Andrea Dawnelle Feeling v The State Of Oklahoma

C-2019-329

Filed: Jan. 16, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Andrea Dawnelle Feeling appealed her conviction for Aggravated Assault and Battery and Battery on a Police Officer. Conviction and sentence of five years imprisonment on Count 1, four years imprisonment on Count 2, and a $500.00 fine on each count. None 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.

Issues

• was her plea knowingly, intelligently, and voluntarily entered?
• was she denied the effective assistance of counsel in the plea proceeding?
• is her sentence excessive?

Findings

• The court did not err in finding that Feeling's plea was knowingly and voluntarily entered.
• The claim of ineffective assistance of counsel fails for lack of prejudice.
• The claim of excessive sentence is without merit.

C-2019-329

Jan. 16, 2020

Andrea Dawnelle Feeling

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

DENYING CERTIORARI

ROWLAND, JUDGE: Petitioner Andrea Dawnelle Feeling entered a blind plea of guilty in the District Court of Mayes County, Case No. CF-2017-355 to Aggravated Assault and Battery (Count 1) in violation of 21 O.S.2011, § 646 and Battery/Assault and Battery on a Police Officer (Count 2) in violation of 21 O.S.2015, § 649(B). On January 24, 2019, the Honorable Stephen R. Pazzo, District Judge, accepted Feeling’s guilty plea. Feeling was sentenced to five years imprisonment on Count 1, four years imprisonment on Count 2, and a fine of $500.00 on each count. Judge Pazzo ordered the sentences to be served consecutively. Feeling filed a timely motion to withdraw her guilty plea. This motion was denied following a hearing held before Judge Pazzo on April 26, 2019. Feeling appeals the denial of her motion to withdraw raising the following issues: (1) whether her pleas were knowingly, intelligently, and voluntarily entered; (2) whether she was denied the effective assistance of counsel in the plea proceeding; and (3) whether her sentence is excessive.

1. Feeling argues the district court abused its discretion in denying her motion to withdraw because her plea was not knowingly and voluntarily entered. This Court reviews the denial of a 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 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 burden is on the petitioner to show a defect in the plea process that entitles her to withdraw the plea. See Elmore v. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80.

2 In ruling on the motion to withdraw, the trial court considered the entire record including the plea form and testimony at the hearing on the motion to withdraw. The district court’s ruling rejecting Feeling’s claim that her plea was not knowingly and voluntarily entered is supported by the record. We find the district court did not abuse its discretion in denying Feeling’s motion to withdraw guilty plea.

3. 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 her defense. Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden rests with Feeling to show that counsel’s performance was deficient and that she was prejudiced. 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 3 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. Feeling cannot show that but for defense counsel’s actions, the result of her proceeding would have been different. On the record before this Court, Feeling’s ineffective assistance of counsel claim fails for lack of prejudice.

4. Feeling contends her sentence is excessive and should be modified. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it shocks the conscience of the Court. Thompson v. State, 2018 OK CR 32, I 16, 429 P.3d 690, 694. The sentence imposed was within the statutory range of punishment and does not shock the conscience. Feeling’s claim of excessive sentence is without merit. This claim is denied.

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

4 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 the delivery and filing of this decision.

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

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Footnotes:

1. Okla. Stat. tit. 21 § 646
2. Okla. Stat. tit. 21 § 649(B)
3. Lewis v. 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. Elmore v. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80
6. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
7. Marshall v. State, 2010 OK CR 8, I 61, 232 P.3d 467, 481
8. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068
9. Malone v. State, 2013 OK CR 1, I 16, 293 P.3d 198, 207
10. Thompson v. State, 2018 OK CR 32, I 16, 429 P.3d 690, 694
11. Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 646 - Aggravated Assault and Battery
• Okla. Stat. tit. 21 § 649(B) - Battery/Assault and Battery on a Police Officer

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• 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
• Elmore v. State, 1981 OK CR 8, I 8, 624 P.2d 78, 80
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
• 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
• Thompson v. State, 2018 OK CR 32, I 16, 429 P.3d 690, 694