Sahib Quietman Henderson v The State Of Oklahoma

C-2018-927

Filed: May 30, 2019

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Sahib Quietman Henderson appealed his conviction for Distribution of a Controlled Dangerous Substance within 2,000 feet of a School. The conviction and sentence were upheld, with Henderson receiving 30 years in prison, 15 years of which he must serve, and a fine of $2,500. Judge K.J. Graham denied his request to withdraw his guilty plea. Judge Rowland 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.1 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a failure of the State and District Court to honor the promised consideration for Appellant's plea?
• Did the trial court abuse its discretion in denying the motion to withdraw Petitioner’s plea of guilty?
• Was the sentence imposed on Petitioner excessive under the circumstances of the case?
• Was there ineffective assistance of counsel during the plea hearing and at the hearing on the motion to withdraw the guilty plea?

Findings

• the court did not err in denying the motion to withdraw plea
• the excessive sentence claim was waived on appeal
• the court found no ineffective assistance of counsel

C-2018-927

May 30, 2019

Sahib Quietman Henderson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

LUMPKIN, JUDGE: Petitioner Sahib Quietman Henderson entered a blind plea of guilty to Distribution of a Controlled Dangerous Substance within 2,000 feet of a School (63 O.S.2011, § 2-401(F)) in the District Court of Stephens County, Case No. CF-2016-393. The plea was accepted by the Honorable Ken J. Graham, District Judge, on April 30, 2018. Sentencing was continued until July 25, 2018. On that date, the trial court sentenced Petitioner to thirty (30) years in prison, all but the first fifteen (15) years suspended and a fine of $2,500.00.

On August 2, 2018, Petitioner, represented by counsel, filed an Application to Withdraw Plea of Guilty. At a hearing held on August 20 and 22, 2018, Judge Graham denied the motion to withdraw. Petitioner appeals the denial of his motion and raises the following propositions of error:

I. Failure of the State and District Court to honor the promised consideration for Appellant’s plea and the controlled buys made on his behalf requires modification of his inflated sentence, or, if necessary, an opportunity to withdraw his plea.

II. The best interests of justice require modification of the shockingly excessive 30 year sentence, suspended except for the first 15 years (not less than 50% of which must be served in prison) under the circumstances of the case.

III. Alternatively, any failure to identify, present, object and preserve issues for review was the result of prejudicial ineffective assistance of counsel.

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. 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, 241, 89 S.Ct. 1709, 1711, 223 L.Ed.2d 274, 278 (1969); *Ocampo v. State*, 1989 OK CR 238, 1 3, 78 P.2d 920, 921.

Petitioner 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, 17, 766 P.2d 1380, 1383; *Elmore v. State*, 1981 OK CR 8, 1 8, 624 P.2d 78, 80. The voluntariness of the plea is to be determined by examining the entire record. *Cox v. State*, 2006 OK CR 51, 1 28, 152 P.3d 244, 254, overruled in part by *State v. Vincent*, 2016 OK CR 7. The granting or denial of an application to withdraw a plea of guilty is commended to the discretion of the trial court. Id., 2006 OK CR 51, 1 18, 152 P.3d 244, 251; *Robinson v. State*, 1991 OK CR 23, 1 6, 806 P.2d 1128, 1130.

In Proposition I, Petitioner argues that his plea was not knowing and voluntary because the State and the trial court failed to honor the consideration that he would be sentenced after no prior felony convictions promised in exchange for his plea of guilty and the drug buys made on his behalf by his wife to reduce his sentence. This issue was raised in the Application to Withdraw Guilty Plea and addressed by the trial court. Therefore, it has been properly preserved for our appellate review. *Lewis v. State*, 2009 OK CR 30, 1 5, 220 P.3d 1140, 1142.

Contrary to Petitioner’s argument, the promise by the State and accepted by the court to convict and sentence Petitioner as a first-time offender was fulfilled as agreed. From the dismissal of the second page containing the prior convictions, to the entry of the guilty plea, to sentencing (where undercover work by Petitioner’s wife for the Drug Task Force was considered), the record clearly shows Petitioner was convicted and sentenced as a first-time offender with an opportunity for a suspended sentence. The record indicates a knowing and voluntary plea. Petitioner’s dissatisfaction with his sentence is not grounds to withdraw the plea. *Lozoya v. State*, 1996 OK CR 55, 1 44, 932 P.2d 22, 34. 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 his sentence is excessive. As Petitioner failed to raise an excessive sentence claim in the Application to Withdraw Guilty Plea presented to the trial court, it is waived for our consideration on appeal. Rule 4.2(B), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); *Weeks v. State*, 2015 OK CR 16, II 27-29, 362 P.3d at 657; *Walker v. State*, 1998 OK CR 14, 1 3, 953 P.2d 354, 355.

In Proposition III, Petitioner contends he was denied the effective assistance of counsel at the plea hearing and at the hearing on the motion to withdraw. As Petitioner states, he is entitled to the effective assistance of counsel at both the plea hearing and withdrawal hearing. *Randall v. State*, 1993 OK CR 47, 1 5, 861 P.2d 314, 316.

