Blog

C-2010-765

  • Post author:
  • Post category:C

Douglas H. Polk, Jr. v The State Of Oklahoma

C-2010-765

Filed: Aug. 16, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Douglas H. Polk, Jr. appealed his conviction for multiple serious crimes including Child Sexual Abuse and Rape. His conviction resulted in a long prison sentence. The court recognized some mistakes in how Polk was informed about his possible punishments but decided that they did not unfairly affect him. However, they agreed he shouldn’t be punished twice for related actions and dismissed one of the charges against him. The court upheld most of his convictions and sentences, but reversed one count. Judge Lumpkin disagreed with part of the decision.

Decision

The Petition for a Writ of Certiorari is GRANTED IN PART AND DENIED IN PART. The Judgment and Sentence of the district court on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, 11 and 12 is AFFIRMED. The Judgment and Sentence of the district court on Count 4 is Reversed and Remanded to the district court with Instructions to Dismiss. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • was there a misrepresentation by the trial court regarding the minimum punishment for the crimes charged in Counts 1, 3, 4, 5, 6, and 7, resulting in plain error?
  • did the plea to lewd molestation in Count 4 result in multiple punishment for the same criminal act as other counts?
  • did the petitioner receive ineffective assistance of counsel during his plea, rendering it unknowing and involuntary?

Findings

  • the court erred, but the error did not affect substantial rights
  • the court found merit in the multiple punishment claim and reversed and remanded for dismissal of Count 4
  • the court found no ineffective assistance of counsel

C-2010-765

Aug. 16, 2011

Douglas H. Polk, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI IN PART AND DENYING CERTIORARI IN PART

A. JOHNSON, PRESIDING JUDGE:

Petitioner Douglas H. Polk, Jr. entered a blind plea in the District Court of Tulsa County, Case No. CF-2010-1646, to Child Sexual Abuse (Counts 1, 5, 6, and 7), in violation of 10 O.S.Supp.2002, § 7115 and 21 O.S.Supp.2009, § 843.5(E), First Degree Rape by Instrumentation, Victim Under Fourteen Years of Age (Count 2), in violation of 21 O.S.Supp.2002, § 1115, Kidnapping (Count 3), in violation of 21 O.S.Supp.2004, § 741, Lewd Molestation (Count 4), in violation of 21 O.S.Supp.2006, § 1123, Domestic Assault and Battery in the Presence of a Minor Child (Counts 8 and 9), in violation of 21 O.S.Supp.2009, § 644(F), Violation of a Protective Order (Count 10), in violation of 22 O.S.Supp.2009, § 60.6, Interference with Emergency Telephone Call (Count 11), in violation of 21 O.S.Supp.2004, § 1211.1, and Obstructing an Officer (Count 12), in violation of 21 O.S.2001, § 540. Polk pled guilty on all counts except Count 8 to which he entered a plea of no contest. Polk also admitted having one prior felony conviction for the purpose of enhancing punishment on his felony charges. Following a presentence investigation, the Honorable Tom C. Gillert sentenced Polk as follows: Count 1 – Life; Count 2 – Life; Count 3 – 40 years; Count 4 – Life; Count 5 – Life; Count 6 – Life; Count 7 – Life; and Counts 8, 9, 10, 11, and 12 – One year on each count. Judge Gillert ordered the first seven counts to run consecutively to each other, and Counts 8, 9, 10, 11, and 12 to run concurrently with each other and consecutive to Count 7.

Polk filed a timely Motion to Withdraw Plea of Guilty and, following the prescribed hearing, the motion was denied. Polk appeals the order denying his motion and petitions this Court for a Writ of Certiorari allowing him to withdraw his plea and proceed to trial, or such other relief as this Court deems appropriate. Polk raises the following issues: (1) whether he was misinformed by the trial court at the plea hearing of the minimum punishment for the crimes charged in Counts 1, 3, 4, 5, 6, and 7, resulting in plain error; (2) whether his guilty plea to lewd molestation in Count 4 resulted in multiple punishment for the same criminal act; and (3) whether he received ineffective assistance of counsel during his plea causing his plea to be unknowing and involuntary.

1. The record shows that Polk was misadvised about the minimum punishment for six of seven felony charges against him (Counts 1, 3, 4, 5, 6, and 7).1 Polk cannot show, however, that he was prejudiced in his substantial rights and that the error amounts to plain error. It is the law in this state that it is not error alone that reverses judgments of convictions of crime, but error plus injury, and the burden is upon the appellant to establish to the appellate court the fact that he was prejudiced in his substantial rights by the commission of error. See Grissom v. State, 2011 OK CR 3, 9 25, 253 P.3d 969, 979. See also Harmon v. State, 2011 OK CR 6, q12, 248 P.3d 918, 928 (plain error is error which counsel failed to preserve through a trial objection, but upon appellate review, is clear from the record and affected the defendant’s substantial rights). Polk entered his blind plea with an understanding that he was an unlikely candidate for minimum sentences. The district court stated at the plea hearing that it did not know the exact sentence it would pronounce, but that Polk would be going to the penitentiary for a long stretch. The district court warned that his sentence could be as much as life or consecutive life sentences. At sentencing, the State asked for the maximum and argued that Polk needed to breathe his last breath behind bars where he [could] not violate another child ever again. Polk’s attorney stated that Polk was not expecting anything less than a life sentence. Defense counsel asked the court to consider running Polk’s sentences concurrently because Polk entered his pleas early in the proceedings in an effort to spare his victims the stress of a trial. Based on counsel’s remarks, there is no doubt that Polk had been informed that this was not the kind of case in which minimum sentences would be considered or imposed. Further, it appears Polk understood and pursued defense counsel’s strategy to plea early on and to ask for concurrent sentences in hopes that Polk could one day be released. Based on this record, there is no evidence Polk would have done anything differently had he known that the minimum sentence for six of the felony counts was less than what he had been advised. Hence, Polk cannot show plain error warranting relief. This claim is denied.

