*1 ALLEN, Jay Petitioner, Lee
The CITY OF OKLAHOMA
CITY, Respondent.
No. C-97-1678. Appeals
Court of Criminal of Oklahoma.
July *2 application
Allen’s to guilty plea withdraw his on denied December and from appeals. denial Allen now ¶ 2 following propositions Allen raises the support petition of error in of his for Writ of Certiorari: I. implementing The trial court erred in mandatory unconstitutional sen- tencing prescribed scheme under Ordi- nance considering 30-152 without sentence; suspended or deferred II. Ordinances 30-151 and 152 are uncon- stitutionally impair overbroad and constitutionally protected speech, free thus, and the ordinances must be de- clared unconstitutional and the convic- vacated; tion III. Ordinances 30-151 and 152 are un- constitutionally vague ambiguous and provide fail warning and to fair Carson, Joel L. City, Oklahoma trial coun- proscribed what conduct is in viola- sel, for Defendant at trial. tion of the Due Process Clauses of Constitutions; the State and Federal Garrett, Counselor, Municipаl Carol Asst. counsel, City, Oklahoma trial Municipality for at granted trial. IV. Certiorari must be and the conviction vacated because the trial Armor, Vance W. City, Oklahoma for Peti- court summarily overruling erred appеal. tioner on application to withdraw the West, Counselor, William Municipal O. holding without an evidentiary hear- Garrett, Carroll Municipal Assistant Counsel- ing. or, City, Respondent ap- Oklahoma on thorough 3 After review of the entire peal. appeal including original record on rec- supplemented record, ord and original tran- OPINION DENYING PETITION FOR scripts, parties, briefs and exhibits of the we WRIT OF CERTIORARI AND RE- affirm appli- the trial court’s denial Allen’s MANDING FOR RESENTENCING guilty plea cation to withdraw his but remand CHAPEL, Presiding Judge. the ease resentencing. Jay pleaded Lee Allen no contest to ¶4 Offering Engage in an Act of Lewdness in Proposition I properly be Okla., violation of City, us, Oklahoma Rev. Ordi- fоre as this previously Court has held nances, VII, (1993) §§ art. 30-151 may that one challenge legality of one’s (hereinafter 30-152), Ordinances 30-151 and sentence on appeal.2 certiorari Regarding Municipal claim, Court Case No. Allen’s we sentencing hold that 23,1997, M-97-57384. On October provided the Hon- scheme in Ordinance 30- 152(b)(1) Bryan orable J. Gid sentenced Allen fif- (mandating that a minimum of fif days jail teen and fined him days jail)3 teen $750.00.1 be served in is in direct Judge Bryan allowed Allеn to remain out of Desig- 3.Petitioner's Motion to Include Matters custody appeal during pendency on an bond Supplemental Designation nated in the of Record appeal. of this certiorari Original grаnted. Within the Record is ¶55, 26, Lozoya 22, 30. 28-123(B) (em lives, O.S.1991, discussing § their love or friends who conflict with reduce, speak regarding to another sex municipal judges modify, individual powering however, These, with imposition of a sentence оne the friends. are suspend or defer the up not the situations in which in any part thereof and authorize to six Allen was Allen, man, may volved. a married sex probation). City not solicited months ordinances *3 wife, Officer, an nоt his in an general to the laws of the state from Oklahoma run counter judge City park. in This is the that in statutes.4 Because the exact behavior as enacted cover, the were to this case stated on the reсord that he did not ordinances intended and suspend legitimate gov the behavior within the the discretion to or falls believe he had sentence, Sawatzky Appellant’s we must remand ernmental interests identified in v. defer so, City City8 in resentencing.5 doing the for In The ordinances matter of prohibit in question engage prostitu not error in the offers to we stress that we do find solicit, induce, or suspend to or defer Al tion lewdness or offers to tidal court’s failure sentence, procure in the court’s fail entice or another to do so.9 len’s but rather JVe interpret prohibit options.6 only language them to ure to consider those engage prostitu
made with the intent to
in
¶
II,
behavior,
Proposition
narrowly
5 In
Allen ar
tion or
which is a
lewd
Further,
gues
language.
that
30-151 and 30-152 are
defined class of
the be
Ordinances
they potentially
prohibit
overbroad7 because
encom
haviоr which the ordinance seeks to
consenting
falls within
which
pass situations between
adults
that
is the concern of
health, order,
may
boyfriend
public peace,
safety
girlfriend,
who
be
and
friends
morals and
85,
Tulsa,
City
plea,
erroneously
provisions
4.
v.
