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C-2018-315

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David Duane Albright v The State Of Oklahoma

C-2018-315

Filed: Apr. 18, 2019

Not for publication

Prevailing Party: David Duane Albright

Summary

# David Duane Albright appealed his conviction for manufacturing and possessing methamphetamine and maintaining a place for selling drugs. Conviction and sentence affirmed, with justices concurring and one dissenting.

Decision

The District Court's order denying 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 adequate factual basis established for Petitioner’s guilty plea?
  • Were Petitioner’s pleas knowingly, intelligently, and voluntarily made?
  • Should the sentence on Count 1 be modified to vacate or reduce the fine of $50,000.00?
  • Did the failure to award credit for time served violate Petitioner’s right to due process and result in an excessive sentence?
  • Was Petitioner deprived of his right to effective assistance of counsel?

Findings

  • the court erred
  • the court did not err
  • the court erred
  • the court did not err
  • the court did not err

C-2018-315

Apr. 18, 2019

David Duane Albright

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

LUMPKIN, JUDGE: Petitioner, David Duane Albright, was charged by Information in District Court of Delaware County Case No. CF-2010-369A with Manufacture of Controlled Dangerous Substance (Methamphetamine) (Count 1) (63 O.S.Supp.2005, § 2-401(G)(1)), Possession of Controlled Substance (Methamphetamine) (Count 2) (63 O.S.Supp.2009, § 2-402), and Maintaining a Place for Keeping/Selling Controlled Substance (Methamphetamine) (Count 3) (63 O.S.Supp.2004, § 2-404) After Two or More Felony Convictions. Petitioner and the State entered into a negotiated drug court plea and on December 29, 2010, Petitioner entered a plea of guilty to these charges with the assistance and advice of counsel. The Honorable Robert G. Haney, District Judge, accepted Petitioner’s plea but deferred sentencing pending completion of the Delaware County Drug Court Program. On March 5, 2013, the Honorable Alicia Littlefield, Special Judge, terminated Petitioner’s participation in the Drug Court program.

On September 6, 2013, Judge Littlefield sentenced Petitioner in accordance with the plea agreement sentencing Petitioner to imprisonment for life and a $50,000.00 fine in Count 1; twenty (20) years and a $1,000.00 fine in Count 2; and life and a $1,000.00 fine in Count 3. Judge Littlefield ordered the sentences to run consecutively. On September 16, 2013, Petitioner filed his Motion to Withdraw Guilty Pleas. The District Court appointed conflict counsel to represent Appellant and held an evidentiary hearing on Petitioner’s motion on September 23, 2013. The District Court denied the motion. Initially, Petitioner failed to perfect an appeal. However, this Court granted him an appeal out of time on March 21, 2018 and Petitioner has now timely commenced the present appeal.

David Duane Albright v. State, PC-2018-251 (Okl. Cr., March 21, 2018).

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

I. Petitioner should be allowed to withdraw his guilty plea because an adequate factual basis was not established.

II. Petitioner should be allowed to withdraw his pleas which were not knowingly, intelligently, and voluntarily made because they were entered as a result of inadvertence, ignorance, misunderstanding, and misapprehension.

III. The sentence on Count 1 should be modified to vacate or reduce the fine of $50,000.00, which is not authorized by statute.

IV. The failure to award credit for jail time served awaiting treatment and as court-ordered sanctions imposed as part of the Drug Court Program resulted in a violation of due process and an excessive sentence.

V. Petitioner was deprived of his right to effective 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, I 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, I 35, 274 P.3d 161, 170.

In Proposition One, Petitioner contends that his plea to Count 3 was not knowingly, intelligently, and voluntarily entered. He argues that the requisite factual basis for the plea was not established. Petitioner did not raise this claim in his application to withdraw plea. As such, we find that he has waived appellate review of the claim. Weeks v. State, 2015 OK CR 16, I 27, 362 P.3d 650, 657 (refusing to review merits of claim which had not been raised in application to withdraw plea); Walker v. State, 1998 OK CR 14, I 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 this claim. Proposition One is denied.

