Steven Leon Grimmett v The State Of Oklahoma

C-2018-225

Filed: May 9, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Steven Leon Grimmett appealed his conviction for Burglary and Grand Larceny. His conviction and sentence were 30 years in prison. Judge Hudson dissented. In this case, Grimmett was charged with burglary and grand larceny after entering a no contest plea, which means he did not admit guilt but accepted the punishment. He was sentenced to 30 years in prison. Later, he wanted to take back his plea, saying he felt pressured and did not understand everything about his sentence, especially about serving 85% of his time before being eligible for parole. The court reviewed his claims and decided that Grimmett's plea was voluntary, meaning it was made without pressure or threats. They found no errors in his plea process. Although Grimmett tried to argue that his lawyer didn't give him good advice, the court decided that he did not prove he was treated unfairly or that the outcome would have been different if he had better legal help. The court denied his request to withdraw the plea, but they said they would send the case back to fix a minor detail about post-imprisonment supervision that needed clarification.

Decision

The District Court's order denying Petitioner's Motion to Withdraw Plea is AFFIRMED. This matter is REMANDED to the District Court with instructions to address Petitioner's request for an order nunc pro tunc as presented in Proposition Four of this appeal. 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. Grimmett's no contest plea coerced and thereby unknowing and involuntary, necessitating an opportunity to withdraw his plea?
• Was Mr. Grimmett's plea knowing and voluntary given the confusing advice he received regarding the 85% requirement applied to his sentence?
• Was the plea not knowing and voluntary because Mr. Grimmett was not advised he could be subject to post-imprisonment supervision?
• Should an amended judgment and sentence be filed to exclude the post-imprisonment incarceration requirement not part of the oral pronouncement of sentence?
• Was Petitioner denied effective assistance of counsel, specifically during the plea and withdrawal process?

Findings

• the court did not err in denying the motion to withdraw plea
• relief on the claims regarding the 85% requirement was barred due to waiver
• the matter is remanded to address the request for an order nunc pro tunc
• the claim of ineffective assistance of counsel was denied
• the District Court's order denying the Motion to Withdraw Plea is affirmed

C-2018-225

May 9, 2019

Steven Leon Grimmett

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

LUMPKIN, JUDGE:

Petitioner, Steven Leon Grimmett, was charged by Information in District Court of Pottawatomie County Case No. CF-2016-860 with Burglary in the First Degree (21 O.S. 2011, § 1431) After Two or More Felony Convictions. He was further charged by Information in District Court of Pottawatomie County Case No. CF-2017-326 with Grand Larceny (Count 1) (21 O.S.Supp.2016, § 1705) and Endangering Others while Eluding (Count 2) (21 O.S.2011, § 540A(B)) After Two or More Felony Convictions.

On November 15, 2017, Petitioner entered a blind plea of no contest to these charges with the assistance and advice of retained counsel. The Honorable John G. Canavan, District Judge, accepted Petitioner’s pleas and set the matters for sentencing pending receipt of the pre-sentence investigation report. On January 3, 2018, the court sentenced Petitioner to imprisonment for thirty (30) years in each count and ordered each of the sentences to run concurrently. On January 11, 2018, Petitioner filed his Motion to Withdraw Plea. The District Court appointed conflict counsel to represent Appellant and held an evidentiary hearing on Petitioner’s motion on February 14, 2018. The District Court denied the motion. Petitioner timely filed his Notice of Intent to Appeal seeking to appeal the denial of his motion in Case No. CF-2016-860 but failed to perfect an appeal in Case No. CF-2017-326.

Petitioner raises the following propositions of error in support of his appeal.

I. As Mr. Grimmett’s no contest plea was coerced and thereby unknowing and involuntary, he must be allowed an opportunity to withdraw his plea.
II. Mr. Grimmett’s plea was not knowing and voluntary because he received confusing advice and failed to understand the 85% requirement applied to his sentence.
III. The plea was not knowing and voluntary because, at the time it was entered, Mr. Grimmett was not advised that he could be required to serve nine months to one year under post-imprisonment supervision.
IV. In the alternative, an amended judgment and sentence must be filed to exclude the requirement of post-imprisonment incarceration that was not part of the oral pronouncement of sentence in open court.
V. Alternatively, reversal is required because any failure to adequately and completely advise, call the court’s attention to record support and/or preserve issues for the most favorable review in this Court was the result of ineffective assistance of counsel.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we affirm the trial court’s ruling. The decision to allow the withdrawal of a plea is within the sound discretion of the trial court and we will not interfere unless we find an abuse of discretion. Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998. 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 or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

