Lavonte Antonio Johnson v The State Of Oklahoma

C-2018-372

Filed: May 29, 2019

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Lavonte Antonio Johnson appealed his conviction for using a vehicle to help intentionally shoot a gun. His original conviction was for 27 years in prison. Judge N. dissented.

Decision

The petition for the writ of certiorari is DENIED. The Judgment and Sentence 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 delivery and filing of this decision.

Issues

• Was Mr. Johnson's guilty plea entered knowingly and voluntarily, and did the district court err in denying his application to withdraw the plea?
• Did Mr. Johnson receive ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution?
• Is Mr. Johnson's 27-year sentence excessive under the Eighth Amendment and does it shock the conscience?

Findings

• The court did not err in denying Mr. Johnson's application to withdraw his guilty plea.
• No ineffective assistance of counsel was found regarding the plea process.
• The 27-year sentence was not considered excessive and did not shock the conscience.

C-2018-372

May 29, 2019

Lavonte Antonio Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING PETITION FOR WRIT OF CERTIORARI

LEWIS, PRESIDING JUDGE: Lavonte Antonio Johnson, Petitioner, pled guilty to using a vehicle to facilitate the intentional discharge of a firearm, in violation of 21 O.S.2011, § 652(B), in the District Court of Oklahoma County, Case No. CF-2014-2033. The Honorable Susan K. Johnson, Special Judge, accepted the plea and deferred judgment for five (5) years subject to rules and conditions of probation. The State later moved to accelerate the judgment, alleging that Petitioner had violated the rules and conditions of probation by possessing a firearm and jumping bail. The Honorable Ray C. Elliott, District Judge, accelerated judgment and sentenced Petitioner to twenty-seven (27) years imprisonment.

Petitioner filed a motion to withdraw his guilty plea, which the trial court denied. Petitioner now seeks the writ of certiorari in the following propositions of error:
1. Mr. Johnson did not knowingly and voluntarily enter his plea of guilty, and thus the district court erred when it denied Mr. Johnson’s application to withdraw his guilty plea;
2. Mr. Johnson received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution;
3. Mr. Johnson’s 27-year sentence is excessive under the Eighth Amendment and shocks the conscience.

Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a court of competent jurisdiction, Weeks U. State, 2015 OK CR 16, I 11, 362 P.3d 650, 654; whether the sentence is excessive, Whitaker U. State, 2015 OK CR 1, I 9,341 P.3d 87, 90; whether counsel was constitutionally effective at either the plea hearing or the withdrawal hearing, Tate U. State, 2013 OK CR 18, 38, 313 P.3d 274, 284-85, Lozoya U. State, 1996 OK CR 1 Appellant must serve 85% of his sentence before being eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1(5).

In Proposition One, Petitioner argues that the record does not establish a knowing and voluntary plea due to plea counsel’s incorrect notation on the plea of guilty summary of facts form that the crime was not an 85% crime. A valid plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). We review a ruling on a motion to withdraw a plea for an abuse of discretion, Carpenter U. State, 1996 OK CR 56, I 40, 929 P.2d 988, 998. An abuse of discretion is a clearly erroneous conclusion or judgment, contrary to the logic and effect of the facts presented. Neloms U. State, 2012 OK CR 7, I 35, 274 P. 3d 161, 170. We find that the trial court did not abuse its discretion in concluding that despite the scrivener’s error on the plea form, Petitioner was properly advised that this was an 85% crime. Proposition One is denied.

In Proposition Two, Petitioner argues that trial counsel’s failure to adequately advise him of the applicability of the 85% rule to his crime denied him the effective assistance of counsel on his plea of guilty. See Ferguson v. State, 2006 OK CR 36, I 4, 143 P.3d 218, 219 (holding failure to advise defendant of 85% rule rendered guilty plea involuntary). Reviewing this claim according to the two-pronged standard of deficient performance and prejudice established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we find Petitioner has not shown that counsel was ineffective. No relief is required. Proposition Two is denied.

In Proposition Three, Petitioner argues that his twenty-seven (27) year sentence is excessive. A sentence within the statutory range will not be modified on appeal unless, considering all the facts and circumstances, it shocks the conscience of the Court. Maxwell U. State, 1989 OK CR 22, 12, 775 P.2d 818, 820. Petitioner violated his probation for a violent weapons-related felony by possessing a firearm and jumping bail. The resulting sentence after acceleration of the judgment does not shock the conscience. Proposition Three is without merit.

DECISION

The petition for the writ of certiorari is DENIED. The Judgment and Sentence 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 delivery and filing of this decision.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

TONY COLEMAN
101 PARK AVE., STE. 300
OKLAHOMA CITY, OK 73102

ANDREA DIGILIO MILLER
320 ROBERT S. KERR, STE 611
OKLAHOMA CITY, OK 73102
ATTORNEY FOR PETITIONER

LORENZO BANKS
430 N.W. 5TH ST.
OKLAHOMA CITY, OK 73102
(NO RESPONSE NECESSARY)

THOMAS HURLEY
320 ROBERT S. KERR, STE. 611
OKLAHOMA CITY, OK 73102
(Withdrawal)
ATTORNEYS FOR DEFENDANT

DANIEL POND
ASST. DISTRICT ATTORNEY
320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR THE STATE

OPINION BY: LEWIS, P.J.

KUEHN, V.P.J.: Concur
LUMPKIN, J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: Concur

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Footnotes:

1. 21 O.S.2011, § 652(B)
2. Weeks v. State, 2015 OK CR 16, ¶ 11, 362 P.3d 650, 654
3. Whitaker v. State, 2015 OK CR 1, ¶ 9, 341 P.3d 87, 90
4. Tate v. State, 2013 OK CR 18, 38, 313 P.3d 274, 284-85
5. Lozoya v. State, 1996 OK CR 1
6. 21 O.S.Supp.2015, § 13.1(5)
7. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)
8. Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998
9. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170
10. Ferguson v. State, 2006 OK CR 36, ¶ 4, 143 P.3d 218, 219
11. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
12. Maxwell v. State, 1989 OK CR 22, ¶ 12, 775 P.2d 818, 820

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652(B) - Discharge of firearm while using a vehicle
• Okla. Stat. tit. 21 § 701.8 - Sentencing for certain violent offenders
• Okla. Stat. tit. 21 § 13.1(5) - Parole eligibility for violent offenders
• Okla. Stat. tit. 22 § 1080 - Withdrawal of guilty plea

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:

• Weeks v. State, 2015 OK CR 16, ¶ 11, 362 P.3d 650, 654
• Whitaker v. State, 2015 OK CR 1, ¶ 9, 341 P.3d 87, 90
• Tate v. State, 2013 OK CR 18, ¶ 38, 313 P.3d 274, 284-85
• Lozoya v. State, 1996 OK CR 55, 932 P.2d 22
• North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)
• Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998
• Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170
• Ferguson v. State, 2006 OK CR 36, ¶ 4, 143 P.3d 218, 219
• Maxwell v. State, 1989 OK CR 22, ¶ 12, 775 P.2d 818, 820