Roy Dean Harjo v The State Of Oklahoma

C-2018-1235

Filed: Aug. 29, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Roy Dean Harjo appealed his conviction for Assault and Battery with a Deadly Weapon, and Assault with a Dangerous Weapon. Conviction and sentence: life in prison for each count, but Counts II-V will be served at the same time, while Count I will be served separately. Kuehn dissented.

Decision

The Petition for Writ of Certiorari is DENIED. 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 a factual basis for the alleged crimes in Counts II-V?
• Was Mr. Harjo's plea knowing and voluntary given his understanding of the ranges of punishment and sentencing?
• Was Mr. Harjo's plea knowing and voluntary based on misinformation regarding the sentence he would receive?
• Was Mr. Harjo denied the effective assistance of counsel?

Findings

• the court did not err in denying the motion to withdraw pleas as the issue of factual basis was not properly before the court
• the court found that the pleas were knowing and voluntary
• the court found that the pleas were knowing and voluntary, rejecting the claim of misinformation about the sentence
• the court found that neither plea counsel nor conflict counsel were ineffective

C-2018-1235

Aug. 29, 2019

Roy Dean Harjo

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

KUEHN, VICE PRESIDING JUDGE:

Roy Dean Harjo entered a blind plea to Count I, Assault and Battery with a Deadly Weapon, and Counts II-V, Assault with a Dangerous Weapon, all after former conviction of two or more felonies, in the District Court of Pottawatomie County, Case No. CF-2017-665. After a sentencing hearing the Honorable John Canavan sentenced Petitioner to life on each of Counts I-V, with the sentences in Counts II-V to be served concurrently with one another but consecutively to Count I. Harjo must serve 85% of the sentence on each count before becoming eligible for parole consideration. Harjo timely filed a motion to withdraw his pleas. Conflict counsel was appointed and the motion was denied after a November 28, 2018 hearing. Harjo timely filed a Petition for Writ of Certiorari with this Court. Petitioner raises four propositions of error in support of his petition:

I. Mr. Harjo must be permitted to withdraw his pleas of guilty for Counts II, III, IV, and V, because there was no factual basis for the alleged crimes.

II. Mr. Harjo’s plea was not knowing and voluntary because he did not know the ranges of punishment for the charged offenses and was misinformed as to what sentence he would receive, in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution and article II, § 7, of the Oklahoma Constitution.

III. Mr. Harjo’s plea was not knowing and voluntary because he was misinformed as to what sentence he would receive, in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution and article II, § 7, of the Oklahoma Constitution.

IV. Mr. Harjo was denied the effective assistance of counsel.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief. In Proposition I Petitioner claims there was no factual basis for the crimes alleged in Counts II-V. Petitioner did not raise this claim in either his motion to withdraw his pleas or his Petition for Writ of Certiorari. It is not properly before this Court and we do not consider it.

In Propositions II and III we find that Petitioner’s pleas were knowing and voluntary. Lewis v. State, 2009 OK CR 30, II 4, 220 P.3d 1140, 1142. At the November 28, 2018 hearing on his motion to withdraw Petitioner testified that when he entered his blind pleas he believed the maximum sentence he would receive was thirty years. He said plea counsel had told him this, and he thought the trial court understood it as well. Petitioner specifically denied reading or understanding the plea form. However, the record does not support this claim. The plea form – prepared by plea counsel – clearly states the range of punishment for each charge was twenty or thirty years to life; thus the record shows counsel knew the correct range of punishment and communicated it to Petitioner. At the September 17, 2018 plea hearing, Petitioner testified defense counsel had reviewed with him the entire form. He twice said that he understood each and every question, had no questions for the court, and his signature on the form meant that all the answers were true and correct. The unpublished cases to which Petitioner refers in Proposition III do not support his claim. Propositions II and III are denied.

In Proposition IV we find neither plea counsel nor conflict counsel were ineffective. On certiorari, petitioners may raise claims of ineffective assistance which could not be raised below. We review a claim of ineffective assistance under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Jiminez v. State, 2006 OK CR 43, IT 2, 144 P.3d 903, 904. Petitioner must show that counsel’s acts or omissions fell below an objective standard of reasonableness, and that he was prejudiced by counsel’s conduct. Lozoya v. State, 1996 OK CR 55, I 27, 932 P.2d 22, 31. Generally, a petitioner claiming ineffective assistance of counsel on a guilty plea must show that counsel’s errors affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Lozoya, id. at 9 27, 932 P.2d at 31. Petitioner claims plea counsel was ineffective for allowing pleas on Counts II-V without an established factual basis. The factual basis for the plea was not contingent on counsel’s description on the plea form. There was ample factual basis in the record. The record conflicts as to whether plea counsel told Petitioner his maximum sentence on a plea would be thirty years; however, plea counsel correctly filled out the range of punishment on the plea form, casting doubt on the claim that he advised Petitioner differently. Petitioner also claims conflict counsel was ineffective for failing to claim plea counsel was ineffective. Petitioner’s claim – that withdrawal counsel should have attacked plea counsel on the factual basis issue – has no merit. As there was clearly ample factual basis, any such claim of ineffective assistance at the withdrawal hearing would have been pointless. Petitioner was not prejudiced by the conduct of either plea counsel or conflict counsel, and counsel were not ineffective. Proposition IV is denied.

DECISION

The Petition for Writ of Certiorari is DENIED. 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.

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Footnotes:

1. Rule 4.3(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).
2. Lewis v. State, 2009 OK CR 30, II 4, 220 P.3d 1140, 1142.
3. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
4. Jiminez v. State, 2006 OK CR 43, IT 2, 144 P.3d 903, 904.
5. Lozoya v. State, 1996 OK CR 55, I 27, 932 P.2d 22, 31.
6. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

Oklahoma Statutes citations:

No Oklahoma statutes found.

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, II 4, 220 P.3d 1140, 1142
• Jiminez v. State, 2006 OK CR 43, IT 2, 144 P.3d 903, 904
• Lozoya v. State, 1996 OK CR 55, I 27, 932 P.2d 22, 31
• Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)