Johnny Clyde Butler v The State Of Oklahoma

C-2009-410

Filed: Nov. 19, 2009

Not for publication

Prevailing Party: Johnny Clyde Butler

Summary

Johnny Clyde Butler appealed his conviction for possession of a controlled dangerous substance (methamphetamine). His conviction and sentence were for ten years in prison. Judge Charles A. Johnson dissented. Butler had originally pled guilty but later wanted to take back his plea because he thought the judge didn't follow the plea agreement. He claimed he was supposed to get a five-year sentence instead of ten. The court had not held a hearing to consider his request to withdraw his plea, so the Court of Criminal Appeals decided to send the case back to the trial court for that hearing. During this hearing, Butler would get a lawyer to help him. If the trial court still said no to his request afterward, Butler could appeal again. Other issues he raised were not considered because they were not needed once the hearing was ordered.

Decision

On December 17, 2008, Petitioner pled guilty to the crime of Possession of a Controlled Dangerous Substance (methamphetamine), in violation of 63 O.S.2001, § 2-402, in Pottawatomie County District Court case no. CF-2008-112. As part of the plea deal, a second count for Petit Larceny was dropped and Petitioner was to be sentenced to ten years imprisonment "to do." Sentencing consistent with that agreement occurred on April 1, 2009. On April 9, 2009, Petitioner moved, pro se, to withdraw his guilty plea on the basis that the trial judge had failed to follow the plea agreement. In a letter filed contemporaneously therewith, Petitioner alleged he had not received the five year sentence that had been agreed upon between him, his attorney, and the District Attorney. However, the record is void of any evidence that an evidentiary hearing was held in regard to Petitioner's motion to withdraw plea. Rather, it appears that the motion was summarily rejected by an order from the District Court Judge and that Petitioner's counsel was not given the opportunity to present Petitioner's case. Instead, Petitioner's counsel was simply mailed a copy of the order. Petitioner then filed this appeal to the trial court's denial of his motion to withdraw plea. He raises the following propositions of error in support of his Petition for Writ of Certiorari: 1. The trial court erred by failing to hold a hearing on the motion to withdraw plea; 2. Petitioner should be allowed to withdraw his plea as there was no sufficient factual basis for the guilty plea; 3. The trial judge failed to inquire into Petitioner's competence to enter the plea; 4. Petitioner did not receive effective assistance of counsel; 5. The trial court erred by imposing an unsupported sentence of restitution to be paid by Petitioner; 6. The sentence and fine were excessive; and 7. Cumulative errors deprived Petitioner of a fair hearing and due process of law. Having thoroughly reviewed the record before us, we find the case should be remanded to the trial court for an evidentiary hearing with respect to the motion to withdraw guilty plea. See Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009) ("[t]he trial court shall hold an evidentiary hearing and rule" on a motion or application to withdraw guilty plea within thirty (30) days from the day it was filed). The evidentiary hearing shall be limited to the issue raised in the motion to withdraw the plea filed with the District Court. Id. ("[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"). The sole issue raised in the Motion to Withdraw Plea was "the presiding Judge in this matter failed to follow the plea agreement." (O.R. 78) Further, Petitioner shall be afforded the assistance of counsel at the evidentiary hearing. The trial court shall conduct the evidentiary hearing within forty five (45) days from the date of this remand. If the trial court denies the Motion to Withdraw Plea, the trial court's order and transcripts of the hearing shall be filed with this Court within twenty (20) days of the evidentiary hearing. The Petitioner, within twenty (20) days from the date the order and transcripts are filed with this Court, may file his Petition for Writ of Certiorari that complies with the Rules of this Court. If the Motion to Withdraw the Plea is granted, a copy of the trial court's order shall be filed with this Court. With respect to propositions of error two through seven, the issues raised therein are moot. IT IS so ORDERED.

Issues

• Was there a failure by the trial court to hold a hearing on the motion to withdraw plea?
• Did the trial court err in determining there was a sufficient factual basis for the guilty plea?
• Did the trial judge fail to inquire into Petitioner's competence to enter the plea?
• Did Petitioner receive ineffective assistance of counsel?
• Did the trial court err by imposing an unsupported sentence of restitution?
• Were the sentence and fine excessive?
• Did cumulative errors deprive Petitioner of a fair hearing and due process of law?