In Proposition Two, Petitioner contends that his plea was not knowingly, intelligently, and voluntarily entered but was coerced. The District Court determined that Petitioner’s plea was entered both intelligently and voluntarily. In reaching this conclusion, the District Court found that Petitioner knew what his options were in relation to going to trial, entering a blind plea, or taking the State’s deal. Reviewing the record, we find that the District Court did not abuse its discretion when it denied Petitioner’s motion. 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 U. State, 1989 OK CR 38, I 3, 78 P.2d 920, 921. Generally, a defendant’s plea of guilty based on the reasonably competent advice of counsel is an intelligent plea. McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970). The plea must be voluntary and not the result of force, threats or coercion. King U. State, 1976 OK CR 103, I 11, 553 P.2d 529, 534-35.

The record shows that Petitioner’s plea in the present case was voluntarily and intelligently entered. Petitioner acknowledged all of the constitutional rights that he was giving up by entering a plea within the plea of guilty form. He denied having been forced, abused, mistreated, or promised anything to enter his plea. He affirmed that he was entering his plea of his own free will and without any coercion or compulsion of any kind. At the plea hearing, Petitioner acknowledged his right to trial and that he was giving up this right by entering a plea. He denied that anyone had threatened, promised, or coerced him into changing his plea. Petitioner affirmed that he was entering his plea freely and voluntarily. Although Petitioner later claimed in his motion that he “felt coerced into entering a guilty plea,” he acknowledged at the withdraw hearing that he freely and voluntarily entered the plea because it was the best deal. Petitioner admitted that he knew he was giving up his right to a trial by entering a guilty plea. He testified that no one had threatened or forced him into entering the plea. Instead, he related that he took the deal to try to avoid going back to prison for a long time.

Citing his own testimony, Petitioner argues on appeal that his plea was coerced because he was unaware that he could enter a blind plea to the charges instead of taking the State’s offered plea agreement. We are not persuaded by this argument. Blackledge V. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977) (finding subsequent presentation of conclusory allegations and contentions that in the face of the record are wholly incredible insufficient to overcome the presumption of correctness which attaches to a plea). We note that Petitioner could not have achieved his goal of avoiding a long prison sentence by entering a blind plea. This is because he was not eligible for a suspended sentence based upon the prohibition for third or subsequent offenses found within 22 O.S.Supp.2010, § 991a(C). Petitioner was charged after former conviction of two or more felonies. He had three prior felony convictions and had been to prison on four separate occasions. In the absence of the State’s waiver of the statutory prohibition against suspended sentences, the District Court could only have sentenced Petitioner to a long term of imprisonment on a blind plea. The District Court’s determination that Petitioner understood his options was not clearly against the logic and effect of the facts presented. Petitioner testified at the withdraw hearing that there was no need for a trial. He explained that having the opportunity to try drug court and not get sent right back to prison “was definitely a light at the end of the tunnel [because] nothing had ever been offered to me to try to rehabilitate me until the Drug Court Program.” Petitioner acknowledged that he understood his options and chose the very best option at the time. As the record of the plea showed that Petitioner’s plea was voluntarily and intelligently entered and free of coercion, we conclude that the District Court did not abuse its discretion when it denied Petitioner’s request to withdraw his plea. Proposition Two is denied.

In Proposition Three, Petitioner contends that the $50,000.00 fine the District Court imposed in Count 1 was not authorized by statute. In Proposition Four, Petitioner contends that the District Court’s failure to grant him credit for the time he served in jail during his drug court participation violated his right to due process and resulted in an excessive sentence. Petitioner did not raise either of these claims in his motion to withdraw plea. As such, we find that he has waived appellate review of the claims and do not reach their merits. Weeks, 2015 OK CR 16, “I 27, 362 P.3d at 657. Propositions Three and Four are denied.

In Proposition Five, Petitioner claims that he was denied the effective assistance of counsel. He raises claims against both plea counsel and withdrawal counsel. Although Petitioner claimed that he received ineffective assistance of counsel in his motion to withdraw plea, he did not raise the challenges that he now raises on appeal. Therefore, we find that he has waived appellate review of his ineffective assistance of plea counsel claims and do not reach their merits. Weeks, 2015 OK CR 16, IT 27, 362 P.3d at 657. 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 U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Malone v. State, 2013 OK CR 1, I 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. Id. Petitioner argues that withdrawal counsel was ineffective for failing to raise the challenge he now raises in Proposition Three. Recently, this Court overruled Coates U. State, 2006 OK CR 24, I 6, 137 P.3d 682, 685 and held that a sentenced enhanced under 21 O.S.2011, § 51.1 could include a fine “where the underlying penal specifically includes provisions for a fine and states the fine shall be imposed in addition to other punishment provided by law.” Bivens v. State, 2018 OK CR 33, IT 19, 431 P.3d 985.

