Amanda Moncella Thompson v The State Of Oklahoma

F-2009-648

Filed: Aug. 31, 2011

Not for publication

Prevailing Party: Amanda Moncella Thompson

Summary

Amanda Moncella Thompson appealed her conviction for First Degree Manslaughter. Conviction and sentence were that she was to serve seventy years in prison, with twenty-five years mandatory. Judge Lewis dissented.

Decision

This matter is REMANDED to the District Court of Marshall County and the District Court is ORDERED to give Amanda Moncella Thompson an opportunity to withdraw her plea in Case No. CF-2007-155. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there a denial of the right to seek a petition for writ of certiorari?
• Did the trial court fail to inform Thompson of her right to withdraw her guilty plea at the time her sentence was accelerated?
• Was the omission of informing Thompson of her right to withdraw her plea at the acceleration hearing, as established in Lewis v. State, an error that warrants relief?
• Does the failure to advise of the right to withdraw the plea invalidate the acceleration of Thompson's sentence?

Findings

• the court erred
• the matter must be remanded to the District Court
• Thompson should be given the opportunity to withdraw her plea

F-2009-648

Aug. 31, 2011

Amanda Moncella Thompson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LEWIS, Vice-Presiding Judge:

On September 4, 2007, Appellant, Amanda Moncella Thompson, represented by counsel, entered a plea of guilty to First Degree Manslaughter in Marshall County District Court Case No. CF-2007-155. Thompson’s Judgment and Sentence was deferred for five years. On April 3, 2009, the State filed a motion to accelerate Thompson’s Judgment and Sentence. Thompson appeared on June 8, 2009, and stipulated to the allegations contained in the State’s motion. The Honorable Richard A. Miller, Associate District Judge, accepted Thompson’s stipulation, found her guilty, and ordered a presentence investigation. On July 6, 2009, the court accelerated Thompson’s sentence and ordered her to serve seventy years incarceration, with all but the first twenty-five years suspended. From that order of acceleration, Thompson has perfected this appeal.

We find merit in Thompson’s first proposition of error. Thompson asserts she has been improperly denied the right to seek a petition for writ of certiorari. The State alleged Thompson had tested positive for marijuana, benzodiazepines, opiates, and alcohol, and had failed to attend drug treatment as ordered by the court. The State argues that because Thompson has not filed a petition for writ of certiorari, the scope of review of this acceleration proceeding is limited to the validity of the acceleration order. Rule 1.2(D)(5)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010) (rule establishing appeal procedures for acceleration proceedings and declaring that the scope of review will be limited to the validity of the acceleration order).

Thompson responds that she was prevented from seeking a petition for writ of certiorari because the trial court failed to inform her at the time her sentence was accelerated that she had the right to withdraw her guilty plea. Relying on *Lewis v. State*, 2001 OK CR 6, 21 P.3d 880, Thompson contends this error requires relief from this Court. After a review of the record on appeal, we agree. In *Lewis*, the record revealed that at the time the order deferring the defendant’s judgment and sentence was entered, the defendant was advised of each of his appeal rights, including the right to withdraw his plea. However, at the time of the acceleration, the defendant was advised by the trial court of the right to appeal, but not specifically of the right to seek to withdraw his guilty plea. This Court found that omission to be error, and stated that trial judges should specifically advise defendants of the right to seek to withdraw the guilty plea at the time of acceleration.

In the instant appeal, the transcript of Thompson’s July 6, 2009 acceleration hearing reveals she was not advised of her right to withdraw her guilty plea after the court accelerated her sentence. The State does not contest this fact. Furthermore, on March 8, 2010, Thompson’s counsel attempted to raise this issue through an application for post-conviction relief, seeking an out of time certiorari appeal. The District Court denied relief on June 18, 2010, finding that at the time of the guilty plea, Thompson was advised of her right to withdraw her plea. However, the question of whether Thompson had been advised of her right to withdraw her plea at the time her plea was accelerated was not addressed by the District Court in its order denying post-conviction relief.

Because Thompson was not advised of her right to seek to withdraw her plea at the time of acceleration, and because Thompson properly sought an out of time certiorari appeal through a request for post-conviction relief, we FIND this matter must be REMANDED to the District Court wherein Thompson should be given the opportunity to withdraw her plea. Our finding in this proposition of error renders all other propositions of error moot.

DECISION

This matter is REMANDED to the District Court of Marshall County and the District Court is ORDERED to give Amanda Moncella Thompson an opportunity to withdraw her plea in Case No. CF-2007-155. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. Rule 1.2(D)(5)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)
2. Lewis v. State, 2001 OK CR 6, 21 P.3d 880
3. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011)
4. Rule 1.2(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)
5. Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Manslaughter in the First Degree
• Okla. Stat. tit. 22 § 1.2(D)(5)(b) (2010) - Scope of Review in Acceleration Proceedings
• Okla. Stat. tit. 22 § 4.2 (2010) - Application to Withdraw Plea

Oklahoma Administrative Rules citations:

• Rule 1.2(D)(5)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010)
• Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011)
• Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Lewis v. State, 2001 OK CR 6, 21 P.3d 880