Juan Carlos Hernandez-Montanez v State Of Oklahoma

C-2010-287

Filed: Dec. 2, 2010

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Juan Carlos Hernandez-Montanez appealed his conviction for multiple crimes, including burglary and kidnapping. Conviction and sentence upheld, but his sentence for burglary was changed to seven years. Judge Lumpkin dissented on part of the case.

Decision

The Petition for Writ of Certiorari is DENIED. Petitioner's sentence on Count I is MODIFIED to seven years imprisonment. 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 Mr. Hernandez-Montanez's sentence of ten years imprisonment in Count I considered fundamental error and should it be vacated by this Court?
• were Mr. Hernandez-Montanez's guilty pleas invalid because the trial court failed to establish an adequate factual basis for the pleas?
• did Judge Woodward's denial of Petitioner's application to withdraw his pleas constitute an abuse of discretion because Mr. Hernandez-Montanez did not knowingly and voluntarily enter his pleas?
• did the trial court's failure to appoint conflict-free counsel to represent Mr. Hernandez-Montanez at the hearing on the motion to withdraw his guilty pleas deprive Petitioner of his right to effective assistance of counsel at the hearing and result in reversible error?
• did the cumulative effect of all these errors warrant relief for Mr. Hernandez-Montanez?

Findings

• The court erred by imposing a ten-year sentence on Count I, which is modified to seven years imprisonment.
• Evidence was sufficient to establish an adequate factual basis for the guilty pleas.
• The trial court did not abuse its discretion in finding that Petitioner entered his guilty plea freely and voluntarily.
• Petitioner did not demonstrate a denial of effective assistance of counsel regarding a conflict of interest.
• The cumulative errors alleged do not warrant relief as they did not render the proceeding fundamentally unfair.

C-2010-287

Dec. 2, 2010

Juan Carlos Hernandez-Montanez

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, PRESIDING JUDGE:

Petitioner, Juan Carlos Hernandez-Montanez, was charged in Garfield County District Court, Case No. CF-2009-595, with First Degree Burglary (Count I), Kidnapping (Count II), Assault with a Deadly Weapon (Count III), Attempting to Elude a Police Officer (Count IV), Domestic Abuse (Count V), Assault and Battery (Count VI), Driving a Motor Vehicle While Under the Influence of Alcohol, Aggravated (Count VII), Possession of Controlled Dangerous Substance (Count VIII) and Unlawful Possession of Drug Paraphernalia (Count IX). Pursuant to a plea agreement, Count I was amended to Second Degree Burglary and Count III was amended to Assault with a Dangerous Weapon. On March 16, 2010, the Honorable Paul K. Woodward accepted Petitioner’s negotiated guilty plea to the nine counts charged against him. Petitioner was sentenced to serve ten years imprisonment on each of Counts I, II and III. He was sentenced to serve five years imprisonment on Count IV, and one year in the county jail on each of Counts V, VII, VIII and IX. He was also sentenced to serve ninety days in the county jail on Count VI. The trial court ordered that all sentences be served concurrently.

On March 22, 2010, Petitioner filed a pro se motion to withdraw his guilty plea. A hearing was held on Petitioner’s motion March 29, 2010, and his motion was denied. Petitioner now appeals the denial of his motion to withdraw his guilty plea. Petitioner raises the following propositions of error:

I. Mr. Hernandez-Montanez’s sentence of ten years imprisonment in Count I constitutes fundamental error and should be vacated by this Court.

II. Mr. Hernandez-Montanez’s guilty pleas were invalid because the trial court failed to establish an adequate factual basis for the pleas.

III. Judge Woodward’s denial of Petitioner’s application to withdraw his pleas constitutes an abuse of discretion because Mr. Hernandez-Montanez did not knowingly and voluntarily enter his pleas. Therefore, this Court should reverse the ruling of the trial court.

IV. The trial court’s failure to appoint conflict-free counsel to represent Mr. Hernandez-Montanez at the hearing on the motion to withdraw his guilty pleas deprived Petitioner of his right to effective assistance of counsel at the hearing and resulted in reversible error.

V. The cumulative effect of all these errors warrants relief for Mr. Hernandez-Montanez.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and brief, we affirm the district court’s ruling and deny the petition for writ of certiorari. Petitioner first argues that the ten year sentence imposed on Count I is void as it was in excess of the permissible range of punishment for an unenhanced conviction for Second Degree Burglary. Petitioner is correct and his sentence on Count I is modified to seven years imprisonment. 21 O.S.2001, § 1436(2); Robertson v. State, 1995 OK CR 6, I 8, 888 P.2d 1023, 1025.

Petitioner argues in his second proposition that the trial court accepted his plea without first establishing an adequate factual basis. We find that the trial court correctly found an adequate factual basis existed upon which to accept Petitioner’s pleas. Hagar v. State, 1999 OK CR 35, I 4, 990 P.2d 894, 896-97. We find in Proposition III that given the whole of the record including the Summary of Facts form, testimony presented at the plea hearing and the hearing on the motion to withdraw, the trial court did not abuse its discretion in finding that Petitioner entered his guilty plea freely and voluntarily with a full understanding of his rights and the nature and consequences of entering the plea. Cox v. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251.

Next, we find in Proposition IV, that Petitioner has not shown that he was denied effective assistance of counsel as he has shown neither that he was represented by an attorney with whom he had a conflict of interest or that an alleged actual conflict of interest adversely affected his attorney’s performance. Accordingly, Petitioner’s argument that counsel was ineffective based upon a conflict of interest must fail. Carey v. State, 1995 OK CR 55, II 10, 902 P.2d 1116, 1118.

Finally, we find that the errors alleged, considered both singly and cumulatively, do not require relief because they did not render this proceeding fundamentally unfair. DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 157.

DECISION

The Petition for Writ of Certiorari is DENIED. Petitioner’s sentence on Count I is MODIFIED to seven years imprisonment. 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:

1. 21 O.S.2001, § 1436(2); Robertson v. State, 1995 OK CR 6, I 8, 888 P.2d 1023, 1025.
2. Hagar v. State, 1999 OK CR 35, I 4, 990 P.2d 894, 896-97.
3. Cox v. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251.
4. Carey v. State, 1995 OK CR 55, II 10, 902 P.2d 1116, 1118.
5. DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 157.
6. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (2003); Walker v. State, 1998 OK CR 14, IT 3, 953 P.2d 354, 355.
7. Cox v. State, 2006 OK CR 51, I 4, 152 P.3d 244, 247.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1436 - Sentencing for Second Degree Burglary
• Okla. Stat. tit. 22 § 2 - Right to Withdraw Plea
• Okla. Stat. tit. 22 § 3.15 - Mandate Issuance
• Okla. Stat. tit. 22 § 4.2(B) - Review of Issues on Certiorari

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:

• Robertson v. State, 1995 OK CR 6, I 8, 888 P.2d 1023, 1025.
• Hagar v. State, 1999 OK CR 35, I 4, 990 P.2d 894, 896-97.
• Cox v. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251.
• Carey v. State, 1995 OK CR 55, II 10, 902 P.2d 1116, 1118.
• DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 157.
• Walker v. State, 1998 OK CR 14, IT 3, 953 P.2d 354, 355.