Teresa Lorena Altobella v State Of Oklahoma

C-2017-567

Filed: Dec. 27, 2018

Not for publication

Prevailing Party: Teresa Lorena Altobella

Summary

Teresa Lorena Altobella appealed her conviction for harboring a fugitive from justice. Conviction and sentence were reversed. Judge Lewis dissented.

Decision

The Petition for Writ of Certiorari is GRANTED IN PART. The order of the district court denying Petitioner's motion to withdraw guilty plea is REVERSED and the case REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a denial of the petitioner's constitutional right to counsel during critical stages of the criminal proceedings against her?
• Did the trial court abuse its discretion in denying the petitioner's motion to withdraw her plea based on it not being knowingly, intelligently, and voluntarily entered?
• Was the petitioner's sentence excessive and did it shock the conscience of the court?

Findings

• the court erred in denying petitioner's constitutional right to counsel during critical stages of the criminal proceedings
• the trial court’s denial of petitioner's motion to withdraw her plea was reversed and remanded for further proceedings
• the remaining propositions of error were rendered moot

C-2017-567

Dec. 27, 2018

Teresa Lorena Altobella

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI

HUDSON, JUDGE: Petitioner, Teresa Lorena Altobella, was charged in Woods County District Court, Case No. CF-2016-103, with Harboring a Fugitive from Justice in violation of 21 O.S.2011, § 440. Altobella, represented by court-appointed counsel, entered a negotiated guilty plea to the charge on April 13, 2017, before the Honorable Mickey J. Hadwiger, Associate District Judge. In accordance with the plea agreement, Judge Hadwiger sentenced Altobella to five (5) years imprisonment, to be suspended subject to successful completion of the Community Sentencing program, a $500.00 fine, and 500 hours of community service. Judge Hadwiger further imposed various costs and fees.

On April 22, 2017, Altobella sent a letter to the court seeking to withdraw her guilty plea. The document was filed in the District Court on April 24, 2017, and accepted as a pro se motion to withdraw her plea. A hearing on Altobella’s motion to withdraw was ultimately held on May 24, 2017. Altobella appeared without legal counsel for the hearing and proceeded pro se. After hearing argument from both parties, Judge Hadwiger denied the motion.

Altobella now seeks a writ of certiorari alleging three propositions of error:

I. PETITIONER WAS DENIED HER CONSTITUTIONAL RIGHT TO COUNSEL DURING CRITICAL STAGES OF THE CRIMINAL PROCEEDINGS AGAINST HER;

II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PETITIONER’S MOTION TO WITHDRAW HER PLEA BECAUSE IT WAS NOT KNOWING, INTELLIGENTLY, AND VOLUNTARILY ENTERED; and

III. PETITIONER’S SENTENCE IS EXCESSIVE AND SHOULD SHOCK THE CONSCIENCE OF THIS COURT.

We need only address Altobella’s first proposition of error as we find she was improperly denied her right to the assistance of counsel at the hearing on her motion to withdraw guilty plea. Both the application to withdraw guilty plea and the evidentiary hearing are necessary and critical steps in perfecting a certiorari appeal to this Court. Randall v. State, 1993 OK CR 47, ¶ 5, 861 P.2d 314, 316; Rule 4.2(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018). See also Dunn v. State, 2018 OK CR 35, ¶ 8, P.3d . Thus, a defendant is entitled to the assistance of counsel for each of these critical steps. Randall, 1993 OK CR 47, ¶¶ 5-7, 861 P.2d at 316. While the right to counsel may be waived if it is done knowingly and voluntarily, waiver will not be lightly presumed and the Court must indulge every reasonable presumption against waiver. Norton v. State, 2002 OK CR 10, ¶ 7, 43 P.3d 404, 407. The circumstances presented in Altobella’s case are insufficient to overcome the strong presumption against finding Altobella waived her right to counsel.

A hearing on Altobella’s pro se motion was originally scheduled for May 15, 2017. She appeared without legal counsel for the hearing on that date. She advised the court that her attempts to obtain assistance from her court-appointed plea counsel for the hearing had been unsuccessful. The trial court advised Altobella that plea counsel’s duty to represent [her] terminated once the Judgement and Sentence was entered. Altobella ultimately requested that she be appointed legal representation to assist with her motion to withdraw. Despite having been previously found indigent and entitled to appointed representation, the trial court instructed Altobella to complete a new OIDS application and continued the matter to May 24, 2017 – the thirtieth day after Altobella entered her plea.

