Malissa Latoya Hamill v The State Of Oklahoma

C-2009-48

Filed: Aug. 31, 2009

Not for publication

Prevailing Party: Malissa Latoya Hamill

Summary

Malissa Latoya Hamill appealed her conviction for First Degree Rape. Her conviction and sentence involved a ten-year suspended sentence and a $500 fine. Judge C. Johnson dissented. In the case, Hamill had entered a no contest plea but later wanted to withdraw it. She wrote a letter asking to change her plea, but the judge didn't allow her to have a lawyer help her during the hearing. The court agreed that Hamill might not have fully understood what she was doing when she pled guilty, especially since there wasn't a complete record of her first hearing. Because of this, they decided that her rights were not fully respected and sent the case back to court for a new hearing with a lawyer present.

Decision

The Petition for a Writ of Certiorari is GRANTED. This matter is REMANDED to the district court for a hearing on Hamill's motion to withdraw her plea to be conducted in a manner consistent with this opinion. 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 Hamill's right to counsel during the plea withdrawal hearing knowingly and voluntarily waived?
• was Hamill's plea of no contest entered knowingly and voluntarily?

Findings

• the court erred in denying Hamill's right to counsel at the plea withdrawal hearing
• the denial of counsel at the plea withdrawal hearing was not harmless
• the case is remanded for a proper hearing on the motion to withdraw plea
• Hamill's claim that her plea was not knowingly and voluntarily entered will be addressed at the new hearing

C-2009-48

Aug. 31, 2009

Malissa Latoya Hamill

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION GRANTING CERTIORARI

A. JOHNSON, VICE PRESIDING JUDGE:

Petitioner Malissa Latoya Hamill entered a plea of no contest in the District Court of Bryan County, Case No. CF-2005-523, to First Degree Rape in violation of 21 O.S.2001, § 1114(A)(1). The Honorable Mark R. Campbell accepted Hamill’s plea, and Hamill received a ten-year suspended sentence and a $500.00 fine. Hamill submitted a hand-written letter which was filed and accepted as a motion to withdraw her plea of no contest. The district court held the prescribed hearing, during which Hamill proceeded pro se, and denied the motion. Hamill appeals the court’s ruling and asks this Court to issue a writ of certiorari allowing her to withdraw her plea. This case raises the following issues: (1) whether Hamill knowingly and voluntarily waived her right to counsel at the plea withdrawal hearing; and (2) whether Hamill’s plea of no contest was entered knowingly and voluntarily.

We find this case must be remanded for a new hearing on Hamill’s motion to withdraw her plea of no contest for the reasons discussed below.

1. A defendant has a Sixth Amendment right to assistance of counsel at a hearing on a motion to withdraw a plea. Randall v. State, 1993 OK CR 47, ¶ 6-7, 861 P.2d 314, 316. This right may be waived if it is done knowingly and voluntarily. Waiver will not be lightly presumed, however, and the court must indulge every reasonable presumption against waiver. Norton v. State, 2002 OK CR 10, ¶ 7, 43 P.3d 404, 407.

Hamill claims that she was denied her right to counsel during the hearing on her motion to withdraw the plea when the trial judge did not allow counsel to assist her. The trial judge stated that it was his opinion that counsel was practically discharged when Hamill entered her plea. The trial judge also decided that because Hamill filed her motion pro se, she was proceeding pro se during the hearing. This is insufficient to overcome the strong presumption against finding that Hamill waived her right to counsel. Cf. Norton v. State, 2002 OK CR 10, ¶ 8, 43 P.3d 404, 407 (without a more developed colloquy with Malissa Latoya Hamill, either at the initial appearance or preliminary hearing, we cannot conclude that his pro se appearance at preliminary hearing was a voluntary choice).