In Proposition One, Petitioner contends the District Court erred when it refused to allow him to withdraw his plea of no contest. He argues that his plea was not knowingly, intelligently, and voluntarily entered but, instead, was coerced. Reviewing the record, we find that the District Court did not abuse its discretion when it determined that Petitioner’s plea was voluntarily entered and not the result of coercion. Our primary concern in evaluating the validity of a guilty plea is whether the plea was entered voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969); Ocampo v. State, 1989 OK CR 38, ¶ 3, 778 P.2d 920, 921. The plea must be voluntary and not the result of force, threats or coercion. King v. State, 1976 OK CR 103, ¶ 11, 553 P.2d 529, 534-35.

Citing his own testimony from the withdrawal hearing, Petitioner asserts that plea counsel coerced him into entering his no contest plea. However, in light of the strong evidence from the plea hearing suggesting that Petitioner’s plea was voluntarily entered and not the result force, threats or coercion, we find that Petitioner’s allegations are insufficient to overcome the presumption of correctness which attaches to a plea. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). Plea counsel’s statements did not constitute coercion; instead, they were sound advice, i.e., a reasonable prediction of the sentence possibilities Petitioner should weigh in determining whether to enter a plea. Simpson v. State, 1973 OK CR 245, 510 P.2d 280, 281; Seibert v. State, 1969 OK CR 205, ¶ 19, 457 P.2d 790, 795; see Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970) (“an attorney may offer his client a prediction, based upon his experience or instinct, of the sentence possibilities the accused should weigh in determining upon a plea.”).

Proposition One is denied.

In Proposition Two, Petitioner contends he was not fully advised that he would have to serve 85% of any term of imprisonment imposed in this case. In Proposition Three, Petitioner contends that his plea was not knowingly entered because he was not advised that he would be required to serve a period of post-imprisonment supervision. Petitioner concedes that he did not raise either of these claims within his Motion to Withdraw Plea. As such, we find that he has waived appellate review of the claims. Weeks v. State, 2015 OK CR 16, ¶ 27, 362 P.3d 650, 657 (refusing to review merits of claim which had not been raised in either application to withdraw plea); Walker v. State, 1998 OK CR 14, ¶ 3, 953 P.2d 354, 355 (“We do not reach the merits of the first proposition, for Walker waived the issue by failing to raise it in his motion to withdraw guilty plea.”); Rule 4.2(B), Rule 4.3, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). Therefore, we do not reach the merits of these claims. Relief on Propositions Two and Three is barred.

In Proposition Four, Petitioner contends that the inclusion of post-imprisonment supervision in the Judgment and Sentence is a clerical or scrivener’s error. Finding no obvious clerical error, this matter is remanded to the District Court with instructions to address Petitioner’s request for an order nunc pro tunc as presented in Proposition Four of this appeal. See Neloms v. State, 2012 OK CR 7, ¶ 44, 274 P.3d 161, 172; Dunaway v. State, 1977 OK CR 86, ¶ 19, 561 P.2d 103, 108.

In Proposition Five, Petitioner claims that he was denied the effective assistance of counsel. He raises claims against both plea counsel and withdrawal counsel. Petitioner did not challenge plea counsel’s effectiveness in his Motion to Withdraw Plea. As such, we find that he has waived appellate review of his ineffective assistance of plea counsel claim and do not reach its merits. Weeks, 2015 OK CR 16, ¶ 27, 362 P.3d at 657; Walker, 1998 OK CR 14, ¶ 3, 953 P.2d at 355; Rule 4.2(B), Rule 4.3, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). Relief is barred on this claim.

Since this is Petitioner’s first opportunity to raise a claim of ineffective assistance against withdrawal counsel, we review the merits of his claim. This Court reviews claims of ineffective assistance of counsel under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Malone, 2013 OK CR 1, ¶ 14, 293 P.3d at 206. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id., 2013 OK CR 1, ¶ 16, 293 P.3d at 206.

To demonstrate prejudice, an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s unprofessional errors. Id. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011).

Petitioner argues that withdrawal counsel was ineffective for failing to amend his Motion to Withdraw Plea to include the issue he now raises in Proposition Two. The record shows that Petitioner was fully apprised of the 85% Rule. See Pickens v. State, 2007 OK CR 18, ¶ 2, 158 P.3d 482, 483; Ferguson v. State, 2006 OK CR 36, ¶ 2, 143 P.3d 218, 219. As such, we find that there is not a reasonable probability that the outcome of the withdrawal proceedings would have been different had counsel raised this issue.

