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C-2018-489

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Mario Donsheau Cherry v The State Of Oklahoma

C-2018-489

Filed: Apr. 4, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Mario Donsheau Cherry appealed his conviction for First Degree Manslaughter and other serious charges. His conviction and sentence were affirmed by the court, meaning he will serve time in prison. Judge Hudson dissented.

Decision

The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court 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 abuse of discretion by the trial court in denying Petitioner the ability to withdraw his plea of guilty based on claims that the plea was not knowing and voluntary?
  • Did Petitioner receive ineffective assistance of counsel regarding advice on waiving his statutory right to a direct appeal?
  • Was Petitioner's sentence excessive and did it shock the conscience of the court?

Findings

  • The court did not err in denying the motion to withdraw the guilty plea as it was voluntary and knowing.
  • The claim of ineffective assistance of counsel was waived for appellate review.
  • The sentence imposed was not excessive and did not shock the conscience of the Court.

C-2018-489

Apr. 4, 2019

Mario Donsheau Cherry

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

LUMPKIN, JUDGE: Petitioner Mario Donsheau Cherry entered blind pleas of guilty to First Degree Manslaughter, After Former Conviction of Two or More Felonies (Count II) (21 O.S.2011, § 711); Causing an Accident Resulting in Great Bodily Injury, After Former Conviction of Two or More Felonies (Count III) (47 O.S.2011, § 11-905(B)); Leaving the Scene of an Accident with Personal Injury, After Former Conviction of Two or More Felonies (Count V) (47 O.S.2011, § 10-104); Leaving the Scene of a Collision Without Stopping (Count VI) (47 O.S.2011, § 10-103); Resisting Arrest (Count VII) (21 O.S.2011, § 268); and Driving While License Suspended (Count IX) (47 O.S.2011, § 6-1303(B)) in the District Court of Oklahoma County, Case No. CF-2016-4278. The pleas were accepted by the Honorable Bill Graves, District Judge, on February 23, 2018. Sentencing was continued until April 5, 2018. On that date, the trial court sentenced Petitioner to life in prison in Counts II, III and V; and one (1) year in each of Counts VI, VII, and IX. The sentences in Counts II and III were ordered to run consecutive. The remaining sentences were ordered to run concurrently to the sentences in Counts II and III. On April 12, 2018, Petitioner, represented by counsel, filed an Application to Withdraw Plea of Guilty. At a hearing held on May 4, 2018, Judge Graves denied the motion to withdraw.

Petitioner appeals the denial of his motion, and raises the following propositions of error:

I. The trial court abused its discretion in not allowing Petitioner to withdraw his plea of guilty when the evidence presented showed that his plea was not knowing and voluntary.

II. Petitioner 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.

III. Petitioner’s sentence is excessive and shocks the conscience.

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 have determined that neither reversal nor modification is required under the law and evidence.

In Proposition I, Petitioner argues that he was not advised at the plea hearing that by entering a blind plea of guilty, he was waiving his statutory right to a direct appeal. He contends that the mention of his appellate rights during the sentencing proceeding was insufficient to inform him that by entering a plea of guilty he waived all other appeal rights, particularly the right to appeal his sentence. Under these circumstances, Petitioner asserts his plea cannot be deemed knowing and voluntary and therefore cannot stand. This issue was addressed by the trial court. Therefore, our review on appeal is for an abuse of discretion. Lewis v. State, 2009 OK CR 30, 5, 220 P.3d 1140, 1142. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the issue; a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, 9, 35, 274 P.3d 161, 170. The burden is on the petitioner to show a defect in the plea process that entitles him to withdraw the plea. See Elmore v. State, 1981 OK CR 8, 8, 624 P.2d 78, 80.

As Petitioner asserts, appeals of jury verdicts and guilty pleas are different. However, the fact that they are different does not impinge on Petitioner’s rights. Here, Petitioner has not been denied his statutory right to appeal. The procedure for appealing a guilty plea is set out in Rule 4.2, et. seq. Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019). On appeal, 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, 23 L.Ed.2d 274 (1969); Ocampo v. State, 1989 OK CR 38, 3, 778 P.2d 920, 921. The defendant must be advised of all constitutional rights he relinquishes with his plea. King v. State, 1976 OK CR 103, 11, 553 P.2d 529, 534-35. He must also be advised of “[t]he nature and consequences of such plea, including the minimum and maximum punishment provided by law for the crime of which he stands charged.” Id. The defendant has the burden of showing that the plea was entered unadvisedly, through ignorance, inadvertence, influence or without deliberation, and that there is a defense to present to the jury. Estell v. State, 1988 OK CR 287, 7, 766 P.2d 1380, 1382. We review the entire record in examining the voluntariness of the plea. Fields v. State, 1996 OK CR 35, 28, 923 P.2d 624, 630.

