Hipolito John Herrera v The State Of Oklahoma

C-2018-1184

Filed: Nov. 14, 2019

Not for publication

Prevailing Party: Hipolito John Herrera

Summary

Hipolito John Herrera appealed his conviction for Conjoint Robbery. Conviction and sentence were reversed and the case was sent back for further proceedings. Judge Lewis dissented.

Decision

The Custer County District Court's denial of Petitioner's Motion to Withdraw Guilty Plea is REVERSED, and the case remanded for further proceedings. 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 Mr. Herrera's plea entered freely, knowingly, and intelligently?
• Did the trial court fail to require proof of actual losses to support the restitution order?
• Is the bail bondsman considered a crime victim under Oklahoma statutes related to restitution?

Findings

• the trial court abused its discretion in denying the motion to withdraw plea
• Propositions II and III are moot

C-2018-1184

Nov. 14, 2019

Hipolito John Herrera

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION GRANTING CERTIORARI

KUEHN, VICE PRESIDING JUDGE: Hipolito John Herrera pled guilty to Conjoint Robbery in violation of 21 O.S.2011, § 800, in the District Court of Custer County, Case No. CF-2017-353. After a sentencing hearing, the Honorable Doug Haught sentenced Petitioner to twenty (20) years imprisonment, all but the first 10 (ten) suspended. The trial court also ordered a total of $659.83 in restitution, payable to the victim and the bail bondsman. Petitioner timely filed an Application to Withdraw Plea of Guilty, which was denied after a November 19, 2018 hearing. Petitioner timely filed this Petition for Writ of Certiorari.¹

1 This Court directed a response from the State. As is permitted under Rule 4.3(E), the District Attorney’s Office of Custer County tendered for filing a response on behalf of the State, which was filed June 12, 2019. Rule 4.3(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).

The Attorney Petitioner raises three propositions of error in support of his petition:
I. Mr. Herrera’s plea was not entered freely, knowingly and intelligently.
II. The trial court failed to require proof of Jiffy Trip and the bail bondsman’s actual losses to support a restitution order, therefore this court must vacate the judgment and sentence or remand the matter to the district court for a proper hearing on restitution.
III. The bail bondsman is not a crime victim as intended by the Oklahoma statutes related to restitution, therefore the court must vacate the restitution order.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence require relief. Petitioner claims in Proposition I that his plea was not knowing and voluntary. The State concedes this issue. The record shows that Petitioner was misadvised by plea counsel regarding his probable maximum sentence, and that he would not have entered his plea but for that advice. His plea was not knowingly and voluntarily entered, and the trial court abused its discretion in denying the motion to withdraw plea. Lewis v. State, 2009 OK CR 30, IT 4, 220 P.3d 1140, 1142. This proposition is granted. General later also filed a response. This Court reviewed both responses filed on behalf of the State in reaching its conclusion.²

Given our resolution of Proposition I, Propositions II and III are moot.

DECISION

The Custer County District Court’s denial of Petitioner’s Motion to Withdraw Guilty Plea is REVERSED, and the case remanded for further proceedings. 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 CUSTER COUNTY
THE HONORABLE F. DOUG HAUGHT, DISTRICT JUDGE

ATTORNEYS AT HEARING

ATTORNEYS ON APPEAL ON PLEA

MICHAEL A. WOMBLE
OKLA. INDIGENT DEFENSE SYS.
P.O. BOX 926
NORMAN, OK 73070

COUNSEL FOR PETITIONER

ARIEL PARRY
P.O. BOX 1494
823 FRISCO AVENUE
CLINTON, OK 73601

COUNSEL FOR DEFENDANT

RICKY A. MCPHEARSON
1ST ASST. DISTRICT ATTORNEY
CUSTER CO. COURTHOUSE
ARAPAHO, OK 73620

COUNSEL FOR RESPONDENT

ANGELA MARSEE
DISTRICT ATTORNEY
CUSTER CO. COURTHOUSE
ARAPAHO, OK 73620

COUNSEL FOR THE STATE

MIKE HUNTER
ATTORNEY GENERAL OF OKLA.

KEELEY L. MILLER
ASST. ATTORNEY GENERAL
313 NE 21 ST STREET
OKLAHOMA CITY, OK 73105

COUNSEL FOR RESPONDENT

MICHAEL HOUSLEY
TISDAL & O’HARA
P.O. BOX 1387
814 FRISCO AVENUE
CLINTON, OK 73601

COUNSEL FOR DEFENDANT

RICKY A. MCPHEARSON
1ST ASST. DISTRICT ATTORNEY
CUSTER CO. COURTHOUSE
ARAPAHO, OK 73620

COUNSEL FOR THE STATE

OPINION BY KUEHN, V.P.J.
LEWIS, P.J.: CONCUR
LUMPKIN, J.: CONCUR
HUDSON, J.: CONCUR
ROWLAND, J.: CONCUR

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Footnotes:

1. This Court directed a response from the State. As is permitted under Rule 4.3(E), the District Attorney's Office of Custer County tendered for filing a response on behalf of the State, which was filed June 12, 2019. Rule 4.3(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).
2. Lewis v. State, 2009 OK CR 30, IT 4, 220 P.3d 1140, 1142.
3. 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.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 800 - Conjoint Robbery
• Okla. Stat. tit. 22 § 4.3(E) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 3.15 - 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:

• Lewis v. State, 2009 OK CR 30, I 4, 220 P.3d 1140, 1142