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C-2018-698

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Joe Saucedo Guerrero v State Of Oklahoma

C-2018-698

Filed: Jul. 18, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

**Joe Saucedo Guerrero appealed his conviction for multiple counts of lewd acts and child pornography. Conviction and sentence: twenty years for each lewd count and five years for child pornography, to be served consecutively. Judge Kuehn dissented.** In this case, Joe Saucedo Guerrero pleaded guilty to several serious charges, including proposing lewd acts to children and having child pornography. After entering his pleas, he was sentenced to a long time in prison. However, shortly after, he wanted to take back his guilty pleas, saying he didn't fully understand what he was agreeing to and that his lawyer didn't help him properly. The court considered his request to withdraw his pleas but ultimately denied it. They found no mistakes were made during the process of accepting his guilty pleas. Guerrero also claimed that his lawyer gave him bad advice about a plea deal and that his sentences were too harsh. The court decided that Guerrero hadn't shown any errors that would require them to change their decision. They agreed with the initial sentences and concluded that everything followed the law correctly. As a result, Guerrero's appeal was denied, and his original sentences were upheld.

Decision

Petitioner, Joe Saucedo Guerrero, entered blind pleas of guilty on March 27, 2018, in Tulsa County District Court Case No. CF-2017-6354 before the Honorable Sharon K. Holmes, District Judge, to six counts of Lewd or Indecent Proposal to a Child, in violation of 21 O.S.Supp.2017, § 1123 (Counts 1, 3-7); one count of Soliciting a Minor for Indecent Exposure/Photos, in violation of 21 O.S.2011, § 1021(B)(2) (Count 2); and one count of Possession of Child Pornography, in violation of 21 O.S.2011, § 1021.2 (Count 8). Judge Holmes accepted Petitioner's guilty pleas and passed sentencing pending receipt and review of a pre-sentencing investigation report. On May 22, 2018, Judge Holmes sentenced Petitioner to twenty years imprisonment each on Counts 1-7 and to five years imprisonment on Count 8. Judge Holmes ordered the sentences on all eight counts to run consecutively and ordered credit for time served. On May 24, 2018, Petitioner through counsel filed a motion to withdraw his guilty pleas claiming without elaboration that his pleas were not knowingly and voluntarily entered; that he did not fully understand the charges against him as the Information was amended after arraignment; and that his public defender's advice surrounding the pleas was ill advised. On June 15, 2018, Judge Holmes held a hearing on Petitioner's motion to withdraw his guilty pleas. Petitioner was represented at this hearing by conflict counsel Brian Martin and Petitioner was the sole witness. At the conclusion of the hearing, Judge Holmes denied Petitioner's motion to withdraw his guilty pleas. Petitioner now seeks a writ of certiorari alleging the following propositions of error: I. PETITIONER SHOULD BE ALLOWED TO WITHDRAW HIS GUILTY PLEA BECAUSE AN ADEQUATE FACTUAL BASIS WAS NOT ESTABLISHED; II. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF PLEA COUNSEL TO WHICH HE WAS ENTITLED UNDER THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION; and III. PETITIONER'S SENTENCES WERE EXCESSIVE AND SHOULD BE MODIFIED. After thorough consideration of the entire record before us on appeal, including the original record, transcripts and Petitioner's brief, we find that no relief is required under the law and evidence. Petitioner's Petition for Writ of Certiorari is therefore DENIED. Proposition I. First, Petitioner argues that his pleas were not knowingly and voluntarily made because a) he was incorrectly advised of the offense charged in Count 2 due to an incorrect statutory citation listed for this count on the plea form; and b) he was advised of incorrect punishment ranges for Counts 2 and 8. Petitioner did not raise these particular claims in his motion to withdraw plea. Nor did he raise these claims during the hearing on his motion to withdraw. Petitioner has therefore waived this aspect of his Proposition I claim from appellate review. Rules 4.2(B) and 4.3(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019); Weeks U. State, 2015 OK CR 16, III 27-29, 362 P.3d 650, 657. This part of Proposition I is denied. Second, Petitioner argues that his pleas were not knowingly and voluntarily entered because he only believed he was entering guilty pleas to the two counts alleged in the original Information. We seriously question whether this claim was properly raised below during the proceedings on Petitioner's motion to withdraw his pleas. Nonetheless, it is far easier to deny this claim on the merits than to resolve this thorny procedural question and we choose that course here. On certiorari review of a plea of guilty, our review is limited to two inquiries: (1) whether the plea was made knowingly and voluntarily; and (2) whether the district court accepting the plea had jurisdiction. Lewis U. State, 2009 OK CR 30, I 4, 220 P.3d 1140, 1142 (citing Cox U. State, 2006 OK CR 51, II 4, 152 P.3d 244, 247, overruled on other grounds in State U. Vincent, 2016 OK CR 7, 371 P.3d 1127); Hopkins U. State, 1988 OK CR 257, II 2, 764 P.2d 215, 216. A voluntary guilty plea waives all non-jurisdictional defects. Cox, 2006 OK CR 51, I 4, 152 P.3d at 247 (citing Frederick U. State, 1991 OK CR 56, II 5, 811 P.2d 601, 603). We examine the entire record before us on appeal to determine the knowing and voluntary nature of the plea. Fields U. State, 1996 OK CR 35, II 28, 923 P.2d 624, 630. This Court reviews the denial of a motion to withdraw plea for an abuse of discretion. Cox, 2006 OK CR 51, I 18, 152 P.3d at 251. 