Nicholas Allan Daniel v State Of Oklahoma

C-2019-15

Filed: Jun. 25, 2020

Not for publication

Prevailing Party: Nicholas Allan Daniel

Summary

Nicholas Allan Daniel appealed his conviction for First Degree Felony Murder and Robbery with a Firearm. The court affirmed his conviction and sentence for Felony Murder, which was modified to reflect that it was committed during a robbery. The conviction for Robbery with a Firearm was reversed and dismissed. Judge Lumpkin dissented on the grounds that the evidence supported Daniel's plea and the original factual basis.

Decision

The Petition for Writ of Certiorari is GRANTED. Petitioner's Count 1 Judgment is MODIFIED to reflect a conviction for First Degree Felony Murder (Robbery with a Firearm). Petitioner's Count 2 conviction for Robbery with a Firearm is REVERSED WITH INSTRUCTIONS TO DISMISS. Petitioner's Judgement and Sentence on Count 1 is AFFIRMED as MODIFIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a failure to appoint conflict counsel for Petitioner’s plea withdrawal hearing?
• Did Petitioner’s pleas of guilty lack a knowing and voluntary foundation?
• Was there an adequate factual basis for Petitioner’s plea of guilty to felony murder?
• Was Petitioner denied effective assistance of trial counsel in violation of his constitutional rights?

Findings

• the court erred in failing to appoint conflict counsel for petitioner's plea withdrawal hearing
• the plea was knowingly and voluntarily entered
• the factual basis for the plea was insufficient to support the conviction; Count 1 conviction for First Degree Felony Murder modified to reflect robbery with a firearm as the underlying felony
• the petitioner was not denied effective assistance of trial counsel

C-2019-15

Jun. 25, 2020

Nicholas Allan Daniel

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI

HUDSON, JUDGE:

Petitioner, Nicholas Allan Daniel, was charged in Oklahoma County District Court, Case No. CF-2017-6968, with Count 1: First Degree Felony Murder (Distribution of a Controlled Dangerous Substance), in violation of 21 O.S.Supp.2012, § 701.7; and Count 2: Robbery with a Firearm, in violation of 21 O.S.2011, § 801.1. Daniel entered a blind plea of guilty to the charges on November 14, 2018, before the Honorable Bill Graves, District Judge. The trial court accepted Daniel’s plea and deferred sentencing to December 18, 2018. On December 18th, after receiving evidence and hearing argument from counsel, Judge Graves sentenced Daniel to life imprisonment for each count. The court suspended the Count 2 life sentence, ordered the sentences be served concurrently and granted credit for time served. Judge Graves further imposed various costs and fees.

On December 21, 2018, Daniel, through plea counsel, filed a timely application to withdraw his guilty plea. A hearing on Daniel’s motion was held on January 8, 2019. Plea counsel represented Daniel at the hearing. After hearing testimony from Daniel and argument from counsel for both parties, Judge Graves denied Daniel’s motion to withdraw his plea. Daniel now seeks a writ of certiorari alleging the following propositions of error:

I. THE TRIAL COURT ERRED IN FAILING TO APPOINT CONFLICT COUNSEL FOR PETITIONER’S PLEA WITHDRAWAL HEARING;

II. PETITIONER’S PLEAS OF GUILTY SHOULD BE WITHDRAWN BECAUSE THEY WERE NOT KNOWINGLY MADE;

III. PETITIONER SHOULD BE ALLOWED TO WITHDRAW HIS PLEA OF GUILTY BECAUSE HIS PLEA WAS NOT KNOWING AND VOLUNTARY, AS IT LACKED AN ADEQUATE FACTUAL BASIS; and

IV. PETITIONER WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and Daniel’s brief, we find Daniel’s Petition for Writ of Certiorari should be GRANTED as discussed infra.

Proposition I.

Daniel argues in his first proposition of error, along with his related ineffective assistance of counsel claim in Proposition IV, that an actual conflict existed between himself and plea counsel at the hearing on his motion to withdraw. He thus contends the District Court’s failure to appoint conflict-free counsel resulted in Daniel receiving ineffective assistance of counsel. A criminal defendant is entitled to effective assistance of counsel at a hearing on a motion to withdraw. Carey v. State, 1995 OK CR 55, ¶ 5, 902 P.2d 1116, 1117; Randall v. State, 1993 OK CR 47, ¶ 7, 861 P.2d 314, 316. The right to effective assistance of counsel includes the correlative right to representation that is free from conflicts of interest. Carey, 1995 OK CR 55, ¶ 8, 902 P.2d at 1118 (citing Wood v. Georgia, 450 U.S. 261, 271 (1981)). To prevail on an ineffective assistance of counsel claim based on a conflict of interest, a defendant who raised no objection at trial or at a hearing on a motion to withdraw a guilty plea need not show prejudice, but must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Carey, 1995 OK CR 55, ¶ 10, 902 P.2d at 1118 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). A conflict of interest arises where counsel owes conflicting duties to the defendant and some other person or counsel’s own interests. Allen v. State, 1994 OK CR 30, ¶ 11, 874 P.2d 60, 63. However, [t]he mere appearance or possibility of a conflict of interest is not sufficient to cause reversal. Rutan v. State, 2009 OK CR 3, ¶ 67, 202 P.3d 839, 853 (quoting Banks v. State, 1991 OK CR 51, ¶ 34, 810 P.2d 1286, 1296).

