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C-2018-675

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Rayvon Latroy Johnson v The State Of Oklahoma

C-2018-675

Filed: Jun. 6, 2019

Not for publication

Prevailing Party: The prevailing party is Rayvon Latroy Johnson.

Summary

Rayvon Latroy Johnson appealed his conviction for Assault and Battery with a Deadly Weapon. Conviction and sentence reconsidered and remanded for a hearing. No dissenting opinions, but Judge Rowland recused.

Decision

The Petition for Certiorari is GRANTED, and the case is REMANDED to the District Court of Oklahoma County for a hearing on Petitioner's Motion to withdraw Plea of Guilty. 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 District Court in denying Petitioner's motion to withdraw his guilty plea based on an erroneous determination that the motion was filed out of time?
    • -
  • Did Petitioner's counsel fail to provide effective assistance during the evidentiary hearing on the motion to withdraw the guilty plea, violating the Sixth and Fourteenth Amendments of the United States Constitution and article II, §§ 7 and 20 of the Oklahoma Constitution, because they failed to establish that the plea withdrawal motion was timely filed under Oklahoma law?

    • Findings

  • The court erred in determining that the Petitioner's motion to withdraw plea was filed out of time.
  • Defense counsel was ineffective for failing to check the filing dates accurately.

    • C-2018-675

    Jun. 6, 2019

    Rayvon Latroy Johnson

    Appellant

    v

    The State Of Oklahoma

    Appellee

    SUMMARY OPINION GRANTING CERTIORARI

    KUEHN, VICE PRESIDING JUDGE:

    Rayvon Latroy Johnson entered a negotiated plea to Count III, Assault and Battery with a Deadly Weapon in violation of 21 O.S.2011, § 652, in the District Court of Oklahoma County, Case No. CF-2011-7038. The Honorable Cindy Truong sentenced Petitioner to twenty (20) years imprisonment, all suspended. Petitioner filed a motion to withdraw his plea on February 17, 2015. After a hearing on June 25, 2018, the Honorable Glenn M. Jones denied the motion as untimely. Petitioner timely filed this petition for writ of certiorari. We directed a response from the State, which was filed on May 2, 2019.

    Petitioner raises two propositions of error in support of his petition:

    1. The District Court abused its discretion when it denied Petitioner’s motion to withdraw plea of guilty based upon a clearly erroneous determination that the Petitioner’s motion was filed “out of time.”

    2. Mr. Johnson’s counsel failed to provide effective assistance of counsel during the evidentiary hearing on Mr. Johnson’s motion to withdraw plea of guilty, in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article II, § 7 and § 20 of the Oklahoma Constitution, because counsel failed to establish that Mr. Johnson’s plea withdrawal motion was, in fact, timely filed under Oklahoma law.

    Judge Jones found that Petitioner’s original February 17, 2015 motion to withdraw his pleas was out of time by one day, and both parties agreed. Petitioner’s motion was due on Monday, February 16, 2015. In 2015, that Monday was President’s Day and the courthouse was closed. Any document due on that date could be filed on the next succeeding business day. 25 O.S.Supp.2012, § 82.1(C). Petitioner’s motion was timely filed.

    In a thorough and painstaking brief, the State concedes error, admitting that the trial court abused its discretion in finding the filing untimely and further noting that defense counsel was ineffective for failing to check the dates. We agree. The Petition for Writ of Certiorari is granted, and the case remanded for a hearing on Petitioner’s Motion to Withdraw Plea of Guilty.

    DECISION

    The Petition for Certiorari is GRANTED, and the case is REMANDED to the District Court of Oklahoma County for a hearing on Petitioner’s Motion to withdraw Plea of Guilty. 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.

    ATTORNEYS AT PLEA HEARING:

    MICHAEL M. ARNETT
    THE ARNETT LAW FIRM
    3133 NORTHWEST 63RD
    OKLAHOMA CITY, OK 73116

    NICOLE MOISANT
    THE MOISANT LAW CENTER, PLLC
    2828 NW 57TH ST., STE. 100
    OKLAHOMA CITY, OK 73112

    TANYA JONES
    ASST. PUBLIC DEFENDER
    611 OKLA. CO. OFFICE BLDG.
    OKLAHOMA CITY, OK 73102
    COUNSEL FOR DEFENDANT

    DAVID NICHOLS JR.
    ASST. DISTRICT ATTORNEY
    OKLAHOMA COUNTY DISTRICT ATTORNEY’S OFFICE
    505 COUNTY OFFICE BLDG.
    320 ROBERT S. KERR AVE.
    OKLAHOMA CITY, OK 73102
    COUNSEL FOR THE STATE

    ATTORNEYS AT JUNE 25, 2018 HEARING / ATTORNEYS ON APPEAL:

    JOI MISKEL
    1901 N. CLASSEN BLVD.
    SUITE 100
    OKLAHOMA CITY, OK 73106
    COUNSEL FOR DEFENDANT

    MARIA T. KOLAR
    HOMICIDE DIRECT APPEALS DIV.
    P.O. BOX 926
    NORMAN, OK 73070
    COUNSEL FOR PETITIONER

    MIKE HUNTER
    ATTORNEY GENERAL OF OKLA.

    TESSA L. HENRY
    ASST. ATTORNEY GENERAL
    313 NE 21 ST STREET
    OKLAHOMA CITY, OK 73105
    COUNSEL FOR APPELLEE

    OPINION BY KUEHN, V.P.J.
    LEWIS, P.J.: CONCUR
    LUMPKIN, J.: CONCUR
    HUDSON, J.: CONCUR
    ROWLAND, J.: RECUSE

    [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-675_1732655247.pdf)

    Footnotes:

    1. 21 O.S.2011, § 652
    2. 25 O.S.Supp.2012, § 82.1(C)

    Oklahoma Statutes citations:

    • Okla. Stat. tit. 21 § 652 - Assault and Battery with a Deadly Weapon
    • Okla. Stat. tit. 25 § 82.1(C) - Legal Holidays

    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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