Looking first at the allegations against withdrawal counsel, this challenge to counsel’s effectiveness is properly before us as this is the first opportunity to review that performance. A criminal defendant is entitled to effective assistance of counsel at a hearing on a motion to withdraw a guilty plea. *Carey v. State*, 1995 OK CR 55, 1 5, 902 P.2d 1116, 1117. Counsel’s performance at the withdrawal hearing is reviewed under the Strickland standard. *Wiley v. State*, 2008 OK CR 30, 1 4, 199 P.3d 877, 878. The burden is on Petitioner to prove (1) that counsel’s performance was deficient and (2) that counsel’s deficient performance resulted in prejudice. Id., citing *Strickland v. Washington*, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Phrased another way, a petitioner must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. *Lozoya*, 1996 OK CR 55, 1 27, 932 P.2d at 31.

Based upon the record before us, Petitioner has not established withdrawal counsel’s ineffectiveness as he has not shown counsel’s performance was deficient or that he was prejudiced by the defense. As discussed in Proposition I, Petitioner entered a knowing and voluntary plea. There is no indication that had withdrawal counsel raised additional grounds, filed an amended application to withdraw, or further cross-examined plea counsel that the outcome of the withdrawal hearing would have been any different. As Petitioner has failed to establish withdrawal counsel’s ineffectiveness, he has likewise failed to show any ineffectiveness on the part of plea counsel. Further, Petitioner has failed to show that but for the actions of plea counsel or withdrawal counsel, he would have gone to trial instead of pleading guilty. He maintained throughout the proceedings before the trial court and now on appeal that he did not want to withdraw his guilty plea; he only wanted to get his sentence modified. As Petitioner has failed to meet his burden of showing he was denied the effective assistance of counsel during the plea proceedings, 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. 1 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY THE HONORABLE KEN J. GRAHAM, DISTRICT JUDGE

APPEARANCES IN DISTRICT COURT

GRANT D. SHEPERD
601 S.W. “C” AVE., STE. 201
LAWTON, OK 73501
COUNSEL FOR THE DEFENSE

RONALD L. WILLIAMS
P.O. BOX 2095
LAWTON, OK 73502
COUNSEL FOR THE DEFENSE AT THE WITHDRAWAL HEARING

APPEARANCES ON APPEAL

KIMBERLY D. HEINZE
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR PETITIONER AT THE PLEA HEARING

JASON M. HICKS
NO RESPONSE NECESSARY
DISTRICT ATTORNEY

CORTNIE SIESS
GREG STEWARD
ASST. DISTRICT ATTORNEYS
STEPHENS CO. COURTHOUSE
101 S. 11TH ST.
DUNCAN, OK 73533
COUNSEL FOR THE STATE

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

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Footnotes:

1. Okla. Stat. tit. 63 § 2-401(F)
2. Boykin v. Alabama, 395 U.S. 238, 241, 89 S.Ct. 1709, 1711, 223 L.Ed.2d 274, 278 (1969); Ocampo v. State, 1989 OK CR 38, I 3, 78 P.2d 920, 921.
3. Estell v. State, 1988 OK CR 287, IT 7, 766 P.2d 1380, 1383; Elmore v. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80.
4. Cox v. State, 2006 OK CR 51, I 28, 152 P.3d 244, 254, overruled in part by State v. Vincent, 2016 OK CR 7.
5. Lewis v. State, 2009 OK CR 30, I 5, 220 3d 1140, 1142.
6. Lozoya v. State, 1996 OK CR 55, I 44, 932 P.2d 22, 34.
7. Rule 4.2(B), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); Weeks v. State, 2015 OK CR 16, II 27-29, 362 P.3d at 657; Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355.
8. Randall v. State, 1993 OK CR 47, I 5, 861 P.2d 314, 316.
9. Carey v. State, 1995 OK CR 55, I 5, 902 P.2d 1116, 1117.
10. Wiley v. State, 2008 OK CR 30, I 4, 199 P.3d 877, 878.
11. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
12. Lozoya, 1996 OK CR 55, I 27, 932 P.2d at 31.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2011) - Distribution of a Controlled Dangerous Substance within 2,000 feet of a School
• Okla. Stat. tit. 22 § 4.2(B) (2019) - Rules of the Court of Criminal Appeals
• Okla. Stat. tit. 22 Ch. 1, App. (2019) - Rules of the Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing
• Okla. Stat. tit. 21 § 701.2 (2011) - Sentencing in cases of certain crimes
• Okla. Stat. tit. 22 § 1080 (2019) - Plea Withdrawal

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:

• Boykin v. Alabama, 395 U.S. 238, 241, 89 S.Ct. 1709, 1711, 223 L.Ed.2d 274, 278 (1969)
• Ocampo v. State, 1989 OK CR 38, I 3, 78 P.2d 920, 921
• Estell v. State, 1988 OK CR 287, IT 7, 766 P.2d 1380, 1383
• Elmore v. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80
• Cox v. State, 2006 OK CR 51, I 28, 152 P.3d 244, 254
• State v. Vincent, 2016 OK CR 7
• Robinson v. State, 1991 OK CR 23, IT 6, 806 P.2d 1128, 1130
• Lewis v. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142
• Lozoya v. State, 1996 OK CR 55, I 44, 932 P.2d 22, 34
• Weeks v. State, 2015 OK CR 16, II 27-29, 362 P.3d at 657
• Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355
• Randall v. State, 1993 OK CR 47, I 5, 861 P.2d 314, 316
• Carey v. State, 1995 OK CR 55, I 5, 902 P.2d 1116, 1117
• Wiley v. State, 2008 OK CR 30, I 4, 199 P.3d 877, 878
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Lozoya, 1996 OK CR 55, I 27, 932 P.2d at 31