Charles Bert Jones, Jr. v The State Of Oklahoma

C-2008-273

Filed: Apr. 10, 2009

Not for publication

Prevailing Party: Charles Bert Jones, Jr.

Summary

Charles Bert Jones, Jr. appealed his conviction for First Degree Felony Murder, Assault and Battery with a Dangerous Weapon, and Conspiracy to Commit a Felony. Conviction and sentence were upheld, with Jones receiving a life sentence for murder and conspiracy, plus ten years for assault. Judge Lumpkin dissented, believing that the evidence did not support Jones's claim that he deserved to withdraw his guilty plea.

Decision

The Petition for a Writ of Certiorari is GRANTED. This matter is REMANDED to the district court with instructions to allow Jones to withdraw his plea of guilty and proceed to trial after reassignment to a different district judge. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there sufficient evidence to support a finding that Jones entered his plea based upon his attorney's misrepresentation?
• did the trial court abuse its discretion in denying Jones's motion to withdraw his plea?
• was Jones's plea knowingly and voluntarily entered?
• should the case be reassigned to another district judge?

Findings

• the court erred in denying Jones's motion to withdraw his plea
• the evidence was sufficient to support a finding that Jones's plea was based on his attorney's erroneous representation
• the case is remanded to the district court to allow Jones to withdraw his plea and proceed to trial
• the case should be reassigned to another district judge

C-2008-273

Apr. 10, 2009

Charles Bert Jones, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Petitioner Charles Bert Jones, Jr. entered a blind plea of guilty in the District Court of Oklahoma County, Case No. CF-2005-5212, to First Degree Felony Murder (Count 1), in violation of 21 O.S.2001, § 701.7(B), Assault and Battery with a Dangerous Weapon (Count 2), in violation of 21 O.S.2001, § 645, and Conspiracy to Commit a Felony (Count 4), in violation of 21 O.S.2001, § 421.1. The Honorable Tammy Bass-LeSure, District Judge, accepted Jones’s plea and sentenced him to life imprisonment on Counts 1 and 4, and ten years imprisonment on Count 2, with the life sentences to be served concurrently with each other, but consecutive to the sentence in Count 2 and consecutive to Count 3 in CF-2000-6350. A timely motion to withdraw plea was filed by Jones and after the prescribed hearing, the district court denied the motion. Count 3, Attempted Robbery with a Firearm, was dismissed because it merged into Count 1.

At the hearing below, there was much discussion about the sentence the district court imposed and if the Judgment and Sentence reflected the sentence the court intended to impose. The record indicates that the court intended to run the sentence imposed in this case consecutive to Count 2, rather than Count 3, in CF-2000-6350. A corrected Judgment and Sentence is not in the record before this Court.

Jones appeals the district court’s order and asks this Court to allow him to withdraw his plea and proceed to trial on the merits. This case raises the single issue of whether Jones’s plea was knowingly and voluntarily entered. We grant certiorari and remand this matter to the district court to allow Jones to withdraw his plea and proceed to trial. We further find this case should be reassigned to another district judge.

The evidence presented below was sufficient to support a finding that Jones entered his plea based upon his attorney’s representation that the attorney had spoken to the trial judge and that the judge had agreed to sentence Jones to a more favorable sentence than the trial judge imposed. On the record before us, we find the trial court abused its discretion in denying Jones’s motion to withdraw plea. See Cox v. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251.

DECISION

The Petition for a Writ of Certiorari is GRANTED. This matter is REMANDED to the district court with instructions to allow Jones to withdraw his plea of guilty and proceed to trial after reassignment to a different district judge. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE TAMMY BASS-LESURE, DISTRICT JUDGE

APPEARANCES IN DISTRICT COURT

TIM WILSON
OKLA. INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070

MICHAEL D. MOREHEAD
ASSISTANT PUBLIC DEFENDERS
611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR
OKLAHOMA CITY, OK 73102

FAUSTINE CURRY
ATTORNEY FOR PETITIONER
RICHARD ANDERSON
ATTORNEY AT LAW
1021 N.W. 16TH ST.
OKLAHOMA CITY, OK 73106

ATTORNEYS FOR DEFENDANT

SANDY ELLIOTT
ASSISTANT DISTRICT ATTORNEY

W. A. DREW EDMONDSON
OKLAHOMA ATTORNEY GENERAL
505 COUNTY OFFICE BUILDING
320 ROBERT S. KERR
OKLAHOMA CITY, OK 73102

DONALD D. SELF
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105

ATTORNEYS FOR APPELLEE

OPINION BY: A. JOHNSON, V.P.J.

C. JOHNSON, P.J.: Concur

LUMPKIN, J.: Dissent

CHAPEL, J.: Concur

LEWIS, J.: Concur

LUMPKIN, JUDGE: DISSENT

I fail to find a scintilla of credible evidence that would warrant a granting of Petitioner’s request to withdraw his blind plea of guilty to the charges. Petitioner’s iteration of what transpired prior to the plea is not supported by the testimony of either the trial judge or Petitioner’s trial attorney. This is another case of a blind plea being entered at a time a jury panel was waiting to try his case. As I have stated in Pickens v. State, 2007 OK CR 18, IT 1, 158 P.3d 482, 484 (Lumpkin, P.J.: Dissenting) [t]he Court needs to remember a ‘blind plea’ is just that, a plea of guilty without any guarantee as to what the sentence will be. It appears that what Petitioner hoped would happen did not happen but the record does not support any conclusion but that he was told what the range of punishment was and that it would be entirely up to the judge what the sentence would be if a blind plea was entered. The Petitioner had already been sentenced to a 40-year sentence in another Oklahoma County case, CF-2000-6350, and he wanted a sentence that would run concurrently with that case. In other words, the Petitioner is very aware of the intricacies of the criminal justice system and it appears he is trying to work the system based on his bald assertions that are not supported by the record. I would affirm the denial of the application to withdraw plea of guilty.

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Footnotes:

1. In violation of 21 O.S.2001, § 701.7(B).
2. In violation of 21 O.S.2001, § 645.
3. In violation of 21 O.S.2001, § 421.
4. The record indicates that the court intended to run the sentence imposed in this case consecutive to Count 2, rather than Count 3, in CF-2000-6350.
5. See Cox v. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251.
6. As I have stated in Pickens v. State, 2007 OK CR 18, IT 1, 158 P.3d 482, 484 (Lumpkin, P.J.: Dissenting).
7. CF-2000-6350.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7(B) - First Degree Felony Murder
• Okla. Stat. tit. 21 § 645 - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 421 - Conspiracy to Commit a Felony
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals

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 18, 152 P.3d 244, 251
• Pickens v. State, 2007 OK CR 18, IT 1, 158 P.3d 482, 484