Knowing and Voluntary

RE-2018-348

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In the case of Darrin Wayne Culley v. The State of Oklahoma, the Court of Criminal Appeals reviewed the appellant's appeal from the partial revocation of his suspended sentence. Culley had initially entered a plea of nolo contendere to a charge of Child Abuse and was sentenced to fifteen years imprisonment, which was suspended. However, after a motion to revoke his suspended sentence was filed due to new charges of Domestic Abuse, Culley stipulated to the allegations against him and accepted a plea agreement. Culley raised two main propositions of error in his appeal: 1. He argued that the revocation hearing violated his due process rights because his stipulation was not made knowingly and voluntarily. He claimed that he felt rushed and pressured into making his stipulation and that he had not been adequately informed about potential defenses to the allegations against him. 2. He contended that he received ineffective assistance of counsel, resulting in a poor decision to stipulate to the State's revocation application. The court addressed both propositions together. They noted that Culley did not claim that he was deprived of the minimum due process rights established in Morrissey v. Brewer but instead argued that counsel’s actions made his stipulation invalid. The court emphasized that the trial judge had thoroughly questioned Culley regarding his stipulation, confirming that he was acting voluntarily and understood the implications of his decision. The court concluded that his stipulation was indeed made knowingly and voluntarily. Regarding the claim of ineffective assistance, the court applied the Strickland v. Washington standard, which requires showing that the lawyer's performance was deficient and that this deficiency prejudiced the defendant. The court found that Culley did not establish that his counsel's performance was objectively unreasonable or that he was prejudiced by his representation. Ultimately, the Court affirmed the partial revocation of Culley's suspended sentence, finding no merit in his claims. The ruling highlights the importance of thorough questioning and confirmation by the court to ensure that a defendant's rights are protected during such proceedings.

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C-2018-977

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BRADLEY WAYNE CHERRY,** **Petitioner,** **v.** **THE STATE OF OKLAHOMA,** **Respondent.** **Case No. C-2018-977** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA AUG 29 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Bradley Wayne Cherry entered guilty pleas in the District Court of Oklahoma County to charges of Second Degree Burglary under Case Nos. CF-2017-4883 and CF-2017-5420. These pleas were accepted by the Honorable Ray C. Elliott on November 15, 2017, as part of a plea agreement allowing Petitioner to enter the RID Program, with the potential for a more favorable sentence upon successful completion. His sentencing, set for September 19, 2018, was postponed to allow for completion of the program. Petitioner failed the RID Program and was charged with additional burglaries in Case No. CF-2018-2594. Pleas and sentencing for the three cases culminated on August 22, 2018, resulting in seven years imprisonment per case, ordered to run consecutively. Petitioner subsequently filed a pro se Motion to Withdraw Guilty Plea, which the trial court denied after a hearing. **Propositions of Error Raised by Petitioner:** 1. **Excessive Sentencing:** Petitioner claims the imposed sentences are shockingly excessive and not proportional to the crimes. The court finds this argument unpersuasive as the legislature defines punishment ranges for offenses. Given the nature of multiple burglaries, including home invasions, the maximum sentences were deemed appropriate. 2. **Restitution Order:** The claim regarding the trial court’s adherence to statutory procedures for restitution was waived, as it was not raised in the motion to withdraw the plea. 3. **Plea Agreement Not Honored:** Petitioner argues the trial court did not adhere to the plea agreement in CF-2018-2594. The court determined there was no formal plea agreement regarding concurrent sentencing; hence, the claim fails. 4. **Voluntariness of Pleas:** Petitioner asserts his pleas were not knowingly entered due to an alleged lack of understanding about possible sentencing. The court determined Petitioner was adequately informed about his potential sentencing and the implications of a blind plea. 5. **Bias of the Trial Court:** Petitioner claims bias during the proceedings; however, this issue was not preserved for appeal as it was not included in the withdrawal motion or addressed at the hearing. 6. **Ineffective Assistance of Counsel:** Petitioner asserts his appellate and trial counsel were ineffective, but these claims were not explicitly raised during the motion to withdraw. Concerning the effectiveness of conflict counsel at the withdrawal hearing, Petitioner failed to demonstrate any resulting prejudice. **DECISION:** The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the District Court is AFFIRMED. A mandate is ordered to be issued upon delivery and filing of this decision. **APPEARANCES:** - **For Petitioner at the Plea Hearing:** - Mark Hartshorn (Oklahoma City, OK) - **For Defense at Withdrawal Hearing:** - Thomas Hurley (Oklahoma City, OK) - **For the State:** - Dan Pond (Oklahoma City, OK) **OPINION BY:** LUMPKIN, J. **Concurred by:** LEWIS, P.J.; KUEHN, V.P.J.; HUDSON, J.; ROWLAND, J. --- **[Download PDF of Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-977_1734186380.pdf)**

