Eric Anthony Damon v The State Of Oklahoma

C-2010-210

Filed: Nov. 23, 2010

Not for publication

Prevailing Party: Eric Anthony Damon

Summary

Eric Anthony Damon appealed his conviction for Lewd or Indecent Proposals or Acts to Child Under Sixteen. Conviction and sentence were 20 years in prison. Judge Lumpkin dissented. In this case, Damon was charged with a crime against a child, and after his lawyer had issues calling a witness, Damon decided to plead guilty without any plea deal (a "blind plea"). After the plea, Damon wanted to change his mind and asked to withdraw it because he felt his lawyer didn't help him properly. The court denied his request, and Damon didn't think his lawyer was able to fairly help him argue why he should be allowed to withdraw his plea. The Court of Criminal Appeals agreed that Damon didn't get a fair chance to have another lawyer since he claimed his first lawyer wasn't doing a good job. So, they decided to let him have new, conflict-free counsel and ordered a new hearing to see if he could change his plea.

Decision

The Petition for a Writ of Certiorari is GRANTED and this case is REMANDED to the trial court for the appointment of new counsel and a new hearing on Damon's motion to withdraw his plea consistent with this opinion.

Issues

• Was there a violation of the constitutional right to conflict-free counsel during the plea withdrawal proceedings?
• Did the trial court’s failure to appoint new counsel for the motion to withdraw the guilty plea deny effective assistance of counsel?
• Was the petitioner entitled to effective and conflict-free representation on his motion to withdraw his guilty plea?
• Should the trial court have recognized the potential and actual conflict of interest between the petitioner and his counsel?
• Was the petitioner’s claim of ineffective assistance sufficient to warrant appointing new counsel on his motion to withdraw his guilty plea?

Findings

• the trial court erred in failing to appoint conflict-free counsel for the plea withdrawal proceedings
• Damon is entitled to effective representation on his motion to withdraw his guilty plea
• the case is remanded for a new hearing on Damon's motion with newly appointed counsel

C-2010-210

Nov. 23, 2010

Eric Anthony Damon

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SMITH, JUDGE: Eric Anthony Damon was charged by Information in the District Court of Washita County, Case No. CF-2009-39, with Lewd or Indecent Proposals or Acts to Child Under Sixteen AFCF, under 21 O.S.Supp.2008, § 1123(A) (Count I). On September 15, 2009, Damon, who was represented by counsel, waived his right to a preliminary hearing. On December 10, 2009, jury trial began in the case before the Honorable Charles S. Goodwin. Damon’s jury was selected and the State presented its entire direct case that same day. During the presentation of the defense case, however, a problem arose regarding the testimony of a particular witness, who had not been subpoenaed, and defense counsel announced that Damon had decided to enter a blind plea of guilty. Damon’s guilty plea form was then completed, and he entered a blind plea of guilty to the charge against him that same day.

On January 21, 2010, although he had not yet been sentenced, Damon wrote a pro se letter to the trial court asking to be allowed to appeal his blind guilty plea. On February 4, 2010, the court held a hearing on this first motion to withdraw plea of guilty and denied it. On February 4, 2010, the Honorable Charles S. Goodwin sentenced Damon to imprisonment for twenty (20) years. On February 8, 2010, Damon’s counsel filed a second application to withdraw his plea. A hearing was held on this motion on February 25, 2010, after which the Honorable Charles S. Goodwin rejected it. Damon then filed the current petition for certiorari, which is properly before this Court. Damon raises the following proposition of error in support of his petition:

I. PETITIONER DID NOT WAIVE HIS CONSTITUTIONAL RIGHT TO COUNSEL, AND THE FAILURE TO PROVIDE CONFLICT-FREE COUNSEL FOR THE PLEA WITHDRAWAL PROCEEDINGS DENIED HIM THE EFFECTIVE ASSISTANCE OF COUNSEL TO WHICH HE WAS ENTITLED UNDER THE 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND ART. II, §§ 7 AND 20, OF THE OKLAHOMA CONSTITUTION.

Damon asserts that his right to conflict-free assistance of counsel was violated when the trial court failed to appoint him new counsel on his motion to withdraw his plea, even though he was asserting ineffective assistance of (the same) counsel as the basis for this motion. In Randall v. State, 1993 OK CR 47, 9797 5-7, 861 P.2d 314, 316, this Court held that a defendant is entitled to the assistance of counsel on a motion to withdraw a guilty plea and at the evidentiary hearing on such a motion. In Carey v. State, 1995 OK CR 55, 902 P.2d 1116, we further held that this right to counsel includes the effective assistance of counsel, which includes the correlative right to representation that is free from conflicts of interest. And an actual conflict of interest exists where the defendant is asserting that his attorney’s ineffectiveness or coercion resulted in an invalid plea—yet this same attorney still represents the defendant.

Since Carey, this Court has maintained that where a defendant asserts ineffective assistance as the reason that a guilty plea is invalid, the trial court should automatically appoint new conflict-free counsel on the motion to withdraw the plea. Damon has consistently asserted that he should be allowed to withdraw his plea because he was forced to plead guilty as a direct result of his counsel’s ineffective representation at trial.

The transcripts of Damon’s plea withdrawal hearings aptly demonstrate the pitfalls of failing to appoint new counsel in this situation. In the first evidentiary hearing, the trial court had to prompt counsel to ask her client questions regarding the motion. And after allowing Damon to present a monologue of the reasons he thought his counsel was ineffective, counsel simply sat down and declined the court’s invitation to make any argument. The second evidentiary hearing was no different. Although defense counsel formally asked the court to grant Damon’s motion in both hearings, she was very careful to avoid making any suggestion that she endorsed the motion.

This Court concludes that the record in this case aptly demonstrates the perils of failing to appoint new, conflict-free counsel on a motion to withdraw a plea whenever a defendant is asserting ineffective assistance of counsel as the reason that the plea was involuntary, uninformed, or otherwise invalid. Even though defense counsel never asked to withdraw and the record does not contain a formal request by the defendant to appoint him new counsel, the trial court should have recognized not only the potential for a conflict of interest but the specific evidence and practical implications of the actual conflict of interest that existed between Damon and his counsel in this case. Although there was abundant evidence to support the factual basis for Damon’s guilty plea, and this Court is not making any finding on the validity of his attempt to withdraw it, Damon was entitled to effective and conflict-free representation on his motion.

The trial court is ordered to appoint new, conflict-free counsel to represent Damon on his motion to withdraw his guilty plea and on the evidentiary hearing on this motion. And this case is remanded for a new hearing on this motion.

Decision

The Petition for a Writ of Certiorari is GRANTED and this case is REMANDED to the trial court for the appointment of new counsel and a new hearing on Damon’s motion to withdraw his plea consistent with this opinion.

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Footnotes:

1. 21 O.S.Supp.2008, § 1123(A)
2. Randall v. State, 1993 OK CR 47, 9797 5-7, 861 P.2d 314, 316
3. Carey v. State, 1995 OK CR 55, 902 P.2d 1116
4. Oklahoma Rules of Professional Conduct, Rule 1.7, 5 O.S.2001, Ch. 1, App. 3-A
5. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2008) - Lewd or Indecent Proposals or Acts to Child Under Sixteen
• Okla. Stat. tit. 21 § 701.8 (2011) - Effective Assistance of Counsel
• Okla. Stat. tit. 5 § 1.7 (2001) - Conflict of Interest

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Randall v. State, 1993 OK CR 47, 9797 5-7, 861 P.2d 314, 316
• Carey v. State, 1995 OK CR 55, 902 P.2d 1116
• Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)