This Court does not have a rule that plea counsel and withdrawal counsel cannot be the same attorney. Indeed, this is hardly an uncommon phenomenon. Here, there was no actual conflict between Daniel and his plea counsel going into the hearing on his motion to withdraw guilty plea. While defense counsel contemplated during the withdrawal hearing whether her performance was deficient and informally inquired whether conflict counsel should be appointed, her remarks merely implied the possibility of a conflict. The record clearly shows Daniel’s dissatisfaction was not with plea counsel but instead was with the State and the evidence it presented at sentencing, as well as the sentence imposed by the court. Moreover, as addressed more fully in Proposition II below, the record shows Daniel’s plea was knowingly and voluntarily entered.

Daniel shows, at best, the mere appearance or possibility of a conflict of interest existed that warranted the appointment of conflict counsel. This is wholly insufficient to warrant relief. Under the total circumstances presented here, there was no error from the trial court’s failure to appoint conflict counsel. Rutan, 2009 OK CR 3, ¶ 67, 202 P.3d at 853. Counsel was not ineffective based on the existence of an actual conflict of interest. Proposition I is denied.

Proposition II.

Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a court of competent jurisdiction. Lewis v. State, 2009 OK CR 30, ¶ 4, 220 P.3d 1140, 1142. This Court reviews the denial of a motion to withdraw a plea for an abuse of discretion. Lewis, 2009 OK CR 30, ¶ 5, 220 P.3d at 1142; Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998. 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 v. State, 2012 OK CR 7, ¶ 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 v. State, 1981 OK CR 8, ¶ 8, 624 P.2d 78, 80. We examine the entire record before us on appeal to determine the knowing and voluntary nature of the plea. Fields v. State, 1996 OK CR 35, ¶ 28, 923 P.2d 624, 630. The standard for determining the validity of a plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970); Hopkins v. State, 1988 OK CR 257, ¶ 2, 764 P.2d 215, 216.

When a defendant claims that his or her 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 v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380, 1383. In his second proposition of error, Daniel argues his plea was not knowingly, intelligently and voluntarily entered because he did not understand (1) what would transpire during the sentencing hearing; or (2) his rights under Miller, Luna and Stevens.

As to his first contention, Daniel argues he was misinformed as to what would transpire during the sentencing hearing. The record contradicts this claim. Daniel’s testimony at the withdrawal hearing spoke to his dissatisfaction with his sentence and does not support his claim here that he did not sufficiently understand what would transpire at the sentencing hearing. Daniel specifically acknowledged on direct examination that he understood when he pled that the State would get to present evidence, including victim impact evidence, at his sentencing hearing. He simply was unhappy with the evidence presented and the sentence imposed. The record shows Daniel’s plea was knowingly and voluntarily entered despite the fact he entered it in hopes of receiving more favorable sentences.

As to his second contention, asserting he did not understand his rights pursuant to Miller, Luna and Stevens, Daniel failed to specifically raise this issue in his application to withdraw his guilty plea or at any point during the hearing on his motion to withdraw. Because this allegation was not specifically raised before the hearing court, the district court had no opportunity to adjudicate this claim. Thus, procedurally, this issue is not properly before this Court.

Nonetheless, in light of his correlative ineffective assistance of counsel claim in Proposition IV, we review and reject the underlying merits of this contention. The crux of Daniel’s argument is based on the erroneous belief that he was entitled to an individualized sentencing hearing as prescribed by Stevens and Luna. Daniel’s argument is ill-conceived and frivolous. The record clearly shows Daniel entered his pleas in exchange for the State’s agreement not to seek a sentence of life without parole. Thus, the sentencing mandates established in Stevens and Luna were inapplicable to Daniel’s case, and his knowledge and understanding of the precepts set forth in Miller, Luna and Stevens was not essential to entering a knowing and voluntary plea.

It is clear from the record that Daniel is simply suffering from buyer’s remorse, which in and of itself does not render a guilty plea involuntary. This is not a case where Daniel entered his plea through inadvertence, ignorance or without deliberation. Daniel’s guilty plea was a strategic choice, made in the hopes of receiving more favorable sentences, after fully considering the options at hand. The trial court’s finding that Daniel’s plea was entered knowingly and voluntarily was not an abuse of the court’s discretion. Proposition II is denied.