97 Okl.Cr.
258
trial court
ruled
of
Johnson
of
695,
(1953) (where
prohibit
Delayed Sentencing Program
Young
P.2d
702
ordinance
the
for
statute,
Adults,
as state
but ordinance
imposition
ed same offense
provided
which wоuld have allowed
of
days
jail
sentence,
20
in
under stat
for
whereas
suspended
a
were not available to Peti-
jail
imposed,
impo
the
tioner;
ute no
sentence could be
Day
resentencing);
casе remanded for
v.
day
by municipal judge
sition of a 20
sentence
State,
83, 21,
79,
¶
1989 OK CR
784 P.2d
85.
may
provide
was void because
not
ordinances
statute).
greater punishment
provided by
than that
23,
¶
Lozoya,
they apply. Proposition This is without mer it. ¶ Acсordingly, judgment 9 of the trial denying court Allen’s motion to withdraw his IV, 7 In Proposition we find that plea However, is AFFIRMED. the case is case, particular under the of facts this it is REMANDED to the court to allow consider evidentiary irrelevаnt that hearing no was all sentencing options. of its held on Allen’s plea. motion withdraw his This is because is not challenging Allen STRUBHAR, V.P.J., dissents. plea any way voluntariness of or in his con tending that it in was entered violation of the LUMPKIN, J., in results. сoncurs King mandates of v. State.14 Because the met, JOHNSON, King requirements JJ., were the trial court LANE and concur. Tulsa, 43, ¶2, Durant, 21, 2,¶ 10. See Moore v. 1977 OK 16. State v. 1980 OK CR 609 P.2d 961, 792, added) 561 P.2d (citation 963. (emphasis omitted). 793 Johnson, 72, 7,¶ 11. See State v. 1992 OK CR 877 State, 47, 7, 17. Randall v. OK CR V 861 1136, P.2d 1140. 314, P.2d 316. The in record this case is suffi- id, cient, produced even absent evidence at an evi- 12. See dentiary hearing, to demonstrate substantial Saunders,, 13. State v. 1994 OK CR compliance regarding with this cáselaw Court’s 496, P.2d 497. short, plea acceptance procedure. In no "mate- rial Appellant’s issue of fact has been raised in 14. indepen- 1976 OK P.2d CR 529. An application plea guilty which the of the record appeal dent review of the in Allen’s record does sufficiently provide necessary does not the facts knowingly voluntarily indicate his was guilty plea.” Appellant's this Court to review entered. 66, ¶3, State, Johnson v. CR 1974 OK 521 P.2d Billings 554, 555. LUMPKIN, concurring in Judge, results. join I in the Court’s decision statement, However, “[u]n-
case. the Court’s IV, Proposition we that
der find under case,
particular facts of this it is irrelevant evidentiary hearing
that no on Al- held plea”
len’s motion to is incor- withdraw his evidentiary
rect. The failure to hold the 4.2(B),
hearing was error. See Rule Rules of Appeals,
the Oklahoma Court Criminal 18, App. Title Ch. It is the trial application
court’s denial of the to withdraw
plea, supported by as from the record
evidentiary hearing, which is reviewed
this Court on a Petition for Writ of Certiora- analysis
ri. Id. That is the the Court should opinion legally
set out rather than the
incorrect statement that it was “irrelevant”.
I agree do with the Court’s harmless error
analysis join of this error and therefore
the decision.
STRUBHAR, Presiding Judge, Vice
dissenting.
¶ 1 I continue to dissent as reflected
Sawatzky City
City,
v.
1995 OK
(Okl.Cr.1995),
CR
nied, 517 U.S. 116 S.Ct.
L.Ed.2d 647
Richard Oklahoma, Appellee.
STATE of
No. F-96-121. Appeals
Court of Criminal of Oklahoma.
Aug.