Donnell Devon Smith v State Of Oklahoma

C-2010-1179

Filed: Oct. 6, 2011

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Donnell Devon Smith appealed his conviction for multiple crimes, including burglary, robbery, and sexual battery. His conviction included sentences that totaled many years in prison. The Court of Criminal Appeals reviewed his appeal, which argued he should be allowed to withdraw his guilty pleas due to several reasons, like incorrect information about his possible punishments and claims of being pressured by his lawyer. The court decided that while Smith's appeal did not show enough reasons to withdraw his guilty pleas, his sentence for one of the charges was too long according to the law. Therefore, they modified that specific sentence to a shorter length. The court affirmed nearly all of his other convictions and sentences, confirming that Smith's guilty pleas were mostly entered knowingly and voluntarily. In the end, Smith appealed his conviction, and while most of it was upheld, one sentence was changed. No justices dissented in this decision.

Decision

Accordingly, the order of the district court denying Petitioner's motion to withdraw plea of guilty is AFFIRMED. The Judgment and Sentences in all cases are AFFIRMED, except for the following: the sentence in Count I, CF-2009-505 is MODIFIED to five (5) years imprisonment. Case No. CF-2009-533 is remanded to the District Court for an Order Nunc Pro Tunc reflecting that the sentence is to run concurrent with the sentences in CF-2009-501, 502, 503, 504, and 534. 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 Petitioner allowed to withdraw his guilty plea in CF-09-505, Count I, Attempted Second Degree Robbery due to the 10 year sentence being void on its face?
Did Petitioner enter his guilty pleas as to CF-09-505, Count I, CF-09-530, Count III, and CF-09-531, Count III knowingly and voluntarily, despite misadvisement of the punishment ranges?
Did Petitioner's convictions for Indecent Exposure and Forcible Sodomy in CF-09-531 violate the prohibitions against double punishment and double jeopardy?
Was there a sufficient factual basis presented to the court to support Petitioner's guilty pleas and convictions in CF-09-534 and CF-09-535?
Must the Judgment and Sentence in CF-09-353 be modified to reflect the oral pronouncement of sentence?
Were Petitioner's statutory and constitutional rights to preliminary hearings and timely post-competency hearings violated in CF-09-530, CF-09-534, CF-09-535, and CF-09-536?
Should Petitioner be allowed to withdraw his guilty pleas, which were entered without sufficient deliberation and were not knowingly and voluntarily entered?
Under the facts and circumstances surrounding the pleas, did Petitioner receive excessive sentences in these cases?
Did the cumulative effect of all of these errors deprive Petitioner of a fair and impartial proceeding?

Findings

the court erred
evidence was not sufficient
the court did not err
the court did not err
the court erred
the court erred but it was harmless
the court did not err
the sentences were not excessive
the court did not err

C-2010-1179

Oct. 6, 2011

Donnell Devon Smith

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

DENYING CERTIORARI

LUMPKIN, JUDGE: Petitioner Donnell Devon Smith was charged by multiple Informations filed on November 6, 2009 and November 24, 2009, in twelve Comanche County District Court Cases. On October 19, 2010, Petitioner appeared before the Honorable Gerald Neuwirth, District judge, and entered negotiated guilty pleas to all of the charges in each of the twelve cases (twenty-six counts) and was sentenced that same day. The cases, charges and sentences are as follows:

With a combination of concurrent and consecutive sentences, the court ordered the sentences in all four counts in CF-09-501 to run concurrent with each other, and concurrent to the sentences in CF-09-502, 503, 504, 533, and 534. The sentences in the three counts in CF-09-502 were ordered to run concurrent with each other and concurrent with the sentences in CF-09-501, 503, 504, 533, and 534. Both counts in CF-09-503 were ordered to run concurrent with each other and concurrent with CF-09-501, 502, 504, 533, and 534. All four counts in CF-09-504 were ordered to run concurrent with each other and concurrent with the sentences in CF-09-501, 502, 503, 533, and 534. Both counts in CF-09-505 were ordered to run concurrent with each other and concurrent with CF-09-530, 531, 532, 535, and 536, and consecutive to the sentences in CF-09-501, 502, 503, 504, 533, and 534. All three counts in CF-09-530 were ordered to run concurrent with each other, concurrent with CF-09-505, 531, 532, 535, and 536, and consecutive to the sentences in CF-09-501, 502, 503, 504, 533, and 534. All three counts in CF-09-531 were ordered to run concurrent with each other, concurrent with CF-09-505, 530, 532, 535, and 536, and consecutive to the sentences in CF-09-501, 502, 503, 504, 533, and 534. The sentence in CF-09-532 was ordered to run concurrent with the sentences in CF-09-505, 530, 531, 535, and 536, and consecutive to the sentences in CF-09-501, 502, 503, 504, 533, and 534. The sentence in CF-09-533 was ordered to run concurrent with CF-09-501, 502, 503, 504, and 534. The sentence in CF-09-534 was ordered to be concurrent with the sentences in CF-09-501, 502, 503, 504, and 533. The sentence in CF-09-535 was ordered to run concurrent with CF-09-505, 530, 531, 532, and 536, and consecutive to the sentences in CF-09-501, 502, 503, 504, 533, and 534. The sentence in CF-09-536 was ordered to run concurrent with CF-09-505, 530, 531, 532, and 535, and consecutive to the sentences in CF-09-501, 502, 503, 504, 533, and 534.

Shortly after he entered his pleas, Petitioner mailed a pro se letter to Judge Neuwirth which the court accepted as an Application to Withdraw Guilty Pleas, filed on October 29, 2010. At a hearing held November 8 and 30, 2010, the motion was denied. It is that denial which is the subject of this appeal. Petitioner raises the following propositions of error in support of his appeal.

I. Petitioner should be allowed to withdraw his guilty plea in CF-09-505, Count I, Attempted Second Degree Robbery, because the 10-year sentence is void on its face.

II. Petitioner’s guilty pleas as to CF-09-505, Count I, Attempted Second Degree Robbery; CF-09-530, Count III, Attempted Rape; and CF-09-531, Count III, Forcible Sodomy, were not entered knowingly and voluntarily because Petitioner was misadvised of the punishment ranges for these charges against him.

III. Petitioner’s convictions for Indecent Exposure and Forcible Sodomy in CF-09-531 violate the prohibitions against double punishment and double jeopardy.

IV. No sufficient factual basis was presented to the court to support Petitioner’s guilty pleas and convictions in CF-09-534 and CF-09-535. In the alternative, double jeopardy would bar Petitioner’s convictions in CF-09-534 and CF-09-535.

V. The Judgment and Sentence in CF-09-353 must be modified to reflect the oral pronouncement of sentence.

VI. Petitioner’s statutory and constitutional rights to preliminary hearings and timely post-competency hearings were violated in CF-09-530, CF-09-534, CF-09-535, and CF-09-536.

VII. Petitioner should be allowed to withdraw his guilty pleas, which were entered without sufficient deliberation and were not knowingly and voluntarily entered. Rather, these pleas were the result of Petitioner’s confusion and misunderstanding as to the potential punishment in some of these charges, his failure to fully grasp the consequences of his pleas, and his frustration because of threats and coercion from his own attorney.

VIII. Under the facts and circumstances and the entire situation surrounding the pleas, Petitioner received excessive sentences in these cases.

IX. The cumulative effect of all of these errors deprived Petitioner of a fair and impartial proceeding.

After a thorough consideration of these propositions and the entire record before us on appeal, we have determined under the law and the evidence that the trial court did not abuse its discretion in denying Petitioner’s motion to withdraw guilty pleas, but modification of the sentence is warranted in one count. Initially, we note that the only claim of error raised in this appeal which was included in the motion to withdraw is that reflected in Proposition VII, that Petitioner felt coerced by counsel into entering the guilty pleas. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011) provides that no matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea. Therefore, Petitioner’s claims of error, except for that contained in Proposition VII, have been reviewed for plain error only. To be entitled to relief under the plain error doctrine, Petitioner must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights. If these elements are met, this Court will correct plain error only if the error seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Our primary concern in evaluating the validity of a guilty plea is whether the plea was entered voluntarily and intelligently. When a defendant claims that his guilty plea was entered through inadvertence, ignorance, influence, or without deliberation, he has the burden of showing that the plea was entered as a result of one of these reasons and that there is a defense that should be presented to the jury. Petitioner has failed to meet that burden in this case.

