Cynthia Rowshell Gay v The State Of Oklahoma

C-2019-227

Filed: Oct. 31, 2019

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Cynthia Rowshell Gay appealed her conviction for Driving While Under the Influence (DUI) and Driving While Under Suspension. Conviction and sentence were affirmed. Judge Hudson dissented. In this case, Cynthia was charged with DUI and Driving While Under Suspension. She entered a guilty plea, which a judge accepted. Cynthia later wanted to take back her plea, saying she did not fully understand what she was agreeing to. The judge held a hearing and decided not to allow her to withdraw her plea. The court looked at whether her plea was done willingly and had enough understanding. They found that she had enough experience with the law and had signed documents saying she understood the situation. Disappointment about her sentence was not enough reason to change her mind. The court decided to keep her conviction.

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.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there an error in denying the application to withdraw the guilty plea?
• did the trial court properly determine that the guilty plea was made knowingly and voluntarily?
• was the defense's argument regarding the petitioner's understanding of the plea sufficient to grant withdrawal?
• was there an abuse of discretion in the trial court's decision to deny the motion to withdraw the guilty plea?

Findings

• the court did not err in denying the application to withdraw guilty plea
• the plea was entered knowingly and voluntarily
• the evidence was sufficient to affirm the judgment and sentence

C-2019-227

Oct. 31, 2019

Cynthia Rowshell Gay

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION DENYING CERTIORARI

CLERK LUMPKIN, JUDGE: Petitioner Cynthia Rowshell Gay, while represented by counsel, entered guilty pleas pursuant to a plea agreement with the State to the charges of Count 1, Driving While Under the Influence, in violation of 47 O.S.2011, § 11-902 and Count 2, Driving While Under Suspension, in violation of 47 O.S.2011, § 6-303(B), in the District Court of Oklahoma County, Case No. CF-2019-369.1 The Honorable Kathryn R. Savage, Special Judge, accepted the pleas on February 19, 2019. Pursuant to her plea agreement, Petitioner received 1 Petitioner had a prior municipal Driving Under the Influence conviction, which made the current charge a felony. 1 pertinently a five-year sentence on Count 1, with all but the first thirty days suspended and a one year suspended sentence on Count 2, with the sentences running concurrently to one another.

On March 1, 2019, Petitioner filed an Application to Withdraw Guilty Plea and on March 21, 2019, the Honorable Kathryn R. Savage, Special Judge, held a hearing on the application to withdraw plea. The Court denied Petitioner’s application.

Petitioner raises the following proposition of error: Ms. Gay did not knowingly and voluntarily enter her plea of guilty, and thus the District Court erred when it denied Ms. Gay’s Application to Withdraw her Guilty plea.

After thorough consideration of this proposition 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 certiorari review, our primary concern in evaluating the validity of a guilty plea is whether the plea was entered voluntarily and intelligently. See Boykin U. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 1711-12, 23 L. Ed. 2d 274 (1969); Ocampo U. State, 1989 OK CR 38, I 3, 778 P.2d 920, 921. On appeal, this Court reviews the denial 2 of a petitioner’s motion to withdraw plea for an abuse of discretion. Lewis U. 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 issue, a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.

The Plea of Guilty Summary of Facts form, which Petitioner admitted she signed and which she admitted contained truthful answers, reflects Petitioner’s voluntary choice to plead guilty and receive a suspended sentence. Petitioner had two prior felony convictions, so she was no stranger to criminal procedure. She admitted she signed the plea documents to “get out of jail.” The desire to get out of jail does not render Petitioner’s plea involuntary. Cf. United States v. Webb, 433 F.2d 400, 404 (1st Cir.1970) (finding the defendant’s claim that he pled guilty because he feared being sent to an undesirable location for his incarceration insufficient to find his plea involuntary). It was only after Petitioner consulted with her relatives that Petitioner decided she wanted to seek to withdraw her plea. Disappointment with the sentence imposed does not afford 3 grounds for withdrawal of a plea of guilty. Miles U. U.S., 385 F.2d 541, 544 (10th Cir.1967); Lozoya v State, 1996 OK CR 55, I 44, 932 P.2d 22, 34.

The trial court found Petitioner’s plea was knowingly and voluntarily entered on the date she entered her plea. “For the representations of the defendant, his [or her] lawyer, and the prosecutor at such a [plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.” Blackledge U. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977).

The trial court further remembered Petitioner’s plea hearing, and at the conclusion of the hearing on the application to withdraw, affirmed its finding that she entered her plea knowingly and voluntarily. The record reflects that Petitioner was fully advised of and understood the ramifications of her plea. The trial court found incredible Petitioner’s belated insistence that she did not understand if she violated the rules and conditions of her suspended sentence, she could go to prison. We find no abuse of discretion in the trial court’s denial of the motion to withdraw guilty plea. 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.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE KATHRYN R. SAVAGE, SPECIAL JUDGE

APPEARANCES IN DISTRICT
COURT

NICOLE BURNS
ASST. PUBLIC DEFENDER
320 ROBERT S. KERR, #400
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE DEFENSE

APPEARANCES ON APPEAL

HALLIE E. BOVOS
ASST. PUBLIC DEFENDER
320 ROBERT S. KERR, #400
OKLAHOMA CITY, OK 73102
COUNSEL FOR PETITIONER AT THE WITHDRAWAL HEARING

RICKY LUTZ
ASST. DISTRICT ATTORNEY
320 ROBERT S. KERR, #505
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE STATE
NO RESPONSE NECESSARY

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. Petitioner had a prior municipal Driving Under the Influence conviction, which made the current charge a felony.
2. See Boykin U. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 1711-12, 23 L. Ed. 2d 274 (1969); Ocampo U. State, 1989 OK CR 38, I 3, 778 P.2d 920, 921.
3. Lewis U. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142.
4. Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
5. United States v. Webb, 433 F.2d 400, 404 (1st Cir.1970).
6. Miles U. U.S., 385 F.2d 541, 544 (10th Cir.1967); Lozoya v. State, 1996 OK CR 55, I 44, 932 P.2d 22, 34.
7. Blackledge U. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977).
8. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 - Driving While Under the Influence
• Okla. Stat. tit. 47 § 6-303(B) - Driving While Under Suspension

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, 242-43, 89 S. Ct. 1709, 1711-12, 23 L. Ed. 2d 274 (1969)
• Ocampo v. State, 1989 OK CR 38, I 3, 778 P.2d 920, 921
• Lewis v. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• Miles v. U.S., 385 F.2d 541, 544 (10th Cir. 1967)
• Lozoya v. State, 1996 OK CR 55, I 44, 932 P.2d 22, 34
• Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977)
• United States v. Webb, 433 F.2d 400, 404 (1st Cir. 1970)