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 U. State, 2012 OK CR 7, g 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 U. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80. The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant. North Carolina U. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970). When a defendant claims that his guilty plea was entered through inadvertence, ignorance, influence or without deliberation, he has the burden of showing that the plea was entered as a result of one of these reasons and that there is a defense that should be presented to the jury. Estell U. State, 1988 OK CR 287, I 7, 766 P.2d 1380, 1383. In the present case, the total record-including the signed plea form listing all eight charges, the transcript of the plea colloquy between Petitioner and Judge Holmes and the docket entry showing Petitioner was arraigned on the amended charges months before he entered his guilty pleas-contradicts Petitioner's claim that he only believed he was entering pleas to the two counts alleged in the original Information. The trial court did not abuse its discretion in denying Petitioner's motion to withdraw on this ground. Relief is denied for this portion of Proposition I. Third, Petitioner complains that his plea was not knowingly and voluntarily made because plea counsel did not advise him of the State's plea offer. The inspiration for this claim is testimony from Petitioner on cross-examination by the prosecutor that plea counsel did not tell him about the State's plea offer of thirty-five years imprisonment. Despite this testimony, however, Petitioner never urged below that defense counsel's failure to advise him of the State's plea offer was grounds for setting aside his plea. This particular claim is not sufficiently encompassed in the written motion to withdraw. Nor did conflict counsel make any attempt to develop this particular claim, even after Petitioner's testimony in the cited passage. It is not enough that all the facts necessary to support the federal claim were before the state [district] court[ ]. Anderson U. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 277, 74 L. Ed. 2d 3 (1982). Rather, Petitioner had an obligation to present both the factual and legal substance of his claim to the district court in the motion to withdraw proceedings. This he did not do. This portion of Petitioner's Proposition I claim is therefore waived from review. Rules 4.2(B) and 4.3(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019); Weeks, 2015 OK CR 16, II 27-29, 362 P.3d at 657. Relief is denied for Proposition I. Proposition II. Petitioner argues that plea counsel was constitutionally ineffective. The closest Petitioner came to raising this claim below was his assertion in the written motion to withdraw that [t]he defendant relied upon advice of counsel, which was ill advised. Neither Petitioner nor conflict counsel alleged during the proceedings below that plea counsel was constitutionally ineffective. Nor did they cite Strickland U. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Padilla U. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) in support of their claims as appellate counsel now does. Petitioner's oblique reference in his motion to withdraw to counsel's advice being ill advised hardly qualifies as fair presentment of the ineffective assistance of counsel claims now raised by appellate counsel. Petitioner had an obligation to present both the factual and legal substance of his claims to the district court in the motion to withdraw proceedings. Because Petitioner did not allege below that plea counsel was ineffective, this claim is therefore waived from review. Rules 4.2(B) and 4.3(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019); Harless, 459 U.S. at 6, 103 S. Ct. at 277; Weeks, 2015 OK CR 16, III 27-29, 362 P.3d at 657. Proposition II is denied. Proposition III. Petitioner complains that the sentences imposed were excessive. This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks our conscience. Baird U. State, 2017 OK CR 16, I 40, 400 P.3d 875, 886; Rea U. State, 2001 OK CR 28, II 5, 34 P.3d 148, 149. In judging whether a defendant's sentence is excessive, we do not conduct a proportionality review on appeal. Rea, 2001 OK CR 28, II 5, 34 P.3d at 149. Further, the decision to run sentences concurrently or consecutively lies within the trial court's sound discretion. Birdine U. State, 2004 OK CR 7, II 7, 85 P.3d 284, 286. Under the total circumstances presented here, Judge Holmes did not abuse her discretion with the sentences imposed, all of which are within the statutory range. Nor did Judge Holmes abuse her discretion in running Petitioner's sentences consecutively. Petitioner's sentences are factually substantiated and appropriate under the circumstances presented here. The sentences imposed do not shock the conscience. Proposition III is denied. The Petition for 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 delivery and filing of this decision.

