Aaron Marcus Shores v The State Of Oklahoma
C-2018-1119
Filed: Aug. 15, 2019
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Aaron Marcus Shores appealed his conviction for three charges: Failure to Notify Address Change of a Sex Offender, Unlawful Possession of a Controlled Dangerous Substance, and Malicious Injury to Property. His conviction and sentence were four years in prison and a fine of $500 for the felony charge, along with one year in the county jail for each misdemeanor charge, which would all be served at the same time. Judge Marion Fry denied his request to withdraw his plea, stating that Shores did not show he had not received the benefits he was promised. Judge Hudson dissented.
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 error by the district court in denying the motion to withdraw plea because the petitioner did not receive the benefit of his bargain?
- did the petitioner receive ineffective assistance of counsel?
Findings
- the district court did not err in denying Shores's motion to withdraw plea because he received the benefit of his bargain
- Shores's claim of ineffective assistance of counsel is rejected as he cannot show he was prejudiced by counsel's actions
C-2018-1119
Aug. 15, 2019
Aaron Marcus Shores
Appellant
v
The State Of Oklahoma
Appellee
**SUMMARY OPINION DENYING CERTIORARI**
ROWLAND, JUDGE:
Petitioner Aaron Marcus Shores entered a negotiated plea of no contest in the District Court of LeFlore County to resolve his felony and misdemeanor charges in the following cases: Case No. CF-2018-239: one count of Failure to Notify Address Change of Sex Offender in violation of 57 O.S.Supp.2017, § 584(E);¹ Case No. CM-2018-371: one count of Unlawful Possession of a Controlled Dangerous Substance in violation of 63 O.S.Supp. § 2-402;² and Case No. CM-2018-373: one count of Malicious Injury to Property Under $1,000.00 in violation of 21 O.S.2011, § 1760(A)(1).¹
Pursuant to the plea agreement, the State dismissed a count of Obstructing an Officer.² Pursuant to the plea agreement, the State dismissed a count of Unlawful Possession of Drug Paraphernalia.
The Honorable Marion Fry, Associate District Judge, accepted Shores’s no contest plea and sentenced him in accordance with the plea agreement to four years imprisonment and a fine of $500.00 on the felony count in Case No. CF-2018-239 and one year in the county jail on each of the misdemeanor counts in Case Nos. CF-2018-371 and 373. Judge Fry ordered the sentences to run concurrently with each other and with Shores’s two cases from Arkansas.³ Judge Fry also imposed one year of post imprisonment supervision on the felony count and awarded credit for time served.
Shores timely filed a pro se motion to withdraw his plea that Judge Fry denied following a hearing. Shores appeals the denial of that motion, raising the following issues: (1) whether the district court erred by denying his motion to withdraw plea because he did not receive the benefit of his bargain; and (2) whether he received ineffective assistance of counsel.
1. Shores argues the district court erred by denying his motion to withdraw his no contest plea because he did not receive the promised benefit of his plea bargain. Couch v. State, 1991 OK CR 67, ¶ 5, 814 P.2d 1045, 1047 (recognizing holding in Santobello v. New York⁴ that when a plea rests in any significant degree on an agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.) Shores did not allege the specific claim he now raises on appeal in either his pro se application to withdraw plea or in his petition for writ of certiorari.⁵ Under Weeks v. State, 2015 OK CR 16, ¶¶ 27-29, 362 P.3d 650, 657 and Rules 4.2(B) and 4.3(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the claim could be considered waived. However, conflict counsel presented the issue at the withdrawal hearing and the district court rejected it. The district court exercised its lawful authority and discretion leaving this Court with a ruling and record to review on appeal. This Court has yet to explicitly decide whether a claim omitted from the application to withdraw itself but litigated at the evidentiary hearing has been preserved for appellate review. Because appellate review is focused on reviewing the correctness of a lower court ruling, we find it is only logical to find the issue preserved under the circumstances presented here.
We review the denial of a petitioner’s 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 matter at issue.” State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1194. The burden is on Shores 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.
