Myron Emanuel Louie v State Of Oklahoma

C-2011-546

Filed: Jan. 17, 2012

Not for publication

Prevailing Party: Myron Emanuel Louie

Summary

Myron Emanuel Louie appealed his conviction for Assault with a Dangerous Weapon. Conviction and sentence were ten years in prison. Arlene Johnson dissented.

Decision

IT IS THE ORDER OF THE COURT that the case be remanded to the District Court for appointment of conflict free counsel. Counsel shall have ten (10) days from the date of appointment to file a new motion to withdraw guilty plea. The trial court shall hold a hearing on the motion within thirty (30) days of its filing. If the court grants the motion to withdraw, the judge shall provide this Court with a copy of the order granting the withdrawal which will serve as a final adjudication in this certiorari petition. If the trial court denies the motion to withdraw plea, the record, including transcripts of the hearing and the order denying the motion, shall be filed with this Court within twenty (20) days of that hearing. Within ten (10) days of the filing of the record, Petitioner shall file a supplemental Petition for Writ of Certiorari with this Court under the current case number. IT IS so ORDERED.

Issues

• Was there an actual conflict of interest that deprived the Petitioner of effective assistance of counsel?
• Did the trial court abuse its discretion when it denied the Petitioner's motion to withdraw his guilty plea?
• Was the Petitioner deprived of effective assistance of counsel?

Findings

• the court erred in denying the motion to withdraw guilty plea due to an actual conflict of interest affecting counsel's performance
• the remaining propositions of error are moot
• the case is remanded for appointment of conflict free counsel

C-2011-546

Jan. 17, 2012

Myron Emanuel Louie

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

ORDER REMANDING FOR APPOINTMENT OF CONFLICT FREE COUNSEL

Petitioner Myron Emanuel Louie was charged in the District Court of Pottawatomie County, Case No. CF-2009-414, with Child Abuse by Injury, After Former Conviction of Two or More Felonies (21 O.S.2001, § 843.5(A). On April 27, 2011, Petitioner’s plea of guilty to the amended charge of Assault with a Dangerous Weapon, After Former Conviction of Two or More Felonies (21 O.S.2001, § 645) was accepted by the Honorable John G. Canavan, District Judge. On May 25, 2011, Petitioner appeared for sentencing. Before sentence was imposed he announced he wished to withdraw his guilty plea. The court went forward with sentencing, imposing ten (10) years in prison. On May 31, 2011, Petitioner filed a motion to withdraw guilty plea. At a hearing held on June 8, 2011, that 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’s trial attorney was operating under an actual conflict of interest which deprived Petitioner of effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article II, §§ 7, 20, of the Oklahoma Constitution.

II. The trial court abused its discretion when it denied Petitioner’s motion to withdraw his guilty plea.

III. Petitioner was deprived of effective assistance of counsel.

In Proposition I, a criminal defendant is entitled to effective assistance of counsel at a hearing on a motion to withdraw a guilty plea. Carey v. State, 1995 OK CR 55, ¶ 5, 902 P.2d 116, 117; Randall v. State, 1993 OK CR 47, ¶ 7, 861 P.2d 314, 316; Okl. Const. art. II, § 20; U.S. Const. amend. VI. The right to effective assistance of counsel includes the correlative right to representation that is free from conflicts of interest. Carey, 1995 OK CR 55, ¶ 5, 902 P.2d at 117, citing Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). Rule 1.7(b) Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A. To prevail on an ineffective assistance of counsel claim based on a conflict of interest, a defendant who raised no objection at trial or a hearing on a motion to withdraw a guilty plea need not show prejudice, but must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Id. citing Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980). Here, plea counsel filed the motion to withdraw alleging his own ineffectiveness. Counsel seemed to be under the impression that his obligation to Petitioner was met by filing the motion to withdraw. At the withdrawal hearing, counsel did not act as Petitioner’s adversary, but he did not actively promote Petitioner’s interests. As the record indicates an otherwise voluntary plea, we find the case should be remanded to the District Court for appointment of conflict free counsel. The remaining propositions of error are therefore moot.

IT IS THE ORDER OF THE COURT that the case be remanded to the District Court for appointment of conflict free counsel. Counsel shall have ten (10) days from the date of appointment to file a new motion to withdraw guilty plea. The trial court shall hold a hearing on the motion within thirty (30) days of its filing. If the court grants the motion to withdraw, the judge shall provide this Court with a copy of the order granting the withdrawal which will serve as a final adjudication in this certiorari petition. If the trial court denies the motion to withdraw plea, the record, including transcripts of the hearing and the order denying the motion, shall be filed with this Court within twenty (20) days of that hearing. Within ten (10) days of the filing of the record, Petitioner shall file a supplemental Petition for Writ of Certiorari with this Court under the current case number. IT IS so ORDERED.

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Footnotes:

1. 21 O.S.2001, § 843.5(A)
2. 21 O.S.2001, § 645
3. Okl. Const. art. II, § 20
4. U.S. Const. amend. VI
5. Carey v. State, 1995 OK CR 55, IT 5, 902 P.2d 116, 117
6. Randall v. State, 1993 OK CR 47, IT 7, 861 P.2d 314, 316
7. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981)
8. Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980)
9. Rule 1.7(b) Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(A) - Child Abuse by Injury
• Okla. Stat. tit. 21 § 645 - Assault with a Dangerous Weapon
• Okla. Stat. tit. 5 § 1.7(b) - Rules of Professional Conduct
• Okla. Const. art. II, § 20 - Right to Counsel

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:

• Carey v. State, 1995 OK CR 55, 5, 902 P.2d 116, 117
• Randall v. State, 1993 OK CR 47, 7, 861 P.2d 314, 316