Issues

  • Was there an adequate factual basis established for the Petitioner’s guilty pleas?
  • Did the Petitioner receive effective assistance of counsel during the plea process?
  • Were the sentences imposed on the Petitioner excessive and should they be modified?

Findings

  • the court erred in considering claims not raised in the motion to withdraw plea
  • the court did not err in denying the claim that the pleas were not knowingly and voluntarily made
  • the court erred in failing to address ineffective assistance of plea counsel claims raised on appeal but not below
  • the sentences imposed were not excessive and the court did not abuse its discretion

C-2018-698

Jul. 18, 2019

Joe Saucedo Guerrero

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

HUDSON, JUDGE: Petitioner, Joe Saucedo Guerrero, entered blind pleas of guilty on March 27, 2018, in Tulsa County District Court Case No. CF-2017-6354 before the Honorable Sharon K. Holmes, District Judge, to six counts of Lewd or Indecent Proposal to a Child, in violation of 21 O.S.Supp.2017, § 1123 (Counts 1, 3-7); one count of Soliciting a Minor for Indecent Exposure/Photos, in violation of 21 O.S.2011, § 1021(B)(2) (Count 2); and one count of Possession of Child Pornography, in violation of 21 O.S.2011, § 1021.2 (Count 8). Judge Holmes accepted Petitioner’s guilty pleas and passed sentencing pending receipt and review of a pre-sentencing investigation report. On May 22, 2018, Judge Holmes sentenced Petitioner to twenty years imprisonment each on Counts 1-7 and to five years imprisonment on Count 8. Judge Holmes ordered the sentences on all eight counts to run consecutively and ordered credit for time served.¹

On May 24, 2018, Petitioner through counsel filed a motion to withdraw his guilty pleas claiming without elaboration that his pleas were not knowingly and voluntarily entered; that he did not fully understand the charges against him as the Information was amended after arraignment; and that his public defender’s advice surrounding the pleas was “ill advised.” On June 15, 2018, Judge Holmes held a hearing on Petitioner’s motion to withdraw his guilty pleas. Petitioner was represented at this hearing by conflict counsel Brian Martin and Petitioner was the sole witness. At the conclusion of the hearing, Judge Holmes denied Petitioner’s motion to withdraw his guilty pleas.

Petitioner now seeks a writ of certiorari alleging the following propositions of error:

I. PETITIONER SHOULD BE ALLOWED TO WITHDRAW HIS GUILTY PLEA BECAUSE AN ADEQUATE FACTUAL BASIS WAS NOT ESTABLISHED;
II. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF PLEA COUNSEL TO WHICH HE WAS ENTITLED UNDER THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION; and
III. PETITIONER’S SENTENCES WERE EXCESSIVE AND SHOULD BE MODIFIED.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and Petitioner’s brief, we find that no relief is required under the law and evidence. Petitioner’s Petition for Writ of Certiorari is therefore DENIED.

Proposition I. First, Petitioner argues that his pleas were not knowingly and voluntarily made because a) he was incorrectly advised of the offense charged in Count 2 due to an incorrect statutory citation listed for this count on the plea form; and b) he was advised of incorrect punishment ranges for Counts 2 and 8. Petitioner did not raise these particular claims in his motion to withdraw plea. Nor did he raise these claims during the hearing on his motion to withdraw. Petitioner has therefore waived this aspect of his Proposition I claim from appellate review.

This part of Proposition I is denied.

Second, Petitioner argues that his pleas were not knowingly and voluntarily entered because he only believed he was entering guilty pleas to the two counts alleged in the original Information. We seriously question whether this claim was properly raised below during the proceedings on Petitioner’s motion to withdraw his pleas. Nonetheless, it is far easier to deny this claim on the merits than to resolve this thorny procedural question and we choose that course here. On certiorari review of a plea of guilty, our review is limited to two inquiries: (1) whether the plea was made knowingly and voluntarily; and (2) whether the district court accepting the plea had jurisdiction. A voluntary guilty plea waives all non-jurisdictional defects. We examine the entire record before us on appeal to determine the knowing and voluntary nature of the plea. This Court reviews the denial of a motion to withdraw plea for an abuse of discretion. The burden is on the Petitioner to show a defect in the plea process that entitles him to withdraw the plea.