Findings

• the trial court erred by failing to hold a hearing on the motion to withdraw plea
• the issues raised in propositions of error two through seven are moot

C-2009-410

Nov. 19, 2009

Johnny Clyde Butler

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ORDER REMANDING FOR EVIDENTIARY HEARING

On December 17, 2008, Petitioner pled guilty to the crime of Possession of a Controlled Dangerous Substance (methamphetamine), in violation of 63 O.S.2001, § 2-402, in Pottawatomie County District Court case no. CF-2008-112. As part of the plea deal, a second count for Petit Larceny was dropped and Petitioner was to be sentenced to ten years imprisonment to do. Sentencing consistent with that agreement occurred on April 1, 2009. On April 9, 2009, Petitioner moved, pro se, to withdraw his guilty plea on the basis that the trial judge had failed to follow the plea agreement. In a letter filed contemporaneously therewith, Petitioner alleged he had not received the five year sentence that had been agreed upon between him, his attorney, and the District Attorney. However, the record is void of any evidence that an evidentiary hearing was held in regard to Petitioner’s motion to withdraw plea. Rather, it appears that the motion was summarily rejected by an order from the District Court Judge and that Petitioner’s counsel was not given the opportunity to present Petitioner’s case. Instead, Petitioner’s counsel was simply mailed a copy of the order. Petitioner then filed this appeal to the trial court’s denial of his motion to withdraw plea. He raises the following propositions of error in support of his Petition for Writ of Certiorari:

1. The trial court erred by failing to hold a hearing on the motion to withdraw plea;
2. Petitioner should be allowed to withdraw his plea as there was no sufficient factual basis for the guilty plea;
3. The trial judge failed to inquire into Petitioner’s competence to enter the plea;
4. Petitioner did not receive effective assistance of counsel;
5. The trial court erred by imposing an unsupported sentence of restitution to be paid by Petitioner;
6. The sentence and fine were excessive; and
7. Cumulative errors deprived Petitioner of a fair hearing and due process of law.

Having thoroughly reviewed the record before us, we find the case should be remanded to the trial court for an evidentiary hearing with respect to the motion to withdraw guilty plea. See Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009) ([t]he trial court shall hold an evidentiary hearing and rule on a motion or application to withdraw guilty plea within thirty (30) days from the day it was filed). The evidentiary hearing shall be limited to the issue raised in the motion to withdraw the plea filed with the District Court. Id. ([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). The sole issue raised in the Motion to Withdraw Plea was the presiding Judge in this matter failed to follow the plea agreement. (O.R. 78) Further, Petitioner shall be afforded the assistance of counsel at the evidentiary hearing. The trial court shall conduct the evidentiary hearing within forty five (45) days from the date of this remand. If the trial court denies the Motion to Withdraw Plea, the trial court’s order and transcripts of the hearing shall be filed with this Court within twenty (20) days of the evidentiary hearing. The Petitioner, within twenty (20) days from the date the order and transcripts are filed with this Court, may file his Petition for Writ of Certiorari that complies with the Rules of this Court. If the Motion to Withdraw the Plea is granted, a copy of the trial court’s order shall be filed with this Court. With respect to propositions of error two through seven, the issues raised therein are moot.

IT IS so ORDERED.

the WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 19 day of November 2009.

CHARLES A. JOHNSON, Presiding Judge
ARLENE JOHNSON, Vice Presiding Judge
GARY L. LUMPKIN, Judge
CHARLES S. CHAPEL, Judge
DAVID B. LEWIS, Judge

ATTEST:
MICHAELS RICHIE Clerk

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Footnotes:

1. Okla. Stat. tit. 63 § 2-402
2. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009)
3. O.R. 78

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 - Possession of Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 4.2(B) - Evidentiary hearing on motion to withdraw plea

Oklahoma Administrative Rules citations:

• Okla. Admin. Code § 715:10-15-10(3) (2009)
• Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009)

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

No case citations found.