Petitioner further argues that withdrawal counsel was ineffective for failing to amend his Motion to Withdraw Plea to include the issue he now raises in Proposition Three. A defendant need not be advised as to the requirement of post-imprisonment supervision because it neither changes the maximum possible sentence nor impacts the overall length of incarceration. 21 O.S.Supp.2012, § 991a-21. As the record shows that Petitioner was advised of and acknowledged both the constitutional rights he was giving up by entering the plea and the applicable range of punishment, we find that he was fully apprised of the nature and consequences of his plea. King, 1976 OK CR 103, ¶ 11, 553 P.2d at 534-35; Robinson v. State, 1991 OK CR 23, ¶ 9, 806 P.2d 1128, 1131. Therefore, we find that there is not a reasonable probability that the outcome of the withdrawal proceedings would have been different had counsel raised this issue. Petitioner has not shown ineffective assistance of withdrawal counsel under Strickland. Proposition Five is denied.

DECISION

The District Court’s order denying Petitioner’s Motion to Withdraw Plea is AFFIRMED. This matter is REMANDED to the District Court with instructions to address Petitioner’s request for an order nunc pro tunc as presented in Proposition Four of this appeal. 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. Petitioner is required to serve 85% of his sentence for First Degree Burglary prior to becoming eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1.
2. Carpenter U. State, 1996 OK CR 56, I 40, 929 P.2d 988, 998.
3. Boykin U. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969); Ocampo V. State, 1989 OK CR 38, I 3, 778 P.2d 920, 921.
4. King v. State, 1976 OK CR 103, I 11, 553 P.2d 529, 534-35.
5. Blackledge U. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977).
6. Simpson v. State, 1973 OK CR 245, 510 P.2d 280, 281; Seibert U. State, 1969 OK CR 205, I 19, 457 P.2d 790, 795; see Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970).
7. Weeks U. State, 2015 OK CR 16, I 27, 362 P.3d 650, 657.
8. Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355.
9. Rule 4.2(B), Rule 4.3, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).
10. Neloms U. State, 2012 OK CR 7, I 44, 274 P.3d 161, 172; Dunaway U. State, 1977 OK CR 86, I 19, 561 P.2d 103, 108.
11. Malone v. State, 2013 OK CR 1, 'I 14, 293 P.3d 198, 206.
12. Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011).
13. Pickens U. State, 2007 OK CR 18, I 2, 158 P.3d 482, 483; Ferguson U. State, 2006 OK CR 36, I 2, 143 P.3d 218, 219.
14. 21 O.S.Supp.2012, § 991a-21.
15. King, 1976 OK CR 103, I 11, 553 P.2d at 534-35; Robinson v. State, 1991 OK CR 23, I 9, 806 P.2d 1128, 1131.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 (2011) - Burglary in the First Degree
• Okla. Stat. tit. 21 § 1705 (Supp. 2016) - Grand Larceny
• Okla. Stat. tit. 21 § 540A(B) (2011) - Endangering Others while Eluding
• Okla. Stat. tit. 21 § 13.1 (Supp. 2015) - Required Service of Sentences
• Okla. Stat. tit. 21 § 991a-21 (Supp. 2012) - Post-Imprisonment Supervision
• 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:

• Carpenter v. State, 1996 OK CR 56, I 40, 929 P.2d 988, 998
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969)
• Ocampo v. State, 1989 OK CR 38, I 3, 778 P.2d 920, 921
• King v. State, 1976 OK CR 103, I 11, 553 P.2d 529, 534-35
• Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)
• Simpson v. State, 1973 OK CR 245, 510 P.2d 280, 281
• Seibert v. State, 1969 OK CR 205, I 19, 457 P.2d 790, 795
• Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970)
• Weeks v. State, 2015 OK CR 16, I 27, 362 P.3d 650, 657
• Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355
• Dunaway v. State, 1977 OK CR 86, I 19, 561 P.2d 103, 108
• Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
• Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011)
• Pickens v. State, 2007 OK CR 18, I 2, 158 P.3d 482, 483
• Ferguson v. State, 2006 OK CR 36, I 2, 143 P.3d 218, 219
• Robinson v. State, 1991 OK CR 23, I 9, 806 P.2d 1128, 1131