Shawn Leroy Harger v The State Of Oklahoma

C-2010-1033

Filed: Jul. 21, 2011

Not for publication

Prevailing Party: Shawn Leroy Harger

Summary

Shawn Leroy Harger appealed his conviction for Child Abuse. His conviction and sentence were for twenty years in prison. Harger argued that he did not get good help from his lawyer when he tried to withdraw his guilty plea. The court agreed and said he deserves a new hearing with a different lawyer. Judge C. Johnson dissented.

Decision

The Petition for a Writ of Certiorari is GRANTED. The Judgment and Sentence of the district court is REVERSED and the matter REMANDED for a new hearing on Harger's application to withdraw plea with separate, conflict free counsel. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there ineffective assistance of counsel at the hearing on Harger's application to withdraw guilty plea?
• Did an actual conflict of interest exist between Harger and his counsel?
• Was the right to effective assistance violated due to counsel's deficient performance at the hearing?
• Should Harger's motion to withdraw his plea have included an evidentiary hearing with conflict-free counsel?

Findings

• The court erred in denying Harger's application to withdraw his guilty plea due to ineffective assistance of counsel.
• The Judgment and Sentence of the district court is reversed.
• The matter is remanded for a new hearing on Harger's application to withdraw plea with separate, conflict free counsel.

C-2010-1033

Jul. 21, 2011

Shawn Leroy Harger

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI

A. JOHNSON, PRESIDING JUDGE: Petitioner Shawn Leroy Harger entered a blind plea of no contest in the District Court of Garfield County, Case No. CF-2009-28, to Child Abuse in violation of 10 O.S.Supp.2008, § 7115(A), with the understanding that the State would recommend its previously negotiated offer of twenty years imprisonment. The Honorable Ronald G. Franklin accepted Harger’s plea and, following a pre-sentence investigation and hearing, sentenced him to twenty years imprisonment. Harger filed an application to withdraw guilty plea, and after the prescribed hearing, the court denied Harger’s application. Harger appeals the district court’s order and asks this Court to grant certiorari and remand this matter to the District Court for a complete evidentiary hearing on the merits of his motion with the assistance of effective, conflict free counsel.

Harger raises the single issue that he was denied effective assistance of counsel at the hearing on his application to withdraw guilty plea. We agree. A defendant has a Sixth Amendment right to effective assistance of counsel at a hearing on a motion to withdraw a guilty plea. Carey v. State, 1995 OK CR 55, ¶ 4, 902 P.2d 1116, 1118. The right to effective assistance is violated when an actual conflict of interest exists between an attorney and client or when counsel performs deficiently resulting in prejudice. See id.; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148.

At the first hearing on Harger’s motion, defense counsel offered no evidence or argument. He stated that he had nothing to add other than the motion. When the motion was heard again after this Court’s order granting an appeal out of time, plea counsel advised the district court that he had no evidence and would stand on the argument previously made. Rather than swear in Harger and question him about his claim or move to withdraw because of a conflict, plea counsel offered no evidence or argument in support of his client’s motion. Neither the record of the August hearing nor the record of the October hearing affirmatively show that Harger was even present to testify. Based on these circumstances, we find that the record supports a finding of ineffective assistance of counsel.

DECISION

The Petition for a Writ of Certiorari is GRANTED. The Judgment and Sentence of the district court is REVERSED and the matter REMANDED for a new hearing on Harger’s application to withdraw plea with separate, conflict free counsel. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 10 O.S.Supp.2008, § 7115(A)
2. 21 O.S.Supp.2007, § 13.1
3. Carey v. State, 1995 OK CR 55, ¶ 4, 902 P.2d 1116, 1118
4. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
5. Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148
6. Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)
7. Harger v. State, Case No. PC-2010-813 (Sept. 17, 2010)
8. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011)

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115(A) - Child Abuse
• Okla. Stat. tit. 21 § 13.1 - Sentencing for Certain Crimes
• Okla. Stat. tit. 22 § 4.2 - Withdrawal of Guilty Plea
• Okla. Stat. tit. 22 § 3.15 - Mandate Issuance

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, I 4, 902 P.2d 1116, 1118
• Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148
• Harger v. State, Case No. PC-2010-813 (Sept. 17, 2010)