Blog

C-2015-573

  • Post author:
  • Post category:C

Jeremy Ross Wilson v The State Of Oklahoma

C-2015-573

Filed: Sep. 22, 2016

Not for publication

Prevailing Party: Jeremy Ross Wilson

Summary

Jeremy Ross Wilson appealed his conviction for Escape from the Department of Corrections. His original conviction and sentence were for fifteen years in prison, with eight years to be served and the rest suspended, along with fines. The court decided his punishment was too harsh and reduced it to seven years in prison with conditions afterwards. Judge Lewis disagreed with this decision and felt that the law did not allow for such an enhancement of his sentence.

Decision

Accordingly, the trial court's order denying Petitioner's Motion to Withdraw Plea is AFFIRMED but Petitioner's sentence is MODIFIED to imprisonment for seven (7) years, post-imprisonment supervision for twelve (12) months, a fine in the amount of $500.00, a $100.00 Victim's Compensation Assessment, a $250.00 Appointed Attorney Assessment, and all court costs. This matter is remanded to the District Court for entry of Judgment and Sentence consistent with the Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there an improper use of prior felony convictions for enhancing Petitioner's sentence?
  • Did the practice of using ineligible felony convictions for both charging and enhancement violate statutory guidelines?
  • Was Petitioner's sentence beyond the maximum allowable punishment for the offense of Escape from the Department of Corrections?
  • Did Petitioner receive ineffective assistance of counsel during the plea and sentencing hearings?
  • Did the failure of defense counsel to challenge the State's use of prior felony convictions constitute a violation of Petitioner’s rights?

Findings

  • the court affirmed the denial of Petitioner's motion to withdraw plea.
  • the court modified Petitioner's sentence to imprisonment for seven (7) years.
  • the court found that defense counsel's performance was constitutionally deficient.
  • the court found that there was a reasonable probability that the outcome would have been different had defense counsel challenged the State's use of the prior felony convictions for enhancement purposes.
  • the court concluded that the State's use of ineligible former felony convictions to enhance Petitioner's sentence constituted error.

C-2015-573

Sep. 22, 2016

Jeremy Ross Wilson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING RELIEF

LUMPKIN, VICE PRESIDING JUDGE:
Petitioner, Jeremy Ross Wilson, was charged by Information in the District Court of Tillman County, Case No. CF-2014-90, with Escape from the Department of Corrections (21 O.S.2011, § 433(B)), After Former Conviction of Two or More Felonies. On April 10, 2015, Petitioner entered a negotiated guilty plea before the Honorable Richard B. Darby, District Judge. The District Court accepted Petitioner’s plea and sentenced him to imprisonment for fifteen (15) years with all but the first eight (8) years suspended, a fine in the amount of $500.00, a $100.00 Victim’s Compensation Assessment, a $250.00 Appointed Attorney Assessment, and all court costs. The District Court further ordered that Petitioner’s sentence run consecutively with the sentences for his Garfield County convictions and required Petitioner to serve twelve (12) months supervised release.

The District Court granted the State’s written application requesting waiver of the prohibition against suspended sentences for defendants sentenced for their third or subsequent felony conviction pursuant to 22 O.S.2011, § 991a(C). On April 17, 2015, Petitioner filed his Motion to Withdraw Plea of Guilty. On May 1, 2015, the District Court appointed conflict counsel for Petitioner. On June 11, 2015, the District Court held a hearing and denied Petitioner’s motion. Petitioner timely filed his Notice of Intent to Appeal seeking to appeal the denial of his motion to withdraw plea. It is that denial which is the subject of this appeal.

At this Court’s direction, the State filed a response to Petitioner’s claims on February 17, 2016. After thorough consideration of the propositions and the entire record before us on appeal, including the original record, transcripts, and the briefs, we find that Petitioner’s sentence should be modified.

FACTS
Petitioner was an inmate at the Frederick Community Work Center. On December 20, 2014, he escaped from this facility. Law enforcement officials could not locate him within the vicinity. On or about February 2, 2015, peace officers in Dallas County, Texas arrested Petitioner. Upon his extradition to Oklahoma, this prosecution followed. The State’s charging instrument was flawed as it duplicated the use of Petitioner’s former felony convictions. The State alleged that Petitioner had been imprisoned in the Department of Corrections in District Court of Grant County Case No. CF-2012-42 and District Court of Garfield Case Nos. CF-2012-13, CF-2012-386, CF-2012-692 and CF-2013-107. The State further alleged these same felony convictions as the basis for enhancement of punishment in the Supplemental Information.

