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C-2014-270

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Gabriel Brian Solis v The State of Oklahoma

C-2014-270

Filed: Jun. 2, 2015

Not for publication

Prevailing Party: Gabriel Brian Solis

Summary

Gabriel Brian Solis appealed his conviction for Child Abuse or Enabling Child Abuse. His conviction resulted in an 80-year prison sentence and a fine of $100. The conviction was upheld by the Oklahoma Court of Criminal Appeals, but some judges disagreed with the decision. The court found that Solis was not treated fairly in his original case and decided that he should be re-sentenced with a different judge. They agreed that Solis's lawyer did not do a good job representing him and that Solis did not have a fair trial. The case was sent back for new sentencing and further actions.

Decision

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED for resentencing, and any other proceedings, before a different trial court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • was there an abuse of discretion in denying Mr. Solis' motion to withdraw his plea?
  • did Mr. Solis experience a denial of the fundamental right to a fair and impartial judge?
  • was Mr. Solis denied effective representation of counsel?
  • was the sentence imposed after Mr. Solis entered a blind plea shockingly excessive and in need of modification?
  • did the trial court lack jurisdiction to impose judgment and sentence after granting Mr. Solis' motion to withdraw plea?

Findings

  • the trial court abused its discretion in denying Mr. Solis' motion to withdraw his plea
  • Mr. Solis was deprived of the fundamental right to a fair and impartial judge
  • Mr. Solis was denied effective representation of counsel
  • the sentence imposed after Mr. Solis entered a blind plea was not shockingly excessive
  • the trial court lacked jurisdiction to impose judgment and sentence in this case after granting Mr. Solis' motion to withdraw plea
  • the case is remanded for resentencing and any other proceedings before a different trial court

C-2014-270

Jun. 2, 2015

Gabriel Brian Solis

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

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 by the trial court. Solis filed a Petition for Writ of Certiorari. This Court granted that petition and remanded the case for an evidentiary hearing with conflict-free counsel. Solis v. State, No. C-2012-1165 (Okl.Cr. Feb. 11, 2014) (not for publication). After a hearing on March 20-21, 2014, the trial court denied the motion to withdraw. Solis filed a timely Writ of Certiorari from that decision.

Solis raises five propositions of error in support of his petition:

I. The trial court abused its discretion in denying Mr. Solis’ motion to withdraw his plea.
II. Mr. Solis was deprived of the fundamental right to a fair and impartial judge when the trial court, after questioning Mr. Solis sua sponte and then directing the prosecutor to look into perjury charges against Mr. Solis, went on to deny the motion to withdraw plea and pass sentence upon Mr. Solis pursuant to a blind plea.
III. Mr. Solis was denied effective representation of counsel.
IV. The sentence imposed after Mr. Solis entered a blind plea is shockingly excessive and must be modified.
V. Once it had granted Mr. Solis’ motion to withdraw plea, the trial court lacked jurisdiction to impose judgment and sentence in this case.

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 resentencing, and any other proceedings, before a different trial court. We find in Proposition II that Solis was not heard by a fair and impartial trial court, and in Proposition III that trial counsel was ineffective for failing to ask the trial court to recuse after the November 30, 2012 proceedings. Given our resolution of these propositions, the remainder of Solis’ claims are moot.

We find in Proposition II that Solis was denied his right to a fair and impartial trial court. Solis failed to request recusal below and further failed to properly raise this issue under our Rules, and we review for plain error. 1 Alexander v. State, 2002 OK CR 23, II 18, 48 P.3d 110, 114; Lewis v. State, 2009 OK CR 30, IT 4, 220 P.3d 1. We reject the State’s suggestion that Solis waived this issue by not raising it in a previous petition for writ of certiorari. In 2012, Solis attempted to withdraw his plea, the trial court denied that attempt, and he filed a petition for writ of certiorari to this Court in C-2012-1165. This Court granted that petition and remanded the case. Because the Court effectively found no proper hearing had taken place, the Court found any remaining propositions of error moot. Solis v. State, No. C-2012-1165, slip op. 4 (Okl.Cr. Feb. 11, 2014) (not for publication). At that point, those proceedings in this Court ended. After the hearing ordered by this Court was held in 2014, Solis filed a second and separate petition for writ of certiorari in CF-2014-270. This is the first petition from any hearing on Solis’ motion to withdraw his plea. It is the first time he has had the opportunity to raise, and have properly heard, any substantive issues connected with the denial of his motion to withdraw.

