Kory Williams v The State Of Oklahoma

C 2008-1183

Filed: Feb. 4, 2010

Not for publication

Prevailing Party: Kory Williams

Summary

Kory Williams appealed his conviction for several crimes, including shooting with the intent to kill and possessing a sawed-off shotgun. Conviction and sentence were set to life in prison on two counts and ten years on the others, all to serve at the same time. Judge Clark dissented.

Decision

Williams' petition for a writ of certiorari is GRANTED. Williams is allowed to withdraw his guilty plea and the judgment and sentence of the District Court is VACATED. This case is REMANDED to the District Court for further proceedings consistent with the Opinion. 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 Mr. Williams' plea of no contest entered knowingly, intelligently, and voluntarily?
• Did the trial court err in accepting Mr. Williams' plea regarding count 4 related to the possession of a sawed-off shotgun?
• Do Mr. Williams' convictions for counts 3 and 4 violate protections against double jeopardy and double punishment?
• Was Mr. Williams denied his right to effective assistance of counsel throughout the plea and sentencing process?
• Were the concurrent maximum sentences imposed on Mr. Williams excessively harsh?
• Did cumulative errors deprive Mr. Williams of a fair proceeding and reliable outcome?

Findings

• The court erred in accepting Mr. Williams' plea because it was not knowing, intelligent, and voluntary.
• Count 4 must be dismissed due to insufficient evidence showing possession of a sawed-off shotgun.
• Proposition regarding double jeopardy and double punishment is moot due to the resolution of proposition one.
• Mr. Williams was denied his right to effective assistance of counsel throughout his plea and sentencing.
• The sentences imposed are shockingly excessive and must be modified.
• Cumulative errors deprived Mr. Williams of a fair proceeding and reliable outcome.

C 2008-1183

Feb. 4, 2010

Kory Williams

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Petitioner, Kory Williams, on June 20, 2008, entered blind pleas of no contest to the crimes of: (1) shooting with intent to kill in violation of 21 O.S.2001, § 652(A); (2) assault with a deadly weapon in violation of 21 O.S.Supp.2005, § 652; (3) feloniously possession of a firearm in violation of 21 O.S.2001, § 1283; (4) possession of a sawed-off shotgun in violation of 21 O.S.2001, § 1289.18; and (5) receiving or concealing stolen property in violation of 21 O.S.2001, § 1713, in Muskogee County Case No. CF-2007-204, before the Honorable Michael Norman, District Judge. Sentencing was set off for the purposes of preparing a pre-sentence investigation. At sentencing, on November 17, 2008, Judge Norman sentenced Williams to life on counts one and two and ten (10) years on counts 3-5. All sentences were ordered to be served concurrently.

Williams filed several pro-se letters indicating that he wanted to withdraw his plea before formal sentencing. Counsel filed on December 1, 2008, a renewed application to withdraw plea which incorporated Williams’s handwritten requests, as well as claiming that his plea was not voluntary, his sentences are excessive, and he was unaware he could receive the sentences given. A hearing was held on December 8, 2008, before Judge Norman who denied the motion.

Williams has perfected this appeal and raises the following propositions of error:

1. Mr. Williams’ pleas of no contest were not knowing, intelligent, and voluntary, because he was either sentenced using the incorrect punishment ranges or misadvised regarding the available ranges.
2. The trial court erred in accepting Mr. Williams’ plea and count 4 must be dismissed because the evidence failed to show that Mr. Williams possessed a sawed-off shotgun.
3. Alternatively, Mr. Williams’ conviction for both count 3, possession of a firearm after conviction or during probation, and count 4, possession of a sawed-off shotgun, violate the protections against double jeopardy and double punishment.
4. Reversal is required because Mr. Williams was denied his right to the effective assistance of counsel throughout his plea, sentencing, and at the hearing on his application to withdraw his plea.
5. The concurrent maximum sentences imposed after Mr. Williams entered a blind plea are shockingly excessive and must be modified.
6. Cumulative errors deprived Mr. Williams of a fair proceeding and reliable outcome.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs, and exhibits of the parties, we grant the petition for certiorari, vacate the judgment and sentence, and remand for further proceedings consistent with this Opinion. In deciding Williams’ appeal from the district court’s denial of his motion to withdraw, based on proposition one, we find that his plea was not knowingly and voluntarily entered. Our decision is based on our duty to determine whether the guilty plea was entered knowingly and voluntarily and whether the district court accepting the plea had jurisdiction to accept the plea.

This Court has expressly stated that in order to have a knowing and voluntary plea, the defendant must be advised of the proper range of punishment prior to accepting a guilty or no contest plea. In this case, the plea of no contest summary of facts is the only record we have of the plea hearing. In that document, ranges of punishment are set forth as if Williams was a first offender; however, it also states that he is charged after former conviction of a felony. At sentencing, which was recorded, the range of punishment established by the trial court was the enhanced range indicating that Williams was pleading after former conviction of a felony.

With the record presented to this Court, it is impossible to determine whether Williams was entering his plea as a first-time offender or as one having been charged with a former felony conviction. The confusion in the range of punishment presented on the record could not have provided Williams sufficient information to enter a knowing and voluntary plea, thus this Court has no choice but to grant his Petition for Certiorari and allow him to withdraw his plea.

DECISION

Williams’ petition for a writ of certiorari is GRANTED. Williams is allowed to withdraw his guilty plea and the judgment and sentence of the District Court is VACATED. This case is REMANDED to the District Court for further proceedings consistent with the Opinion.

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. 21 § 652(A)
2. Okla. Stat. tit. 21 § 652
3. Okla. Stat. tit. 21 § 1283
4. Okla. Stat. tit. 21 § 1289.18
5. Okla. Stat. tit. 21 § 1713
6. Okla. Stat. tit. 21 § 1289.18
7. Okla. Stat. tit. 21 § 11
8. Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126
9. Cox v. State, 2006 OK CR 51, I 4, 152 P.3d 244, 247
10. Hunter v. State, 1992 OK CR 1, I 4, 825 P.2d 1353, 1355
11. Walters v. State, 1989 OK CR 43, I 2, 778 P.2d 483, 484
12. King v. State, 1976 OK CR 103, I 10, 553 P.2d 529, 535

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 (2001) - Shooting with intent to kill
• Okla. Stat. tit. 21 § 652 (Supp. 2005) - Assault with a deadly weapon
• Okla. Stat. tit. 21 § 1283 (2001) - Felonious possession of a firearm
• Okla. Stat. tit. 21 § 1289.18 (2001) - Possession of a sawed-off shotgun
• Okla. Stat. tit. 21 § 1713 (2001) - Receiving or concealing stolen property

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:

• Cox v. State, 2006 OK CR 51, I 4, 152 P.3d 244, 247
• Hunter v. State, 1992 OK CR 1, I 4, 825 P.2d 1353, 1355
• Walters v. State, 1989 OK CR 43, I 2, 778 P.2d 483, 484
• King v. State, 1976 OK CR 103, I 10, 553 P.2d 529, 535
• Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126