Delores Frances Roach v The State Of Oklahoma

C-2014-124

Filed: Nov. 19, 2014

Not for publication

Prevailing Party: Delores Frances Roach

Summary

Delores Frances Roach appealed her conviction for three counts of Child Neglect. Conviction and sentence were twenty years in prison for each count, to be served one after the other, and a fine of $500.00 on each count. Judge Caputo sentenced her. Roach argued two main points: first, she claimed there wasn’t enough proof for one of the counts; second, she believed her lawyer didn’t help her correctly. The court agreed that Roach didn’t have a lawyer who could fully support her because there was a conflict of interest. As a result, the court decided to send the case back for a new hearing where Roach can get a lawyer without any conflicts.

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 there a factual basis for the plea to Count Five?
• Did the petitioner receive ineffective assistance of counsel at the hearing on the Application to Withdraw Plea of Guilty?

Findings

• the court erred in denying the application to withdraw plea of guilty due to ineffective assistance of counsel
• resolution of the first assignment of error is moot

C-2014-124

Nov. 19, 2014

Delores Frances Roach

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Delores Frances Roach entered a blind plea of guilty to three counts of Child Neglect (Counts II, III, and V) in violation of 21 O.S.2011, § 843.5(C) in the District Court of Tulsa County, Case No. CF-2012-1659. In exchange for her plea of guilty, the State agreed to dismiss the charge of Child Abuse by Injury in Count IV.¹ On December 19, 2013, the Honorable James M. Caputo sentenced Roach to twenty years imprisonment and a fine of $500.00 on each count. The trial court ordered that the sentences be served consecutively. The sentences are subject to the 85% Rule under 21 O.S.2011, § 13.1. Roach filed an Application to Withdraw Plea of Guilty, which was denied after a hearing on January 29, 2014. Roach perfected a timely appeal to this Court and raises two propositions of error in support of her petition:

I. THERE WAS NOT A FACTUAL BASIS FOR THE PLEA TO COUNT FIVE.
II. PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¹ Roach was not charged in Count I.

After thorough consideration of the entire record before us, including the original record, transcripts and brief of Petitioner, we find that the decision of the District Court must be reversed and remanded for a new evidentiary hearing, with conflict-free counsel, on Roach’s application to withdraw. In Proposition II, Roach avers she received ineffective assistance of counsel at the hearing on the Application to Withdraw Plea of Guilty because counsel had a conflict of interest. We agree. 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, TI 9-10, 902 P.2d 1116, 1118. A conflict of interest arises where counsel owes conflicting duties to the defendant and some other person or counsel’s own interests. Allen v. State, 1994 OK CR 30, I 11, 874 P.2d 60, 63. Roach was represented by the same attorney for the plea of guilty and subsequent hearing on the Application to Withdraw Plea of Guilty. Although it was not present initially, an actual conflict of interest arose during the hearing on the application when Roach’s testimony challenged the effectiveness of counsel prior to and during the plea proceedings. Counsel responded by becoming antagonistic to Roach in defense of her own performance. Because there was an actual conflict of interest that adversely affected counsel’s representation, counsel was per se ineffective. Banks v. State, 1991 OK CR 51, I 36, 810 P.2d 1286, 1296. This error requires this case to be remanded back to the District Court for a new evidentiary hearing on Roach’s request to withdraw her plea of guilty at which she must be afforded conflict-free counsel. Because the case must be remanded for a new evidentiary hearing, resolution of Roach’s first assignment of error is 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.

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Footnotes:

1. ¹ In exchange for her plea of guilty, the State agreed to dismiss the charge of Child Abuse by Injury in Count IV.
2. 2 Carey v. State, 1995 OK CR 55, TI 9-10, 902 P.2d 1116, 1118.
3. 3 Allen v. State, 1994 OK CR 30, I 11, 874 P.2d 60, 63.
4. 4 Banks v. State, 1991 OK CR 51, I 36, 810 P.2d 1286, 1296.
5. 5 Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(C) (2011) - Child Neglect
• Okla. Stat. tit. 21 § 13.1 (2011) - Sentencing
• Okla. Stat. tit. 22 § 3.15 (2014) - Mandate
• Okla. Stat. tit. 21 § 701.8 (2011) - Ineffective Assistance of 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, TI 9-10, 902 P.2d 1116, 1118
• Allen v. State, 1994 OK CR 30, I 11, 874 P.2d 60, 63
• Banks v. State, 1991 OK CR 51, I 36, 810 P.2d 1286, 1296