Inez Lee Shaw v The State Of Oklahoma

C-2007-717

Filed: Mar. 31, 2008

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Inez Lee Shaw appealed her conviction for Knowingly Concealing Stolen Property and other charges. Conviction and sentence were modified to five years for some counts, while the original sentences on others were upheld. Judge Lewis dissented.

Decision

The Petition for Writ of Certiorari is DENIED. However, the terms of imprisonment for Counts I, IV, and V, in CF-2006-62, for Knowingly Concealing Stolen Property, under 21 O.S.2001, § 1713(A), are hereby MODIFIED from imprisonment for ten (10) years to imprisonment for five (5) years. In all other respects, the Judgment and Sentences in CF-2006-62 and CF-2006-124 are hereby AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of Shaw's right to be free from multiple punishments for the same act?
• Did Shaw receive effective assistance of counsel when entering her no-contest pleas?
• Was Shaw's constitutional right to be free from double jeopardy violated?
• Was there a legal error in the sentencing of Shaw for Knowingly Concealing Stolen Property due to the stated maximum punishment being incorrect?

Findings

• the court erred in sentencing Shaw to ten years for counts of Knowingly Concealing Stolen Property
• evidence was not sufficient to prove ineffective assistance of counsel
• the claim for multiple punishments was waived and not a plain error
• the sentence for Counts I, IV, and V in CF-2006-62 was modified to five years
• all other judgments and sentences were affirmed

C-2007-717

Mar. 31, 2008

Inez Lee Shaw

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Inez Lee Shaw was charged in the District Court of Kiowa County, Case No. CF-2006-62, by Information, with Knowingly Concealing Stolen Property, under 21 O.S.2001, § 1713(A) (Counts I, II, III, IV, & V); Possession of Firearms After Conviction or During Probation, under 21 O.S.2001, § 1283(A) (Count VI); and a misdemeanor count of Possession of Controlled Substance (marijuana), under 63 O.S.Supp.2005, § 2-402 (Count VII). The State subsequently dismissed Count VI of CF-2006-62, to refile it in a separate case, and filed a new Information in the District Court of Kiowa County, Case No. CF-2006-124, charging Shaw with three counts of Possession of Firearms After Conviction or During Probation, under 21 O.S.2001, § 1283(A) (Counts I, II, & III).1

1 Count VI of CF-2006-62 involved the possession of a Raven Arms .25 caliber automatic pistol. Count I of CF-2006-124 involved the possession of this same weapon. Count II of CF-2006-124 involved the possession of a 12 gauge over and under ventilated rib shotgun, and Count III of this case involved the possession of a .22 caliber rifle. The original count and the later three counts all referenced the same prior conviction for Shaw, a 2004 conviction for Assault and Battery with a Dangerous Weapon, in Kiowa County, Case No. CF-2002-88A.

On March 13, 2007, the day CF-2006-124 was scheduled for trial, the State agreed to dismiss Counts II and III in CF-2006-62, and Shaw entered a blind plea of no contest to Counts I, IV, V, and VII in CF-2006-62, and to Counts I, II, and III in CF-2006-124, before the Honorable Richard B. Darby. On June 6, 2007, the Honorable Richard B. Darby sentenced Shaw, in CF-2006-62, to imprisonment for ten (10) years each on Count I, IV, and V, and imprisonment for one (1) year on Count VII, with all four counts to be served concurrently. In CF-2006-124, the Honorable Richard B. Darby sentenced Shaw to imprisonment for five (5) years on Count I, and a suspended sentence of ten (10) years on both Count II and Count III, all to be served consecutively to each other and to CF-2006-62.2

Shaw is now properly before this Court on a petition for certiorari, seeking to withdraw her no-contest pleas in both cases or to have her judgment and sentences modified. Shaw raises the following propositions of error:

I. Ms. SHAW HAS BEEN SUBJECTED TO MULTIPLE PUNISHMENTS, WHICH REQUIRES THE DISMISSAL OF COUNTS II AND III IN DISTRICT COURT CASE NO. CF-2006-124.
II. Ms. SHAW WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN ENTERING HER PLEAS OF GUILTY PETITIONER’S RIGHT TO BE FREE FROM DOUBLE JEOPARDY WAS VIOLATED.

In Proposition I, Shaw raises a double punishment claim under Section 11 of Oklahoma’s Title 21. She argues that it violated Section 11 to convict her of three separate counts in CF-2006-124, for possession of the three guns found in her home, because the possession of these guns was essentially the same act.4 Because this claim was not raised in Shaw’s applications to withdraw her pleas, at the evidentiary hearing regarding these applications, or in her petitions for certiorari, it has been waived and will be reviewed only for plain error.5 It was not plain error to allow Shaw to plead no contest and be convicted of three different counts of Possession of Firearms After Conviction or During Probation, under 21 O.S.2001, § 1283(A). The three different counts involved three different guns (a pistol, a shotgun, and a rifle), which were found in three different locations in and around Shaw’s home (in a bedroom, in an outbuilding, and in the attic), which apparently came from three different sources (two of which were specifically linked to thefts from different victims).6 Shaw’s undeveloped, corollary claim that her counsel was ineffective for failing to properly preserve this claim is rejected as well. Shaw has not established either that counsel’s performance was inadequate or that she was prejudiced thereby.

