Pete Wolfe v The State Of Oklahoma

C-2015-1063

Filed: Sep. 29, 2016

Not for publication

Prevailing Party: Pete Wolfe

Summary

Pete Wolfe appealed his conviction for multiple crimes, including attempted robbery and assault. His conviction and sentence included life imprisonment and several long prison terms for other charges. The court found that Wolfe's original plea was knowing and voluntary, but there were issues with his counsel's performance that affected his case. Wolfe argued that he did not get proper advice from his lawyer and that his lawyer had a conflict of interest during the plea withdrawal hearing. The court agreed to review Wolfe's case and decided that he did not receive the fair representation he deserved. They ordered that a new lawyer be appointed to help Wolfe, so he could properly challenge his plea. Judge Robert L. Hudson dissented from this opinion.

Decision

We therefore grant the writ of certiorari and remand this case for the appointment of new counsel, and direct the trial court to afford Petitioner and new counsel an opportunity to file, within twenty (20) days of this order, a motion setting forth all available legal and factual grounds supporting withdrawal of the guilty plea. We further direct the trial court to conduct an evidentiary hearing on the motion within thirty (30) days of its filing, as required by Rule 4.2(B), Rules of the Court of Criminal Appeals. If the motion to withdraw the plea is denied, counsel for the Petitioner shall thereafter timely comply with this Court's Rule 4.2(D) and all other rules for initiating an appeal from any order denying relief in the court below. No matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea, which must accompany the records filed with this Court. Rule 4.2(B). IT IS so ORDERED

Issues

• Was there a conflict of interest with Petitioner's counsel during the motion to withdraw plea hearing?
• Did the sentences imposed on Petitioner constitute shockingly excessive punishment?

Findings

• the court erred in denying the motion to withdraw the guilty plea due to conflict of interest of plea counsel
• the court ordered a remand for further proceedings on the motion to withdraw the guilty plea

C-2015-1063

Sep. 29, 2016

Pete Wolfe

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ORDER GRANTING WRIT OF CERTIORARI AND REMANDING FOR FURTHER PROCEEDINGS

On September 21, 2015, Petitioner, Pete Wolfe, represented by counsel, entered blind pleas of nolo contendere in the District Court of Delaware County as follows:

Case No. CF-2013-244
Count 1, attempted robbery with a dangerous weapon, in violation of 21 O.S.2011, § 801, after former conviction of two (2) or more felonies;

Case No. CF-2014-9
Count 1, assault and battery with a dangerous weapon, in violation of 21 O.S.2011, § 645, after former conviction of two (2) or more felonies;
Count 2, assault and battery with a dangerous weapon, in violation of 21 O.S.2011, § 645, after former conviction of two (2) or more felonies;
Count 3, inmate in possession of a weapon, in violation of 57 O.S.2011, § 21(B), after former conviction of two (2) or more felonies;

Case No. CF-2014-37
Count 1, escape from county jail, in violation of 21 O.S.2011, § 443(A), after former conviction of two (2) or more felonies;
Count 2, malicious injury to state property, in violation of 21 O.S.2011, § 1760(A)(2), after former conviction of two (2) or more felonies.

The Honorable Robert G. Haney, District Judge, found that the pleas were knowing and voluntary and Petitioner was guilty as charged, ordered a pre-sentence investigation, and set the matter for sentencing.

On November 4, 2015, the court conducted a hearing, received the pre-sentence investigation and additional testimony, and heard argument from the parties. The court thereafter sentenced Petitioner as follows:

Case No. CF-2013-244
Count 1, life imprisonment, and restitution of $282.00;

Case No. CF-2014-9
Count 1, twenty (20) years imprisonment, consecutive to Case No. CF-2013-244;
Count 2, twenty (20) years imprisonment, concurrent to Count 1 and consecutive to Case No. CF-2013-244;
Count 3, twenty (20) years imprisonment, concurrent to Count 1 and consecutive to Case No. CF-2013-244;

Case No. CF-2014-37
Count 1, twenty (20) years imprisonment, consecutive to Case No. CF-2013-244 and Case No. CF-2014-9;
Count 2, fifteen (15) years imprisonment, concurrent to Count 1 and consecutive to Case No. CF-2013-244 and Case No. CF-2014-9, and restitution of $1,680.00.

Plea counsel subsequently filed a timely motion to withdraw the guilty plea, alleging the plea was entered inadvertently, without due deliberation and in ignorance without [sic] the defendant’s ability to truly understand the consequences [sic] of a blind plea and the ramifications of the Pre-Sentence Report would have on his sentence. After a November 13, 2015, hearing, the trial court denied the motion to withdraw the plea.