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M-2016-268

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In OCCA case No. M-2016-268, the appellant appealed his conviction for threatening to perform an act of violence and resisting an officer. In an unpublished decision, the court decided that the trial court made an error by not properly informing the appellant about the risks of representing himself without a lawyer. The court found that there was not enough evidence to show that the appellant understood what he was doing when he waived his right to a lawyer. The court reversed the trial court's judgment and ordered a new trial. One judge dissented.

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C-2014-854

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In OCCA case No. C-2014-854, Cory James Leon Whiteside appealed his conviction for Domestic Assault and Battery and Domestic Abuse - Assault and Battery. In an unpublished decision, the court decided to grant his petition, allowing him to withdraw his pleas. One member of the court dissented. Whiteside pleaded guilty to two misdemeanor charges involving domestic violence. The court sentenced him to one year in jail for each charge, with the sentences to run one after the other. Shortly after pleading guilty, Whiteside asked to change his plea from guilty to not guilty, stating he had not understood the consequences of his plea. His request to withdraw his plea was denied by the court. Whiteside then appealed this decision, arguing two main points. First, he claimed he did not knowingly and voluntarily give up his right to have an attorney represent him during the case. Second, he argued that he should be allowed to withdraw his plea because he didn't fully understand what he was agreeing to. The court reviewed the entire record of the case. It found that Whiteside's waiver of his right to counsel was not made in a knowing and voluntary way, meaning there was no clear record showing that he understood what self-representation involved or that he had been advised of the risks of not having a lawyer. The state even agreed with this point. Because this error was significant, the court decided to let Whiteside withdraw his guilty pleas. Following this decision, the other issue Whiteside raised became unnecessary to address. Therefore, the court ordered that Whiteside be allowed to withdraw his pleas.

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C 2014-693

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In OCCA case No. C 2014-693, a person appealed his conviction for child neglect. In an unpublished decision, the court decided to allow him to withdraw his no contest plea due to receiving bad advice from his attorney, which made his plea not knowing and voluntary. One judge dissented.

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M-2011-1083

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In OCCA case No. M-2011-1083, the appellant appealed his conviction for resisting an officer. In an unpublished decision, the court decided to reverse the trial court's judgment and remand for a new trial. One judge dissented. The case involved Franklin Savoy Combs, who was found guilty of resisting an officer after a jury trial. The trial took place in Hughes County, and the appellant received a sentence of ninety days in jail and a fine of $300. Combs later appealed this decision, challenging the way he represented himself in court. In his appeal, Combs argued that the trial court did not properly inform him of the risks of self-representation. The court looked at the records from the trial to see if Combs had knowingly decided to waive his right to have a lawyer. They found that there was not enough evidence to show that he fully understood what he was doing when he chose to represent himself. The court explained that before someone can represent themselves, it is very important that they know what that means and what they might be giving up. If there are doubts about whether a person really understood their rights, those doubts should be viewed in favor of that person. Since the court determined that Combs did not knowingly and intelligently waive his right to counsel, they decided that his conviction needed to be reversed. The case was sent back for a new trial where he can have proper legal representation.