In Proposition I, we find Petitioner’s sentence in Count I, CF-09-505, is five years greater than the maximum allowed by statute and therefore void on its face. See Robertson v. State, 1995 OK CR 6, 888 P.2d 1023. When this Court has determined that a sentence is infirm due to trial error, it may exercise one of three options: modify within the range of punishment, modify to the minimum punishment allowed by law, or remand to the trial court for resentencing. As there is no indication the void sentence impacted the voluntariness of Petitioner’s pleas, we find modification is the appropriate remedy. As Petitioner was sentenced to ten years imprisonment when the parties believed that was the statutory maximum, we find the sentence should be modified to the actual statutory maximum of five years. In Proposition II, we find Petitioner was misadvised as to the range of punishment in Count I, CF-09-505 (Attempted Second Degree Robbery) and Count III, CF-09-530 (Attempted Rape) as he was informed of the range of punishment for the completed offenses and not the attempted offenses. Under 21 O.S. 2001, § 42(1), the punishment range for Attempted Second Degree Robbery is up to five years. However, the Guilty Plea Form states that the punishment for Attempted Second Degree Robbery is up to ten years. At the plea hearing, the judge informed Petitioner the range of punishment for Attempted Second Degree Robbery was up to 10 years. As for Count III, CF-09-530, Attempted Rape, Petitioner was informed both in the Summary of Facts form and at the plea hearing that the range of punishment was five years to life. Under 21 O.S.Supp.2009, § 1115, the range of punishment for First Degree Rape is not less than five years, life and life without parole. Under 21 O.S. 2001, § 42(1), the punishment for attempted rape would be one-half the longest term. A life sentence has been defined as forty-five years. Therefore, Petitioner should have been informed that he was facing 5 to 22 ½ years instead of five to life. Count III, CF-09-531 (Forcible Sodomy) Petitioner was misadvised of the statutory minimum sentence. The record indicates these twenty-six guilty pleas were a package deal, that the State’s sentencing recommendations were dependent upon Petitioner’s guilty pleas in all twenty-six counts. Upon acceptance of the guilty pleas, the court ordered the sentences in several counts and cases to run concurrent. In fact, Count I, CF-09-505, was ordered to run concurrent with the other count in that case and concurrent with the sentences in CF-09-530, 531, 532, 535, and 536. While Count III, CF-09-530, ran concurrent with the other two counts in that case and concurrent to the sentences in CF-09-505, 531, 532, 535, and 536. And Count III, CF-09-531, ran concurrent with the other two counts in that case and concurrent with the sentences in CF-09-505, 530, 532, 535, and 536. This concurrent sentencing is a benefit that Petitioner might not have received if he had plead out the twelve cases at differing times. Further, we find no indication from the record that any misunderstanding Petitioner may have had about the range of punishment in three of twenty-six counts impacted the voluntariness of his guilty pleas. Therefore, under the particular circumstances of this case, we find any error does not warrant withdrawal of the pleas.

Additionally, we find an inconsistency in one portion of the Summary of Facts form in CF-2009-532 as to whether the sentence in that case would run concurrent or consecutive to the sentence in CF-09-534 to be a scrivener’s error. The remainder of the Summary of Facts form, other documents in CF-09-532 and the record in CF-09-534 show the sentence in CF-09-532 is to run consecutive to the sentence in CF-09-534. In Proposition III, we find Petitioner’s convictions for Indecent Exposure and Forcible Sodomy in CF-09-531 do not violate the prohibitions against double jeopardy and double punishment under Article II, § 21, of the Oklahoma Constitution and 21 O.S. 2001, § 11 and the Fifth Amendment of the United States Constitution. While the crimes involved the same victim, the evidence shows two separate and distinct crimes were committed for which Petitioner may be legally prosecuted and convicted. In Proposition IV, we find any error in the factual basis set out in the Summary of Facts forms in CF-09-534 and CF-09-535 to be scrivener’s errors not warranting withdrawal of the pleas. This Court must look to the entire record to determine if the judgment and sentence rendered on a plea of guilty should be disturbed. The entire record, when considering a plea of guilty, includes all pleadings and proceedings in the case. The record in both CF-09-534 and 535 reflect a sufficient factual basis was established for each plea so that we can say the pleas were entered knowingly and voluntarily. Contrary to Petitioner’s argument, double jeopardy does not prohibit his convictions in CF-09-534 and 535 as they are clearly not based on the same factual basis as CF-09-533. In Proposition V, due to a scrivener’s error in the Judgment and Sentence, CF-09-533 is remanded to the District Court for an Order Nunc Pro Tunc reflecting that the sentence is to run concurrent with the sentences in CF-09-501, 502, 503, 504, and 534. In Proposition VI, we find Petitioner has misread the court records as the docket and pleadings show that in CF-09-530, 534, 535, and 536, the trial court held the Preliminary Hearings or accepted waivers of such prior to Petitioner’s filing of an Application for Competency Evaluation and the suspension of criminal proceedings pending a competency evaluation. However, the records also reflect that the trial court erred in failing to hold the post-examination competency hearing prior to resuming the criminal proceedings. This error was harmless though as Petitioner subsequently stipulated to the report of the mental health expert finding him competent.

