Derrick Ewayne Bickham v The State of Oklahoma

C-2010-337

Filed: Dec. 8, 2010

Not for publication

Prevailing Party: Derrick Ewayne Bickham

Summary

Derrick Ewayne Bickham appealed his conviction for felony firearm offenses and robbery. Conviction and sentence were 20 years in prison for each count, running at the same time. Judge Smith dissented.

Decision

The Petition for Writ of Certiorari is DENIED. The case is REMANDED to the District Court of Pittsburgh County for a determination under 22 O.S.Supp.2008, § 979a(A) of whether Bickham is a mentally ill person as defined by Section 1-103 of Title 43A of the Oklahoma Statutes. 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 Derrick Bickham allowed to withdraw his no contest pleas due to insufficient deliberation and claims of coercion by his attorney and unmedicated mental illness?
• Did the trial court abuse its discretion by assessing incarceration costs against Bickham without following the rules and requirements of Oklahoma law?

Findings

• Bickham's pleas were knowingly, intelligently, and voluntarily entered.
• The trial court did not abuse its discretion in denying Bickham's motion to withdraw.
• Bickham may challenge the determination of the days he was incarcerated for jail incarceration costs in the District Court.
• There is no requirement for the record to show how the Pittsburgh County sheriff reached the $44 per day determination.
• Bickham is entitled to a determination of whether he is a mentally ill person under Oklahoma law.

C-2010-337

Dec. 8, 2010

Derrick Ewayne Bickham

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

SMITH, JUDGE: Derrick Ewayne Bickham pled no contest in the District Court of Pittsburg County, Case No. CF-2009-312, to Count I, Feloniously Pointing a Firearm in violation of 21 O.S.2001, § 1289.16, and Count II, Felon in Possession of a Firearm in violation of 21 O.S.Supp.2007, § 12873(A), both after former conviction of two or more felonies. He pled no contest in the District Court of Pittsburg County, Case No. CF-2009-313, to Count I, Feloniously Pointing a Firearm in violation of 21 O.S.2001, § 1289.16, and Count II, Felon in Possession of a Firearm in violation of 21 O.S.Supp.2007, § 12873(A), both after former conviction of two or more felonies. He pled no contest in the District Court of Pittsburg County, Case No. CF-2009-349, to Count I, First Degree Robbery in violation of 21 O.S.2001, § 797, after former conviction of two or more felonies. In accordance with a negotiated plea the Honorable James D. Bland sentenced Bickham to twenty (20) years imprisonment on each count in each case, all to run concurrently. Bickham must serve 85% of his sentence in CF-2009-349, for robbery, before becoming eligible for parole consideration. Bickham filed a timely Motion to Withdraw his pleas. The Motion was denied after a hearing on April 1, 2010. Bickham filed his Petition for Writ of Certiorari with this Court.

Bickham raises two propositions of error in support of his petition:

I. Derrick Bickham should be allowed to withdraw his no contest pleas, which were entered without sufficient deliberation and were not knowing and voluntary. Rather, the pleas were the result of coercion by petitioner’s attorney and petitioner’s unmedicated mental illness.

II. The trial court abused its discretion by assessing incarceration costs against petitioner without following the rules and requirements of Oklahoma law.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that relief is not required by the law or evidence. We find in Proposition I that Bickham’s pleas were knowingly, intelligently and voluntarily entered. Lewis U. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142; King U. State, 1976 OK CR 103, I 11, 553 P.2d 529, 532-33. The trial court did not abuse its discretion in denying Bickham’s motion to withdraw. Cox U. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251. The record shows that Bickham was taking his prescribed medication for mental illness at the time he entered his pleas, and understood the pleas and their consequences. The record does not support his claim that his attorney threatened or coerced him to enter his pleas.

We find in Proposition II that Bickham may challenge the determination of the days he was incarcerated in the Pittsburgh County jail, for purposes of calculating jail incarceration costs, in an appropriate proceeding in the District Court. 22 O.S.Supp.2008, § 979a(A); 22 O.S.2001, § 983(D); Rule 8.1, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010). We further find there is no requirement that the record in this case show how the Pittsburgh County sheriff reached the $44 per day determination of average daily cost. Hubbard U. State, 2002 OK CR 8, Il 10, 45 P.3d 96, 100. Finally, we find that under the circumstances of this case, Bickham was entitled to a determination of whether he is a mentally ill person as defined by Section 1-103 of Title 43A of the Oklahoma Statutes. 22 O.S.Supp.2008, § 979a(A). If so, he is exempt from the imposition of jail incarceration costs. Id. The case is remanded to the District Court of Pittsburgh County to make such a determination.

DECISION

The Petition for Writ of Certiorari is DENIED. The case is REMANDED to the District Court of Pittsburgh County for a determination under 22 O.S.Supp.2008, § 979a(A) of whether Bickham is a mentally ill person as defined by Section 1-103 of Title 43A of the Oklahoma Statutes. 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, § 1289.16
2. 21 O.S.Supp.2007, § 12873(A)
3. 21 O.S.2001, § 797
4. 22 O.S.Supp.2008, § 979a(A)
5. 22 O.S.2001, § 983(D)
6. Rule 8.1, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)
7. Hubbard v. State, 2002 OK CR 8, Il 10, 45 P.3d 96, 100
8. Section 1-103 of Title 43A of the Oklahoma Statutes
9. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1289.16 - Feloniously Pointing a Firearm
• Okla. Stat. tit. 21 § 1287.3(A) - Felon in Possession of a Firearm
• Okla. Stat. tit. 21 § 797 - First Degree Robbery
• Okla. Stat. tit. 22 § 979a(A) - Jail Incarceration Costs
• Okla. Stat. tit. 22 § 983(D) - Costs in Criminal Cases
• Okla. Stat. tit. 43A § 1-103 - Definition of Mentally Ill Person

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:

• Lewis v. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142
• King v. State, 1976 OK CR 103, I 11, 553 P.2d 529, 532-33
• Cox v. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251
• Hubbard v. State, 2002 OK CR 8, Il 10, 45 P.3d 96, 100