We note the prosecutor’s argument otherwise, during the March 2014 hearing on the motion to withdraw, is incorrect. When a case is remanded for a procedural error, and the Court does not discuss the merits of the other propositions of error, there is no implication that the Court either agreed or disagreed with the trial court’s rulings which led to those claims of error. 2 1140, 1142; Rules 4.3(C)(5), 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 App. (2015).

Plain error is an actual error, that is plain or obvious, and that affects a defendant’s substantial rights, affecting the outcome of the trial. Barnard v. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764. This Court will apply plain error in order to preserve a defendant’s right to have court proceedings fairly and impartially conducted. Mitchell v. State, 2006 OK CR 20, IT 87, 136 P.3d 671, 706; Fitzgerald v. State, 1998 OK CR 68, IT 10, 972 P.2d 1157, 1163. A defendant is guaranteed a fair, impartial trial not tainted by the personal bias or prejudice of the trial court. Welch v. State, 2000 OK CR 8, IT 37, 2 P.3d 356, 372; Okla. Const. art. II, § 6. A defendant alleging bias must show the trial court’s bias materially affected his rights and that he was prejudiced by the court’s actions. Id. A decision whether to recuse is within the trial court’s discretion; trial judges should recuse where they take actions against a defendant which show actual prejudice, or where personal relationships cause the judge to become intertwined in the case. Fitzgerald, 1998 OK CR 68, I 10, 972 P.2d at 1163. There is a general presumption that judges will act impartially. Carter U. State, 1994 OK CR 49, IT 13, 879 P.2d 1234, 1242.

The record does not support the State’s claim that the trial court’s comments and actions showed frustration, but not bias. As we noted in the Opinion remanding this case for an evidentiary hearing with conflict-free counsel, 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’ testimony, decided he had lied to her about a matter unconnected with the taking of his plea, and denied his motion to withdraw. Solis v. State, No. C-2012-1165, slip op. 3 (Okl.Cr. Feb. 11, 2014) (not for publication). After questioning both Solis and defense counsel, the trial court directed the prosecutor to look into filing a perjury charge against Solis, based on his responses to her.

The State argues that the trial court was frustrated because she believed Solis had lied to her. However, that belief was based on the trial court’s inappropriate response to Solis’ requests to have conflict-free counsel appointed and to withdraw his plea. Well before the trial court sentenced Solis, well before the court denied his motion to withdraw, the trial court’s actions showed her antagonism to Solis. The record also reflects that the trial court had a personal antipathy towards Solis that grew with every question and comment.

Deciding a related issue – whether the federal recusal statute required a finding of an extrajudicial source of bias – the United States Supreme Court noted that recusal is appropriate where the record shows a deep-seated favoritism or antagonism that would make fair judgment impossible. Liteky U. U.S., 510 U.S. 540, 555-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). Taken as a whole, the record shows that, over the course of the case, the trial court developed the kind of antagonism or personal involvement concerning Solis which would meet this description. Liteky, 510 U.S. at 555-56, 114 S.Ct. at 1157; Fitzgerald, 1998 OK CR 68, IT 10, 972 P.2d at 1163.

Solis was not heard by an impartial tribunal. This is particularly important since, because Solis entered an Alford plea, the trial court was the judge of the facts as well as the law. The trial court’s actions showed antagonism and bias which prejudiced Solis and materially affected his rights to fair and impartial hearings on his motion to withdraw his plea, and a fair and impartial sentencing. Solis has shown plain error. Barnard, 2012 OK CR 15, I 13, 290 P.3d at 764; Lewis, 2009 OK CR 30, 9 4, 220 P.3d at 1142.