In Proposition VII, we find the record does not support Petitioner’s claim that he was coerced by counsel into pleading guilty. Despite the misadvisement as to the range of punishment in a three of the counts, and some confusion over the factual basis in a couple of cases, the plea hearing, when considered in its entirety, indicates knowing and voluntary pleas were entered. At the plea hearing, Petitioner repeatedly stated he was able to effectively communicate with counsel, that he had plenty of time to discuss the matter with counsel, and that he did not feel coerced, forced, or threatened by anyone into entering the guilty pleas. Petitioner informed the court he was pleading guilty because he was guilty and because he committed the acts alleged by the State. Petitioner admitted to going over the Summary of Facts forms with counsel, that all of his answers were truthful and that he signed all of the forms. Further, the withdrawal hearing was continued for over two weeks in which time defense counsel could have contacted any witnesses Petitioner claims could have proved his innocence. No names or witnesses were produced at the resumption of the hearing or now on appeal. Accordingly, we find nothing in the record to support Petitioner’s claims of coercion. In Proposition VIII, except for the sentence in Count I, CF-09-505, Petitioner’s sentences in the remaining counts were within applicable statutory range. Considering Petitioner’s prior criminal history and the facts and circumstances of each case involved in this appeal, the sentences were not excessive as to shock the conscience of the Court. Therefore, beyond the modification of the sentence in Count I, CF-09-505, no further modification is warranted. Additionally, an incorrect statement in the Summary of Facts form for CF-09-504, Count IV, Kidnapping, that Petitioner received the maximum punishment of ten years (the maximum punishment is actually 20 years) is not grounds for withdrawal of the plea. The Judgment and Sentence correctly shows Petitioner was sentenced to ten years, less than the statutory maximum.

In footnote 10, Petitioner asserts that in CF-09-535 he was misadvised that Second Degree Robbery is an 85% crime. While the Summary of Facts form incorrectly states the offense is an 85% crime, the mistake was not repeated at the plea hearing or sentencing. Therefore, no relief is warranted. Further, contrary to Petitioner’s argument, the number of concurrent sentences he received is clear evidence he was given leniency and consideration for his plea bargaining. In Proposition IX, while we have found several errors in this appeal, when considered singly and cumulatively, none warrant withdrawal of the guilty pleas. Most of the errors were scrivener’s errors resulting from counsel’s preparation and pleading of twelve cases, including twenty-six counts, at once. Considering the record in its entirety, Petitioner’s pleas in all twenty-six counts were knowing and voluntary. No legal reason has been presented which compels us to find that the trial court abused its discretion when it denied Petitioner’s request to withdraw his pleas. The only relief warranted is the modification of the sentence in Count I, CF-09-505, as addressed in this opinion.

DECISION

Accordingly, the order of the district court denying Petitioner’s motion to withdraw plea of guilty is AFFIRMED. The Judgment and Sentences in all cases are AFFIRMED, except for the following: the sentence in Count I, CF-2009-505 is MODIFIED to five (5) years imprisonment. Case No. CF-2009-533 is remanded to the District Court for an Order Nunc Pro Tunc reflecting that the sentence is to run concurrent with the sentences in CF-2009-501, 502, 503, 504, and 534. 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.

