Carey James Buxton v The State of Oklahoma

C-2018-1002

Filed: Jun. 13, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Carey James Buxton appealed his conviction for three crimes: unlawful possession of drug paraphernalia, unlawful possession of a controlled dangerous substance, second-degree burglary, and knowingly concealing stolen property. His conviction resulted in a 30-year suspended sentence for each felony count. Judge David Bandy placed Buxton in a drug court program, but after the state requested to remove him from the program, Buxton's plea was upheld, and he was sentenced according to the agreement they made. Buxton claimed he should be allowed to withdraw his plea because he didn’t understand it fully. However, the court found that his plea was entered knowingly and voluntarily. The decision to deny his appeal was affirmed, with all judges in agreement.

Decision

The Petition for a Writ of Certiorari is DENIED. The district court's denial of Petitioner's Motion to Withdraw Plea is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the district court in denying Buxton's motion to withdraw his guilty plea?
• Did Buxton's plea meet the requirements of being knowingly and voluntarily entered?
• Was the district court's ruling supported by the record regarding the withdrawal of the plea?

Findings

• The district court did not abuse its discretion in denying Buxton's motion to withdraw guilty plea.
• The Petition for a Writ of Certiorari is denied.
• The district court's denial of Petitioner's Motion to Withdraw Plea is affirmed.

C-2018-1002

Jun. 13, 2019

Carey James Buxton

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

ROWLAND, JUDGE: Petitioner Carey James Buxton entered a negotiated plea of no contest in the District Court of Kay County to crimes charged in the following three cases: in Case No. CM-2014-358, Unlawful Possession of Drug Paraphernalia, in violation of 63 O.S.2011, § 2-405; in Case No. CF-2014-578, Unlawful Possession of Controlled Dangerous Substance with Intent to Distribute (Count 1), in violation of 63 O.S.Supp.2012, § 2-401(B)(2) and Unlawful Possession of Drug Paraphernalia (Count 2); in violation of 63 O.S.2011, § 2-405; and, in Case No. CF-2017-5, Second Degree Burglary (Count 1), in violation of 21 O.S.2011, § 1435 and Knowingly Concealing Stolen Property (Count 2), in violation of 21 O.S.Supp.2016, § 1713. The felony counts were charged After Former Conviction of Two or More Felonies. The Honorable David R. Bandy, Associate District Judge, accepted Buxton’s plea and, pursuant to the plea agreement, placed him in the Kay County Adult Drug Court Program. Under the terms of the plea agreement, Buxton’s successful completion of the drug court program would result in the district attorney recommending the dismissal of Case No. CM-2014-358, a thirty-year suspended sentence on Count 1 and dismissal of Count 2 in Case No. CF-2014-578, and a thirty-year suspended sentence on each of Counts 1 and 2 in Case No. CF-2017-5. Failure of the program would result in the imposition of thirty years imprisonment, with all but the first twenty-five years suspended in each of the felony counts, and one year on each of the misdemeanor counts. All sentences were ordered to be served concurrently and various costs and fees were assessed.

The State filed a motion to terminate Buxton from the drug court program. Judge Bandy sustained the State’s termination motion after a hearing and sentenced Buxton in accordance with his plea agreement. Buxton filed a timely motion to withdraw his plea which was denied. Buxton appeals the denial of his motion, raising the following issue: whether the district court abused its discretion in not allowing him to withdraw his guilty plea because it was not knowingly and voluntarily entered.

1. Buxton argues the district court abused its discretion in denying his motion to withdraw because his plea was not knowingly and voluntarily entered. This Court reviews the denial of a motion to withdraw plea for an abuse of discretion. See Lewis v. State, 2009 OK CR 30, ¶ 5, 220 P.3d 1140, 1142. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the issue; a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. The burden is on the petitioner to show a defect in the plea process that entitles him to withdraw the plea. See Elmore v. State, 1981 OK CR 8, ¶ 8, 624 P.2d 78, 80. In ruling on the motion to withdraw, the trial court considered the entire record including the plea form and Buxton’s testimony at the hearing on the motion to withdraw. The district court’s ruling rejecting Buxton’s claim that his plea was not knowingly and voluntarily entered is supported by the record. We find the district court did not abuse its discretion in denying Buxton’s motion to withdraw guilty plea.

DECISION

The Petition for a Writ of Certiorari is DENIED. The district court’s denial of Petitioner’s Motion to Withdraw Plea is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF KAY COUNTY

THE HONORABLE DAVID BANDY, ASSOCIATE DISTRICT JUDGE

APPEARANCES IN THE DISTRICT COURT

JARROD STEVENSON
100 NORTH MAIN, STE. 200
NEWKIRK, OK 74647

JEREMY STILLWELL
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR PETITIONER

THOMAS A. GRIESEDIECK
ATTORNEY AT LAW
903 NW 13TH STREET
OKLAHOMA CITY, OK 73106

MOTION TO WITHDRAW COUNSEL

BRIAN T. HERMANSON
DISTRICT ATTORNEY
KAY COUNTY COURTHOUSE
P.O. BOX 251
NEWKIRK, OK 74647
ATTORNEY FOR STATE ON PLEA AND MOTION TO WITHDRAW

OPINION BY: ROWLAND, J.

LEWIS, P.J.: Concur

KUEHN, V.P.J.: Concur in Results

LUMPKIN, J.: Concur

HUDSON, J.: Concur

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Footnotes:

1. 63 O.S.2011, § 2-405
2. 63 O.S.Supp.2012, § 2-401(B)(2)
3. 63 O.S.2011, § 2-405
4. 21 O.S.2011, § 1435
5. 21 O.S.Supp.2016, § 1713
6. Lewis v. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142
7. Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
8. Elmore v. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-405 (2011) - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 63 § 2-401 (Supp. 2012) - Unlawful Possession of Controlled Dangerous Substance with Intent to Distribute
• Okla. Stat. tit. 21 § 1435 (2011) - Second Degree Burglary
• Okla. Stat. tit. 21 § 1713 (Supp. 2016) - Knowingly Concealing Stolen Property

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:

• Lewis v. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142.
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
• Elmore v. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80.