Jack Eugene Metzger v The State Of Oklahoma

C-2014-373

Filed: Nov. 10, 2014

Not for publication

Prevailing Party: Jack Eugene Metzger

Summary

Jack Eugene Metzger appealed his conviction for multiple crimes including burglary, larceny, DUI, eluding a police officer, violating a protective order, and driving without a license. His conviction and sentence totaled nine years in prison with various fines. Judge Clifford Smith had accepted Metzger's guilty plea, but Metzger later wanted to withdraw it, claiming he didn’t understand what he was agreeing to. The court reviewed his appeal and decided that Metzger didn’t get the right advice regarding some charges, specifically those related to DUI and eluding a police officer, meaning his pleas for those counts were not made knowingly or willingly. They agreed he should be allowed to withdraw his plea for these counts. However, they denied his appeal regarding the other charges. Judge Johnson wrote the opinion, and Judges Lewis and Lumpkin agreed. Judge Smith did not dissent from the opinion.

Decision

The Petition for a Writ of Certiorari is GRANTED IN PART AND DENIED IN PART. Writ of certiorari is DENIED as to Counts 1, 2 and 3 and it is GRANTED as to Counts 4, 5, 6, 7 and 8. 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

• whether the trial court erred in denying his motion to withdraw his pleas on a record that fails to show they were entered knowingly, intelligently and voluntarily
• whether the sentences imposed on Counts 4, 5, 6 and 7 are lawful
• whether the convictions and sentences for the same offense based on the same act in Counts 6 and 7 are unlawful in violation of his rights under the double jeopardy clauses of the United States and Oklahoma constitutions
• whether the trial court erred in denying his motion to withdraw his pleas on a record which did not support a valid determination of his competency at the time of the pleas
• whether he was denied the effective assistance of counsel

Findings

• The court erred in denying the motion to withdraw pleas for Counts 4, 5, 6, 7, and 8, as the pleas were not entered knowingly, intelligently, or voluntarily.
• The court found the sentences imposed on Counts 4, 5, 6, and 7 were unlawful but did not modify them since the pleas for these counts were withdrawn.
• The convictions and sentences for Counts 6 and 7 were determined to be unlawful under double jeopardy because the pleas were not entered knowingly, intelligently, or voluntarily.
• The court held that the trial court adequately established Metzger’s competency to enter his plea.
• The court concluded that Metzger was denied effective assistance of counsel regarding Counts 4 through 8, leading to a grant for withdrawal of his pleas for those counts.

C-2014-373

Nov. 10, 2014

Jack Eugene Metzger

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

DENYING CERTIORARI IN PART AND GRANTING IN PART

JOHNSON, JUDGE:

Petitioner Jack Eugene Metzger entered a guilty plea in the District Court of Tulsa County in Case No. CF-2014-484, to First Degree Burglary (Counts 1 and 2), in violation of 21 O.S.2011, § 1431; Larceny of Automobile (Count 3), in violation of 21 O.S.2011, § 1720; Driving Under the Influence of Alcohol – 2nd Offense (Count 4), in violation of 47 O.S.Supp.2013, § 11-902(A)(2); Eluding a Police Officer (Count 5), in violation of 21 O.S.2011, § 540A; Violation of Protective Order (Counts 6 and 7), in violation of 22 O.S.2011, § 60.6; and Driving Without a Driver’s License (Count 8), in violation of 47 O.S.2011, § 6-303(A). The Honorable Clifford Smith accepted Metzger’s plea and sentenced him to nine years imprisonment and a $600.00 fine on each of Counts 1 through 3, five years imprisonment and a $600.00 fine on Count 4, five years in the Tulsa County Jail and a $250.00 fine on Count 5, one year in the Tulsa County Jail and a $250.00 fine on each of Counts 6 and 7, and a $50.00 fine on Count 8. The district court imposed a nine-month period of post-imprisonment supervision on Counts 1-7. The sentences were ordered to run concurrently with each other.

