Darrell Odell Golden v The State Of Oklahoma

C-2012-714

Filed: Jul. 31, 2012

Not for Publication

Prevailing Party: Darrell Odell Golden

Summary

Darrell Odell Golden appealed his conviction for Resisting an Officer. Conviction and sentence for Count I (Larceny) were affirmed, but Count II (Resisting an Officer) was reversed and remanded. Judge Lewis dissented regarding Count II. Summary: Darrell Odell Golden was charged with stealing from a Kohl's store and resisting arrest. He pled guilty to both charges but later tried to withdraw his guilty plea, saying he was not informed about his rights. The court found that his plea for Count I was valid but determined there was not enough evidence to support the charge for Count II. So, they allowed him to withdraw his guilty plea for that charge.

Decision

Golden's PETITION FOR A WRIT OF CERTIORARI is GRANTED. His CONVICTION in COUNT I is AFFIRMED. However, his conviction in COUNT II is REVERSED and REMANDED for further proceedings consistent with this opinion. In addition, the district court is ordered to correct the Judgment and Sentence document in this case, through an order nunc pro tunc, to accurately reflect the Victim's Compensation Assessment that was given in Count I. 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 Mr. Golden's plea not knowing and voluntary due to confusion regarding the minimum possible punishment for Count I, Larceny of more than $1,000?
• Was Mr. Golden's plea in Count II, Resisting an Officer, invalid because the trial court failed to establish an adequate factual basis to show resisting "by use of force or violence"?
• Did the alleged failure to investigate, research, identify, present, and preserve issues for review in this Court result from the ineffective assistance of counsel?
• Did cumulative errors deprive Mr. Golden of a fair proceeding and a reliable outcome?

Findings

• the court did not err regarding the knowing and voluntary nature of the plea for Count I
• the court found plain error in the conviction for Count II due to insufficient evidence of resistance by force or violence
• the ineffective assistance of plea counsel claim was not established for Count I
• the ineffective assistance of plea counsel claim was established for Count II
• the cumulative error claim was rendered moot
• Golden's petition for a writ of certiorari is granted
• Golden's conviction in Count I is affirmed
• Golden's conviction in Count II is reversed and remanded
• the district court is ordered to correct the Judgment and Sentence document for the Victim's Compensation Assessment in Count I

C-2012-714

Jul. 31, 2012

Darrell Odell Golden

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING PETITION FOR CERTIORARI, AFFIRMING COUNT I CONVICTION, & REVERSING/REMANDING COUNT II

SMITH, VICE PRESIDING JUDGE:

On May 21, 2012, Darrell Odell Golden was charged by Information, in the District Court of Tulsa County, Case No. CF-2012-2159, with felony Larceny of Merchandise from a Retailer, after former conviction of two or more felonies, under 21 O.S.2011, § 1731 (Count I); and Resisting an Officer, a misdemeanor, under 21 O.S.2011, § 268 (Count II), with a second page charging that Golden had six prior convictions. On June 18, 2012, an Amended Information was filed charging the same two offenses and the same prior convictions, but correcting the date and the sentence regarding the sixth prior conviction. The Information and Amended Information charged that on May 13, 2012, Golden stole merchandise from a Kohl’s department store and that when Officer Robert Bryan of the Tulsa Police Department attempted to arrest Golden for this offense, Golden resisted, by the use of force and violence.

Preliminary hearing was held on June 15, 2012, before the Honorable Deborrah Ludi Leitch, Special Judge, and Golden was bound over on both charges as filed. On June 25, 2012, Golden entered a blind plea of guilty to Count I (involving property valued at more than $1,000) and to Count II as charged, before the Honorable Tom C. Gillert, District Judge. Golden was represented by Lauren Chandler at the time of his plea.

