Christopher Overby v The State Of Oklahoma
C-2009-617
Filed: Feb. 8, 2010
Not for publication
Prevailing Party: Christopher Overby
Summary
Christopher Overby appealed his conviction for Possession of a Firearm While Under Supervision of the Department of Corrections. His conviction included a 10-year sentence, with the first 5 years in custody and the last 5 years suspended. He argued that he did not receive effective help from his lawyer during the hearing to withdraw his guilty plea. The court found that there was a conflict of interest regarding his lawyer and decided that Overby should get a new hearing with a different lawyer who was not in conflict. The case was sent back to the district court for this new hearing. Judges concurred with the decision, but one dissented.
Decision
The Petition for a Writ of Certiorari is GRANTED and the case is REMANDED to the district court for a hearing on the Application to Withdraw Plea consistent with this 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 there effective, conflict-free assistance of counsel during the hearing on the motion to withdraw plea?
Findings
- the court erred in not appointing conflict-free counsel for the hearing on the motion to withdraw plea
- the error requires a new plea hearing
C-2009-617
Feb. 8, 2010
Christopher Overby
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
A. JOHNSON, VICE PRESIDING JUDGE:
Petitioner Christopher Overby entered a guilty plea in the District Court of Tulsa County, Case No. CF-2008-5956, to Possession of a Firearm While Under Supervision of the Department of Corrections, in violation of 21 O.S.Supp.2007, § 1283(C). The Honorable Tom C. Gillert accepted Overby’s plea and sentenced him according to his plea agreement to ten years imprisonment, with the first five years to be served in custody and the last five years to be suspended. The sentence was ordered to be served concurrently with his sentence in Tulsa County Case No. CF-2007-5705. Overby filed a timely pro se motion to withdraw plea and after the prescribed hearing, the motion was denied. Overby appeals the district court’s order and asks this Court to grant certiorari and order a new hearing on his motion to withdraw plea with representation by conflict-free counsel.
This case raises the single issue of whether Overby received effective, conflict-free, assistance of counsel during his hearing on the motion to withdraw plea. We have held that a defendant’s right to effective assistance of counsel is violated where an actual conflict of interest exists between the defendant and counsel concerning a motion to withdraw plea. See Carey v. State, 1995 OK CR 55, 902 P.2d 1116, 1117-18. Such a conflict existed here. Defense counsel correctly moved to withdraw from representing Overby at the hearing on the motion to withdraw plea and the district court should have appointed new counsel to present Overby’s claims for withdrawing his plea, which included ineffective assistance of counsel. This error requires a new plea hearing in accordance with Overby’s constitutional right to effective assistance of counsel. The case is remanded for a new hearing on Overby’s application to withdraw plea.
DECISION
The Petition for a Writ of Certiorari is GRANTED and the case is REMANDED to the district court for a hearing on the Application to Withdraw Plea consistent with this 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.
AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE TOM C. GILLERT, DISTRICT JUDGE
APPEARANCES IN DISTRICT COURT
RICHARD CLARK
ASSISTANT PUBLIC DEFENDER
423 S. BOULDER, SUITE 300
TULSA, OK 74103
ATTORNEY FOR DEFENDANT
APPEARANCES ON APPEAL
CURTIS M. ALLEN
ASSISTANT PUBLIC DEFENDER
423 S. BOULDER, SUITE 300
TULSA, OK 74103
ATTORNEY FOR PETITIONER
SHANNON BICKHAM
ASSISTANT DISTRICT ATTORNEY
500 S. DENVER
TULSA, OK 74103
ATTORNEY FOR STATE
OPINION BY: A. JOHNSON, V.P.J.
C. JOHNSON, P.J.: Concur
LUMPKIN, J.: Concur
CHAPEL, J.: Concur
LEWIS, J.: Concur
Footnotes:
- 21 O.S.Supp.2007, § 1283(C)
- Carey v. State, 1995 OK CR 55, 902 P.2d 1116, 1117-18
- Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010)
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 1283 (2011) - Possession of a firearm while under supervision of the Department of Corrections
- Okla. Stat. tit. 22 § 3.15 (2010) - Rules of the Oklahoma Court of Criminal Appeals
- Okla. Stat. tit. 21 § 701.8 (2011) - Effective assistance of counsel
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:
- Carey v. State, 1995 OK CR 55, 902 P.2d 1116, 1117-18