Joseph Leonard Cox, Jr. v The State Of Oklahoma

C-2013-309

Filed: Feb. 11, 2014

Not for publication

Prevailing Party: State of Oklahoma

Summary

Joseph Leonard Cox, Jr. appealed his conviction for possession of controlled substances and possession of contraband. The conviction and sentence were ten years in prison for the main charge and additional fines for the other charges, along with another five years for the contraband charge, all running at the same time. Judge M. John Kane, IV, denied Cox's request to change his plea. Cox argued his plea was forced, his lawyer didn’t help him properly, and he wanted a new hearing to present more evidence. However, the court disagreed, stating there wasn't enough proof that Cox's plea was coerced or that his lawyer was ineffective. Cox's overall appeal was denied, but the case was sent back to the lower court to correct some details about credit for time served. Judge Lewis, Judge Smith, Judge Lumpkin, and Judge C. Johnson agreed with the opinion.

Decision

The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. The case is REMANDED to the district court with instructions to amend the Judgment and Sentence to reflect credit for time served. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• whether he should be allowed to withdraw his plea of guilty because the plea was coerced and not knowingly and intelligently entered
• whether he received effective assistance of counsel during the plea proceedings
• whether a new hearing on the motion to withdraw plea is required because defense counsel failed to advocate Cox's cause
• whether this case should be remanded to the district court with instructions to correct the Judgment and Sentence by an Order Nunc Pro Tunc to reflect credit for time served

Findings

• The court did not err in denying Cox's motion to withdraw plea because there was insufficient evidence to support coercion.
• Cox's claim of ineffective assistance of conflict counsel during the plea process was rejected.
• A new evidentiary hearing was not warranted as conflict counsel effectively advocated for Cox's claim of coercion.
• The case was remanded to amend the Judgment and Sentence to reflect credit for time served.

C-2013-309

Feb. 11, 2014

Joseph Leonard Cox, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

A. JOHNSON, JUDGE:

Petitioner Joseph Leonard Cox, Jr. entered a negotiated plea to resolve two cases in the District Court of Osage County. In Case No. CF-2011-82, Cox pled guilty to one count of Possession of Controlled Dangerous Substance (Methamphetamine), After Former Conviction of Two or More Felonies (Count 1) in violation of 63 O.S.2011, § 2-402(B)(1), two counts of Possession of Controlled Dangerous Substance, Misdemeanor (Counts 2 & 3), in violation of 63 O.S.2011, § 2-402(B)(2), and one count of Possession of Paraphernalia (Count 4), in violation of 63 O.S.2011, § 2-405. In Case No. CF-2012-454, Cox pled guilty to one count of Possession of Contraband (Count 1), in violation of 57 O.S.Supp.2012, § 1(B). The Honorable M. John Kane, IV accepted Cox’s plea and sentenced him according to the plea agreement, specifically in Case No. CF-2011-82 ten years imprisonment and a $200 fine on Count 1 and a $100 fine on each of Counts 2, 3, and 4, and in Case No. CF-2012-454 five years imprisonment. The district court assessed Cox various court costs in each case, gave him credit for time served, and ordered the sentences to run concurrently with each other.

In addition, the district court accepted Cox’s stipulation to the State’s Motion to Revoke Suspended Sentence in Case No. CF-2010-51, and sentenced Cox to twenty years in prison, running concurrently with Cox’s sentences in CF-2011-82 and CF-2012-454. Cox wrote a letter to his trial attorney that was filed of record and interpreted as a motion to withdraw plea. The district court appointed conflict counsel, held a hearing and denied the motion.

Cox 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. Cox raises the following issues: (1) whether he should be allowed to withdraw his plea of guilty because the plea was coerced and not knowingly and intelligently entered; (2) whether he received effective assistance of counsel during the plea proceedings; (3) whether a new hearing on the motion to withdraw plea is required because defense counsel failed to advocate Cox’s cause, forcing him to proceed without the benefit of counsel; and (4) whether this case should be remanded to the district court with instructions to correct the Judgment and Sentence by an Order Nunc Pro Tunc to reflect credit for time served. We find reversal is not required and affirm the Judgment and Sentence of the district court.

1. The district court’s ruling denying Cox’s motion to withdraw plea because he failed to present sufficient evidence that his plea was coerced is supported by the record. We find no abuse of discretion.

2. We reject Cox’s claim that conflict defense counsel rendered ineffective assistance of counsel during the plea process, specifically the hearing on the motion to withdraw plea. He has not shown on this record that defense counsel’s failure to present a double jeopardy claim, argue the sufficiency of the evidence and present a possible defense or prepare and present evidence to support his claim of coercion affected the outcome of the hearing. This claim is denied.

3. Nor do we find that Cox is entitled to a new evidentiary hearing based on a denial of, or ineffective assistance of, counsel. The record shows the district court appointed Cox conflict counsel for the evidentiary hearing. Contrary to Cox’s claim, conflict counsel did not abandon him leaving him without counsel, but advocated his claim of coercion. A new evidentiary hearing is not warranted.

4. We remand this matter to the district court with instructions to amend the Judgment and Sentence to reflect credit for time served so it conforms with the district court’s oral pronouncement of sentence.

DECISION

The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. The case is REMANDED to the district court with instructions to amend the Judgment and Sentence to reflect credit for time served. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 1 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 63 O.S.2011, § 2-402(B)(1)
2. 63 O.S.2011, § 2-402(B)(2)
3. 63 O.S.2011, § 2-405
4. 57 O.S.Supp.2012, § 1(B)
5. Cox v. State, 2006 OK CR 51, ¶ 18, 152 P.3d 244, 251
6. Elmore v. State, 1981 OK CR 8, ¶ 8, 624 P.2d 78, 80
7. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
8. Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206, cert. denied, U.S. 134, S.Ct. 172, L.Ed.2d __(2013)
9. Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148
10. Jacobs v. State, 2006 OK CR 4, ¶¶ 2-3, 128 P.3d 1085, 1086
11. Lemay v. Rahhal, 1996 OK CR 21, ¶ 20, 917 P.2d 18, 22
12. United States v. Villano, 816 F.2d 1448, 1451

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402(B)(1) - Possession of Controlled Dangerous Substance, (Methamphetamine), After Former Conviction of Two or More Felonies
• Okla. Stat. tit. 63 § 2-402(B)(2) - Possession of Controlled Dangerous Substance, Misdemeanor
• Okla. Stat. tit. 63 § 2-405 - Possession of Paraphernalia
• Okla. Stat. tit. 57 § 21(B) - Possession of Contraband

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:

• Cox v. State, 2006 OK CR 51, ¶ 18, 152 P.3d 244, 251
• Elmore v. State, 1981 OK CR 8, ¶ 8, 624 P.2d 78, 80
• Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206
• Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148
• Jacobs v. State, 2006 OK CR 4, ¶¶ 2-3, 128 P.3d 1085, 1086
• Lemay v. Rahhal, 1996 OK CR 21, ¶ 20, 917 P.2d 18, 22