DISCUSSION
Our primary concern in evaluating the validity of a guilty plea is whether the plea was entered voluntarily and intelligently. Tate v. State, 2013 OK CR 18, I 15, 313 P.3d 274, 280, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969); Ocampo v. State, 1989 OK CR 38, I 3, 78 P.2d 920, 921. The decision to allow the withdrawal of a plea is within the sound discretion of the trial court and we will not interfere unless we find an abuse of discretion. Carpenter v. State, 1996 OK CR 56, 9 40, 929 P.2d 988, 998.

In Proposition One, Petitioner challenges the validity of his sentence. He argues that the State’s use of the five prior felony convictions alleged in the Supplemental Information was improper pursuant to 21 O.S.2011, § 443(D) because he was serving the sentences for those five felony convictions at the time of his escape. Petitioner asserts that the correct range of punishment for his crime was imprisonment for not less than two (2) years nor more than seven (7) years. He urges this Court to grant sentencing relief based upon the fact that his sentence exceeded the maximum punishment available for the crime.

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. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (2015). All errors of law urged as having been committed during the plea proceedings must be included in the petition for writ of certiorari. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (2015). As Petitioner did not raise the present claim in his motion to withdraw plea or at the hearing held on his motion, we find that he has waived appellate review of the issue. Weeks v. State, 2015 OK CR 16, I 27, 362 P.3d 650, 657; Bush v. State, 2012 OK CR 9, IT 28, 280 P.3d 337, 345; Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355. Proposition One is denied.

In Proposition Two, Petitioner contends that he received ineffective assistance of counsel. He claims that counsel rendered ineffective assistance at the plea and sentencing hearings when counsel failed to assert that the negotiated sentence exceeded the maximum punishment available for the crime as outlined in Proposition One. Because Petitioner failed to raise his claim of ineffective assistance of plea counsel in his motion to withdraw plea or at the hearing held on his motion we find that he has waived appellate review of the issue. Weeks, 2015 OK CR 16, I 27, 362 P.3d at 657.

Petitioner seeks to overcome the bar to this Court’s review of his other claims by asserting that he received ineffective assistance of counsel at the hearing held on his motion to withdraw. This Court has recognized that a criminal defendant is entitled to the effective assistance of counsel at the hearing on a motion to withdraw a guilty plea. Carey V. State, 1995 OK CR 55, I 5, 902 P.2d 1116, 1117; Randall v. State, 1993 OK CR 47, I 7, 861 P.2d 314, 316. As it is generally the petitioner’s first opportunity to allege and argue the issue, a claim of ineffective assistance of counsel at the hearing held on a motion to withdraw plea may be raised for the first time in a certiorari appeal. See Carey, 1995 OK CR 55, I 10, 902 P.2d at 1118 (considering claim of ineffective assistance of withdrawal counsel raised for the first time in certiorari appeal). Therefore, we review Petitioner’s ineffective assistance of withdrawal counsel claim raised for the first time in his certiorari appeal.

This Court reviews claims of ineffective assistance under the two-part test mandated by the United States Supreme Court in 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. The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Malone, 2013 OK CR 1, I 14, 293 P.3d at 206.

Applying this analysis to the present case, we conclude that Petitioner has shown that he received ineffective assistance of counsel under Strickland. It is well established that the State is prohibited from using a prior felony conviction as both an element of an offense and as enhancement of punishment of that same offense. Kinchion v. State, 2003 OK CR 28, I 18, 81 P.3d 681, 686; Ruth v. State, 1998 OK CR 50, II 7-8, 966 P.2d 799, 800; Chapple v. State, 1993 OK CR 38, 11 17-23, 866 P.2d 1213, 1216-17. In Chester v. State, 1971 OK CR 233, I’ 6-7, 485 P.2d 1065, 1068, this Court determined that the Habitual Criminal Statute, 21 O.S.Supp. 1970, § 51, did not apply to the offense of Escape from the Custody of the Department of Corrections, as set forth in 21 O.S. 1981, § 443, because a former felony is implicit in the offense.

In 1988 the Legislature amended Section 443 to allow Section 51 to be used to enhance punishment for the offense of Escape from the Custody of the Department of Corrections if there are offenses in excess of the threshold conviction needed to bring the charge. Snyder v. State, 1989 OK CR 81, I 4, 806 P.2d 652, 654.

In Ruth v. State, 1998 OK CR 50, TT 13-14, 966 P.2d 799, 800, this Court expanded the rule announced in Snyder to all felonies that require proof of a prior conviction. We held that if an offense requires proof of a prior conviction, that prior conviction may not be used to enhance punishment. Id., 1998 OK CR 50, I 14, 966 P.2d at 800.