Although the plea was described as a blind plea in Golden’s plea form, the transcript of the plea and sentencing hearing makes clear that Golden chose to plead guilty after being specifically informed by the court that if he pled guilty, the court would sentence him to imprisonment for 5 years, a fine of $600, and a Victim’s Compensation Assessment of $150 on Count I and to imprisonment for 1 year, a fine of $325, and a Victim’s Compensation Assessment of $75 on Count II, to run concurrently, with no credit for time served. Golden then pled guilty and was sentenced accordingly.

Shortly thereafter, Golden, acting pro se, wrote a letter directly to the trial court, asking to withdraw his guilty plea. The letter was filed in the district court on July 3, 2012. Golden alleged in the letter that his counsel, Lauren Chandler, never offered me a defense for my crime and lied to me from day one up until I pled guilty in your courtroom. The court appointed attorney M.J. Denman to represent Golden at a hearing on his motion to withdraw plea, though no actual motion to withdraw plea was ever filed. This hearing began on July 18, 2012, and was continued to (and completed on) July 31, 2012. At the conclusion of the hearing, the Honorable Tom C. Gillert rejected Golden’s attempt to withdraw his plea. Golden then filed a notice of intent to appeal and a petition for a writ of certiorari in this Court. He is now before this Court on his petition for certiorari.

Golden raises the following propositions of error in support of his petition:

I. MR. GOLDEN’S PLEA WAS NOT KNOWING AND VOLUNTARY DUE TO CONFUSION REGARDING THE MINIMUM POSSIBLE PUNISHMENT FOR COUNT I, LARCENY OF MORE THAN $1000.00 OF MERCHANDISE FROM A RETAILER.

II. MR. GOLDEN’S PLEA IN COUNT II, RESISTING AN OFFICER, IS INVALID BECAUSE THE TRIAL COURT FAILED TO ESTABLISH AN ADEQUATE FACTUAL BASIS TO SHOW RESISTING BY USE OF FORCE OR VIOLENCE.

III. ALTERNATIVELY, RELIEF IS REQUIRED BECAUSE ANY FAILURE TO INVESTIGATE, RESEARCH, IDENTIFY, PRESENT AND PRESERVE ISSUES FOR REVIEW IN THIS COURT RESULTED FROM THE INEFFECTIVE ASSISTANCE OF COUNSEL.

IV. CUMULATIVE ERRORS DEPRIVED MR. GOLDEN OF A FAIR PROCEEDING AND A RELIABLE OUTCOME.

In Proposition I, Golden argues that his plea was not knowing and voluntary due to confusion regarding his possible minimum punishment for his Count I charge. Since no motion to withdraw Golden’s plea was actually filed in this case, however, this claim has not been properly preserved. Consequently, this Court will review this claim only for plain error. And we review the district court’s refusal to allow Golden to withdraw his plea for abuse of discretion.

Even if Golden’s letter to the court is construed as a motion to withdraw his pleas, it does not contain any allegation that he was not properly informed regarding his sentencing ranges. Golden acknowledges that the correct sentencing range for his charge of larceny of merchandise (valued at more than $1,000) from a retailer, after his five prior felony convictions, was imprisonment for 3 years to Life. Golden’s confusion claim is based on the fact that on his plea form, the minimum sentence for this crime shows a 6 that has been scribbled out and replaced with a 3. And the plea transcript contains no discussion of sentencing ranges. At the July 31, 2012 hearing on his attempt to withdraw his pleas, Golden initially testified regarding his understanding of the sentencing range on Count I: I was told that it was six to life. Later in the hearing, however, Golden described his plea attorney going through the plea form with him and that when she got to the section about sentencing range, I remember seeing her scratch out a number and add one and acknowledged that the number on the plea form went from six to three. When Golden was pushed still further about his understanding of the sentencing range on Count I at the time he pled guilty, Golden testified that neither his attorney nor the trial court told him what the sentencing ranges were for his crimes and testified that he did not know these ranges at the time he pled guilty: I didn’t know what the range was because no one ever told me what the range was. Golden acknowledged that he did understand that he would be sentenced to imprisonment for five years.

