Alford Plea

RE-2018-925

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JAREN GLENN SELLERS,** **Appellant,** **V.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. RE-2018-925** **Filed May 23, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant Jaren Glenn Sellers appeals from the revocation of his suspended sentences in Pontotoc County District Court Case No. CF-2012-390. On September 13, 2013, Appellant entered negotiated Alford pleas to First Degree Rape (21 O.S.2011, § 1114) (Count 1) and Forcible Sodomy (21 O.S.2011, § 888) (Count 2). He was sentenced to a term of imprisonment for ten years on each count, all suspended, to be served concurrently. On January 16, 2018, the State filed an amended application to revoke the suspended sentences alleging that Appellant committed the new crime of Aggravated Assault and Battery. A revocation hearing was held on August 27, 2018, before the Honorable Gregory Pollard, Special Judge. Judge Pollard granted the State's application and revoked seven years of Appellant's ten-year suspended sentences. On appeal, Appellant asserts the revocation was excessive. **ANALYSIS** At a hearing where the State seeks revocation of a suspended sentence, the question is whether the suspended portion of the sentence should be executed. The court makes a factual determination as to whether the terms of the suspension order have been violated. The violation need be proven only by a preponderance of the evidence. A trial court's decision to revoke a suspended sentence should not be overturned absent a finding of an abuse of discretion. We do not find the decision to revoke seven years of Appellant's suspended sentences to be an abuse of discretion. The credibility of witnesses and the weight given their testimony are within the exclusive province of the trier of fact, who may believe or disbelieve the witnesses as it desires. The decision of the trial court to revoke a suspended sentence, in whole or in part, is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Judge Pollard considered all evidence presented during the revocation hearing. His decision to partially revoke Appellant's suspended sentence cannot be considered an abuse of discretion. **DECISION** The order of the district court of Pontotoc County revoking a portion of Appellant's suspended judgments and sentences in Case No. CF-2012-390 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 delivery and filing of this decision. --- **AN APPEAL FROM THE DISTRICT COURT OF PONTOTOC COUNTY** **THE HONORABLE GREGORY POLLARD, SPECIAL JUDGE** **APPEARANCES ON APPEAL** **COUNSEL FOR DEFENDANT:** LLOYD B. PALMER 1609 ARLINGTON ADA, OK 74820 **COUNSEL FOR APPELLANT:** MARK P. HOOVER INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR THE STATE:** TARA M. PORTILLO ASST. DISTRICT ATTORNEY P.O. BOX 146 ADA, OK 74821 **ASST. ATTORNEY GENERAL:** MIKE HUNTER JENNIFER B. MILLER COUNSEL FOR APPELLEE 313 N.E. 21st STREET OKLAHOMA CITY, OK 73105 **OPINION BY:** KUEHN, V.P.J. **LEWIS, P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **HUDSON, J.:** CONCUR **ROWLAND, J.:** CONCUR [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-925_1734359840.pdf)

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C-2016-813

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In OCCA case No. C-2016-813, Derlin Lara appealed his conviction for multiple charges, including Manslaughter in the First Degree and Driving Under the Influence. In an unpublished decision, the court decided to deny in part and grant in part the appeal. One judge dissented. Derlin Lara was involved in a serious legal situation where he entered an Alford plea. This type of plea means that he did not admit guilt but agreed that there was enough evidence to convict him. His charges included killing someone while driving under the influence, injuring another person while DUI, driving without a license, and transporting alcohol in the car. After he pleaded guilty, he was sentenced by a judge. The judge gave him a long sentence that meant he’d serve a lot of time in prison. Lara later wanted to take back his plea because he felt it wasn’t fair and that he didn't fully understand what he was doing. He argued that he was confused during the process, and that he had received poor advice from his lawyer. The court looked carefully at Lara's case and found several key points: 1. The judges believed that Lara's plea was actually made with understanding, even though he insisted that he did not understand everything. They noted that he had an interpreter during his hearings. 2. The court decided that Lara was not unfairly punished multiple times for the same actions. They explained that each charge had different parts and involved different victims, so they did not violate any laws regarding multiple punishments. 3. Lara’s claims about his lawyer not helping him were also rejected. The court found that Lara did not show that having a different lawyer would have changed his decision to plead guilty. 4. The sentence he received for one of the charges was too harsh according to the law. He was given a year in jail for driving without a license, but that punishment was higher than allowed. The court changed that sentence to a shorter one of just thirty days. Lastly, the court found that the amounts assessed for victim compensation and restitution were not properly explained during sentencing. Therefore, they canceled those amounts and decided that a hearing should be held to determine fair compensation. In summary, while the court denied most of Lara's requests, they did change one of his sentences and agreed that some financial penalties needed to be rethought.