When a district attorney or assistant district attorney affixes their signature to an Information they are certifying under oath the appropriateness of the charges. Buis v. State, 1990 OK CR 28, 792 P.2d 427, 430-31; 22 O.S.2011, § 303. The age old adage is that pleading is an art. Prosecutors across our fair state should endeavor to refine their skill in this craft. Not only does the Information in a criminal case commonly afford notice to the accused but the elections made within the pleading may greatly impact the State’s case.

The State has the power to elect how to utilize prior convictions. Kinchion, 2003 OK CR 28, I 18, 81 P.3d at 686 (holding State could use single prior conviction as element of offense in Count 5 and to enhance sentences in Counts 1 and 3). It may allege as many prior convictions as it deems necessary to prove the predicate prior felony conviction. Levering v. State, 2013 OK CR 19, I 7, 315 P.3d 392, 395 (recognizing it is not unusual for State to allege multiple prior convictions to establish requisite fact). However, prior felony convictions cannot be used as both an element of an offense and for enhancement of punishment for that same offense. Kinchion, 2003 OK CR 28, I 18, 81 P.3d at 686.

Thus, the State must choose which prior felony conviction or convictions it will rely upon to establish the predicate felony offense. It must also separately choose which, if any, prior felony convictions it will utilize for the purposes of sentence enhancement. In the present case, the State alleged that Petitioner had five felony convictions. The State could have utilized one of the prior felony convictions as the predicate felony offense and used the other four convictions to enhance punishment under the Habitual Criminal Statute, 21 O.S.2011, § 51.1. However, the State did not make this election. Instead, the State alleged all five of Petitioner’s prior felony convictions as both the predicate felony within the Information and as the basis for enhancement of punishment in the Supplemental Information. The State’s decision to charge all five of the prior felony convictions as the predicate of the offense rendered those convictions ineligible to enhance Petitioner’s sentence.

The State’s use of those same prior felony convictions in the Supplemental Information constituted error. The statutory range of punishment for the offense of Escape from the Department of Corrections is imprisonment for not less than two (2) years nor more than seven (7) years. 21 O.S.2011, § 433(B). Relying upon the ineligible felony convictions, the District Court found Petitioner had committed the charged offense after two or more felony convictions and assessed punishment under the enhanced sentencing range. The District Court sentenced Petitioner to imprisonment for fifteen (15) years with all but the first eight (8) years suspended.

In light of the State’s use of ineligible former felony convictions to enhance Petitioner’s sentence, we find that defense counsel’s performance was unreasonable under prevailing professional norms. Malone, 2013 OK CR 1, I 15, 293 P.3d at 206. Defense counsel’s failure to challenge the State’s duplicative use of the felony convictions in the present case did not fall within the wide range of reasonable professional assistance. Id.

We further find that there is a reasonable probability that the outcome of the proceeding would have been different had defense counsel challenged the State’s use of the prior felony convictions for enhancement purposes. Id., 2013 OK CR 1, I 16, 293 P.3d at 207. The State’s pleading was duplicative and deceptive. Because the ineligible felony convictions led the District Court to impose a sentence beyond that authorized by law, it is clear that the error in this case affected Petitioner’s substantial rights. Scott v. State, 1991 OK CR 31, I 17, 808 P.2d 73, 77 (holding relief necessary and proper where defendant sentenced beyond maximum allowable sentence). Thus, we find that defense counsel’s deficient performance prejudiced Petitioner in this case.

Petitioner is entitled to relief. Petitioner solely challenges his sentence. The record establishes that he voluntarily and intelligently entered his plea. Therefore, we find that his sentence should be modified to imprisonment for seven (7) years, post-imprisonment supervision for twelve (12) months, a fine in the amount of $500.00, a $100.00 Victim’s Compensation Assessment, a $250.00 Appointed Attorney Assessment, and all court costs.

DECISION

Accordingly, the trial court’s order denying Petitioner’s Motion to Withdraw Plea is AFFIRMED but Petitioner’s sentence is MODIFIED to imprisonment for seven (7) years, post-imprisonment supervision for twelve (12) months, a fine in the amount of $500.00, a $100.00 Victim’s Compensation Assessment, a $250.00 Appointed Attorney Assessment, and all court costs. This matter is remanded to the District Court for entry of Judgment and Sentence consistent with the Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

