Sean Phillip Gillen v The State Of Oklahoma

C-2008-1155

Filed: Mar. 2, 2010

Not for publication

Prevailing Party: Sean Phillip Gillen

Summary

Sean Phillip Gillen appealed his conviction for Distribution of Controlled Dangerous Substance to a Minor, Rape in the Second Degree, Unlawful Possession of Drug Paraphernalia, and Obstructing an Officer. The conviction and sentences were affirmed for Distribution of Controlled Dangerous Substance and Rape, with ten years imprisonment each. However, Gillen was allowed to withdraw his guilty plea for Obstructing an Officer. Judge Chapel dissented, arguing for a closer look into whether Gillen understood the consequences of his guilty plea given his history of mental health issues.

Decision

The Petition for a Writ of Certiorari on Counts 1, 2, and 3 is DENIED. The Judgment and Sentence of the district court on those counts is AFFIRMED. The Petition for a Writ of Certiorari on Count 4 is GRANTED and the matter is remanded to the district court with instructions to permit Gillen to withdraw his plea of guilty as to Count 4. Gillen's Application for Evidentiary Hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there an error by the district court in finding Gillen competent to enter a guilty plea by failing to consider the totality of the circumstances?
• did the district court abuse its discretion by refusing to grant a continuance in the competency proceedings?
• were the pleas supported by sufficient factual bases?
• were the pleas knowing and voluntary?
• did Gillen receive ineffective assistance of counsel?
• was Gillen's sentence excessive?
• did cumulative error deprive Gillen of a fair trial?

Findings

• The district court did not err in determining Gillen was competent to enter a plea.
• The district court did not abuse its discretion by refusing to grant a continuance in the competency proceedings.
• The pleas were supported by sufficient factual bases for Counts 1, 2, and 3; however, the record did not provide sufficient factual basis for Count 4.
• The pleas were entered knowingly and voluntarily.
• Gillen received effective assistance of counsel.
• Gillen's sentence was not excessive.
• The claim of cumulative error is waived and without merit since no trial was conducted.

C-2008-1155

Mar. 2, 2010

Sean Phillip Gillen

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, VICE PRESIDING JUDGE:

Petitioner Sean Phillip Gillen entered blind pleas of guilty in the District Court of Payne County, Case No. CF-2007-481, to Distribution of Controlled Dangerous Substance to a Minor (Count 1) in violation of 63 D.S.Supp.2005, § 2-401(E), Rape in the Second Degree (Count 2) in violation of 21 O.S.2001, § 1116, Unlawful Possession of Drug Paraphernalia (Count 3) in violation of 63 O.S.Supp.2004, § 2-405, and Obstructing an Officer (Count 4), in violation of 21 O.S.2001, § 540. The Honorable Donald L. Worthington accepted Gillen’s pleas and sentenced him to ten years imprisonment on each of Counts 1 and 2 and one year in the Payne County Jail on each of Counts 3 and 4. All four counts were ordered to be served concurrently.

Gillen filed a timely Application to Withdraw Plea, and, after the prescribed hearing, the application was denied. He appeals the district court’s order and asks this Court to grant certiorari and allow him to withdraw his pleas and proceed to trial or, alternatively, favorably modify his sentences.

This case raises the following issues: (1) whether the district court erred by finding Gillen competent to enter a guilty plea by failing to consider the totality of the circumstances; (2) whether the district court abused its discretion by refusing to grant a continuance in the competency proceedings; (3) whether the pleas were supported by sufficient factual bases; (4) whether the pleas were knowing and voluntary; (5) whether Gillen received ineffective assistance of counsel; (6) whether Gillen’s sentence was excessive; and (7) whether cumulative error deprived Gillen of a fair trial.

1. The district court did not abuse its discretion in determining that Gillen was competent to enter a plea. Grant v. State, 2009 OK CR 11, ¶ 9, 205 P.3d 1, 8. Within the past seven months Gillen had been found competent to proceed in this case. Additionally, the district court had a colloquy with Gillen prior to taking his plea where Gillen answered the judge’s questions and stated specific reasons why he was guilty. Considering defense counsel declined to reassert a claim of incompetence, and in fact conceded that Gillen was competent at the plea hearing, the district court did not abuse its discretion by accepting Gillen’s guilty plea.

2. Review of a district court’s decision to grant or deny a continuance in a competency proceeding seven months prior to the entry of a guilty plea falls outside the limited scope of review permitted in a petition for writ of certiorari. See Cox v. State, 2006 OK CR 51, ¶ 4, 152 P.3d 244, 247 (the scope of review of a petition for writ of certiorari is limited to determining whether the plea was knowing and voluntary and whether the district court had jurisdiction to accept the plea). Additionally, Gillen failed to raise the issue in his application to withdraw his plea. The issue is waived. See Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009) ([n]o matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea).

3. The plea colloquy, the Plea of Guilty and Summary of Facts, and the affidavits submitted by police presented a sufficient factual basis for Gillen’s plea of guilty to Counts 1, 2, and 3. Wester v. State, 1988 OK CR 126, ¶ 4, 764 P.2d 884, 887 (Opinion on Rehearing). However, the record does not provide a sufficient factual basis for Count 4, Obstructing an Officer. The record shows that when asked by an officer if a certain juvenile runaway was inside the house Gillen answered in the negative. The question was immediately repeated, and Gillen then admitted that the runaway was inside. Based on this record there is insufficient evidence to determine whether any delay or obstruction occurred when the second question had to be repeated and, even if a delay or obstruction did occur, it is unclear from anything in this record whether that delay or obstruction was willfully created. Gillen must be permitted to withdraw his guilty plea as to Count 4.

