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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA WILLIAM JACKSON MURRAY, ) ) Appellant, ) Not for Publication V. ) Case No. C-2009-89 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. ) JAN 08 2010 SUMMARY OPINION GRANTING CERTIORARI MICHAEL S. RICHIE CHAPEL, JUDGE: CLERK William Jackson Murray pled nolo contendere to Count I, Burglary in the First Degree in violation of 21 O.S.2001, § 1431, and pled guilty to Count II, Aggravated Assault and Battery in violation of 21 O.S.Supp.2006, § 646, each after one former felony conviction, in the District Court of Custer County, Case No. CF-2007-336. The Honorable Jacqueline P. Duncan sentenced Murray to twenty-five (25) years incarceration (Count I) and ten (10) years incarceration (Count II), to run consecutively, plus restitution. Murray filed a timely Motion to Withdraw Pleas, which was denied by written Order on November 24, 2008. No hearing was held on the motion. In his single proposition of error, Murray claims that the trial court erred in failing to hold a hearing on his Motion to Withdraw Plea of Guilty. He is correct. Although a hearing date was set on the motion to withdraw, the trial court denied the motion by written order before the hearing could be held. Judgment and Sentence were entered after a sentencing hearing on November 14, 2008 and Murray filed his motion to withdraw on November 17. A hearing 1 was set for December 15, but entered a written order denying the motion on November 24. As Murray had raised an ineffective assistance claim, conflict counsel had been appointed for the motion to withdraw. When counsel appeared for the hearing he was told the motion had been denied by order. Counsel filed a brief in support of the motion to withdraw and asked that the hearing be reset for January 12, 2009; the State filed a response to counsel’s brief on January 9, 2009. Counsel received written notice that the motion had again been denied without a hearing. A second summary order denying the motion is dated January 12, 2009. Nothing in the record indicates a hearing was ever held. There is no hearing transcript, no docket entry reflecting a hearing, and no court minute regarding a hearing. The record shows neither party waived this hearing. According to our Rules, Murray is entitled to a hearing on his Motion to Withdraw.1 A writ of certiorari is treated as an appeal of right from a guilty plea, and this Court’s procedural Rules governing the method of that appeal have the force of law.2 This Court has held that a hearing on a motion to withdraw a guilty plea is a critical stage of a criminal prosecution.³ The Petition for Writ of Certiorari is granted, the Motion to Supplement Appeal Record and Brief in Support of Motion filed on June 30, 2009 is granted, and the case is remanded to the 1 Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), provides: “The trial court shall hold an evidentiary hearing and rule on the application within thirty (30) days from the date it was filed.” 2 22 O.S.2001, § 1051. 3 Randall v. State, 1993 OK CR 47, 861 P.2d 314, 316. 2 District Court of Custer County for a hearing on Murray’s motion to withdraw his pleas. Decision The Petition for Writ of Certiorari is GRANTED and the case is REMANDED to the District Court of Custer County for a hearing on Murray’s Motion to Withdraw Pleas. 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. ATTORNEYS AT TRIAL ATTORNEYS ON APPEAL RYAN D. RECKER S. GAIL GUNNING RECKER & RECKER APPELLATE DEFENSE COUNSEL 701 EAST MAIN STREET, SUITE D P.O. BOX 926 WEATHERFORD, OKLAHOMA 73096 NORMAN, OKLAHOMA 73070 ATTORNEY FOR DEFENDANT AT ATTORNEY FOR PETITIONER PLEA HEARING NO RESPONSE REQUIRED ALBERT J. HOCH, JR. 803 ROBERT S. KERR OKLAHOMA CITY, OKLAHOMA 73106 ATTORNEY FOR DEFENDANT ON MOTION TO WITHDRAW PLEA RICKY A. McPHEARSON ASSISTANT DISTRICT ATTORNEY CUSTER COUNTY COURTHOUSE 603 B STREET P.O. BOX 36 ARAPAHO, OKLAHOMA 73620 ATTORNEY FOR STATE OPINION BY: CHAPEL, J. C. JOHNSON, P.J.: CONCUR A. JOHNSON, V.P.J.: CONCUR LUMPKIN, J.: CONCUR LEWIS, J.: CONCUR 3

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