  1. Okla. Stat. tit. 21 § 433(B)
  2. Okla. Stat. tit. 22 § 991a(C)
  3. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (2015)
  4. Weeks v. State, 2015 OK CR 16, I 27, 362 P.3d 650, 657
  5. Bush v. State, 2012 OK CR 9, IT 28, 280 P.3d 337, 345
  6. Walker v. State, 1998 OK CR 14, "I 3, 953 P.2d 354, 355
  7. Tate v. State, 2013 OK CR 18, I 15, 313 P.3d 274, 280
  8. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969)
  9. Ocampo v. State, 1989 OK CR 38, "I 3, 78 P.2d 920, 921
  10. Carpenter v. State, 1996 OK CR 56, 9 40, 929 P.2d 988, 998
  11. Kinchion v. State, 2003 OK CR 28, I 18, 81 P.3d 681, 686
  12. Ruth v. State, 1998 OK CR 50, II 7-8, 966 P.2d 799, 800
  13. Chapple v. State, 1993 OK CR 38, 11 17-23, 866 P.2d 1213, 1216-17
  14. Snyder v. State, 1989 OK CR 81, I 4, 806 P.2d 652, 654
  15. Scott v. State, 1991 OK CR 31, I 17, 808 P.2d 73, 77
  16. Buis v. State, 1990 OK CR 28, 792 P.2d 427, 430-31
  17. 22 O.S.2011, § 303
  18. Parker v. State, 1996 OK CR 19, II 19, 917 P.2d 980, 985
  19. Mayhan v. State, 1985 OK CR 32, I 5, 696 P.2d 1044, 1045
  20. 20 O.S.2011, § 3001.1
  21. 22 O.S.2011, § 410
  22. Martley v. State, 1974 OK CR 34, IT 15, 519 P.2d 544, 547
  23. Cotton v. State, 1922 OK CR 114, 22 Okl.Cr. 252, 260, 210 P. 739, 741

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 433(B) - Escape from the Department of Corrections
  • Okla. Stat. tit. 22 § 991a(C) - Waiver of prohibition against suspended sentences for certain felons
  • Okla. Stat. tit. 21 § 443(D) - Enhancement of punishment for escape
  • Okla. Stat. tit. 22 § 303 - Certification of charges in Information
  • Okla. Stat. tit. 21 § 51.1 - Habitual Criminal Statute
  • Okla. Stat. tit. 20 § 3001.1 - Error in pleading or procedure
  • Okla. Stat. tit. 22 § 410 - Insufficiency of information

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
  • Tate v. State, 2013 OK CR 18, I 15, 313 P.3d 274, 280
  • Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274
  • Ocampo v. State, 1989 OK CR 38, "I 3, 78 P.2d 920, 921
  • Carpenter v. State, 1996 OK CR 56, 9 40, 929 P.2d 988, 998
  • Weeks v. State, 2015 OK CR 16, I 27, 362 P.3d 650, 657
  • Bush v. State, 2012 OK CR 9, IT 28, 280 P.3d 337, 345
  • Walker v. State, 1998 OK CR 14, "I 3, 953 P.2d 354, 355
  • Carey v. State, 1995 OK CR 55, I 5, 902 P.2d 1116, 1117
  • Randall v. State, 1993 OK CR 47, I 7, 861 P.2d 314, 316
  • Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
  • Kinchion v. State, 2003 OK CR 28, I 18, 81 P.3d 681, 686
  • Ruth v. State, 1998 OK CR 50, II 7-8, 966 P.2d 799, 800
  • Chapple v. State, 1993 OK CR 38, 11 17-23, 866 P.2d 1213, 1216-17
  • Chester v. State, 1971 OK CR 233, I' 6-7, 485 P.2d 1065, 1068
  • Snyder v. State, 1989 OK CR 81, I 4, 806 P.2d 652, 654.2
  • Scott v. State, 1991 OK CR 31, I 17, 808 P.2d 73, 77
  • Buis v. State, 1990 OK CR 28, 792 P.2d 427, 430-31
  • Parker v. State, 1996 OK CR 19, II 19, 917 P.2d 980, 985
  • Mayhan v. State, 1985 OK CR 32, I 5, 696 P.2d 1044, 1045
  • Levering v. State, 2013 OK CR 19, I 7, 315 P.3d 392, 395
  • State v. Farthing, 2014 OK CR 4, "I 5, 328 P.3d 1208, 1210
  • King v. State, 2008 OK CR 13, I 7, 182 P.3d 842, 844
  • Sweden v. State, 1946 OK CR 81, 83 Okl.Cr. 1, 6, 172 P.2d 432, 435
  • Martley v. State, 1974 OK CR 34, IT 15, 519 P.2d 544, 547
  • Cotton v. State, 1922 OK CR 114, 22 Okl.Cr. 252, 260, 210 P. 739, 741

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,