This Court notes that the transcript of Golden’s preliminary hearing, conducted just 10 days before he pled guilty, reveals that Golden was specifically informed at that time that his minimum sentence on Count I would be 3 years. This Court finds, upon a review of the entire record, that Golden has not established that he was misinformed or confused regarding the correct sentencing range on Count I. Although it is disappointing that the trial court failed to review the sentencing ranges at issue at the time Golden pled guilty, Golden has not shown that he believed, at the time he pled guilty, that the minimum sentence on Count I was 6 years. Furthermore, this is not a case where the trial court misinformed the defendant regarding a sentencing range. Hence this Court finds no plain error and no abuse of discretion regarding Proposition I, and this claim is rejected accordingly.

In Proposition II, Golden argues that his guilty plea on Count II, Resisting an Officer, under 21 O.S.2011, § 268, was invalid because there was no factual basis in the record to support the element that he resisted by the use of force or violence. This claim was not raised in Golden’s letter asking to withdraw his plea, nor was it addressed at the hearing on Golden’s request to withdraw his plea. Hence we review only for plain error. The offense of Resisting an Officer is stated as follows: Every person who knowingly resists, by the use of force or violence, any executive officer in the performance of his duty, is guilty of a misdemeanor. 21 O.S.2011, § 268. The uniform jury instruction for this offense contains five elements: (1) knowingly, (2) by the use of force/violence, (3) resisting, (4) a peace/executive officer, (5) who is acting in the performance of his/her official duties. Hence it is clearly a required element that the defendant use force or violence to resist the officer who is attempting to perform his official duties. And this Court has recognized that a conviction for resisting under 21 O.S., § 268 requires evidence of some act of aggression on the part of the accused.

This Court finds that there is simply no evidence in the record that Golden resisted his arrest by the use of force or violence. When the Kohl’s loss prevention supervisor approached Golden and began to pull out his badge—just after Golden left Kohl’s with two full bags of stolen merchandise—Golden ran. When Tulsa police officers then pursued Golden on foot, in order to arrest him, he continued to run. Golden did attempt to avoid being arrested by an executive officer, i.e., by one or more Tulsa peace officers, but there is no evidence in the record before this Court that he did so by the use of force or violence. Running, in and of itself, is not an act of aggression, nor does it typically involve the use of force or violence. Consequently, this Court finds plain error regarding Golden’s Count II conviction for Resisting an Officer.

In Proposition III, Golden argues that any failure to discover, present, and preserve the issues raised in Propositions I and II was the result of ineffective assistance of his guilty plea counsel and the subsequent ineffective assistance of the attorney who represented him at the hearing on his request to withdraw his guilty pleas. Golden’s letter to the trial court did contain a reasonably clear assertion that Golden blamed the ineffective assistance of his plea counsel for his decision to plead guilty. Hence this Court finds that an ineffective assistance of plea counsel claim was adequately preserved by Golden himself.

In addition, Golden is correct that a criminal defendant is entitled to the effective assistance of counsel at the time of his plea and at a hearing on any motion to withdraw a guilty plea. This Court likewise notes that in all ineffective assistance of counsel claims, the defendant must establish both inadequate performance on the part of counsel and prejudice to the defendant.

Regarding Golden’s Proposition I claim, this Court finds that Golden cannot establish prejudice from the alleged ineffective assistance of his plea counsel to properly inform Golden regarding the sentencing range on Count I. Although the trial court failed to review the sentencing ranges at the time Golden pled guilty, his counsel explicitly stated—just ten days earlier, at Golden’s preliminary hearing—that the minimum sentence for Golden on Count I would be 3 years. In addition, Golden’s plea form correctly states that 3 years is the minimum sentence on Count I.

Regarding Golden’s claim in Proposition II, this Court finds that Golden has established that his plea counsel was ineffective for allowing him to plead to a crime for which a required element—the use of force or violence—lacked any support in the factual record in this case. This Court further finds that Golden’s plea withdrawal counsel was likewise ineffective for failing to raise this same issue in an application to withdraw Golden’s plea. For these reasons, as well as those discussed supra in Proposition II, Golden must be allowed to withdraw his guilty plea to Count II.