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C-2016-40

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In OCCA case No. C-2016-40, Deandre Lashawn Henderson appealed his conviction for assault with a dangerous weapon and possession of a firearm after a former conviction of a felony. In a published decision, the court decided to grant part of his appeal. The court affirmed the convictions for Counts 1 and 5, but reversed and vacated the judgments for Counts 2 through 4. One justice dissented. The case began when Henderson entered a negotiated Alford plea, which means he maintained his innocence but accepted the plea for the sake of a more favorable sentence. He was sentenced to twenty years for the assault counts and ten years for the possession count, all to be served concurrently, meaning at the same time. Later, Henderson wanted to withdraw his plea. He claimed that his plea was not made knowingly, intelligently, or voluntarily. He also said that he did not receive effective help from his lawyer and that the trial court should have appointed a different lawyer due to a conflict of interest. During the appeal, the court looked closely at whether Henderson's plea was made voluntarily and if the district court had the authority to accept it. The court found that Henderson's plea was indeed voluntary because he knew the charges and the consequences. His choice to accept the plea was motivated by a desire to reduce his overall prison time, especially given the evidence against him. However, the court agreed that Henderson's lawyer should have argued that some of the charges violated the double jeopardy clause, which means he shouldn't be punished multiple times for the same act. The court found that the counts for assault stemmed from the same event and that it was wrong to punish him multiple times for it. Therefore, while verifying his conviction for some counts, the court ruled that the counts of conviction for assault with a dangerous weapon were not valid as they violated his rights. This decision meant that Henderson would not have to serve time for those three convictions but would still be sentenced for the other charges. Overall, the court upheld some aspects of the conviction but also corrected parts that were not handled properly.

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C-2013-1046

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In OCCA case No. C-2013-1046, Ronald Franz appealed his conviction for Accessory After the Fact to Shooting with Intent to Kill. In an unpublished decision, the court decided to grant his petition for writ of certiorari and remanded the case to the district court for a proper hearing on his motion to withdraw his guilty plea. One judge dissented.

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C-2012-1165

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In OCCA case No. C-2012-1165, the petitioner appealed his conviction for Child Abuse or, in the alternative, Enabling Child Abuse. In an unpublished decision, the court decided to remand the case for an evidentiary hearing with conflict-free counsel. One judge dissented. Gabriel Brian Solis entered a type of guilty plea called an Alford plea, where he did not admit guilt but accepted a sentence possibility. He was sentenced to 80 years in prison and a $100 fine. Solis later wanted to take back his plea and filed a request to withdraw it, but this request was denied after two hearings where no real evidence was presented. The court noted that Solis did not get a fair chance to prove why he wanted to withdraw his plea, as he did not have a proper evidentiary hearing where witnesses could provide testimony or be questioned. It was also noted that during the hearing, Solis's attorney might have had a conflict of interest, which meant he could not represent Solis effectively. The court found that the trial judge did not allow enough evidence or witness testimonies at the hearings. Because of these issues, the case was sent back to the lower court so that Solis could have a proper evidentiary hearing with a new, conflict-free attorney. The remaining claims in Solis's appeal were no longer considered necessary since the hearing was to be redone.

