Shawntee Renee HOPKINS, Appellant, v. STATE of Oklahoma, Appellee.
No. C-88-314.
Court of Criminal Appeals of Oklahoma.
Nov. 4, 1988.
Rehearing Denied Dec. 6, 1988.
215
In all cases in which the defendant is prosecuted for a second or subsequent offense, ..., the procedure shall be as follows:
(b) If the verdict be guilty of the offense charged [in the first stage of trial], that portion of the indictment or information relating to prior offenses shall be read to the jury....
(Emphasis added.) At no time was this procedure, which is couched in mandatory language, observed. Thus, it is unavoidably clear that error occurred. However, we note also the language of
... [I]t shall be sufficient that a party, at the time the ruling or order of the court has been made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court with his general grounds therefor.
(Emphasis added.)
Further, it is not at all clear that appellant was objecting to the procedural defect. If the objection was to the admission of evidence, we note the language of
A. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected, and:
1. ... a timely objection or motion to strike appears of record, stating the specific ground of objection....
(Emphasis added.) Appellant stated no grounds whatsoever for his objection, and we find that the issue has not been properly preserved for review on appeal. We further find that the error complained of does not constitute fundamental error where the jury had a copy of the second page during deliberations, and the court‘s instructions correctly apprised the jury of the charges and issues involved.
Finding no basis for reversal or modification, the judgment and sentence of the District Court of Comanche County is AFFIRMED.
BRETT, P.J., concurs.
PARKS, J., specially concurs. .
PARKS, Judge, specially concurring:
The majority concedes that defense counsel‘s motion for a directed verdict was based on the fact that the prosecutor failed to read the second page of the Information as mandated by
Lewis Barber, Jr., George P. Traviolia, Oklahoma City, for petitioner.
No response necessary.
OPINION
BUSSEY, Judge:
Petitioner, Shawntee Renee Hopkins, pled guilty in the District Court of Oklahoma County, Case No. CRF-87-5057, to charges of Possession of a Controlled Dangerous Substance, Heroin. She was sentenced to imprisonment for ten (10) years,
A recitation of the facts is unnecessary. First, petitioner asserts that her plea was not entered knowingly and voluntarily because her attorney did not adequately advise her of a plea offer made by the prosecutor. She relies heavily upon Avance v. State, 497 P.2d 467, 469 (Okl.Cr.1972), in which we stated, “[t]he standard [for determining the validity of guilty pleas] was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)).
The record in this case shows that defense counsel did, in fact, advise petitioner of her alternative courses of action. He told her that the prosecutor had offered a three year recommendation in exchange for a guilty plea. He told her that the prosecutor “wanted to give [her] time.” Rather than accepting the plea offer, defense counsel suggested that petitioner enter a “blind plea” on the charge, because first time offenders were routinely given suspended sentences for nonviolent crimes. Although petitioner expressed some confusion at the hearing to withdraw her plea as to whether the prosecutor was offering incarceration or a suspended sentence, the record, when viewed as a whole, demonstrates that petitioner was aware that she was choosing between certain incarceration on the plea offer, or a possible suspended sentence on a “blind plea.” We find the continuing language of North Carolina v. Alford, supra, also quoted in Avance, supra, to be squarely on point:
That [petitioner] would not have pleaded guilty except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant‘s advantage.
We find that petitioner‘s plea was knowingly and voluntarily entered.
Finally, petitioner asserts that the trial court abused its discretion in refusing to allow her to withdraw her guilty plea. She asserts that Hoag v. State, 483 P.2d 753 (Okl.Cr.1971), requires the trial court to consider age, education, lack of court experience, and previous criminal record in determining whether to allow a withdrawal of a plea of guilty. Comparing this case to Hoag fails to show any abuse of discretion. Hoag was under eighteen years of age; petitioner is twenty-six. Hoag had not completed high school; petitioner had. Hoag could have retained counsel of choice if his parents had been contacted; petitioner did retain counsel of choice to represent her. None of the circumstances in this case show an abuse of discretion. Furthermore, Hoag involved due process problems, since he was a juvenile and his parents had not been contacted when he was arrested, or summoned for preliminary hearing. None of those problems exist in this case.
The well settled rule is that the granting or denying of permission to withdraw a plea of guilty and substitute a plea of not guilty is a matter within the sound discretion of the trial court and its action will be upheld unless abuse of discretion clearly appears in the record. Avance, supra, at 470-71. We find no abuse of discretion in this case. Accordingly, the relief sought by petitioner must be, and hereby is, DENIED.
BRETT, P.J., concurs.
PARKS, J., dissents.
PARKS, Judge, dissenting:
I respectfully dissent on the basis that appellant‘s plea was not knowingly and voluntarily entered. The evidence presented during the hearing on appellant‘s motion to withdraw her plea is uncontroverted: Appellant was told by her attorney “he was sure that [she] would get a suspended sentence ... because [she] had never been in trouble before...” Because of this inaccurate information, appellant‘s plea does not represent “a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Avance v. State, 497 P.2d 467 (Okla.Crim.App.1972), quoting North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
At the hearing on appellant‘s motion to withdraw her plea, the judge questioned her as to the information given to her by her attorney regarding a possible plea bargain. Appellant stated that immediately before she entered her blind plea, her attorney told her that the district attorney was offering a sentence of three years. He did not explain any of the details of this offer, such as whether the three years were to be suspended or served. He also told her that because she had never been in trouble before, “he was sure” she would get a suspended sentence. The State presented no evidence in rebuttal.
As stated in Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir.1970):
Certainly, if an attorney recklessly promises his client that a specific sentence will follow upon a guilty plea, or otherwise unfairly holds out an assurance of leniency in exchange for a confession of guilt, the question may arise whether such assurances were coercive ...
At the motion hearing, the only testimony presented was that of appellant, who testified that she was not fully informed of the terms of the proposed plea bargain and she only pled guilty after receiving her attor-