Metzger filed a timely Motion to Withdraw Pleas of Guilty. The district court appointed conflict counsel, held a hearing, and denied the motion. Metzger appeals the order denying his motion to withdraw his guilty plea raising the following issues: (1) whether the trial court erred in denying his motion to withdraw his pleas on a record that fails to show they were entered knowingly, intelligently, and voluntarily; (2) whether the sentences imposed on Counts 4, 5, 6, and 7 are lawful; (3) whether the convictions and sentences for the same offense based on the same act in Counts 6 and 7 are unlawful in violation of his rights under the double jeopardy clauses of the United States and Oklahoma constitutions; (4) whether the trial court erred in denying his motion to withdraw his pleas on a record which did not support a valid determination of his competency at the time of the pleas; and (5) whether he was denied the effective assistance of counsel.

1. This Court has held that, [o]n certiorari review of a guilty plea, our review is limited to two inquiries: (1) whether the guilty plea was made knowingly and voluntarily; and (2) whether the district court accepting the guilty plea had jurisdiction to accept the plea. Cox v. State, 2006 OK CR 51, ¶ 4, 152 P.3d 244, 247, citing Frederick U. State, 1991 OK CR 56, ¶ 5, 811 P.2d 601, 603. Metzger was charged in Count 3 with Larceny of Automobile, punishable by three to twenty years imprisonment. 21 O.S.2011, § 1720. Metzger alleges that he was improperly advised that the range of punishment for this crime was two to twenty years imprisonment. The plea hearing was not transcribed but the Summary of Facts Form confirms Metzger’s claim, and the State acknowledges the mistake. Metzger asserts that because of this error his plea to Count 3 was not knowingly and voluntarily entered. It is true that prior to accepting a guilty plea the trial court must advise a defendant of the proper range of punishment for the relevant offense. Walters v. State, 1989 OK CR 43, ¶ 2, 778 P.2d 483, 484. It is, however, not error alone that reverses convictions, but error plus injury, and the burden is upon the appellant to establish that he was prejudiced in his substantial rights by the commission of error. See Grissom v. State, 2011 OK CR 3, ¶ 25, 253 P.3d 969, 979. Metzger did not enter his negotiated plea to this count in exchange for the minimum sentence but for a nine-year sentence. He has shown no prejudice as a result of being advised of the wrong minimum punishment on this count and is not entitled to relief as a result of this error.

Metzger was charged in Count 4 with driving under the influence of alcohol – second offense. The charging language, however, did not state that Metzger had committed a prior DUI as is required by 47 O.S.2011, § 11-902(C)(2) and Metzger did not provide a factual basis to support a felony DUI charge. The State concedes this error and agrees that because the charging language and record supported only a misdemeanor DUI, Metzger’s plea of guilty to felony DUI with the maximum sentence allowable for felony DUI, was not entered knowingly and voluntarily. Count 5 of the Information charged Metzger with the misdemeanor crime of eluding a police officer. The Summary of Facts Form did not state a range of punishment for the misdemeanor crime of eluding a police officer. Although the misdemeanor crime of eluding a police officer is punishable by not more than one year in the county jail, Metzger was sentenced to five years imprisonment which is the maximum time allowable for the felony of eluding a police officer. 21 O.S.2011, § 450A(A)&(B). Metzger complains that his plea to this count was not knowingly and voluntarily entered as he was not advised of the range of punishment for misdemeanor eluding a police officer when or before he entered his plea. The State concedes this error.

Metzger was charged in Counts 6 and 7 with violation of a protective order and in Count 8 with driving without a driver’s license. The record does not show that he was advised of the range of punishment for these crimes. Thus, Metzger asserts his plea to Counts 6, 7, and 8 was not entered knowingly and voluntarily. Again, the State concedes this error. As Metzger asserts and the State concedes, the Guilty Plea Summary of Facts form shows that he was not given accurate advice and information about the charges or about the correct range of punishment. Although this error caused no prejudice with regard to his guilty plea to Count 3, the same cannot be said for Counts 4-8. Because the record supports Metzger’s claim that he did not enter a knowing and voluntary plea to Counts 4-8, we grant Metzger’s Petition for Certiorari and allow him to withdraw his plea to these counts.