Proposition III:

Daniel complains the factual basis provided for his pleas was insufficient to support his Count 1 felony murder conviction. Daniel provided the following factual basis: On November 5, 2017, in Oklahoma County I shot Kendall Neal inflicting death while distributing CDS & took multiple properties [sic] (drugs) from him by threatening him with a firearm. Daniel contends the evidence shows he was a buyer, not a distributor of the marijuana. Thus, he argues he cannot be held liable as a principal to distribution. Daniel acknowledges that review of this claim was waived by his failure to raise this contention below.

Nonetheless, he bootstraps review of this claim through his corresponding ineffective assistance of counsel claim in Proposition IV. The record shows that Daniel was meeting with the victim to purchase marijuana, not to sell the drug. Daniel thus correctly argues that the record lacks a sufficient factual basis to establish he killed the victim while he was in the commission of unlawfully distributing a controlled dangerous substance.

The record shows a charging error by the State precipitated Daniel’s faulty factual basis. The State, however, recognized the error and endeavored to correct it. On August 17, 2018, the State filed a Motion to Remand for Preliminary Hearing or Alternatively Leave to Amend the Information. Therein, the State sought leave to amend the information to (1) formally notify Daniel of the State’s intent to seek a sentence of life without the possibility of parole, and (2) alternatively allege in Count 1 that Daniel committed felony murder while in the commission of robbery with a firearm. The record does not show that the trial court acted on this motion.

Nonetheless, given the State’s request to amend the Information, it is inexplicable why this charging issue went unheeded. Had this error been timely rectified, Daniel would undoubtedly have pled guilty to one count of felony murder with the underlying felony being robbery with a firearm—a delineated basis for felony murder that is factually supported by the record and is consistent with the crimes to which Daniel actually pled guilty.

Given these circumstances, this Court has the authority pursuant to 22 O.S.2011, § 1066 to cure the plea error by conforming Daniel’s Count 1 felony murder conviction to the record evidence and in consequence, abrogate his Count 2 robbery with a firearm conviction. In anticipation of this resolution, Daniel argues that the error calls into question the knowing and voluntary nature of his plea.

Daniel’s argument is specious and ignores that his plea was a tactical decision to avoid a potential sentence of life without the possibility of parole. The record shows Daniel’s plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.

All things considered, this Court finds the plea error resulting from the neglected charging error can be cured by reversing Daniel’s Count 2 conviction for Robbery with a Firearm with instructions to dismiss, and modifying Daniel’s Count 1 Judgment to reflect a conviction for First Degree Felony Murder (Robbery with a Firearm). Certiorari is granted for Proposition III.

Proposition IV.

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 (1984). There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct. Strickland, 466 U.S. at 689.

We addressed in Proposition I the underlying basis for Daniel’s first contention and found counsel was not ineffective based on the existence of an actual conflict of interest. Thus, Daniel fails to demonstrate Strickland prejudice. Daniel contends next that counsel’s failure to file a motion to withdraw that stated a valid claim for relief amounted to ineffective assistance of counsel. This allegation is subsumed within Daniel’s four propositions of error raised herein as we addressed and denied each of these claims on the merits.

Finally, we have addressed on the merits and rejected or cured each of Daniel’s claims challenging the knowing and voluntary nature of his plea, along with his corresponding claims of ineffective assistance of counsel. Daniel’s final proposition of error is denied.

