sentence for Count II exceeds the statutory range of punishment.

C-2006-1192

May 8, 2007

Chad D. Fourkiller

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Chad Fourkiller pled guilty to Count I, Attempting to Elude a Police Officer in violation of 21 O.S.2001, § 541A(B); Count II, Possession of a Sawed-Off Shotgun, in violation of 21 O.S.2001, § 1289.18(C); and Count III, Feloniously Possessing a Firearm in violation of 21 O.S.2001, § 1282(A), in the District Court of Pontotoc County, Case No. CF-2006-120. The Honorable Thomas S. Landrith sentenced Fourkiller to five (5) years imprisonment (Count I), two (2) years imprisonment (Count II), and five (5) years imprisonment (Count III), Counts I and II to run concurrently and Count III consecutively, to be served if Fourkiller failed to complete Drug Court. Fourkiller’s participation in Drug Court was terminated and he was sentenced on his plea on September 26, 2006. Fourkiller filed a timely Motion to Withdraw Guilty Plea, which was denied after a hearing on October 25, 2006. Fourkiller filed a timely petition for a writ of certiorari, and the State filed a response on April 11, 2007.

Fourkiller raises four propositions of error in support of his petition:

I. As Fourkiller did not knowingly nor voluntarily enter his guilty plea, the trial court abused its discretion in denying his motion to withdraw his plea;

II. Fourkiller was denied effective assistance of counsel at the hearing on his application to withdraw guilty plea;

III. Fourkiller’s conviction for both Count II, Possession of a Sawed-Off Shotgun, and Count III, Feloniously Possessing a Firearm violate the protections against double jeopardy and double punishment; and

IV. The sentence for Count II, which appears to have been imposed in error, exceeds the statutory range of punishment.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that Proposition II requires relief. Fourkiller claims in Proposition II that he was denied effective assistance of counsel at the hearing on the motion to withdraw his plea. Fourkiller’s motion to withdraw was in part a claim that counsel was ineffective and failed to explain the plea process or drug court requirements. Fourkiller did not ask for new counsel, and counsel did not ask to withdraw, before the hearing on the motion. However, counsel made clear that the motion was filed at Fourkiller’s request. Counsel questioned Fourkiller about his claim that counsel failed to provide effective assistance because he didn’t explain the drug court requirements. The trial court had already denied the motion, based on Fourkiller’s testimony, when the prosecutor asked to re-open the evidence for another witness. This request was allowed and the prosecutor called the defense attorney as a witness. Fourkiller did not consent to his attorney’s testimony. The defense attorney did not object or raise a confidentiality claim, but answered the prosecutor’s substantive questions about the advice he gave Fourkiller. An actual and apparent conflict of interest was created where Fourkiller’s attorney testified against his client. While an attorney may testify against a client as to a communication relevant to an issue of breach of duty, the attorney should not be representing the client in the same proceeding.

The petition for writ of certiorari is granted and the case remanded. Given our resolution of Proposition II, the other propositions are moot. Regarding Proposition III, we note that Fourkiller’s convictions for possession of a sawed-off shotgun and felonious possession of a firearm, where possession of a single weapon is used to support both charges, appears to violate the statutory prohibition against multiple punishment for a single offense. Regarding Proposition IV, we note that the current Judgment and Sentence reflects sentences other than those in the negotiated plea, which are outside the statutory range of punishment. The State concedes this error, which needs no further relief under these circumstances.

Decision

The Petition for Writ of Certiorari is GRANTED, and the case is REMANDED for a new 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. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Oklahoma Stat. tit. 21 § 541A(B)
2. Oklahoma Stat. tit. 21 § 1289.18(C)
3. Oklahoma Stat. tit. 21 § 1282(A)
4. Carey U. State, 1995 OK CR 55, 902 P.2d 1116, 1118
5. Oklahoma Rules of Professional Conduct, Title 5, Ch. 1, App. 1, Rules 1.7 & 3.7 (2007)
6. Oklahoma Stat. tit. 12 § 2502(D)(3)
7. Oklahoma Stat. tit. 21 § 11
8. Gourley U. State, 1989 OK CR 28, 777 P.2d 1345, 1350

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 541A(B) (2001) - Attempting to Elude a Police Officer
• Okla. Stat. tit. 21 § 1289.18(C) (2001) - Possession of a Sawed-Off Shotgun
• Okla. Stat. tit. 21 § 1282(A) (2001) - Feloniously Possessing a Firearm
• Okla. Stat. tit. 21 § 11 (2001) - Prohibition Against Multiple Punishment
• Okla. Stat. tit. 12 § 2502(D)(3) (2001) - Conflict of Interest

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, 902 P.2d 1116, 1118
• Gourley v. State, 1989 OK CR 28, 777 P.2d 1345, 1350