Gene Freeman Price v The State Of Oklahoma

F-2012-112

Filed: Feb. 25, 2013

Not for publication

Prevailing Party: Gene Freeman Price

Summary

Gene Freeman Price appealed his conviction for First Degree Burglary. Conviction and sentence were reversed, and a new trial was ordered. Judge Lewis dissented.

Decision

The judgment and sentence of the trial court is REVERSED AND REMANDED FOR NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was the record sufficient to demonstrate that Mr. Price knowingly and intelligently waived his right to counsel?
• did the trial court abuse its discretion in establishing the waiver of right to counsel?
• was the denial of counsel a violation that pervaded the entire proceedings and therefore could not be considered harmless?

Findings

• the trial court abused its discretion
• Appellant was denied his right to the assistance of counsel
• reversal is required

F-2012-112

Feb. 25, 2013

Gene Freeman Price

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellant, Gene Freeman Price, was tried by jury and convicted of First Degree Burglary (21 O.S.2001, § 1431) in the District Court of Atoka County, Case Number CF-2011-183. The jury recommended as punishment imprisonment for twelve (12) years. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. Appellant raises a single proposition of error in this appeal:

I. Mr. Price’s conviction should be reversed because the record does not adequately reflect that he knowingly and intelligently waived his right to counsel.

After thorough consideration of the entire record before us on appeal including the original records, transcripts, and briefs of the parties, we have determined that Appellant is entitled to relief. 1 A conviction for first degree burglary requires service of not less than 85% of any sentence of imprisonment. 21 O.S.Supp.2009, § 13.1.

In his sole proposition of error, Appellant contends that the record is insufficient to demonstrate that he knowingly and intelligently waived his right to counsel. We agree. Reviewing the totality of the circumstances in the present case, we find that the trial court abused its discretion. Mathis v. State, 2012 OK CR 1, I 18, 271 P.3d 67, 75; Braun U. State, 1995 OK CR 42, I 10, 909 P.2d 783, 787. While the trial court may very well have explained the disadvantages and perils of self-representation to Appellant off the record, the colloquy that the trial court conducted on the record was insufficient to establish that Appellant knowingly and intelligently waived his right to the assistance of counsel. Braun, 1995 OK CR 42, I 10, 909 P.2d at 787 (Anything less than a record which shows that the defendant rejected the offer of counsel with knowledge and understanding of the perils of self-representation is not waiver.).

We note that the colloquies that occurred before preliminary hearing, formal arraignment and trial in the present case all were insufficient to establish that Appellant knowingly and intelligently waived his right to the assistance of counsel. Norton v. State, 2002 OK CR 10, I 8, 43 P.3d 404, 407. Therefore, we are forced to conclude that Appellant was denied his right to the assistance of counsel. As this error pervaded the entire proceedings in the present case, it cannot be considered harmless. Satterwhite U. Texas, 486 U.S. 249, 257, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988) (finding that Sixth Amendment violations that pervade entire proceeding fall within category of constitutional violations that can never be considered harmless); compare 2 Norton, 2002 OK CR 10, I 12 43 P.3d at 408 (denial of counsel at preliminary hearing is subject to harmless-error review.). Thus, reversal is required.

DECISION

The judgment and sentence of the trial court is REVERSED AND REMANDED FOR NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF ATOKA COUNTY

THE HONORABLE RICHARD BRANAM, DISTRICT JUDGE

APPEARANCES AT TRIAL

GENE FREEMAN PRICE PRO SE

APPEARANCES ON APPEAL

ROBERT W. JACKSON
OKLAHOMA INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

RYAN RENNIE
ATTORNEY AT LAW
118 N. CHICKASAW
PAULS VALLEY, OK 73075
STANDBY COUNSEL FOR DEFENDANT

GREG JENKINS
E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
202 EAST COURT STREET
ATOKA, OK 74525
COUNSEL FOR THE STATE

JUDY KING
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST ST.
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.

LEWIS, P.J.: CONCUR IN RESULT

SMITH, V.P.J.: CONCUR

C. JOHNSON, J.: CONCUR

A. JOHNSON, J.: CONCUR

RC 3

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Footnotes:

1. 21 O.S.2001, § 1431
2. 21 O.S.Supp.2009, § 13.1
3. Mathis v. State, 2012 OK CR 1, ¶ 18, 271 P.3d 67, 75
4. Braun v. State, 1995 OK CR 42, ¶ 10, 909 P.2d 783, 787
5. Norton v. State, 2002 OK CR 10, ¶ 8, 43 P.3d 404, 407
6. Satterwhite v. Texas, 486 U.S. 249, 257, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988)
7. Norton, 2002 OK CR 10, ¶ 12, 43 P.3d at 408
8. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 (2001) - First Degree Burglary
• Okla. Stat. tit. 21 § 13.1 (2009) - Sentencing

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:

• Mathis v. State, 2012 OK CR 1, I 18, 271 P.3d 67, 75
• Braun v. State, 1995 OK CR 42, I 10, 909 P.2d 783, 787
• Norton v. State, 2002 OK CR 10, I 8, 43 P.3d 404, 407
• Satterwhite v. Texas, 486 U.S. 249, 257, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988)