Title 63 O.S.Supp.2005, § 2-401(G)(3)(h) specifically provides for imposition of a fine of not less than $50,000.00 “in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.” Therefore, the fine which was imposed in Count 1 was not only authorized but the mandatory minimum under the statute. As such, we find that there is not a reasonable probability that the outcome of the withdraw proceedings would have been different had counsel raised this issue. Petitioner further argues that withdrawal counsel was ineffective for failing to raise the challenge he now raises in Proposition Four. Petitioner received the maximum punishment of imprisonment for life in Counts 1 and 3. “Life imprisonment is just that. It is not limited to a term of years.” Runnels U. State, 2018 OK CR 27, I 30, 426 P.3d 614, 622. The time that Petitioner served in jail during his drug court participation could not have possibly extended his sentence because he was sentenced to serve out the remainder of his life in prison. As such, we find that there is not a reasonable probability that the outcome of the withdraw proceedings would have been different had counsel raised this issue. Petitioner has not shown ineffective assistance of withdraw counsel under Strickland. Proposition Five is denied.

DECISION

The District Court’s order denying 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.

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Footnotes:

  1. 63 O.S.Supp.2005, § 2-401(G)(1)
  2. 63 O.S.Supp.2009, § 2-402
  3. 63 O.S.Supp.2004, § 2-404
  4. David Duane Albright v. State, PC-2018-251 (Okl. Cr., March 21, 2018)
  5. Weeks v. State, 2015 OK CR 16, I 27, 362 P.3d 650, 657
  6. Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355
  7. Rule 4.2(B), Rule 4.3, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019)
  8. Boykin v. Alabama, 395 U.S. 238 (1969)
  9. Ocampo v. State, 1989 OK CR 38, I 3, 78 P.2d 920, 921
  10. McMann v. Richardson, 397 U.S. 759 (1970)
  11. King v. State, 1976 OK CR 103, I 11, 553 P.2d 529, 534-35
  12. Blackledge v. Allison, 431 U.S. 63 (1977)
  13. 22 O.S.Supp.2010, § 991a(C)
  14. Bivens v. State, 2018 OK CR 33, IT 19, 431 P.3d 985
  15. 63 O.S.Supp.2005, § 2-401(G)(3)(h)
  16. Runnels v. State, 2018 OK CR 27, I 30, 426 P.3d 614, 622
  17. Howard v. State, 1991 OK CR 76, I 9, 815 P.2d 679, 683
  18. Meeks v. State, 1994 OK CR 20, I 4, 872 P.2d 936, 938
  19. Dunn v. State, 2018 OK CR 35, I 9, 434 P.3d 1, 3
  20. Logan v. State, 2013 OK CR 2, I 5, 293 P.3d 969, 973

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-401 (2005) - Manufacture of Controlled Dangerous Substance
  • Okla. Stat. tit. 63 § 2-402 (2009) - Possession of Controlled Substance
  • Okla. Stat. tit. 63 § 2-404 (2004) - Maintaining a Place for Keeping/Selling Controlled Substance
  • Okla. Stat. tit. 22 § 991a (2010) - Statutory Prohibition Against Suspended Sentences
  • Okla. Stat. tit. 21 § 51.1 (2011) - Sentences Enhanced
  • Okla. Stat. tit. 63 § 2-401 (2018) - Fine Imposition for Offenses

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:

  • David Duane Albright v. State, PC-2018-251 (Okl. Cr., March 21, 2018)
  • David Duane Albright v. State, F-2014-907 (Okl. Cr., May 4, 2017)
  • 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
  • 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
  • Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969)
  • Ocampo U. State, 1989 OK CR 38, I 3, 78 P.2d 920, 921
  • McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)
  • King U. 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)
  • Howard U. State, 1991 OK CR 76, I 9, 815 P.2d 679, 683
  • Meeks v. State, 1994 OK CR 20, I 4, 872 P.2d 936, 938
  • Runnels U. State, 2018 OK CR 27, I 30, 426 P.3d 614, 622
  • Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
  • Bivens v. State, 2018 OK CR 33, IT 19, 431 P.3d 985
  • Logan v. State, 2013 OK CR 2, I 5, 293 P.3d 969, 973

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