Donald Edward Sutton v The State Of Oklahoma

C 2009-665

Filed: Aug. 26, 2010

Not for publication

Prevailing Party: Donald Edward Sutton

Summary

Donald Edward Sutton appealed his conviction for possession of child pornography. His conviction and sentence were vacated. Judge Johnson dissented. In this case, Sutton pleaded guilty without fully understanding what that meant. He didn't know he had to serve 85% of his prison time or that he would have to register as a sex offender. Because he wasn't properly informed, the court decided he could withdraw his plea and wouldn't have to face the earlier sentence.

Decision

Sutton's Petition for Writ of Certiorari is GRANTED, the Judgment and Sentence of the district court is hereby VACATED, and the case is REMANDED for further proceedings 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 Mr. Sutton's plea entered knowingly and voluntarily due to lack of information regarding the 85% mandatory service requirement and sex offender registration consequences?
• did Mr. Sutton receive ineffective assistance of counsel during the plea entry and withdrawal hearing?
• was Mr. Sutton's sentence of twenty years with an eight-year minimum excessive and disproportionate given the mitigating evidence presented?
• did the judge err by failing to conclude the plea withdrawal hearing and appoint conflict counsel?
• did the cumulative effect of the errors deprive Mr. Sutton of a fair and impartial proceeding?

Findings

• the court erred in not informing Sutton of the 85% parole eligibility rule, rendering the plea involuntary
• Sutton's claims regarding ineffective assistance of counsel, sentence excessiveness, and judge error were rendered moot
• Sutton's Petition for Writ of Certiorari is granted and the Judgment and Sentence of the district court is vacated

C 2009-665

Aug. 26, 2010

Donald Edward Sutton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Petitioner, Donald Edward Sutton, Jr., entered a blind plea of guilty to the offense of possession of child pornography in violation of 21 O.S.2001, § 1021.2, in Washington County District Court case number CF-2008-414, before the Honorable Curtis L. DeLapp, District Judge. Judge DeLapp accepted the plea, ordered a presentence report, and, on June 17, 2009, sentenced Sutton to twenty years with all suspended except for the first eight (8) years. Sutton, through counsel, filed a motion to withdraw plea indicating grounds for the motion generally that the plea was not knowing and voluntary. A hearing on the motion was held on July 15, 2009. At the conclusion of the hearing, the trial court denied Sutton’s motion. Sutton is now before this Court appealing the trial court’s decision. This Court ordered the State to respond, and the response was filed on June 30, 2010. Sutton now seeks relief from this Court raising the following propositions:

1. Mr. Sutton’s plea was not entered knowingly and voluntarily because he was not informed that he would be required to serve 85% of his sentence, nor was he informed that he would have to register as a sex offender or of the consequences of being a convicted sex offender.
2. Mr. Sutton received ineffective assistance of counsel at the entry of his plea and at the hearing on his application to withdraw plea.
3. Mr. Sutton’s sentence of twenty (20) years with eight (8) to serve with eighty-five (85) percent of that time frame being mandatory incarceration is excessive and disproportionate in light of mitigation evidence presented at the sentencing hearing.
4. The judge erred in failing to end the plea withdrawal hearing and appoint conflict counsel.
5. The cumulative effect of all these errors deprived Petitioner of a fair and impartial proceeding.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, motions and briefs of the parties, we grant Sutton’s Writ of Certiorari and order that he be allowed to withdraw his pleas. In deciding Sutton’s Petition, we note that our only concern is whether the plea was entered knowingly and voluntarily. Fields v. State, 1996 OK CR 35, I 38, 923 P.2d 624, 631-32. In proposition two, Sutton complains that he was not advised of the statutory limitation (the 85% rule) on parole eligibility for his crimes. In Pickens v. State, 2007 OK CR 18, 158 P.3d 482, this Court held the failure to advise the defendant of this statutory limitation on parole eligibility rendered a blind plea involuntary even though the specific error was not raised during the trial court proceedings. The 85% rule, as it applies to the crimes charged herein, was enacted and became effective on July 1, 1999, and continues to this day. See 21 O.S. § 13.1. Therefore, Sutton’s term of imprisonment will be subject to the 85% mandatory parole eligibility law. However, Sutton was not informed that he would be required to serve 85% of any term before becoming eligible for parole. This error results in pleas that are not entered into knowingly and voluntarily, thus Sutton must be allowed to withdraw the pleas. See Hunter v. State, 1992 OK CR 1, I 3, 825 P.2d 1353, 1355. (a defendant who does not enter the plea knowingly and voluntarily must be allowed to withdraw it). Our resolution of this issue renders Sutton’s remaining propositions moot.

DECISION

Sutton’s Petition for Writ of Certiorari is GRANTED, the Judgment and Sentence of the district court is hereby VACATED, and the case is REMANDED for further proceedings 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.

APPEARANCES AT TRIAL
JIM CONASTER
300 S.E. SHAWNEE
BARTLESVILLE, OK 74003
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
JOHNNY LOMBARDI
INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR PETITIONER

CHERYL CERDA
ASSISTANT DISTRICT ATTORNEY
WASHINGTON COUNTY
420 SOUTH JOHNSTONE
BARTLESVILLE, OK 74003
ATTORNEYS FOR RESPONDENT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

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

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Footnotes:

1. 21 O.S.2001, § 1021.2
2. 21 O.S. § 13.1
3. Hunter U. State, 1992 OK CR 1, I 3, 825 P.2d 1353, 1355
4. Fields v. State, 1996 OK CR 35, I 38, 923 P.2d 624, 631-32
5. Pickens v. State, 2007 OK CR 18, 158 P.3d 482

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1021.2 - Possession of child pornography
• Okla. Stat. tit. 21 § 13.1 - Parole eligibility
• 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:

• Fields v. State, 1996 OK CR 35, I 38, 923 P.2d 624, 631-32
• Pickens v. State, 2007 OK CR 18, 158 P.3d 482
• Hunter v. State, 1992 OK CR 1, I 3, 825 P.2d 1353, 1355