Jason Harvey Thompson v The State Of Oklahoma

C-2012-287

Filed: Nov. 27, 2012

Not for publication

Prevailing Party: Jason Harvey Thompson

Summary

Jason Harvey Thompson appealed his conviction for Unlawful Possession of Controlled Drug and Unlawful Possession of Drug Paraphernalia. His conviction and sentence were twenty years for the drug possession and one year for the paraphernalia possession, to be served at the same time. Judge Lewis dissented.

Decision

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED for a hearing on the application to withdraw the plea and for correction of the Judgment and Sentence document, through an Order nunc pro tunc by the district court, in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there ineffective assistance of counsel during the plea bargaining process?
• Did the trial court fail to hold the required evidentiary hearing on the application to withdraw the plea?
• Did the trial judge fail to inquire into the defendant's competence to enter the pleas?
• Was an adequate factual basis established for the guilty pleas?
• Should the Judgment and Sentence be corrected by an Order nunc pro tunc?

Findings

• the trial court erred by failing to hold an evidentiary hearing on Mr. Thompson's motion to withdraw plea
• resolutions of Propositions I, III, and IV are moot
• the case is remanded for correction of the Judgment and Sentence document
• the petition for writ of certiorari is granted

C-2012-287

Nov. 27, 2012

Jason Harvey Thompson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING PETITION FOR CERTIORARI

SMITH, JUDGE: Jason Harvey Thompson pled guilty to Count I, Unlawful Possession of Controlled Drug, After Former Conviction of two or more Felonies in violation of 63 O.S.2011, § 402(B)(1) and Count II, Unlawful Possession of Drug Paraphernalia in violation of 63 O.S.2001, § 2-405 in the District Court of Payne County, Case No. CF-2011-518. In accordance with a negotiated plea agreement, the Honorable Phillip Corley sentenced Thompson to twenty (20) years imprisonment on Count I and one (1) year imprisonment on Count II, to run concurrent to Count I. Thompson was also assessed a $150.00 OSBI lab fee and ordered to pay court costs and the costs of incarceration.

Thompson filed an application to withdraw his plea on March 12, 2012. This was denied on March 14, 2012 by Order, without a hearing on the application. On April 6, 2012, Thompson filed a timely Petition for Writ of Certiorari, raising five propositions of error in support of his petition.

1. Mr. Thompson received ineffective assistance of counsel during the plea bargaining process.
2. The trial court’s failure to hold the required evidentiary hearing on Mr. Thompson’s motion to withdraw plea necessitates that the case be remanded.
3. The trial judge failed to inquire into Mr. Thompson’s competence to enter the pleas.
4. Mr. Thompson should be allowed to withdraw his guilty pleas because an adequate factual basis was not established.
5. The Judgment and Sentence should be corrected by an Order nunc pro tunc.

After thorough consideration of the entire record before us, including the original record, transcripts, and brief, we find the petition must be granted and the case remanded for a hearing on Thompson’s application to withdraw his plea. Oklahoma Court of Criminal Appeals Rule 4.2B requires that the trial court hold an evidentiary hearing on an application to withdraw plea. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011). This rule is not discretionary. Proposition II is granted, and the case remanded for a hearing. Because this is settled law, no response from the State is necessary. Furthermore, our resolution of Proposition II renders Propositions I, III and IV moot.

In Proposition V, Thompson points out that the Judgment and Sentence document lists Count I as a violation of 63 O.S. § 2-401(B)(1). It should reflect the correct statutory designation: 63 O.S. § 2-402(B)(1). In addition to the new hearing granted Thompson based upon Proposition II, we also remand the case for correction of the Judgment and Sentence document, through an Order nunc pro tunc by the district court. Neloms v. State, 2012 OK CR 7, I 45, 274 P.3d 161, 172.

DECISION

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED for a hearing on the application to withdraw the plea and for correction of the Judgment and Sentence document, through an Order nunc pro tunc by the district court, in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF PAYNE COUNTY

THE HONORABLE PHILLIP C. CORLEY, DISTRICT JUDGE

ATTORNEYS AT TRIAL

ATTORNEY ON APPEAL

VIRGINIA ANN BANKS
116 W. 7TH
SUITE 232
STILLWATER, OK 74074

RICKI J. WALTERSCHEID
P.O. BOX 926
NORMAN, OKLAHOMA 73070

ATTORNEY FOR DEFENDANT

ATTORNEY FOR PETITIONER

JACK BOWYER
NO RESPONSE REQUIRED
ASSISTANT DISTRICT ATTORNEY
PAYNE COUNTY DISTRICT ATTORNEY’S OFFICE
111 PAYNE COUNTY COURTHOUSE
STILLWATER, OKLAHOMA 74074

ATTORNEY FOR STATE

OPINION BY: SMITH, J.

A. JOHNSON, P.J.: CONCUR

LEWIS, V.P.J.: CONCUR

LUMPKIN, J.: CONCUR

C. JOHNSON, J.: CONCUR

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Footnotes:

1. 63 O.S.2011, § 402(B)(1)
2. 63 O.S.2001, § 2-405
3. Oklahoma Court of Criminal Appeals Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011)
4. 63 O.S. § 2-401(B)(1)
5. 63 O.S. § 2-402(B)(1)
6. Neloms v. State, 2012 OK CR 7, "I 45, 274 P.3d 161, 172
7. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 402(B)(1) - Unlawful Possession of Controlled Drug
• Okla. Stat. tit. 63 § 2-405 - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 63 § 2-401(B)(1) - Unlawful Possession of Controlled Drug (incorrect citation)
• Okla. Stat. tit. 63 § 2-402(B)(1) - Unlawful Possession of Controlled Drug (correct citation)
• Okla. Stat. tit. 22 § 4.2(B) - Application to Withdraw Plea
• Okla. Stat. tit. 22 § 3.15 - Rule on Mandate

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:

• Neloms v. State, 2012 OK CR 7, I 45, 274 P.3d 161, 172