Gabriel Brian Solis v The State Of Oklahoma

C-2012-1165

Filed: Feb. 11, 2014

Not for publication

Prevailing Party: Gabriel Brian Solis

Summary

Gabriel Brian Solis appealed his conviction for Child Abuse. Conviction and sentence 80 years in prison and a fine of $100. Judge Cindy H. Truong sentenced him to this after he entered a plea. Solis later wanted to withdraw his plea but was denied a proper hearing, which led him to seek help from a higher court. The Oklahoma Court of Criminal Appeals agreed with Solis. They found that he did not get a fair hearing to explain why he wanted to change his plea. They ordered the case to go back for a proper hearing where he could have a lawyer without conflicts of interest help him. The decision to give Solis another chance means that his other claims were not discussed because the main issue was enough to take action. Judge Lumpkin agreed but highlighted some important points about how judges should handle questions during hearings.

Decision

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED for an evidentiary hearing with conflict-free counsel. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the trial court's jurisdiction improperly used after granting the motion to withdraw plea?
• Did the denial of an evidentiary hearing on the motion to withdraw plea necessitate a remand for a proper hearing?
• Did the trial court abuse its discretion by denying the motion to withdraw the plea?
• Was Mr. Solis denied effective, conflict-free representation during the hearing on his motion to withdraw the plea?
• Was the sentence imposed after the blind plea excessively disproportionate and subject to modification?

Findings

• the trial court lacked jurisdiction to impose judgment and sentence after granting the motion to withdraw plea
• the denial of an evidentiary hearing on the motion to withdraw plea requires remand for a proper hearing
• the trial court abused its discretion in denying the motion to withdraw plea
• the claim of ineffective representation at the hearing on the motion to withdraw plea requires conflict-free counsel
• the remaining propositions of error are moot due to the remand for a hearing

C-2012-1165

Feb. 11, 2014

Gabriel Brian Solis

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI

MICHAEL S. RICHIE SMITH, VICE PRESIDING JUDGE:

Gabriel Brian Solis entered a blind Alford plea to Child Abuse or, in the alternative, Enabling Child Abuse in violation of 21 O.S.Supp.2002, § 843.5, in the District Court of Oklahoma County, Case No. CF-2010-8077. After a sentencing hearing, the Honorable Cindy H. Truong sentenced Solis to eighty (80) years imprisonment and a fine of $100. Solis must serve 85% of this sentence before becoming eligible for parole consideration. Solis filed an Application to Withdraw Plea of Guilty, which was denied after a December 19, 2012 hearing. Solis timely sought a Writ of Certiorari appealing that decision in this Court.

Solis raises five propositions of error in support of his petition:
I. Once it had granted Mr. Solis’s motion to withdraw plea, the trial court lacked jurisdiction to impose judgment and sentence in this case;
II. Denial of Mr. Solis’s request for an evidentiary hearing on his motion to withdraw plea after pronouncement of judgment and sentence requires this matter be remanded for a proper hearing;
III. The trial court abused its discretion in denying Mr. Solis’s motion to withdraw his plea;
IV. In the alternative, Mr. Solis was denied the opportunity to have effective, conflict-free representation at a hearing on his motion to withdraw plea;
V. The sentence imposed after Mr. Solis entered a blind plea is shockingly excessive and must be modified.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that Solis’ case must be remanded for an evidentiary hearing, with conflict-free counsel, on Solis’s motion to withdraw. Solis claims in Propositions II and IV that he did not receive a proper evidentiary hearing on his motion to withdraw his plea. Solis originally tried to withdraw his plea before sentencing. At the first sentencing hearing, on November 30, 2012, the trial court initially indicated it would grant that request, then denied it without hearing evidence. At the second sentencing hearing, on December 19, 2012, the trial court once again heard argument but no evidence and denied the motion for the second time—all before pronouncing judgment and sentence. A trial court has discretion to allow a guilty plea to be withdrawn any time before judgment is entered. Bush v. State, 2012 OK CR 9, ¶ 17, 280 P.3d 337, 343; 22 O.S.2011, § 517. However, Solis could not have appealed these rulings at the time they were made, because judgment and sentence had not yet been pronounced. Bush, 2012 OK CR 9, ¶¶ 17-18, 280 P.3d at 343; Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013). A trial court must hold an evidentiary hearing and rule on an application to withdraw within thirty days after it is filed. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013).

After entry of Judgment and Sentence, Solis stated he wished to either file a new motion or renew his motion to withdraw his plea and requested an evidentiary hearing as required by the Rules of this Court. Rather than grant the request and set the matter for a hearing, the trial court told Solis to file his appeal. The record shows that Solis never received a true evidentiary hearing on his motion to withdraw. On November 30, Solis announced through counsel that he wanted to withdraw his plea, asked for an evidentiary hearing, and requested that conflict-free counsel be appointed for that hearing. Instead, the trial court had Solis sworn in, questioned him herself, questioned plea counsel as to the truthfulness of Solis’s testimony, decided he had lied to her about a matter unconnected with the taking of his plea, and denied his motion to withdraw. This cannot, by any stretch of the imagination, be called an evidentiary hearing.