In Proposition IV, Golden raises a cumulative error claim. This Court finds that this claim has been rendered moot due to our resolution of his other claims.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Golden’s petition for a writ of certiorari should be granted, that his conviction in Count I should be affirmed, and that his conviction on Count II should be reversed and remanded.

Decision

Golden’s PETITION FOR A WRIT OF CERTIORARI is GRANTED. His CONVICTION in COUNT I is AFFIRMED. However, his conviction in COUNT II is REVERSED and REMANDED for further proceedings consistent with this opinion. In addition, the district court is ordered to correct the Judgment and Sentence document in this case, through an order nunc pro tunc, to accurately reflect the Victim’s Compensation Assessment that was given in Count I. 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.

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Footnotes:

1. 1 Golden was charged with having the following six prior convictions, all in Tulsa County: (1) a 2/17/2012 conviction for felony larceny of merchandise from a retailer ("LMFR"), in CF-2012-92, with a sentence of 45 days; (2) a 2/22/2011 conviction for felony LMFR, in CF-2011-60, with a sentence of 6 months; (3) a 5/15/2007 conviction for second-degree burglary, in CF-2006-2579, with a sentence of 4 years; (4) a 9/20/2004 conviction for felony falsely personating another to create liability, in CF-2004-3112, with a sentence of 30 months; (5) a 9/20/2004 conviction for misdemeanor LMFR, in CF-2004-3112, with a sentence of 30 days; and (6) a 1/22/2004 conviction for grand larceny, with a sentence of 3 years.
2. 2 The Judgment and Sentence document for Count I incorrectly states that the Victim's Compensation Assessment for this offense is $325, when it should be $150.
3. 3 Even if Golden's letter to the court is construed as a motion to withdraw his pleas, it does not contain any allegation that he was not properly informed regarding his sentencing ranges.
4. 4 Golden was not asked to clarify who told him this.
5. 5 Golden complained that his attorney "never told me why she did it because like I said she didn't really review the form with me. She went over it and once she got to the places where she wanted me to sign, I signed."
6. 6 The record strongly suggests that the number "6" was incorrectly written on the plea form initially and was then corrected by Golden's counsel to a "3" at the time she went over the plea with Golden, before he actually signed the form and pled guilty.
7. 7 See Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969); King U. State, 1976 OK CR 103, 1 7, 553 P.2d 529, 532.
8. 8 See Strickland v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 2064-67, 80 L.Ed.2d 674 (1984).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1731 (2011) - Larceny of Merchandise from a Retailer
• Okla. Stat. tit. 21 § 268 (2011) - Resisting an Officer
• Okla. Stat. tit. 22 § 4.2(B) (2012) - Motion to Withdraw Plea
• Okla. Stat. tit. 22 § 18 (2012) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing

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:

• Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969)
• King v. State, 1976 OK CR 103, 1 7, 553 P.2d 529, 532
• Lewis v. State, 2009 OK CR 30, 7 4, 220 P.3d 1140, 1142
• Cox v. State, 2006 OK CR 51, 7 18, 152 P.3d 244, 251
• Hunter v. State, 1992 OK CR 1, 1 4, 825 P.2d 1353, 1355
• Reams v. State, 1976 OK CR 152, 1 8, 551 P.2d 1168, 1170
• Cummins v. State, 6 Okl. Cr. 180, 183, 117 P. 1099
• Carey v. State, 1995 OK CR 55, 1 5, 902 P.2d 1116, 1117
• Randall v. State, 1993 OK CR 47, 1 5-7, 861 P.2d 314, 316
• Strickland v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 2064-67, 80 L.Ed.2d 674 (1984)
• Walker v. State, 1998 OK CR 14, 1 3, 953 P.2d 354, 355