In Proposition II, Shaw argues that she received ineffective assistance of counsel at the time she entered her no-contest pleas (1) because of inadequate or confusing communications from her counsel, (2) because her counsel did not realize how many prior felony convictions Shaw had at the time of her pleas (making her ineligible for a suspended sentence), and (3) because Shaw did not fully understand the blind pleas she was entering. In order to establish such a claim and be permitted to withdraw her pleas, Shaw must establish that her counsel’s performance was inadequate and that she was prejudiced thereby. Shaw cannot establish ineffective assistance regarding any of her claims. Although the record in this case contains evidence that Shaw was dissatisfied with her attorney’s performance prior to the time of her no-contest pleas, including letters to the trial court about this issue, at the time of the taking of Shaw’s pleas, her counsel addressed this issue specifically.9 Shaw fails to establish either inadequate performance or prejudice in this regard.

Regarding Shaw’s claim about her prior felony convictions, the record of her guilty plea hearing clearly shows that the prosecutor, defense counsel, and the trial court all believed that Shaw had only two prior felony convictions (neither of which was charged in a second page in either case). By the time of Shaw’s actual sentencing, her PSI had revealed that she actually had five prior felony convictions. Shaw cannot establish ineffective assistance in this regard when she herself failed to inform her attorney regarding the full scope of her criminal past, particularly since Shaw specifically agreed that a PSI would be prepared in the case before she was sentenced.10 Furthermore, the record in this case supports the trial court’s ruling that Shaw fully understood the meaning and significance of her blind no-contest pleas. Shaw fails to establish either inadequate performance or resulting prejudice. All of her ineffective assistance claims are rejected accordingly.

Nevertheless, this Court finds that Shaw is entitled to a modification of her sentence in Case No. CF-2006-62. The maximum prison sentence for the crime of Knowingly Concealing Stolen Property, under 21 O.S.2001, § 1713(A), is imprisonment for five (5) years.11 The Information filed in CF-2006-62 incorrectly stated that this crime was punishable by imprisonment for up to 10 years; and this error was repeated throughout the proceedings in this case. Because the maximum prison sentence for this crime is five years, not ten years, the ten-year sentences given Shaw on Counts I, IV, and V of CF-2006-62 were illegal and cannot be affirmed. Consequently, the sentences on each of these three counts will be modified to imprisonment for five (5) years. 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 terms of imprisonment for the three counts of Knowingly Concealing Stolen Property, in CF-2006-62, must be modified to imprisonment for five (5) years.

Decision

The Petition for Writ of Certiorari is DENIED. However, the terms of imprisonment for Counts I, IV, and V, in CF-2006-62, for Knowingly Concealing Stolen Property, under 21 O.S.2001, § 1713(A), are hereby MODIFIED from imprisonment for ten (10) years to imprisonment for five (5) years. In all other respects, the Judgment and Sentences in CF-2006-62 and CF-2006-124 are hereby AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. Count VI of CF-2006-62 involved the possession of a Raven Arms .25 caliber automatic pistol.
2. Count I of CF-2006-124 involved the possession of this same weapon.
3. Count II of CF-2006-124 involved the possession of a 12 gauge over and under ventilated rib shotgun, and Count III of this case involved the possession of a .22 caliber rifle.
4. 21 O.S.2001, § 11.
5. See Rules 4.2 and 4.3(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007); Medlock U. State, 1994 OK CR 65, 1 24, 887 P.2d 1333, 1342 (issues not raised within application to withdraw plea reviewed for plain error only).
6. 21 O.S.2001, § 1283(A).
7. 21 O.S.2001, § 1713(A), ("punishable by imprisonment in the State Penitentiary not to exceed five (5) years").

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1713(A) (2001) - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 21 § 1283(A) (2001) - Possession of Firearms After Conviction or During Probation
• Okla. Stat. tit. 63 § 2-402 (Supp. 2005) - Possession of Controlled Substance
• Okla. Stat. tit. 21 § 11 - Prohibition Against Double Punishment

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:

• Davis v. State, 1999 OK CR 48, I 6-14, 993 P.2d 124, 125-27
• Medlock v. State, 1994 OK CR 65, I 24, 887 P.2d 1333, 1342
• Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Hill v. Lockhart, 474 U.S. 52, 58-60, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985)