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Footnotes:

21 O.S.2001, § 1431
21 O.S.2001, § 801
21 O.S.Supp.2009, § 1123(B)
21 O.S.Supp.2009, § 1283
21 O.S.2001, § 8801
21 O.S.Supp.2009, § 1123(B)
21 O.S.Supp.2009, § 1283
21 O.S.2001, § 8801
21 O.S.Supp.2009, § 1283
21 O.S.Supp.2009, § 1283
21 O.S.Supp.2009, § 741
21 O.S.2001, §§ 791/799; 21 O.S.2001, § 42(1)
21 O.S.Supp.2008, § 1021A(1)
21 O.S.2001, § 799
21 O.S.Supp.2009, § 1115
21 O.S.Supp.2009, § 888
21 O.S.Supp.2009, § 741
63 O.S.Supp.2005, § 2-401A(1)
21 O.S.Supp.2009, § 13.1
22 O.S.2001, § 976
21 O.S.2001, § 61.1

Oklahoma Statutes citations:

Okla. Stat. tit. 21 § 1431 (2001) - First Degree Burglary
Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Dangerous Weapon
Okla. Stat. tit. 21 § 1123(B) (Supp. 2009) - Sexual Battery
Okla. Stat. tit. 21 § 1283 (Supp. 2009) - Possession of Firearm after Juv. Delinq. Adjudication
Okla. Stat. tit. 21 § 791 (2001) - Robbery
Okla. Stat. tit. 21 § 799 (2001) - Attempt
Okla. Stat. tit. 21 § 42(1) (2001) - Attempted Second Degree Robbery
Okla. Stat. tit. 21 § 1021A(1) (Supp. 2008) - Indecent Exposure
Okla. Stat. tit. 21 § 1114/1121 (Supp. 2008) - Attempted First Degree Rape
Okla. Stat. tit. 21 § 741 (Supp. 2009) - Kidnapping
Okla. Stat. tit. 21 § 888 (Supp. 2009) - Forcible Sodomy
Okla. Stat. tit. 21 § 61.1 (2001) - Sentencing
Okla. Stat. tit. 63 § 2-401A(1) (Supp. 2005) - Possession of CDS (Marijuana) with Intent to Distribute
Okla. Stat. tit. 21 § 13.1 (2001) - Parole Eligibility for Certain Offenses
Okla. Stat. tit. 22 § 976 (2001) - Sentences Running Concurrently
Okla. Stat. tit. 21 § 11 (2001) - Prohibition Against Double Jeopardy
Okla. Stat. tit. 12 § 888 (Supp. 2008) - Range of Punishment for Certain 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:

Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355
Hogan v. State, 2006 OK CR 19, 111 38-39, 139 P.3d 907, 923
Simpson v. State, 1994 OK CR 40, 11 3, 11, 23, 876 P.2d 690, 694-695, 698
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969)
Ocampo v. State, 1989 OK CR 38, I 3, 778 P.2d 920, 921
Estell v. State, 1988 OK CR 287, I 7, 766 P.2d. 1380, 1382
Robertson v. State, 1995 OK CR 6, I 8, 888 P.2d 1023, 1025
Scott v. State, 1991 OK CR 31, IT 14, 808 P.2d 73, 77
Baker v. State, 1998 OK CR 46, II 8, 966 P.2d 797, 798
Head v. State, 2006 OK CR 44 197, 1& 15, 146 P.3d 1141, 1144-46
Jones v. State, 2006 OK CR 5, 9797 63 & 66, 128 P.3d 521, 542-43
Cox v. State, 2006 OK CR 51, I 28, 152 P.3d 244, 254
Hagar v. State, 1999 OK CR 35, IT 4, 990 P.2d 894, 896-897
Tate v. State, 1995 OK CR 24, II 6, 896 P.2d 1182, 1186
Boltz v. State, 1991 OK CR 1, IT 11, 806 P.2d 1117, 1121
Dodson v. Page, 1969 OK CR 235, 11 11-12, 461 P.2d 957, 960
Rea v. State, 2001 OK CR 28, I 4, 34 P.3d 148, 149
Bartell v. State, 1994 OK CR 59, I 33, 881 P.2d 92, 101
Williams v. State, 2001 OK CR 9, I 127, 22 P.3d 702, 732
Luster v. State, 1987 OK CR 261, 746 P.2d 1159, 1160
Roy v. State, 2006 OK CR 47, I 24, n. 28, 152 P.3d 217, 226, n. 28

Donnell Devon Smith v State Of Oklahoma

C-2010-1179

Summary

Decision

Issues

Findings

C-2010-1179

Oct. 6, 2011

Donnell Devon Smith

Appellant

v

State Of Oklahoma

Appellee

Footnotes:

Oklahoma Statutes citations:

Oklahoma Administrative Rules citations:

U.S. Code citations:

Other citations:

Case citations:

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