Orie Daniel Hill v The State Of Oklahoma

C-2018-685

Filed: Jun. 6, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Orie Daniel Hill appealed his conviction for multiple charges, including first-degree rape of a child under fourteen. Conviction and sentence of thirty years imprisonment on each count, served concurrently. Judge Lumpkin dissented. Orie Daniel Hill, the Petitioner, entered a plea of nolo contendere, which means he did not admit guilt but accepted the punishment for the charges against him. The charges included serious offenses like first-degree rape and child sexual abuse. The judge sentenced him to thirty years in prison for each charge, but he will serve those sentences at the same time. After his plea, Hill wanted to change his mind and withdraw his plea, saying that he didn’t really understand what he was doing and felt pressured. He also said his lawyer didn’t help him properly. However, the court reviewed his plea process and found it was made knowingly and willingly. They didn't see any evidence that he was forced or misled. Additionally, Hill's claims about his lawyer not preparing him well were not supported by proof, and the court believed he received proper legal advice. The court denied his request to change his plea, upholding the original decision.

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 the trial court's denial of Mr. Hill's motion to withdraw his plea an abuse of discretion because the plea was not knowingly, intelligently, and voluntarily entered?
• Was Mr. Hill denied his right to the effective assistance of counsel in violation of the 5th and 14th Amendments to the United States Constitution and Art. 2, §§ 7 and 20 of the Oklahoma Constitution?

Findings

• The court did not err in denying Mr. Hill's motion to withdraw his plea because it was knowingly, intelligently, and voluntarily entered.
• The court found that Mr. Hill was not denied his right to the effective assistance of counsel.
• The petition for the writ of certiorari is denied.
• The Judgment and Sentence is affirmed.

C-2018-685

Jun. 6, 2019

Orie Daniel Hill

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

LEWIS, PRESIDING JUDGE:

Orie Daniel Hill, Petitioner, entered a blind plea of nolo contendere to Count 1, first degree rape (victim under age fourteen (14)), in violation of 21 O.S.2011, § 1114(A)(1), Count 2, rape by instrumentation, in violation of 21 O.S.Supp.2015, § 1111.1, Count 3, lewd or indecent acts to child under sixteen (16), in violation of 21 O.S.Supp.2015, § 1123(A)(2), and Count 4, child sexual abuse, in violation of 21 O.S.Supp.2014, § 843.5(E), in the District Court of Seminole County, Case No. CF-2016-88. The Honorable George Butner, District Judge, accepted the plea, found Hill guilty, and sentenced him to thirty (30) years imprisonment on each count, to be served concurrently. The court also ordered three (3) years of post-imprisonment supervision, imposed various fees and costs, and special rules and conditions of probation. Petitioner filed a motion to withdraw the plea, which the district court denied after evidentiary hearing. Petitioner now seeks the writ of certiorari in the following propositions of error:

1. The trial court abused its discretion in denying Mr. Hill’s motion to withdraw his plea because it was not knowingly, intelligently, and voluntarily entered;
2. Mr. Hill was denied his right to the effective assistance of counsel in violation of the 5th and 14th Amendments to the United States Constitution and Art. 2, §§ 7 and 20 of the Oklahoma Constitution.

FACTS

The victim’s mother observed eight year old A.H. “hunching” her bedding in early February 2016. She had never observed this behavior before, and A.H. had never acted out sexually prior to this date. The mother was in a relationship with Petitioner which had started about three and a half years prior to this occurrence. The activity was reported to authorities, the home was searched for evidence, and A.H. was interviewed and examined. A sexual assault nurse examiner (SANE) examined A.H. who told her that she had been abused by her “stepfather” Orie. She said it occurred over a long period of time. He touched her breast area multiple times and he touched her genitals. He would touch her genitals with his penis and he would touch her vaginal area and anal area with his fingers. He would insert his penis into her vaginal area. She said it hurt and “gooey stuff came out of him.” He also put his mouth on her chest. The nurse examined A.H. and found injuries (tears, redness and swelling) to her labia minora. The nurse believed the injuries occurred within a matter of days. DNA evidence collected from A.H.’s panties found in her room was a match to Petitioner’s DNA. The chance of a random match was one in 438 quintillion.