The requirements of King do not include a nuanced understanding of the appeal process. King only requires a knowing and voluntary plea. The record in this case, including the Summary of Facts form and the transcript of the plea hearing, reflects a knowing and voluntary plea. Petitioner indicated he understood this was a blind plea and that a blind plea meant the judge determined the sentence. Petitioner indicated that no one forced, coerced, or threatened him into pleading guilty. Petitioner informed the court that his rights to a jury trial had been explained to him and that he was waiving those rights. He indicated he understood the range of punishment for each offense. These steps were reviewed by the trial court with Petitioner at sentencing. Petitioner affirmed he was entering a voluntary plea. Petitioner indicated he understood his rights to appeal as explained to him.

Based upon the record before us, we find the trial court did not abuse its discretion in denying the motion to withdraw as a voluntary and knowing guilty plea was clearly entered.

In Proposition II, Petitioner claims he was denied the effective assistance of counsel by counsel’s failure to consult with him regarding the fact that a direct consequence of his plea was a waiver of his statutory direct appeal right. Petitioner did not raise a claim of ineffective assistance of counsel in his Application to Withdraw Plea or in the Petition for Writ of Certiorari. Therefore, the claim has been waived for our appellate review. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); Weeks v. State, 2015 OK CR 16, 27-29, 362 P.3d 650, 657.

In Proposition III, Petitioner contends that the trial court’s imposition of the maximum sentence in each count and the decision to run the sentences in Count II and III consecutively resulted in a sentence so excessive as to shock the conscience of the Court. This Court reviews claims of excessive sentence when properly raised in a certiorari appeal. Stevens v. State, 2018 OK CR 11, 21, 422 P.3d 741, 747; Whitaker v. State, 2015 OK CR 1, 7-9, 341 P.3d 87, 89-90. Petitioner’s excessive sentence claim was included in his Petition for Writ of Certiorari filed with this Court and therefore has been properly preserved for our review. We review claims of excessive sentence to determine whether the sentence is within statutory guidelines, and if so, whether, under all the facts and circumstances of the case, the sentence is so excessive as to shock the conscience of the Court. Beihl v. State, 1988 OK CR 213, 3, 762 P.2d 976, 977. See also Cipriano v. State, 2001 OK CR 25, 52, 32 P.3d 869, 880. Here the sentences were within the applicable statutory range. The decision to run Counts II and III consecutively was within the trial court’s discretion. 22 O.S.2011, § 976. The sentences imposed were not so excessive as to shock the conscience of the Court as Petitioner admitted to his crimes and his nine (9) prior felonies. Finding no legal reason to modify Petitioner’s sentence, this proposition is denied.

DECISION

The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court 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. Oklahoma Stat. tit. 21 § 711
  2. Oklahoma Stat. tit. 47 § 11-905(B)
  3. Oklahoma Stat. tit. 47 § 10-104
  4. Oklahoma Stat. tit. 47 § 10-103
  5. Oklahoma Stat. tit. 21 § 268
  6. Oklahoma Stat. tit. 47 § 6-1303(B)
  7. Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019)
  8. Oklahoma Stat. tit. 22 § 976
  9. Stevens v. State, 2018 OK CR 11, 422 P.3d 741
  10. Whitaker v. State, 2015 OK CR 1, 341 P.3d 87
  11. Beihl v. State, 1988 OK CR 213, 762 P.2d 976
  12. Cipriano v. State, 2001 OK CR 25, 32 P.3d 869
  13. Lewis v. State, 2009 OK CR 30, 220 P.3d 1140
  14. Neloms v. State, 2012 OK CR 7, 274 P.3d 161
  15. Elmore v. State, 1981 OK CR 8, 624 P.2d 78
  16. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709
  17. Ocampo v. State, 1989 OK CR 38, 778 P.2d 920
  18. King v. State, 1976 OK CR 103, 553 P.2d 529
  19. Fields v. State, 1996 OK CR 35, 923 P.2d 624
  20. Weeks v. State, 2015 OK CR 16, 362 P.3d 650

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 711 (2011) - First Degree Manslaughter
  • Okla. Stat. tit. 47 § 11-905 (2011) - Causing an Accident Resulting in Great Bodily Injury
  • Okla. Stat. tit. 47 § 10-104 (2011) - Leaving the Scene of an Accident with Personal Injury
  • Okla. Stat. tit. 47 § 10-103 (2011) - Leaving the Scene of a Collision Without Stopping
  • Okla. Stat. tit. 21 § 268 (2011) - Resisting Arrest
  • Okla. Stat. tit. 47 § 6-303 (2011) - Driving While License Suspended
  • Okla. Stat. tit. 22 § 976 (2011) - Sentencing Guidelines

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:

No case citations found.

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