2. Polk’s argument – that it was plain error to accept his guilty plea to lewd molestation in Count 4 for the same conduct comprising the acts he pled guilty to in Count 2 – First Degree Rape by Instrumentation and Count 3 – Kidnapping – has merit. The proper analysis of a multiple punishment claim under 21 O.S.2001, § 11(A) is to focus on the relationship between the crimes. Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126. If the crimes truly arise out of one act, then Section 11 prohibits prosecution for more than one crime. Id. One act that violates two criminal provisions cannot be punished twice, absent specific legislative intent. Id. The record shows that the act of luring the child and the act of unlawfully looking upon her charged in Count 4 was part of the same acts of raping the child charged in Count 2 and the kidnapping charged in Count 3. Polk looked at the child in the prohibited manner as he secretly confined her in his car and molested her. These acts were not separate and distinct. The State does not contest that the conduct charged in Count 4 was part of the same acts charged in Counts 2 and 3. Instead, the State persuasively argues that the multiple punishment error affects only the plea insofar as Count 4 is concerned and that relief is necessary on that count only.2 We agree and grant certiorari in part and remand this case to the district court for dismissal of Count 4.

3. Polk has not shown that he received ineffective assistance of counsel. Wiley v. State, 2008 OK CR 30, 91 4, 199 P.3d 877, 878; Lozoya v. State, 1996 OK CR 55, II 27, 932 P.2d 22, 31.

DECISION

The Petition for a Writ of Certiorari is GRANTED IN PART AND DENIED IN PART. The Judgment and Sentence of the district court on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, 11 and 12 is AFFIRMED. The Judgment and Sentence of the district court on Count 4 is Reversed and Remanded to the district court with Instructions to Dismiss. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

  1. Okla. Stat. tit. 10 § 7115
  2. Okla. Stat. tit. 21 § 843.5(E)
  3. Okla. Stat. tit. 21 § 1115
  4. Okla. Stat. tit. 21 § 741
  5. Okla. Stat. tit. 21 § 1123
  6. Okla. Stat. tit. 21 § 644(F)
  7. Okla. Stat. tit. 22 § 60.6
  8. Okla. Stat. tit. 21 § 1211.1
  9. Okla. Stat. tit. 21 § 540
  10. Grissom v. State, 2011 OK CR 3, 9, 253 P.3d 969, 979
  11. Harmon v. State, 2011 OK CR 6, ¶ 12, 248 P.3d 918, 928
  12. Davis v. State, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126
  13. Wiley v. State, 2008 OK CR 30, ¶ 4, 199 P.3d 877, 878
  14. Lozoya v. State, 1996 OK CR 55, ¶ 27, 932 P.2d 22, 31
  15. Lozoya v. State, 1996 OK CR 55, 932 P.2d 22
  16. Watkins v. State, 1991 OK CR 119, 829 P.2d 42
  17. May v. State, 1990 OK CR 14, 788 P.2d 408
  18. Ocampo v. State, 1989 OK CR 38, 778 P.2d 920

Oklahoma Statutes citations:

  • Okla. Stat. tit. 10 § 7115 - Child Sexual Abuse
  • Okla. Stat. tit. 21 § 843.5 - First Degree Rape by Instrumentation
  • Okla. Stat. tit. 21 § 1115 - First Degree Rape
  • Okla. Stat. tit. 21 § 741 - Kidnapping
  • Okla. Stat. tit. 21 § 1123 - Lewd Molestation
  • Okla. Stat. tit. 21 § 644(F) - Domestic Assault and Battery
  • Okla. Stat. tit. 22 § 60.6 - Violation of Protective Order
  • Okla. Stat. tit. 21 § 1211.1 - Interference with Emergency Telephone Call
  • Okla. Stat. tit. 21 § 540 - Obstructing an Officer
  • Okla. Stat. tit. 21 § 11(A) - Multiple Punishment Prohibition

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:

  • Grissom v. State, 2011 OK CR 3, I 25, 253 P.3d 969, 979
  • Harmon v. State, 2011 OK CR 6, q12, 248 P.3d 918, 928
  • Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126
  • Wiley v. State, 2008 OK CR 30, I 4, 199 P.3d 877, 878
  • Lozoya v. State, 1996 OK CR 55, II 27, 932 P.2d 22, 31
  • Watkins v. State, 1991 OK CR 119, 829 P.2d 42
  • May v. State, 1990 OK CR 14, 788 P.2d 408
  • Ocampo v. State, 1989 OK CR 38, 778 P.2d 920

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,