Karen Deborah Smith v The State Of Oklahoma

C-2010-1059

Filed: Sep. 23, 2011

Not for publication

Prevailing Party: Karen Deborah Smith

Summary

Karen Deborah Smith appealed her conviction for Enabling Sexual Abuse of a Minor Child. Conviction and sentence were for five years imprisonment with two years suspended on each of the two counts, to run at the same time. Judge Lumpkin dissented.

Decision

The Petition for Writ of Certiorari is GRANTED, and the cause REMANDED to the district court for a proper hearing on the Motion to Withdraw Guilty Plea. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. 3 (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a factual basis to support a finding that the 11-year-old abuser was authorized or allowed to provide care for the children?
• Were Ms. Smith's pleas knowing and voluntary given the belated advice of the 85 percent requirement?
• Did an actual conflict of interest deprive Ms. Smith of her constitutional right to effective assistance of counsel?
• Was Ms. Smith's right to effective assistance of counsel denied throughout the proceedings?
• Should the case be remanded to correct the Judgment and Sentence for violation of statutory provisions?
• Did cumulative errors deprive Ms. Smith of a fair proceeding and a reliable outcome?

Findings

• the court erred in denying the motion to withdraw the guilty plea
• the prior counsel's conflict of interest compromised effective assistance of counsel
• the decision to remand for proper hearing was appropriate

C-2010-1059

Sep. 23, 2011

Karen Deborah Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI

C. JOHNSON, JUDGE:

Petitioner, Karen Deborah Smith, was charged in Tulsa County District Court with two counts of Enabling Sexual Abuse of a Minor Child in Case No. CF-2009-2614. Petitioner entered a negotiated plea of no contest to the charges and was sentenced to five years imprisonment with two years suspended on each count. The sentences were ordered to run concurrently. Petitioner filed a Motion to Withdraw Guilty Plea. At the conclusion of a hearing on this motion, her request was denied. It is from this ruling that Petitioner appeals to this Court.

Appellant raises the following propositions of error:

1. Ms. Smith should be allowed to withdraw her plea to Enabling Sexual Abuse of a Minor Child because no factual basis exists to support a finding that the 11-year-old abuser was authorized or allowed to provide care, or acted as a person responsible, for either child’s health, safety or welfare.

2. Ms. Smith’s pleas were not knowing and voluntary because she was belatedly advised of the 85 percent requirement and either sentenced using incorrect punishment provisions or not advised of these material consequences at the time of her plea.

3. An actual conflict of interest deprived Ms. Smith of the constitutional right to effective assistance of counsel, where the same counsel she alleged failed to sufficiently explain the outcome of the plea also represented her at the withdrawal hearing.

4. Reversal is required because Ms. Smith’s right to the effective assistance of counsel was denied throughout the proceedings in this case.

5. Alternatively, this court should remand the case to the district court with instructions to correct the Judgment and Sentence by an order nunc pro tunc to accurately reflect a conviction in violation of 10 O.S.2008, § 7115(G).

6. Cumulative errors deprived Ms. Smith of a fair proceeding and a reliable outcome.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we remand this case to the district court for a proper hearing on the motion to withdraw. Petitioner alleges that she was denied her constitutional right to the effective assistance of counsel during the hearing on the motion to withdraw her guilty plea because she was represented at the hearing by counsel with whom she had conflicting interests. Petitioner’s attorney at the hearing on the motion to withdraw was the same attorney who had represented her when she entered her plea. Although Petitioner did not object to the conflict of interest at the hearing on the motion to withdraw, the record supports a finding that an actual conflict of interest adversely affected her lawyer’s performance.

The transcript of the hearing on the motion to withdraw is approximately two pages. It reflects that defense counsel stated, Judge, we pretty much stand on what the motion itself says, that it was an 85 percent crime. She wasn’t advised of it at the time of the plea. I was her attorney. I think that being the case, she can’t knowingly waive and enter a plea. The judge responded that he had advised Petitioner at the hearing on the motion to withdraw that it was an 85% crime. After this, defense counsel made no argument about how the lack of accurate information prior to the plea hearing could have compromised the knowing and voluntary nature of Petitioner’s no contest plea. Nor did defense counsel call Petitioner to testify about the same. Defense counsel simply did not advocate Petitioner’s position at the plea hearing. As a result, Petitioner was effectively left without any assistance of counsel at the hearing on the motion to withdraw, presumably in part because counsel could not have rendered effective assistance at this hearing without calling pointed attention to his ineffective assistance prior to and during the plea hearing. Thus, this case must also be remanded to the district court for a proper hearing on the motion to withdraw in which Petitioner may be represented by conflict-free counsel.

DECISION

The Petition for Writ of Certiorari is GRANTED, and the cause REMANDED to the district court for a proper hearing on the Motion to Withdraw Guilty Plea. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. 3 (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT PLEA

KIMBERLY D. HEINZE
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR PETITIONER

E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA
JAY SCHNIEDERJAN
500 S. DENVER
TULSA, OK 74103
ATTORNEY FOR THE STATE

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Footnotes:

1. Enabling Sexual Abuse of a Child is an 85% crime.
2. 10 O.S.2008, § 7115(G).
3. Carey U. State, 1995 OK CR 55, I 10, 902 P.2d 1116, 1118.
4. Randall v. State, 1993 OK CR 47, 861 P.2d 314, 315.
5. 21 O.S.Supp.2009, $13.1.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Enabling Sexual Abuse of a Minor Child
• Okla. Stat. tit. 10 § 7115(G) - Withdrawal of Pleas
• Okla. Stat. tit. 21 § 13.1 - 85% Crimes

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, 10, 902 P.2d 1116, 1118
• Randall v. State, 1993 OK CR 47, 861 P.2d 314, 315