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C-2012-664

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In OCCA case No. C-2012-664, Juan Gabriel Choxmis appealed his conviction for First Degree Rape. In a published decision, the court decided to grant Choxmis's petition for a writ of certiorari, meaning they agreed to look at his case again because he did not receive fair representation at his hearing to withdraw his guilty plea. The court found he should have had a lawyer who did not have a conflict of interest. One judge dissented.

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C-2012-277

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In OCCA case No. C-2012-277, Crystal Lynn Erb appealed her conviction for Child Neglect. In a published decision, the court decided to remand the case for the appointment of new, conflict-free counsel to represent Erb in her application to withdraw her Alford plea. One judge dissented. Crystal Lynn Erb was charged with child neglect after she was accused of not taking care of her infant, Tamberlyn Wheeler. The events that led to the charges happened between January 2008 and April 2008, but the official charges were not filed until January 2011. This was a delay of almost 2 years and 9 months. A preliminary hearing took place in May 2011, and Erb was bound over on the charge. On October 12, 2011, she entered an Alford plea, which means she did not admit guilt but accepted a plea deal because it was in her best interest. She agreed to testify against her co-defendant, Samuel Wheeler, and was released on her own recognizance. During the sentencing hearing in February 2012, Erb was sentenced to 30 years in prison. Shortly after, her lawyer filed a motion for her to withdraw her guilty plea, arguing that Erb was innocent. However, during the hearing for this motion, the lawyer did not present any strong arguments or evidence for why Erb should be allowed to withdraw her plea. The judge denied the motion. Erb later filed an appeal and sought a review by the court, raising several claims for why her plea should be re-evaluated. She argued that her plea was not made knowingly or intelligently and that she did not receive good legal help due to a conflict with her attorney. The court noted that the issues Erb raised in her appeal were not dealt with properly by her lawyer when they tried to withdraw her plea. The court expressed concerns about whether her plea was voluntary and if her attorney did not provide effective assistance. Since the same lawyer represented Erb during both the plea and the motion process, the court decided that Erb needed a new attorney who could help her without any conflicts of interest. As a result, the court ordered that the case be sent back to appoint a new lawyer for Erb so that they could help her file a new application to withdraw her Alford plea and represent her in any related hearings. The decision was made to ensure that Erb received fair and effective legal help.

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C-2012-381

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In OCCA case No. C-2012-381, #1 appealed his conviction for #2. In a (published) decision, the court decided #3. #4 dissented. Gary Alan Stine took an Alford plea, which means he didn't admit guilt but accepted the punishment, to several serious crimes including indecent exposure and rape. He was sentenced to many years in prison, with some parts of his sentences running at the same time. Later, Stine tried to withdraw his guilty plea, claiming his sentence was unfair and that the participation of a guardian ad litem, who looks out for the interests of a child in court, negatively impacted his case. He believed this guardian acted too much like a prosecutor, which he thought was wrong. Stine also thought his lawyer did not help him properly during his case. The court looked carefully at everything, including the original records and what was said in court. They found that Stine's claims about both the guardian's role and his lawyer's performance were not valid. They noted that Stine had properly understood the charges against him and his sentence. Because of this, the court decided there wasn't enough reason to change Stine's plea or his sentence. They agreed that some parts of Stine's requests weren't even considered because they were not raised properly earlier. The court also found there was a mistake in the written document of his sentence that needed correcting, but that was just a small clerical issue, not a bigger problem with his case. In the end, the court denied Stine's petition to withdraw his plea and said they would correct the written sentence to match what was said in court.

