Cody Allen Blessing v The State Of Oklahoma

C-2019-125

Filed: Dec. 5, 2019

Not for publication

Prevailing Party: Cody Allen Blessing

Summary

Cody Allen Blessing appealed his conviction for three counts of Child Abuse by Injury. Conviction and sentence were affirmed as he received twenty years in prison for each count, but only five years were required to be served, with the rest suspended. Judge Rowland expressed that there was no error in the trial court’s decision, but Judge Lumpkin dissented.

Decision

The Petition for a Writ of Certiorari is DENIED. The district court's denial of Petitioner's motion to withdraw plea 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

• Whether he was denied due process by the trial court's failure to hold his plea withdrawal hearing within thirty days;
• Whether the district court abused its discretion in not allowing him to withdraw his no contest plea because it was not knowingly and voluntarily entered;
• Whether he was denied effective assistance of counsel.

Findings

• Any error from the failure to hold the hearing within 30 days is harmless and no other relief is available or required.
• The district court did not abuse its discretion in denying Blessing's motion to withdraw his plea.
• His ineffective assistance of counsel claim is rejected.

C-2019-125

Dec. 5, 2019

Cody Allen Blessing

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

ROWLAND, JUDGE:

Petitioner Cody Allen Blessing entered a negotiated plea of no contest in the District Court of Alfalfa County, Case No. CF-2018-36, to three counts of Child Abuse by Injury, in violation of 21 O.S.2014, § 843.5(A). On September 7, 2018, the Honorable Loren Angle, Associate District Judge, accepted Blessing’s no contest plea and sentenced him to twenty years imprisonment on each count with all but the first five years suspended. The sentences were ordered to be served concurrently. Blessing filed a timely motion to withdraw his plea.

1 After a hearing on the motion to withdraw held on January 30, 2019, the motion was denied. Blessing appeals the denial of this motion, raising the following issues: (1) Whether he was denied due process by the trial court’s failure to hold his plea withdrawal hearing within thirty days; (2) whether the district court abused its discretion in not allowing him to withdraw his no contest plea because it was not knowingly and voluntarily entered; (3) whether he was denied effective assistance of counsel.

1. Blessing complains that the hearing on his motion to withdraw no contest plea was not heard within thirty days as required by our Rules. The remedy for failure to hold a timely hearing is provided in Rule 4.2 and it is to seek extraordinary relief in this Court. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).2 Should this Court receive an application seeking extraordinary relief for failure to comply with Rule 4.2, this Court would order the district court to hold the required hearing. No such extraordinary relief was sought, and ultimately a proper hearing was held in this matter. Any error from the failure to hold the hearing within 30 days is harmless and no other relief is available or required. See Grissom U. State, 2011 OK CR 3, 9 25, 253 P.3d 969, 979 (It is not error alone that reverses convictions, but error plus injury and it is the appellant’s burden to prove that he was prejudiced in his substantial rights by the commission of error.) This claim is denied.

2. Blessing argues the district court erred by denying his motion to withdraw no contest plea because it was not knowingly and voluntarily entered. Blessing did not allege the specific claim he now raises on appeal in either his pro se motion to withdraw plea or in his petition for writ of certiorari. 3 Under Weeks U. State, 2015 OK CR 16, 99 27-29, 362 P.3d 650, 657 and Rules 4.2(B) & 4.3(C)(5), 3 Blessing’s letter, construed as a pro se motion to withdraw his plea, stated, “I Cody Allen Blessing Appeal my plea. I know I can beat this case. I am not guilty. I will take this case to trial!!!” This same basic claim was reiterated in Blessings’ petition for writ of certiorari where defense counsel paraphrased Blessing’s claim stating that Blessing, “has a defense to present and wants his case to go to trial.” 3 Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the claim is considered waived. However, conflict counsel presented the issue at the withdrawal hearing and the district court considered and rejected it. The district court exercised its lawful authority and discretion leaving this Court with a ruling and record to review on appeal. Because appellate review is focused on reviewing the correctness of a lower court ruling, we find the issue preserved under the circumstances presented here.

4 This Court reviews the denial of a petitioner’s motion to withdraw plea for an abuse of discretion. See Lewis v. State, 2009 OK CR 30, I 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 matter at issue.” State U. Delso, 2013 OK CR 5, 9 5, 298 P.3d 1192, 1194. The burden is on Blessing 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.

4 Blessing claims his plea was not knowingly and voluntarily entered because he did not understand the meaning of the no contest plea or of the split sentence. At the close of the hearing on the motion to withdraw no contest plea the judge found that the record did not support Blessing’s motion. The district court’s ruling rejecting Blessing’s claim that his plea was not knowingly and voluntarily entered is supported by the record. We find the district court did not abuse its discretion in denying Blessing’s motion to withdraw his plea.

3. Blessing argues he is entitled to relief based upon ineffective assistance of counsel because conflict counsel failed to raise the issue that the no contest plea was not knowingly and intelligently entered, thus waiving the issue for appellate review. To prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden rests with Blessing to show that counsel’s performance was deficient and that he was prejudiced.

5 Marshall v. State, 2010 OK CR 8, I 61, 232 P.3d 467, 481. To establish the requisite degree of prejudice to warrant a finding of ineffective assistance of counsel, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. As with any claim of ineffective assistance of counsel, this Court need not determine whether counsel’s performance was deficient if the petitioner was not prejudiced by counsel’s actions. See Malone v. State, 2013 OK CR 1, I 16, 293 P.3d 198, 207. Blessing cannot show that but for conflict counsel’s actions, the result of his proceeding would have been different. As noted above, conflict counsel presented to the district court Blessing’s claim that the plea was not knowingly and voluntarily entered and this was sufficient to preserve the claim for appellate review. Because Blessing cannot show counsel’s action resulted in waiver of the claim on appeal, he can show neither deficient performance nor prejudice. His ineffective assistance of counsel claim is rejected.

DECISION

The Petition for a Writ of Certiorari is DENIED. The district court’s denial of Petitioner’s motion to withdraw plea 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. 21 O.S.2014, § 843.5(A)
2. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019)
3. Grissom v. State, 2011 OK CR 3, ¶ 25, 253 P.3d 969, 979
4. Weeks v. State, 2015 OK CR 16, ¶¶ 27-29, 362 P.3d 650, 657
5. Lewis v. State, 2009 OK CR 30, ¶ 5, 220 P.3d 1140, 1142
6. State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1194
7. Elmore v. State, 1981 OK CR 8, ¶ 8, 624 P.2d 78, 80
8. Marshall v. State, 2010 OK CR 8, ¶ 61, 232 P.3d 467, 481
9. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
10. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068
11. Malone v. State, 2013 OK CR 1, ¶ 16, 293 P.3d 198, 207

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(A) - Child Abuse by Injury
• Okla. Stat. tit. 22 § 1.1 - Rules of Criminal Procedure
• Okla. Stat. tit. 22 § 4.2 - Evidentiary Hearing
• Okla. Stat. tit. 22 § 4.3 - Other Rules

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:

• Grissom v. State, 2011 OK CR 3, I 25, 253 P.3d 969, 979
• Weeks v. State, 2015 OK CR 16, I 27-29, 362 P.3d 650, 657
• Lewis v. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142
• Elmore v. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80
• Shores v. State, Case No. C-2018-1119 (Okl. Cr. August 15, 2019)
• Marshall v. State, 2010 OK CR 8, I 61, 232 P.3d 467, 481
• Malone v. State, 2013 OK CR 1, I 16, 293 P.3d 198, 207