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C-2010-1059

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In OCCA case No. C-2010-1059, Karen Deborah Smith appealed her conviction for Enabling Sexual Abuse of a Minor Child. In an unpublished decision, the court decided to grant her petition and remand the case to the district court for a proper hearing on her motion to withdraw her guilty plea. One judge dissented. Petitioner, Karen Deborah Smith, was charged with two counts of enabling sexual abuse of a minor child in Tulsa County. She entered a plea of no contest and was sentenced to five years in prison, with two years suspended on each count, serving the sentences at the same time. Later, she requested to withdraw her guilty plea, but her request was denied after a hearing. In her appeal, Smith raised several arguments. She claimed she should be allowed to withdraw her plea because there was no strong reason for her to accept it, especially since an 11-year-old was involved, and he was not actually responsible for the care and safety of the children. She argued that she did not have complete understanding of her situation when she entered her plea because she wasn't informed enough about the 85 percent requirement linked to her charges. She said her lawyer didn't properly explain everything to her and that there was a conflict of interests because the same lawyer represented her during both the plea and the withdrawal request. The court looked carefully at her claims and agreed that she might not have received fair legal help when she tried to withdraw her plea because the same lawyer represented her both when she made her plea and when she wanted to change it. The judge recognized that the lawyer might not have done his best job during the withdrawal hearing since he could not argue against his own previous actions. The court decided to grant Smith's request and ordered her case to be sent back to the district court for another hearing. This time, the court instructed that she should have a different lawyer who did not have previous connections to her case, ensuring she would have fair representation. In summary, the court took action to make sure that Smith's rights were protected, and it wanted to ensure she had a fair chance to address her situation properly. The dissenting opinion noted disagreement with the court’s decision, believing that Smith had been properly informed and had made a voluntary decision regarding her plea, and no actual conflict or prejudice had been shown.

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C-2010-431

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In OCCA case No. C-2010-322, Kinter appealed his conviction for assault and battery with a deadly weapon with intent to kill. In an unpublished decision, the court decided to vacate his conviction and grant him a new trial. One judge dissented. Silvon Dane Kinter was charged with assault and battery with a deadly weapon in 2009. He had trouble paying his lawyer, and she withdrew from the case. Kinter asked for a public defender but was denied. Kinter then pleaded guilty to the charges because he felt pressured and did not want to represent himself at trial. After pleading guilty, Kinter quickly sought to withdraw his plea, claiming he was not given fair legal help. He argued that his rights were violated because he was not allowed to have a lawyer he could trust and that he was forced to plead guilty under pressure. The court found that Kinter did not get a chance for a proper assessment of his financial situation and that the denial of counsel affected his decision to plead guilty. The Oklahoma Court of Criminal Appeals agreed with Kinter, stating that he was denied a fair right to legal representation. They ruled in his favor, allowing him to withdraw his guilty plea and giving him a chance for a new trial. The case highlights the importance of having a lawyer who can represent a defendant without any problems and ensures they understand their rights fully.

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C 2009-665

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In OCCA case No. C 2009-665, Sutton appealed his conviction for possession of child pornography. In a published decision, the court decided to grant Sutton's request to withdraw his guilty plea. Sutton dissented. Petitioner Donald Edward Sutton, Jr. had pleaded guilty to a serious crime. The judge sentenced him to twenty years in prison, but he would only serve eight of those years before possibly getting out. After the plea, Sutton thought things were unfair and said he didn't understand everything when he agreed to plead guilty. Sutton said he didn’t know about important details like having to spend 85% of his time in prison before being eligible for parole or that he would have to register as a sex offender. He felt that he didn't get the help he needed from his lawyer when he entered his plea and when he tried to take it back later. Sutton thought his 20-year sentence was too harsh, especially because he believed there were reasons to be lenient. After reviewing all the information provided, the court agreed that Sutton wasn't given all the facts he needed to make an informed choice about his plea. This omission made his agreement invalid since he didn’t enter it knowingly and voluntarily. The court decided that he should be allowed to withdraw his plea and gave orders for the case to go back for further consideration. The other claims Sutton made about his lawyer and the fairness of his sentence became unnecessary to discuss because of this main issue. In summary, Sutton was given a chance to change his plea because the court found that he wasn’t properly informed about important consequences of his decision.