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C 2008-448

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In OCCA case No. C 2008-448, Franklin Savoy Combs appealed his conviction for grand larceny. In an unpublished decision, the court decided to allow Combs to withdraw his plea. One judge dissented. Combs was charged with grand larceny after two checks were stolen while he was visiting someone's home. He entered an Alford plea, meaning he accepted a punishment without admitting guilt, thinking it would be in his best interest. Combs was sentenced to five years in prison, with four years of that time suspended. Later, Combs sent a letter to the court saying he wanted to change his plea because he believed he was not guilty since he did not actually steal anything. The court agreed to a hearing where Combs explained that he didn't commit the crime. However, the court decided not to let him withdraw his plea. Combs then appealed this decision and raised two main points: he didn't understand what he was doing when he entered his plea, and there wasn't enough evidence to support his plea. The appeals court reviewed the case and decided that the original court made mistakes. They noted that there was not enough factual basis for Combs to plead guilty. In fact, they found that he might actually be innocent of the charges based on the facts presented. The appeals court said that Combs should be allowed to take back his plea and sent the case back to the lower court for further actions based on their ruling. Overall, the court agreed that Combs did not enter his plea knowingly and voluntarily, and they concluded their findings by granting him the chance to withdraw his Alford plea.

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C-2004-1156

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In OCCA case No. C-2004-1156, Timothy Mark Watkins appealed his conviction for child abuse and rape. In an unpublished decision, the court decided to grant his appeal and allow him to withdraw his guilty plea. One judge dissented from this decision.

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C-2002-1525

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In OCCA case No. C-2002-1525, Campbell appealed her conviction for Enabling Child Abuse. In an unpublished decision, the court decided to affirm her conviction but modified her sentence. One judge dissented. Campbell was charged in Hughes County and entered a guilty plea while maintaining her innocence, known as an Alford plea. She was originally sentenced to twenty-five years in prison. Campbell later appealed, asking to withdraw her guilty plea or reduce her sentence. The court found that although she could not withdraw her plea because she had been properly informed about the rights she was waiving and the maximum penalty for her conviction, her sentence was too harsh. The court decided to change her sentence from twenty-five years to ten years, although it did not reverse her conviction. The dissenting judge believed the trial judge's original decision on the sentence should stand.

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C 2002-1379

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In OCCA case No. C 2002-1379, the petitioner appealed his conviction for kidnapping. In a published decision, the court decided to grant the appeal and remand the case for a proper hearing on the petitioner's application to withdraw his plea. One judge dissented. The case started when the petitioner entered a guilty plea to the crime of kidnapping. He was sentenced to seventeen years in prison as part of a plea agreement. However, shortly after, the petitioner wanted to withdraw his guilty plea. He filed a motion for this, but during the hearing, he was not present, even though he had the right to be there. His lawyer asked the court to move forward without him, believing it was best since the petitioner was already in custody. The court looked at whether the absence of the petitioner from this critical hearing was a serious mistake. The petitioner did not agree to waive his right to be present, which the court pointed out as important. The judges discussed that being absent from such a crucial part of the trial could lead to unfair treatment. While the State argued that the absence was not a big deal and didn't affect the outcome, the court disagreed. They emphasized that this hearing was meant to gather facts and needed the petitioner's presence. The court found that merely saying the absence was harmless was not enough in this case. The lawyer who represented the petitioner at the hearing did not provide evidence or firsthand statements from the petitioner, only mentioning a letter the petitioner had written earlier. The court raised concerns that the lawyer might not have properly consulted with the petitioner about not attending the hearing. Since the petitioner claimed he entered the plea without properly thinking it over and believed he had a valid defense, the case could not fall under rules that would let the court dismiss his request without consideration. The judges decided that the petitioner's right to a fair hearing had been violated because he was not there to fully participate and because his lawyer did not act effectively for him in this situation. Therefore, the court ruled that the case should go back to the district court to ensure the petitioner can have a complete hearing on his wish to withdraw his guilty plea.

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RE-2000-841

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In OCCA case No. RE-2000-841, the appellant appealed his conviction for the revocation of his suspended sentences. In a published decision, the court decided that the appellant's revoked sentences should run concurrently instead of consecutively. One judge dissented.

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