DECISION

The Petition for Writ of Certiorari is GRANTED. Petitioner’s Count 1 Judgment is MODIFIED to reflect a conviction for First Degree Felony Murder (Robbery with a Firearm). Petitioner’s Count 2 conviction for Robbery with a Firearm is REVERSED WITH INSTRUCTIONS TO DISMISS. Petitioner’s Judgment and Sentence on Count 1 is AFFIRMED as MODIFIED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 1 Notably, Daniel was seventeen years and seven months old at the time of these offenses.
2. 2 Daniel waived his right to a presentence investigation report.
3. 3 Under 21 O.S.Supp.2015, § 13.1, Daniel must serve not less than eighty-five percent of his sentences before becoming eligible for parole.
4. 4 The court, however, excluded the time Daniel served from April 9, 2018, through October 8, 2018, for being held in contempt by Judge Henderson "for throwing gang signs in the courtroom."
5. 5 Notably, while defense counsel during argument pondered whether conflict counsel should be appointed, the record shows she essentially abandoned her inquiry into this issue. Moreover, Daniel did not directly challenge counsel's representation or request new counsel.
6. 6 Miller v. Alabama, 567 U.S. 460 (2012).
7. 7 Luna v. State, 2016 OK CR 27, 387 P.3d 956.
8. 8 Stevens v. State, 2018 OK CR 11, 422 P.3d 741.
9. 9 Daniel arguably raised this issue to a degree during the withdrawal hearing. Moreover, given his correlative ineffective assistance of counsel claim in Proposition IV, we address the merits of this claim.
10. 10 Daniel additionally argues "[t]he exclusion of mitigating evidence of [ ] Daniel's transient immaturity prejudiced him because the judge was able to, and could have chosen to, suspend a portion of his sentence." Daniel asserts mitigating evidence demonstrating "his capability of rehabilitation could have swayed the judge to suspend a portion of his sentence."
11. 11 The State acknowledged at sentencing that the victim was the seller (S. Tr. 43). Moreover, in its Sentencing Bench Brief, the State depicted Daniel as the drug buyer, not the seller, stating he "went to this meeting expecting to get a pound of marijuana; however, Neal presented him an ounce of marijuana to inspect."
12. 12 Certiorari is granted for Proposition III.
13. 13 Given these circumstances, this Court has the authority pursuant to 22 O.S.2011, § 1066 to cure the plea error by conforming Daniel's Count 1 felony murder conviction to the record evidence and in consequence, abrogate his Count 2 robbery with a firearm conviction.
14. 14 He thus contends counsel was ineffective for failing to object to the absence of such hearing.
15. 15 Daniel did not file a corresponding Rule 3.11(B) application seeking to supplement the record pursuant to Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2020).
16. 16 Daniel's final proposition of error is denied.
17. 17 The possible that the trial court would have suspended any portion of Daniel's Count 1 felony murder sentence had such a hearing been conducted is incogitable.
18. 18 This is not a case where Daniel entered his plea through inadvertence, ignorance or without deliberation.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2012) - First Degree Felony Murder
• Okla. Stat. tit. 21 § 801.1 (2011) - Robbery with a Firearm
• Okla. Stat. tit. 22 § 1066 (2011) - Authority of Appellate Court
• Okla. Stat. tit. 22 § 1051 (2011) - Criminal Appeals; Writ of Certiorari
• Okla. Stat. tit. 63 § 2-101 (2011) - Definitions related to Controlled Dangerous Substances

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 21 U.S.C. § 801 - Controlled Substances Act
• 21 O.S.Supp.2012, § 701.7 - First Degree Felony Murder
• 22 O.S.2011, § 1066 - Appellate Procedure
• 22 O.S.2011, § 1051 - Appeal from Conviction on a Plea of Guilty
• 63 O.S.2011, § 2-101 - Definitions Related to Drug Distribution
• 21 O.S.2011, § 172 - Principal to Crime
• Strickland v. Washington, 466 U.S. 668 (1984) - Standard for Ineffective Assistance of Counsel
• Hill v. Lockhart, 474 U.S. 52 (1985) - Ineffective Assistance of Counsel in Guilty Plea Context

Other citations:

No other rule citations found.

Case citations:

• Carey v. State, 1995 OK CR 55, 902 P.2d 1116, 1117
• Randall v. State, 1993 OK CR 47, 861 P.2d 314, 316
• Wood v. Georgia, 450 U.S. 261 (1981)
• Cuyler v. Sullivan, 446 U.S. 335 (1980)
• Allen v. State, 1994 OK CR 30, 874 P.2d 60, 63
• Rutan v. State, 2009 OK CR 3, 202 P.3d 839, 853
• Lewis v. State, 2009 OK CR 30, 220 P.3d 1140, 1142
• Carpenter v. State, 1996 OK CR 56, 929 P.2d 988, 998
• Neloms v. State, 2012 OK CR 7, 274 P.3d 161, 170
• Elmore v. State, 1981 OK CR 8, 624 P.2d 78, 80
• Fields v. State, 1996 OK CR 35, 923 P.2d 624, 630
• North Carolina v. Alford, 400 U.S. 25 (1970)
• Hopkins v. State, 1988 OK CR 257, 764 P.2d 215, 216
• Estell v. State, 1988 OK CR 287, 766 P.2d 1380, 1383
• Collins v. State, 2009 OK CR 32, 223 P.3d 1014, 1023
• Jefferson v. State, 1926 OK CR 78, 244 P. 460
• Dyle v. State, 1983 OK CR 72, 664 P.2d 1047, 1050
• Harris v. Oklahoma, 433 U.S. 682 (1977)
• Perry v. State, 1993 OK CR 5, 853 P.2d 198, 200-01
• Anderson v. State, 2018 OK CR 13, 422 P.3d 765, 770
• Brady v. United States, 397 U.S. 742 (1970)
• Taylor v. State, 2018 OK CR 6, 419 P.3d 265, 270
• Fulgham v. State, 2016 OK CR 30, 400 P.3d 775, 780-81
• Lozoya v. State, 1996 OK CR 55, 932 P.2d 22, 31
• Hill v. Lockhart, 474 U.S. 52 (1985)