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C-2008-1155

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In OCCA case No. C-2008-1155, Sean Phillip Gillen appealed his conviction for Distribution of Controlled Dangerous Substance to a Minor, Rape in the Second Degree, Unlawful Possession of Drug Paraphernalia, and Obstructing an Officer. In a published decision, the court decided to deny the appeal for three of the counts but allowed Gillen to withdraw his plea for the fourth count. One judge dissented. Gillen had entered guilty pleas to all counts in a previous court. He was given ten years in prison for the first two counts and one year for the last two counts, all to be served at the same time. After some time, Gillen wanted to withdraw his guilty pleas, claiming various issues, including that he was not competent to make the plea, and that he did not have good legal help. The court looked at several issues. It found that Gillen was competent to enter his guilty plea because he had previously been deemed competent only a few months before. The judge in the initial court talked with Gillen, and Gillen understood what he was pleading guilty to. Also, since his lawyer did not question Gillen’s competence during the plea hearing, the court believed it was acceptable to keep the plea. However, when considering the plea for the count of Obstructing an Officer, the court found that there was not enough evidence to support this charge. The record showed that when asked if a runaway was inside the house, Gillen first said no but then admitted that the runaway was there. The court couldn’t see this as a clear act of obstruction. On the other issues, the court found that Gillen's pleas to the other counts were made knowingly and willingly. It rejected Gillen's claims that he did not have good legal help and that his sentence was too harsh. The court ruled that the ten-year sentence for his serious charges was not shocking and was appropriate. In summary, the court decided that Gillen could not take back his pleas for the first three counts but could withdraw his guilty plea for the fourth count, which was about obstructing an officer. The dissenting judge believed that Gillen should have a hearing to discuss whether he really understood what it meant to plead guilty without a deal, considering his past mental health issues.

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C-2005-1208

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In OCCA case No. C-2005-1208, Eric Evan Smith appealed his conviction for 30 counts of Possession of Obscene Material Involving the Participation of a Minor Under the Age of Eighteen. In a published decision, the court decided to grant his request to withdraw his plea and ordered a new hearing on the application to withdraw the plea. One judge dissented. Smith had pleaded guilty in a district court, where he was sentenced to twenty years in prison for each count, with the sentences to be served at the same time, but only serving the first fifteen years of each count. After some time, Smith wanted to change his plea and said it wasn't voluntary because he felt pressured by his attorney. His case was reviewed, and it was determined that there was a conflict between him and his lawyer. Smith argued that his lawyer made him plead guilty by suggesting he would get a lighter sentence if he did so. In the hearing, Smith asserted that his attorney had coerced him into the plea, while his attorney denied it. Because of the angry and conflicting testimonies, the judges believed there was a problem that affected Smith's rights to a fair trial and effective help from a lawyer. The court found that Smith's lawyer could not properly help him because of this conflict. This led them to decide that Smith deserved another chance to explain his case and why he wanted a different plea. The decision meant that Smith had the right to go back to court, where he could present his reasons for wanting to change his plea and have a new decision made on whether his original plea was fair and appropriate. The dissenting judge felt that the court should not have granted this new hearing, believing that Smith's plea was done properly and his lawyer's conflict did not significantly affect the case, arguing that there was no abuse of power in the original decision of the court.

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C-2002-633

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In OCCA case No. C-2002-633, Russell Snoe appealed his conviction for lewd and indecent proposal to a child and contributing to the delinquency of a minor. In an unpublished decision, the court decided to grant Snoe's petition for a writ of certiorari and reverse the judgment and sentence of the trial court. One judge dissented. Snoe had entered a guilty plea in the District Court of Muskogee County, where he was sentenced to five years for one charge and one year for the other, with the sentences to be served at the same time if he completed a certain program. Later, Snoe wanted to take back his guilty plea and sent a letter to the court. The court held a hearing but did not allow him to withdraw his plea. Snoe argued that he did not have a fair chance because his lawyer did not help him correctly and that he was not given the right information about what the punishment could be. The court reviewed Snoe's case and agreed that he had not been clearly informed about his potential punishment. This mistake made his plea not valid. Since he had taken the plea thinking he faced a worse punishment than he actually could have, the court decided he needed another chance. As a result, the court reversed his earlier decision and allowed him to withdraw his plea.

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