Nevertheless, when a defendant is denied her right to counsel during a hearing on a motion to withdraw a plea, harmless error analysis applies if: (1) the defendant does not allege she is innocent or that her plea was involuntary; and (2) it is clear that the defendant is not entitled to withdraw her plea. Randall, 1993 OK CR 47, ¶ 7, 861 P.2d at 316. Here, Hamill claims she is innocent, that her plea was neither knowing nor voluntary, and as explained below, on the basis of this scant record, we cannot conclude that she is not entitled to withdraw her plea.

Because there is no transcript of the plea hearing, our review is limited to the original record consisting entirely of the summary of facts plea form and the transcript of the hearing on Hamill’s motion to withdraw her plea. On this record, it is not possible to determine whether Hamill was even informed of the proper range of punishment. The signed plea form, for example, states that the maximum punishment is NLT 5 years, and the minimum punishment block is blank (O.R. 41). According to the rape statute, however, rape in the first degree is punishable by death or imprisonment for no less than five years, life, or life without parole. 21 O.S.Supp.2002, § 1115.

Additionally, that portion of the plea form in which the defendant acknowledges understanding that she must comply with the Oklahoma Sex Offender Registry Act was left blank (O.R. 41). Because the record of the plea proceeding as documented in the plea form suggests that Hamill may not have been advised of the proper range of punishment, we cannot conclude with certainty that she is not entitled to withdraw her plea. See Randall, 1993 OK CR 47, ¶ 10, 861 P.2d at 316 (holding that where there is no record of plea proceeding and record consists solely of plea form and transcript of plea withdrawal hearing and plea form does not show that appellant was advised of appropriate range of punishment, this Court cannot find with certainty that appellant would not be entitled to withdraw plea).

Accordingly, we cannot find that the denial of counsel at the plea withdrawal hearing was harmless. Randall, 1993 OK CR 47, ¶ 10, 861 P.2d at 316. This matter must be remanded for a new hearing on Hamill’s motion to withdraw her plea with assistance of counsel.

2. Hamill claims that she did not enter her plea knowingly and voluntarily. This claim will not be considered here because the case is remanded for a proper hearing on this issue. Id. ¶ 2, at 315.

DECISION

The Petition for a Writ of Certiorari is GRANTED. This matter is REMANDED to the district court for a hearing on Hamill’s motion to withdraw her plea to be conducted in a manner consistent with this opinion. 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 BRYAN COUNTY

THE HONORABLE MARK R. CAMPBELL, DISTRICT JUDGE

APPEARANCES IN DISTRICT COURT
MALISSA HAMILL, PRO SE

APPEARANCES ON APPEAL
KATRINA CONRAD-LEGLER
P. O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR PETITIONER

TIM R. WEBSTER
MATT STUBBLEFIELD
ASSISTANT DISTRICT ATTORNEYS
117 N. THIRD STREET
DURANT, OK 74701
ATTORNEYS FOR STATE

OPINION BY: A. JOHNSON, V.P.J.
C. JOHNSON, P.J.: Concur
LUMPKIN, J.: Concur
CHAPEL, J.: Concur
LEWIS, J.: Concur

RC

Click Here To Download PDF

Footnotes:

1. 21 O.S.2001, § 1114(A)(1)
2. O.R. 41
3. 21 O.S.Supp.2002, § 1115
4. Coker v. Georgia, 433 U.S. 584 (1977)
5. Randall v. State, 1993 OK CR 47, II 6-7, 861 P.2d 314
6. Randall v. State, 1993 OK CR 47, I 10, 861 P.2d 316

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114(A)(1) - First Degree Rape
• Okla. Stat. tit. 21 § 1115 - Punishment for Rape in the First Degree
• 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:

• Randall v. State, 1993 OK CR 47, I 6-7, 861 P.2d 314, 316
• Norton v. State, 2002 OK CR 10, I 7, 43 P.3d 404, 407
• Norton v. State, 2002 OK CR 10, I 8, 43 P.3d 404, 407
• Coker v. Georgia, 433 U.S. 584, 592, 987 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977)
• Randall v. State, 1993 OK CR 47, I 10, 861 P.2d 314, 316
• Randall v. State, 1993 OK CR 47, I 2, at 315