2. Metzger asserts in his second proposition that the sentences imposed on Counts 4, 5, 6, and 7 are illegal and he asks this Court to modify his illegal sentences if we do not grant his Petition for Writ of Certiorari with regard to these counts. Because we find that Metzger’s guilty plea to Counts 4-7 was not entered knowingly and voluntarily and that he should be allowed to withdraw his guilty plea to these counts, we need not address the error raised in this proposition.

3. Metzger was charged in Counts 6 and 7 with violation of a protective order. These two counts appear to charge him with violations of two separate Victim Protective Orders taken out against him by the same person at different times. The VPOs were alleged to have been violated by Metzger at the same place and on the same date by a single act. This, he asserts, violated both the constitutional prohibition against double jeopardy and the statutory prohibition against double punishment. Again, because we found that Metzger’s guilty plea to Counts 6 and 7 was not entered knowingly and voluntarily and that he should be allowed to withdraw his guilty plea to these counts, we need not address the error raised in this proposition.

4. The record is sufficient to support the conclusion that the trial court adequately established Metzger’s competency to enter his plea. Allen v. State, 1998 OK CR 25, ¶ 5, 956 P.2d 918, 919.

5. As noted above in our discussion of error raised in Proposition 1, Metzger’s guilty plea to Counts 4-8 was not knowingly and voluntarily entered. To the extent that Metzger was not given accurate advice and information about these charges or about the correct range of punishment allowed for these counts, plea hearing counsel rendered deficient performance. To the extent that plea withdrawal counsel did not properly raise this issue below, plea withdrawal counsel’s performance was also deficient. Because this deficient performance resulted in prejudice, Metzger received constitutionally ineffective assistance of counsel and relief is required. The State concedes this error and agrees that Metzger should be allowed to withdraw his guilty plea to Counts 4-8. 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.

DECISION

The Petition for a Writ of Certiorari is GRANTED IN PART AND DENIED IN PART. Writ of certiorari is DENIED as to Counts 1, 2, and 3 and it is GRANTED as to Counts 4, 5, 6, 7, and 8. 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. Cox v. State, 2006 OK CR 51, 4, 152 P.3d 244, 247, citing Frederick U. State, 1991 OK CR 56, 5, 811 P.2d 601, 603.
2. 2. Walters v. State, 1989 OK CR 43, 2, 778 P.2d 483, 484.
3. 3. Grissom v. State, 2011 OK CR 3, 25, 253 P.3d 969, 979.
4. 4. 47 O.S.2011, § 11-902(C)(2).
5. 5. 21 O.S.2011, § 450A(A)&(B).
6. 6. 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.
7. 7. Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 (2011) - First Degree Burglary
• Okla. Stat. tit. 21 § 1720 (2011) - Larceny of Automobile
• Okla. Stat. tit. 47 § 11-902 (Supp. 2013) - Driving Under the Influence of Alcohol - 2nd Offense
• Okla. Stat. tit. 21 § 540A (2011) - Eluding a Police Officer
• Okla. Stat. tit. 22 § 60.6 (2011) - Violation of Protective Order
• Okla. Stat. tit. 47 § 6-303 (2011) - Driving Without a Driver's License
• Okla. Stat. tit. 47 § 11-902 (2011) - Driving Under the Influence of Alcohol - 2nd Offense
• Okla. Stat. tit. 21 § 450A (2011) - Eluding a Police Officer

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, I 4, 152 P.3d 244, 247
• Frederick v. State, 1991 OK CR 56, I 5, 811 P.2d 601, 603
• Walters v. State, 1989 OK CR 43, I 2, 778 P.2d 483, 484
• Grissom v. State, 2011 OK CR 3, I 25, 253 P.3d 969, 979
• Allen v. State, 1998 OK CR 25, I 5, 956 P.2d 918, 919
• 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, I 14, 293 P.3d 198, 206