Petitioner filed a timely notice of appeal from the district court’s ruling and now seeks issuance of the writ of certiorari vacating the judgments and sentences, raising two (2) propositions of error:

1. Because Petitioner raised an issue in the motion to withdraw plea hearing arising from his counsel’s advice on accepting the State’s plea offer, defense counsel had a conflict of interest and should have asked the trial court to appoint separate counsel to conduct the hearing on the motion to withdraw plea.

2. Under the facts and circumstances, the sentences imposed are shockingly excessive.

We ordinarily review the denial of a motion to withdraw a guilty plea for abuse of discretion, addressing only two questions: (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, ¶ 18, 152 P.3d 244, 251. The standard for a valid guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Hopkins v. State, 1988 OK CR 257, ¶ 2, 764 P.2d 215, 216 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)).

We grant the writ of certiorari, in part, and remand for additional proceedings. A motion to withdraw a guilty plea, and the evidentiary hearing required on the motion by Rule 4.2, Rules of the Court of Criminal Appeals, 22 O.S.Supp.2015, Ch. 18, App., are critical stages of criminal prosecution which invoke a defendant’s right to effective, conflict-free counsel. Randall v. State, 1993 OK CR 47, ¶ 7, 861 P.2d 314; Carey v. State, 1995 OK CR 55, ¶ 8, 902 P.2d 1116, 1118.

Petitioner was not represented by conflict-free counsel in the brief evidentiary hearing on his motion to withdraw the plea. Petitioner’s testimony at the hearing raised questions of plea counsel’s allegedly ineffective failure to properly advise Petitioner concerning the nature and consequences of the blind plea. Plea counsel’s representation in this hearing was materially limited by her conflict of interest, most clearly evidenced by a direct examination of Petitioner that was, at least in part, oriented to protect [counsel’s] interests rather than to establish [the facts supporting Petitioner’s] motion to withdraw the guilty plea. Carey, 1995 OK CR 55, ¶ 7, 902 P.2d at 1118.

An attorney zealously representing Petitioner’s interests might have called plea counsel as a (potentially hostile) witness, rather than openly disputing Petitioner’s sworn testimony concerning her advice, as counsel did here. At critical points in the evidentiary hearing, plea counsel clearly acted as Petitioner’s adversary, contrary to his Sixth Amendment rights.

We therefore grant the writ of certiorari and remand this case for the appointment of new counsel, and direct the trial court to afford Petitioner and new counsel an opportunity to file, within twenty (20) days of this order, a motion setting forth all available legal and factual grounds supporting withdrawal of the guilty plea. We further direct the trial court to conduct an evidentiary hearing on the motion within thirty (30) days of its filing, as required by Rule 4.2(B), Rules of the Court of Criminal Appeals. If the motion to withdraw the plea is denied, counsel for the Petitioner shall thereafter timely comply with this Court’s Rule 4.2(D) and all other rules for initiating an appeal from any order denying relief in the court below. No matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea, which must accompany the records filed with this Court. Rule 4.2(B).

IT IS so ORDERED THIS 29th DAY OF September, 2016.

CLANCY SMITH, PRESIDING JUDGE
GARY L. LUMPKIN, VICE-PRESIDING JUDGE
ARLENE JOHNSON, JUDGE
DAVID B. LEWIS, JUDGE
ROBERT L. HUDSON, JUDGE

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Footnotes:

1. 21 O.S.2011, § 801
2. 21 O.S.2011, § 645
3. 57 O.S.2011, § 21(B)
4. 21 O.S.2011, § 443(A)
5. 21 O.S.2011, § 1760(A)(2)
6. Cox U. State, 2006 OK CR 51, I 18, 152 P.3d 244, 251
7. Hopkins U. State, 1988 OK CR 257, "I 2, 764 P.2d 215, 216
8. Randall U. State, 1993 OK CR 47, I 7, 861 P.2d 314
9. Carey U. State, 1995 OK CR 55, IT 8, 902 P.2d 1116, 1118

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2011) - Attempted robbery with a dangerous weapon
• Okla. Stat. tit. 21 § 645 (2011) - Assault and battery with a dangerous weapon
• Okla. Stat. tit. 57 § 21(B) (2011) - Inmate in possession of a weapon
• Okla. Stat. tit. 21 § 443(A) (2011) - Escape from county jail
• Okla. Stat. tit. 21 § 1760(A)(2) (2011) - Malicious injury to state property
• Okla. Stat. tit. 22 § 4.2 (2015) - Rules regarding the motion to withdraw a guilty plea

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:

No case citations found.