Shores’s contention that he did not receive the benefit of his bargain is refuted by the record. The district court, per the plea agreement, ordered Shores’s Oklahoma sentences to run concurrently with his Arkansas cases. Shores’s Judgment and Sentence paperwork reflects that his Oklahoma cases are to run concurrently with his cases out of Arkansas. The district court followed the terms of the plea and fulfilled, through its orders, the conditions negotiated between the parties. This Court has no way of knowing from this record whether Arkansas is or is not crediting Shores’s Oklahoma prison time toward his Arkansas sentences.⁴ Because Shores received the benefit of his plea agreement, we find the district court did not abuse its discretion by denying Shores’s motion to withdraw his plea.
2. Shores argues he is entitled to relief because of ineffective assistance of conflict counsel. He faults conflict counsel for waiving appellate review of his previous claim by not filing a supplemental motion to withdraw plea alleging Shores had not received the benefit of his bargain. The burden is on Shores to prove (1) that counsel’s performance was deficient and (2) that counsel’s deficient performance resulted in prejudice. Wiley v. State, 2008 OK CR 30, ¶ 4, 199 P.3d 877, 878. He must show there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial or was otherwise harmed. Lozoya v. State, 1996 OK CR 55, ¶ 27, 932 P.2d 22, 31. As with any claim of ineffective assistance of counsel, this Court need not determine whether counsel’s performance was deficient if the petitioner was not prejudiced by counsel’s actions. See Malone v. State, 2013 OK CR 1, ¶ 16, 293 P.3d 198, 207.
Shores cannot show that but for conflict counsel’s actions, the result of his proceeding would have been different. As noted above, conflict counsel presented to the district court Shores’s claim that he had not received the benefit of his bargain. Conflict counsel’s actions were sufficient to preserve the claim for appellate review. Because Shores cannot show conflict counsel’s actions resulted in waiver of the claim on appeal, he can show neither deficient performance nor prejudice. His ineffective assistance of counsel claim is rejected.
**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.
Footnotes:
- 57 O.S.Supp.2017, § 584(E);
- 63 O.S.Supp. § 2-402;
- 21 O.S.2011, § 1760(A)(1).
- Couch U. State, 1991 OK CR 67, 9 5, 814 P.2d 1045, 1047 (recognizing holding in Santobello U. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971)).
- Weeks v. State, 2015 OK CR 16, II 27-29, 362 P.3d 650, 657 and Rules 4.2(B) and 4.3(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).
- Lewis v. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142.
- Elmore U. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80.
- Wiley U. State, 2008 OK CR 30, I 4, 199 P.3d 877, 878.
- Lozoya U. State, 1996 OK CR 55, I 27, 932 P.2d 22, 31.
- Malone U. State, 2013 OK CR 1, I 16, 293 P.3d 198, 207.
Oklahoma Statutes citations:
- Okla. Stat. tit. 57 § 584(E) (2017) - Failure to Notify Address Change of Sex Offender
- Okla. Stat. tit. 63 § 2-402 (2017) - Unlawful Possession of a Controlled Dangerous Substance
- Okla. Stat. tit. 21 § 1760(A)(1) (2011) - Malicious Injury to Property Under $1,000.00
- Okla. Stat. tit. 22 § 4.2(B) - Rules of the Oklahoma Court of Criminal Appeals
- Okla. Stat. tit. 22 § 4.3(C)(5) - Rules of the Oklahoma Court of Criminal Appeals
- Okla. Stat. tit. 22, Ch. 18, App. (2019) - Rules of the Oklahoma Court of Criminal Appeals
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:
- Couch v. State, 1991 OK CR 67, ¶ 5, 814 P.2d 1045, 1047
- Weeks v. State, 2015 OK CR 16, ¶ 27-29, 362 P.3d 650, 657
- Lewis v. State, 2009 OK CR 30, ¶ 5, 220 P.3d 1140, 1142
- State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1194
- Elmore v. State, 1981 OK CR 8, ¶ 8, 624 P.2d 78, 80
- Wiley v. State, 2008 OK CR 30, ¶ 4, 199 P.3d 877, 878
- Lozoya v. State, 1996 OK CR 55, ¶ 27, 932 P.2d 22, 31
- Malone v. State, 2013 OK CR 1, ¶ 16, 293 P.3d 198, 207