In the present case, the total record—including the signed plea form listing all eight charges, the transcript of the plea colloquy between Petitioner and Judge Holmes, and the docket entry showing Petitioner was arraigned on the amended charges months before he entered his guilty pleas—contradicts Petitioner’s claim that he only believed he was entering pleas to the two counts alleged in the original Information. The trial court did not abuse its discretion in denying Petitioner’s motion to withdraw on this ground. Relief is denied for this portion of Proposition I.

Third, Petitioner complains that his plea was not knowingly and voluntarily made because plea counsel did not advise him of the State’s plea offer. The inspiration for this claim is testimony from Petitioner on cross-examination by the prosecutor that plea counsel did not tell him about the State’s plea offer of thirty-five years imprisonment. Despite this testimony, however, Petitioner never urged below that defense counsel’s failure to advise him of the State’s plea offer was grounds for setting aside his plea. This particular claim is not sufficiently encompassed in the written motion to withdraw.

This portion of Petitioner’s Proposition I claim is therefore waived from review. Relief is denied for Proposition I.

Proposition II. Petitioner argues that plea counsel was constitutionally ineffective. The closest Petitioner came to raising this claim below was his assertion in the written motion to withdraw that “[t]he defendant relied upon advice of counsel, which was ill advised.” Neither Petitioner nor conflict counsel alleged during the proceedings below that plea counsel was constitutionally ineffective. Petitioner’s oblique reference in his motion to withdraw to counsel’s advice being “ill advised” hardly qualifies as fair presentment of the ineffective assistance of counsel claims now raised by appellate counsel.

Because Petitioner did not allege below that plea counsel was ineffective, this claim is therefore waived from review. Proposition II is denied.

Proposition III. Petitioner complains that the sentences imposed were excessive. “This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks our conscience.” In judging whether a defendant’s sentence is excessive, we do not conduct a proportionality review on appeal. Under the total circumstances presented here, Judge Holmes did not abuse her discretion with the sentences imposed, all of which are within the statutory range. The sentences imposed do not shock the conscience. Proposition III is denied.

DECISION

The Petition for 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 delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.Supp.2017, § 1123 (Counts 1, 3-7);
  2. 21 O.S.2011, § 1021(B)(2) (Count 2);
  3. 21 O.S.2011, § 1021.2 (Count 8);
  4. 21 O.S.Supp.2015, § 13.1;
  5. Rules 4.2(B) and 4.3(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019);
  6. Weeks U. State, 2015 OK CR 16, III 27-29, 362 P.3d 650, 657;
  7. Lewis U. State, 2009 OK CR 30, I 4, 220 P.3d 1140, 1142;
  8. Cox U. State, 2006 OK CR 51, II 4, 152 P.3d 244, 247;
  9. Hopkins U. State, 1988 OK CR 257, II 2, 764 P.2d 215, 216;
  10. Frederick U. State, 1991 OK CR 56, II 5, 811 P.2d 601, 603;
  11. Fields U. State, 1996 OK CR 35, II 28, 923 P.2d 624, 630;
  12. Neloms U. State, 2012 OK CR 7, g 35, 274 P.3d 161, 170;
  13. Elmore U. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80;
  14. North Carolina U. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970);
  15. Estell U. State, 1988 OK CR 287, I 7, 766 P.2d 1380, 1383;
  16. Anderson U. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 277, 74 L. Ed. 2d 3 (1982);
  17. Strickland U. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
  18. Padilla U. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010);
  19. Baird U. State, 2017 OK CR 16, I 40, 400 P.3d 875, 886;
  20. Rea U. State, 2001 OK CR 28, II 5, 34 P.3d 148, 149;
  21. Birdine U. State, 2004 OK CR 7, II 7, 85 P.3d 284, 286;
  22. Rules 4.2(B) and 4.3(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019);
  23. Harless, 459 U.S. at 6, 103 S. Ct. at 277;
  24. Weeks, 2015 OK CR 16, III 27-29, 362 P.3d at 657.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1123 (2017) - Lewd or Indecent Proposal to a Child
  • Okla. Stat. tit. 21 § 1021(B)(2) (2011) - Soliciting a Minor for Indecent Exposure/Photos
  • Okla. Stat. tit. 21 § 1021.2 (2011) - Possession of Child Pornography
  • Okla. Stat. tit. 21 § 13.1 (2015) - Parole eligibility and sentence reductions

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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