On December 19, Solis appeared with conflict-free counsel. Defense counsel and the prosecutor were each allowed brief argument on the motion to withdraw. After this, the trial court told Solis that she had gone into detail on the plea, there was a jury waiting, the State had witnesses, he said he didn’t want a trial, and his motion was denied. There was no opportunity for testimony. In neither proceeding was Solis, or anyone else, sworn, questioned by counsel, and cross-examined regarding his grounds for his motion. No evidence was introduced.

A defendant is entitled to conflict-free representation during a hearing on a motion to withdraw a plea. Carey v. State, 1995 OK CR 55, ¶¶ 9-10, 902 P.2d 1116, 1118. The only proceeding which remotely resembled an evidentiary hearing was the one held on November 30, during which Solis was sworn and questioned by the trial court. Before that questioning, Solis explicitly requested conflict-free counsel, as he was claiming that counsel had not properly explained what an Alford plea was. The trial court did not appoint conflict-free counsel before questioning Solis. In fact, the trial court questioned plea counsel about the truthfulness of Solis’ statements to her, requiring counsel to contradict Solis and making the conflict worse. An evidentiary hearing is held to determine whether there is evidence to support the defendant’s contention that his plea was not knowing and voluntary.

We review a decision to grant or deny a motion to withdraw for abuse of discretion. Tate v. State, 2013 OK CR 18, ¶ 15. In order to appropriately exercise discretion, a trial court must have some evidence on the record to consider. A motion to withdraw may be supported by testimony from the defendant, his plea counsel (if the defendant waives confidentiality), or other witnesses. The State may put on witnesses to challenge the defendant’s claims. The State and the defendant must each have the opportunity to question any testifying witnesses, and to submit evidence. Evidence submitted may include, but not be limited to, the plea form or transcript of the plea hearing. If the defendant alleges that plea counsel was ineffective, for example by failing to explain the nature and consequences of the plea, then conflict-free counsel should be appointed to represent the defendant before an evidentiary hearing is held. After evidence is taken, the parties may assist the trial court through argument, applying that evidence to their positions. After admission of evidence, and after argument, if any, is heard, the trial court may exercise its discretion to grant or deny the motion. Because the case must be remanded for an evidentiary hearing, Solis’ remaining propositions of error are moot.

DECISION

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED for an evidentiary hearing with conflict-free counsel. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. 21 O.S.Supp.2002, § 843.5
2. Bush v. State, 2012 OK CR 9, ¶ 17, 280 P.3d 337, 343
3. 22 O.S.2011, § 517
4. Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013)
5. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013)
6. Carey v. State, 1995 OK CR 55, ¶ 9-10, 902 P.2d 1116, 1118
7. Tate v. State, 2013 OK CR 18, ¶ 15
8. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
9. United States v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009)
10. Oklahoma Rules of Professional Conduct, Title 5, Ch. 1, App. 3-A (2011)
11. Rule 1.6, Oklahoma Rules of Professional Conduct, Title 5, Ch. 1, App. 3-A (2011)
12. Rule 3.3(a)(3), Oklahoma Rules of Professional Conduct, Title 5, Ch. 1, App. 3-A (2011)
13. Allen v. State, 1993 OK CR 49, ¶ 4, 862 P.2d 487, 489
14. Alexander v. State, 2002 OK CR 23, ¶ 6, 48 P.3d 110, 115-16

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5 - Child Abuse
• Okla. Stat. tit. 22 § 517 - Motion to Withdraw Plea
• Okla. Stat. tit. 22, Ch. 18, App. Rule 4.2(A) - Motion to Withdraw Plea
• Okla. Stat. tit. 22, Ch. 18, App. Rule 4.2(B) - Evidentiary Hearing
• Okla. Stat. tit. 5, Ch. 1, App. 3-A (2011) - Oklahoma Rules of Professional Conduct
• Okla. Stat. tit. 5, Ch. 1, App. 3-A Rule 1.6 - Disclosure of Client Information
• Okla. Stat. tit. 5, Ch. 1, App. 3-A Rule 3.3(a)(3) - Remedial Measures for False Evidence

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:

• Bush v. State, 2012 OK CR 9, II 17, 280 P.3d 337, 343
• Carey v. State, 1995 OK CR 55, II 9-10, 902 P.2d 1116, 1118
• Tate v. State, 2013 OK CR 18, 15
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
• United States v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009)
• Allen v. State, 1993 OK CR 49, I 4, 862 P.2d 487, 489
• Alexander v. State, 2002 OK CR 23, I 6, 48 P.3d 110, 115-16