At that time, an OIDS attorney present in the courtroom and identified in the record as Mr. McGee interrupted the proceedings. McGee advised the court that he had a conflict and that there’s no way that I’m going to be able to get an OIDS attorney by the 24th. The court countered, stressing that Altobella’s motion had to be heard within the mandated thirty-day time frame. McGee responded that he could almost guarantee that OIDS would not be able to provide an attorney given the short timeframe. Altobella then advised that she would try to get [an attorney] on her own, and the record was closed.

On May 24, 2017, Altobella again appeared without legal counsel for the hearing on her motion. She advised the court that she did not return the application for a court-appointed attorney and she was unable to afford private counsel. The court then proceeded to hear the merits of Altobella’s motion. After hearing argument from Altobella and the State, Judge Hadwiger denied the motion.

There is no explanation in the record why Altobella’s court-appointed plea counsel did not assist her in the preparation of her motion to withdraw her guilty plea. Nor does the record indicate that she wanted to appear pro se or that she wanted to waive her right to counsel. Also missing is a record showing that the trial court informed Altobella of the dangers, disadvantages, and pitfalls of self-representation as is needed to ensure a defendant’s waiver is knowing, voluntary, and intelligent. Brown v. State, 2018 OK CR 3, ¶¶ 15-16, 422 P.3d 155, 162-63. Thus, we find Altobella was denied her constitutional right to counsel.

Nonetheless, when a defendant is denied her right to counsel during a hearing on a motion to withdraw a plea, harmless error analysis applies if: (1) the defendant neither alleges that she is innocent nor that her plea was involuntary; and (2) it is clear from the record that the defendant is not entitled to withdraw her plea. Randall, 1993 OK CR 47, ¶ 7, 861 P.2d at 316 (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). In the present case, Altobella argued before the trial court and now on appeal that her plea was not knowingly and voluntarily entered. Moreover, based on the record before us, we cannot find with certainty that Altobella’s plea was knowing and voluntary or that she was not entitled to withdraw her guilty plea.¹ Notably, in a response ordered by this Court, the State concurs with this assessment and concedes that Altobella was denied the right to counsel during critical steps necessary to perfect her certiorari appeal to this Court. Thus, we are unable to hold that the lack of counsel was harmless. Randall, 1993 OK CR 47, ¶ 7, 861 P.2d at 316.

Certiorari is therefore granted in part and the case remanded to the District Court to appoint conflict counsel and allow counsel to consult with Altobella to determine if she wishes to proceed with a motion to withdraw her guilty plea. If so, appointed counsel shall represent Altobella in the filing of a new motion to withdraw her plea and in any hearing on this motion. From the date in which new counsel is appointed, the district court shall allow counsel ten (10) days to file a proper motion to withdraw plea. This resolution renders the remaining propositions of error moot.

DECISION

The Petition for Writ of Certiorari is GRANTED IN PART. The order of the district court denying Petitioner’s motion to withdraw guilty plea is REVERSED and the case REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Randall U. State, 1993 OK CR 47, ¶ 5, 861 P.2d 314, 316; Rule 4.2(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018).
2. Dunn v. State, 2018 OK CR 35, ¶ 8, P.3d.
3. Norton U. State, 2002 OK CR 10, ¶ 7, 43 P.3d 404, 407.
4. Brown v. State, 2018 OK CR 3, ¶ 15-16, 422 P.3d 155, 162-63.
5. Randall, 1993 OK CR 47, ¶ 7, 861 P.2d at 316 (citing Chapman U. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 440 (2011) - Harboring a Fugitive from Justice
• Okla. Stat. tit. 22 § 20 (2011) - Right to Counsel
• Okla. Stat. tit. 22 § 28 (2011) - Withdrawal of Pleas
• Okla. Stat. tit. 22 § 52 (2011) - Review of Sentences

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:

• Randall v. State, 1993 OK CR 47, ¶ 5, 861 P.2d 314, 316
• Dunn v. State, 2018 OK CR 35, ¶ 8, P.3d
• Norton v. State, 2002 OK CR 10, ¶ 7, 43 P.3d 404, 407
• Brown v. State, 2018 OK CR 3, ¶ 15-16, 422 P.3d 155, 162-63
• Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705