ANALYSIS

Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a court of competent jurisdiction, Weeks v. State, 2015 OK CR 16, ¶ 11, 362 P.3d 650, 654; whether the sentence is excessive, Whitaker v. State, 2015 OK CR 1, ¶ 9, 341 P.3d 87, 90; whether counsel was constitutionally effective, Lozoya v. State, 1996 OK CR 55, 932 P.2d 22, and whether the State has the power to prosecute the defendant at all, Weeks, 2015 OK CR 16, ¶ 12, 362 P.3d at 654. The Court will not review the merits of an issue not raised in the motion to withdraw a guilty plea. Weeks, 2015 OK CR 16, ¶¶ 27-29, 362 P.3d at 657; Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018). We review the trial court’s ruling on a motion to withdraw a plea for an abuse of discretion, Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998; unless it involves a question of statutory or constitutional interpretation, which we review de novo. Weeks, 2015 OK CR 16, ¶ 16, 362 P.3d at 654. Neither Petitioner’s dissatisfaction with the sentence, nor an inaccurate prediction by counsel of the likely sentence to be imposed on a blind plea, is a sufficient ground for withdrawal of a plea. Lozoya, 1996 OK CR 55, ¶ 44, 932 P.2d at 34; Estell v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380, 1383.

In proposition one, Petitioner argues he is entitled to relief because he did not understand the no contest plea or the plea process, felt he was pressured into taking the plea, and felt as if he had received poor legal advice in the matter. 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). From our review of the trial court’s colloquy, the plea of guilty summary of facts, and the motion to withdraw hearing, we conclude that Petitioner knowingly, voluntarily, and intelligently entered pleas of guilty to all counts charged. Petitioner was fully advised of the rights he was abandoning and the ranges of punishment. There was no evidence that he was not competent to enter his pleas. He now claims his plea attorney did not represent him well in preparing for trial. The hearings, however, do not support this allegation. Petitioner testified that he felt he had no choice but to enter his no contest plea. His decision, however, was made after sound legal advice. His trial counsel presented proposed evidence, in limine, and the trial court ruled that the evidence would be inadmissible. Counsel then conferred with Petitioner and allegedly told him that if he went to trial he would receive three life sentences. Petitioner did not show that he received anything but sound advice from his attorney. Proposition one is, hereby, denied.

In proposition two, Petitioner alleges that plea counsel was constitutionally ineffective in his representation of him. He claims counsel’s representation fell below an objective standard of reasonableness because counsel’s lack of preparation left him (Hill) without the ability to adequately defend himself at trial. To prevail, Petitioner must show both deficient performance by counsel and resulting prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland prejudice, in the guilty plea context, is a reasonable probability that, but for counsel’s errors, the petitioner would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Petitioner makes an unsubstantiated claim that evidence exists that A.H. had acted out sexually prior to Petitioner’s arrival into the life of A.H. Apparently this is the evidence that the trial court ruled was inadmissible prior to Petitioner’s decision to enter his plea. Petitioner and counsel relied on this ruling and the possibility of very harsh sentences as a result of a trial in making the decision to enter a no contest plea. Far from being ineffective, the record presented to this Court leads us to believe that the advice given was nothing but sound legal advice. We find, therefore, that Petitioner has not shown that plea counsel made errors so serious as to constitute constitutionally deficient performance, or that he was prejudiced by counsel’s alleged deficient performance. Proposition two is denied.

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.

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Footnotes:

1. Pursuant to Title 21 O.S.Supp.2014, § 13.1(10, 14 & 18)
2. Weeks U. State, 2015 OK CR 16, 11, 362 P.3d 650, 654;
3. Whitaker v. State, 2015 OK CR 1, I 9, 341 P.3d 87, 90;
4. Lozoya U. State, 1996 OK CR 55, 932 P.2d 22;
5. Weeks, 2015 OK CR 16, IT 12, 362 P.3d at 654.
6. Carpenter v. State, 1996 OK CR 56, I 40, 929 P.2d 988, 998;
7. Lozoya, 1996 OK CR 55, I 44, 932 P.2d at 34;
8. Estell v. State, 1988 OK CR 287, I 7, 766 P.2d 1380, 1383.
9. North Carolina U. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).
10. Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
11. Hill U. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114(A)(1) - First degree rape (victim under age fourteen)
• Okla. Stat. tit. 21 § 1111.1 - Rape by instrumentation
• Okla. Stat. tit. 21 § 1123(A)(2) - Lewd or indecent acts to child under sixteen
• Okla. Stat. tit. 21 § 843.5(E) - Child sexual abuse
• Okla. Stat. tit. 21 § 13.1(10, 14 & 18) - Parole eligibility

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, I 9, 341 P.3d 87, 90
• Lozoya v. State, 1996 OK CR 55, 932 P.2d 22
• Carpenter v. State, 1996 OK CR 56, I 40, 929 P.2d 988, 998
• Estell v. State, 1988 OK CR 287, I 7, 766 P.2d 1380, 1383
• North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)