Cory James Leon Whiteside v The State of Oklahoma

C-2014-854

Filed: Oct. 6, 2015

Not for publication

Prevailing Party: Cory James Leon Whiteside

Summary

Cory James Leon Whiteside appealed his conviction for Domestic Assault and Battery in the Presence of a Minor and Domestic Abuse - Assault and Battery. His convictions led to a sentence of two years in jail, which he was originally given on October 6, 2015. A judge later denied his request to change his guilty plea to not guilty. The Court of Criminal Appeals agreed with Whiteside that he did not understand his right to have a lawyer help him, and they ruled that he should be allowed to withdraw his guilty pleas. No justices disagreed with this decision.

Decision

Cory James Leon Whiteside's Petition for Certiorari is GRANTED and the case is REMANDED to allow Whiteside to withdraw his pleas. 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 a knowing, voluntary, and intelligent waiver of the right to counsel by the petitioner?
• Did the District Court err in not allowing the petitioner to withdraw his pleas?

Findings

• the court erred in finding that the petitioner knowingly and voluntarily waived his right to counsel
• Proposition II is moot
• the Petition for Certiorari is granted and the case is remanded to allow the petitioner to withdraw his pleas

C-2014-854

Oct. 6, 2015

Cory James Leon Whiteside

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI

MICHAEL S. RICHIE SMITH, PRESIDING JUDGE:

Cory Whiteside, proceeding pro se, pled guilty to Count I, Domestic Assault and Battery in the Presence of Minor (Misdemeanor) in violation of 21 O.S.2011, § 644(G), and Count II, Domestic Abuse – Assault and Battery (Misdemeanor) in violation of 21 O.S.2011, § 644(C) in the District Court of Washita County, Case No. CM-2014-127. The Honorable Christopher S. Kelly sentenced Whiteside to one (1) year in the Washita County Jail, with credit for time served (Count I); and a consecutive sentence of one (1) year in the Washita County Jail (Count II), with a $100 fine. On the same day of the plea and sentencing, Whiteside wrote a request to change his plea from guilty to not guilty, which was treated as a motion to withdraw his plea. The motion was denied after a September 23, 2014 hearing. Whiteside filed this Petition for Writ of Certiorari from the district court’s ruling.

Whiteside raises two propositions of error in support of his petition:

I. The record fails to show that Petitioner’s pro se representation was the result of a knowing, voluntary, and intelligent waiver of the right to counsel made following a proper inquiry by the court into Mr. Whiteside’s ability to represent himself and an advisement of the dangers of self-representation.

II. The District Court erred in not allowing Mr. Whiteside to withdraw his pleas which were entered as a result of ignorance, misunderstanding, misapprehension, and without deliberation as the result of unseemly haste.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits, and briefs, we find that Proposition I requires relief. We find that Whiteside did not knowingly and voluntarily waive his right to counsel. At this Court’s request the State filed a response brief on September 3, 2015. In that brief, the State concedes the merit of Proposition I. The waiver of the right to counsel claim was not raised in the motion to withdraw, so we review for plain error. Lewis v. State, 2009 OK CR 30, I 4, 220 P.3d 1140, 1142. 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. Because the right to counsel is a constitutional claim, we look to see whether the error did not contribute to the verdict beyond a reasonable doubt. Barnard, 2012 OK CR 15, II 14, 290 P.3d at 764.

There is no record showing that Whiteside’s waiver of the right to counsel was knowing and voluntary. There is also no record showing that Whiteside was advised on the dangers of pro se representation. [A]n affirmative waiver of counsel by the defendant must be made a matter of record. King v. State, 1976 OK CR 103, I 11, 553 P.2d 529, 534. A record showing an intelligent, competent and knowing waiver of a fundamental right is mandatory. Anything less is not a waiver. Hinsley v. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355. To determine if there has been a valid waiver of the right to counsel, the total circumstances of the individual case must be considered, which includes the background, experience, and conduct of the defendant. See United States v. Warledo, 557 F.2d 721, 727 (10th Cir. 1977).

There is no record showing that the trial court clearly determined whether Whiteside knowingly and intelligently waived his right to counsel. Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The record also does not show that Whiteside was advised of the disadvantages involved with self-representation such as the lack of knowledge and skill as to rules of evidence, procedure, and criminal law. Braun v. State, 1995 OK CR 42, I 10, 909 P.2d 783, 787. Anything less than a record which shows that the defendant rejected the offer of counsel with knowledge and understanding of the perils of self-representation is not waiver. Braun, 1995 OK CR 42, I 10, 909 P.2d at 787.

The absence of a record addressing a defendant’s waiver of his right to counsel is an actual error that is plain and obvious. As the State recognizes, we cannot find that this error did not contribute to the verdict beyond a reasonable doubt. Barnard, 2012 OK CR 15, II 14, 290 P.3d at 764. This proposition is granted. Given our resolution of Proposition I, Proposition II is moot.

DECISION

Cory James Leon Whiteside’s Petition for Certiorari is GRANTED and the case is REMANDED to allow Whiteside to withdraw his pleas. 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.

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Footnotes:

1. 21 O.S.2011, § 644(G)
2. 21 O.S.2011, § 644(C)
3. Lewis v. State, 2009 OK CR 30, ¶ 4, 220 P.3d 1140, 1142.
4. Barnard v. State, 2012 OK CR 15, ¶ 13, 290 P.3d 759, 764.
5. King v. State, 1976 OK CR 103, ¶ 11, 553 P.2d 529, 534.
6. Hinsley v. State, 2012 OK CR 11, ¶ 5, 280 P.3d 354, 355.
7. United States v. Warledo, 557 F.2d 721, 727 (10th Cir. 1977).
8. Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
9. Braun v. State, 1995 OK CR 42, ¶ 10, 909 P.2d 783, 787.
10. Barnard, 2012 OK CR 15, ¶ 14, 290 P.3d at 764.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 644(G) - Domestic Assault and Battery in the Presence of Minor
• Okla. Stat. tit. 21 § 644(C) - Domestic Abuse - Assault and Battery
• Okla. Stat. tit. 22 § 3.15 - Mandate Rules

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Lewis v. State, 2009 OK CR 30, I 4, 220 P.3d 1140, 1142
• Barnard v. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764
• King v. State, 1976 OK CR 103, I 11, 553 P.2d 529, 534
• Hinsley v. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355
• United States v. Warledo, 557 F.2d 721, 727 (10th Cir. 1977)
• Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)
• Braun v. State, 1995 OK CR 42, I 10, 909 P.2d 783, 787