In conjunction with Proposition III, this proposition is granted. We find in Proposition III that trial counsel was ineffective for failing to ask the trial court to recuse after the November 30, 2012 proceedings. We review the claim of ineffectiveness under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Jiminez v. State, 2006 OK CR 43, I 2, 144 P.3d 903, 904. Solis must show that counsel’s acts or omissions fell below an objective standard of reasonableness, and that he was prejudiced by counsel’s conduct. Lozoya v. State, 1996 OK CR 55, I 27, 932 P.2d 22, 31. Generally, a petitioner claiming ineffective assistance of counsel on a guilty plea must show that counsel’s errors affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Lozoya, id. at I 27, 932 P.2d at 31. Most commonly, this will be shown by evidence that, absent counsel’s errors, there is a reasonable probability that the defendant would not have pleaded guilty. Hill, 474 U.S. at 59, 106 S.Ct. at 370.

We found in Proposition II that Solis was denied his right to have his motions heard, and be sentenced by, a fair and impartial tribunal. In response to this claim, the State merely asserts, as it did in response to Proposition II, that the trial court was not biased. The State makes no attempt to argue that, should we find otherwise, trial counsel was not ineffective for failing to request the court’s recusal. 5 Here, trial counsel’s omission affected the outcome of the plea process because Solis’ subsequent hearings were conducted by a biased and antagonistic trial court. This proposition is granted, and the case is remanded for resentencing, and any other proceedings, before a different trial court.

DECISION

The Petition for Writ of Certiorari is GRANTED and the case is REMANDED for resentencing, and any other proceedings, before a different trial court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

1

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Footnotes:

  1. 21 O.S.Supp.2002, § 843.5
  2. Alexander v. State, 2002 OK CR 23, II 18, 48 P.3d 110, 114
  3. Lewis v. State, 2009 OK CR 30, IT 4, 220 P.3d 1140, 1142
  4. Rules 4.3(C)(5), 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 App. (2015)
  5. Barnard v. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764
  6. Mitchell v. State, 2006 OK CR 20, IT 87, 136 P.3d 671, 706
  7. Fitzgerald v. State, 1998 OK CR 68, IT 10, 972 P.2d 1157, 1163
  8. Welch v. State, 2000 OK CR 8, IT 37, 2 P.3d 356, 372
  9. Okla. Const. art. II, § 6
  10. Carter v. State, 1994 OK CR 49, IT 13, 879 P.2d 1234, 1242
  11. Liteky v. U.S., 510 U.S. 540, 555-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994)
  12. Stouffer v. State, 2006 OK CR 46, IT 10, n. 3, 147 P.3d 245, 246 n. 3
  13. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)
  14. Lozoya v. State, 1996 OK CR 55, I 27, 932 P.2d 22, 31
  15. Jiminez v. State, 2006 OK CR 43, I 2, 144 P.3d 903, 904

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 843.5 - Child Abuse
  • Okla. Stat. tit. 22 § 3.15 - Mandates
  • Okla. Stat. tit. 22 Ch.18 App. - Rules of the Oklahoma Court of Criminal Appeals
  • Okla. Stat. tit. 21 § 701.8 - Sentencing
  • Okla. Stat. tit. 22 § 4.2 - Rules of the Oklahoma Court of Criminal Appeals
  • Okla. Stat. tit. 22 § 4.3 - Rules of the Oklahoma Court of Criminal Appeals
  • Okla. Stat. tit. 21 § 701.8 - 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:

  • Solis v. State, No. C-2012-1165 (Okl.Cr. Feb. 11, 2014)
  • Alexander v. State, 2002 OK CR 23, II 18, 48 P.3d 110, 114
  • Lewis v. State, 2009 OK CR 30, IT 4, 220 P.3d 1140, 1142
  • Barnard v. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764
  • Mitchell v. State, 2006 OK CR 20, IT 87, 136 P.3d 671, 706
  • Fitzgerald v. State, 1998 OK CR 68, IT 10, 972 P.2d 1157, 1163
  • Welch v. State, 2000 OK CR 8, IT 37, 2 P.3d 356, 372
  • Carter v. State, 1994 OK CR 49, IT 13, 879 P.2d 1234, 1242
  • Jiminez v. State, 2006 OK CR 43, I 2, 144 P.3d 903, 904
  • Lozoya v. State, 1996 OK CR 55, I 27, 932 P.2d 22, 31
  • Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)
  • Liteky v. U.S., 510 U.S. 540, 555-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994)
  • Stouffer v. State, 2006 OK CR 46, IT 10, n. 3, 147 P.3d 245, 246 n. 3
  • Bush v. State, 2012 OK CR 9, IT 21, 280 P.3d 337, 344

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