4. The record demonstrates Gillen entered his plea of guilty knowingly and voluntarily. See Cox, 2006 OK CR 51, ¶ 18, 152 P.3d at 251. Gillen specifically wrote that he was entering a blind plea, that he knew the range of punishment, and that he was not opting for the plea agreement that had been offered. Gillen appears to have sought an alternative sentence such as community sentencing rather than the suspended sentence initially offered by the State.

5. Gillen was not denied effective assistance of counsel. See Wiley v. State, 2008 OK CR 30, ¶ 5, 199 P.3d 877, 879; Lozoya v. State, 1996 OK CR 55, ¶ 27, 932 P.2d 22, 31. After reviewing the information both within the record and the materials proffered by Gillen in the appendix to his Application for Evidentiary Hearing, we do not find a strong possibility that counsel was ineffective for failing to utilize all of the included exhibits. In fact, several were admitted for the district court’s use in sentencing, and others were not in existence at the time of sentencing. Gillen’s Application for Evidentiary Hearing is DENIED. Rule 3.11(B)(3)(b)(ii), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009).

6. Gillen’s claim that counsel was ineffective for failing to reassert the claim that Gillen was incompetent at the plea hearing must likewise fail. The district court had been presented with an expert opinion that Gillen was competent. Even if defense counsel had retained an independent expert, it is doubtful the new expert would have reached a different result. Additionally, defense counsel was not deficient for failing, somehow, to require Gillen to accept the plea offer he had rejected. Rule 1.2(a), Oklahoma Rules of Professional Conduct, Title 5, App. 3-A, § 1.2 (2001).

7. Gillen’s sentence of ten years imprisonment does not shock our conscience. Gomez v. State, 2007 OK CR 33, ¶ 18, 168 P.3d 1139, 1146.

8. Because Gillen pled guilty, no trial was ever conducted. Gillen’s claim that he was denied a fair trial by cumulative error is therefore wholly without merit. Moreover, Gillen failed to raise a cumulative error claim in his application to withdraw his plea. The issue is waived. See Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009) ([n]o matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea).

Gillen’s appellate counsel hired an independent expert, Dr. McGarrahan. After reviewing Gillen’s previous medical history and conducting an independent assessment, Dr. McGarrahan stated that [i]t is thus this examiner’s opinion that Mr. Gillen was most likely competent to proceed at the time of the disposition of his instant offense. Petitioner’s Application for Evidentiary Hearing Ex. L at 10. Under Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), we direct the record to be supplemented with Dr. McGarrahan’s report.

DECISION

The Petition for a Writ of Certiorari on Counts 1, 2, and 3 is DENIED. The Judgment and Sentence of the district court on those counts is AFFIRMED. The Petition for a Writ of Certiorari on Count 4 is GRANTED and the matter is remanded to the district court with instructions to permit Gillen to withdraw his plea of guilty as to Count 4. Gillen’s Application for Evidentiary Hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-401(E)
2. Okla. Stat. tit. 21 § 1116
3. Okla. Stat. tit. 63 § 2-405
4. Okla. Stat. tit. 21 § 540
5. Grant v. State, 2009 OK CR 11, I 9, 205 P.3d 1, 8
6. Cox v. State, 2006 OK CR 51, I 4, 152 P.3d 244, 247
7. Wester v. State, 1988 OK CR 126, I 4, 764 P.2d 884, 887
8. Cox, 2006 OK CR 51, I 18, 152 P.3d at 251
9. Rule 3.11(B)(3)(b)(ii), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009)
10. Rule 1.2(a), Oklahoma Rules of Professional Conduct, Title 5, App. 3-A, § 1.2 (2001)
11. Gomez v. State, 2007 OK CR 33, "I 18, 168 P.3d 1139, 1146
12. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009)
13. Petitioner's Application for Evidentiary Hearing Ex. L at 10
14. Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009)
15. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (Supp. 2005) - Distribution of Controlled Dangerous Substance to a Minor
• Okla. Stat. tit. 21 § 1116 (2001) - Rape in the Second Degree
• Okla. Stat. tit. 63 § 2-405 (Supp. 2004) - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 21 § 540 (2001) - Obstructing an Officer
• Okla. Stat. tit. 22, Ch. 18, App. R. 3.11(B)(3)(b)(ii) (2009) - Rule on Certiorari Procedures
• Okla. Stat. tit. 5, App. 3-A § 1.2 (2001) - Oklahoma Rules of Professional Conduct
• Okla. Stat. tit. 22, Ch. 18, App. R. 3.15 (2010) - Mandate Procedures

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:

• Grant v. State, 2009 OK CR 11, I 9, 205 P.3d 1, 8
• Cox v. State, 2006 OK CR 51, I 4, 152 P.3d 244, 247
• Cox, 2006 OK CR 51, I 18, 152 P.3d at 251
• Wester v. State, 1988 OK CR 126, I 4, 764 P.2d 884, 887
• Wiley v. State, 2008 OK CR 30, I 5, 199 P.3d 877, 879
• Lozoya v. State, 1996 OK CR 55, I 27, 932 P.2d 22, 31
• Gomez v. State, 2007 OK CR 33, I 18, 168 P.3d 1139, 1146