Timothy Clinton OWENS and Gary Allen Short, Appellants, v. The STATE of Oklahoma, Appellee.
Nos. F-82-546, F-82-547
Court of Criminal Appeals of Oklahoma
June 15, 1983
We now reassess our views on the issue delineated by the defendant to-wit: Should the defendant be allowed to withdraw his plea of guilty when the trial court does not accept the District Attorney‘s dispositional recommendation?
*
*
*
*
*
*
Such a procedure allows for at least the “taint of false inducement” even when the trial court properly advises the accused that the trial court is not bound by the District Attorney‘s dispositional recommendation. Therefore, in all future cases the following procedure is applicable;
*
*
*
*
*
*
2. If the court determines from said appearing parties that the tendered plea of guilty is the result of a plea agreement and determines from the defendant that there is a factual basis for the plea of guilty, the trial court shall then require the full disclosure of the plea agreement and the trial court shall then proceed as follows:
*
*
*
*
*
*
b. Inform the defendant the trial court concurs in the plea agreement upon the condition that the presentence report, unless affirmatively waived by the defendant, and other relevant evidence are consistent with the representations made to the court at the plea hearing. However, if after receipt of the presentence report and other relevant evidence the trial court can no longer concur in the plea agreement the trial court must then afford the defendant the opportunity to reaffirm or withdraw his plea; or, (Footnotes omitted; emphasis added.) 553 P.2d at 533, 534, 535-536.
We are of the view that King controls this issue. The trial court erred in refusing to permit withdrawal of the plea of guilty.
We assume original jurisdiction and grant the petition for writ of certiorari. The judgment and sentence is reversed and the cause remanded for further proceedings consistent with the views expressed therein.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT, this the 7th day of June, 1983.
TOM R. CORNISH, J.
TOM BRETT, J.
Jan Eric Cartwright, Atty. Gen., Eric Hermansen, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
CORNISH, Judge:
The appellants were tried in the District Court of Osage County conjointly for the offense of Escape from a Penal Institution. They were convicted and sentenced to a term of five (5) years’ imprisonment.
I.
The first assignment is that the trial court erred in overruling appellants’ motions to quash the jury panel, alleging that the panel was not selected in strict
Before the name of any juror is drawn, the box must be closed and shaken, so as to intermingle the ballots therein. The clerk must then, without looking at the ballots, draw them from the box.
At the hearing on the motion for new trial, the appellants presented testimony from the deputy court clerk who drew the names from the box. The deputy clerk testified that she drew one name at a time out of the jury ballot box, but that she did not shake the box either before or after each name was pulled therefrom because she was not told to do so. She stated that it was her first time to draw a jury panel and that she was very nervous. Her testimony further revealed that the ballots were not placed in any particular order inside the box nor stacked up, but were laying loose in the box, which had a plastic cover on it; and that the ballots were each folded in such a manner that she could not see the names upon them. We have stated that the purpose of the various statutory methods for selecting the jury has always been to insure that the jurors will be drawn fairly and impartially and that there be no suspicion that the jurors have been secretly handpicked. Escobedo v. State, 545 P.2d 210 (Okl.Cr.1976) and cases cited therein. This Court construes statutes in such a manner as to effectuate their purposes. In light of the fact that the appellants have shown no evidence of a thwarting of the purpose of the statute in the instant case, either intentional or otherwise, and that they have failed to discharge their burden of showing that the alleged irregularity has caused them to suffer material prejudice, relief cannot be granted in this case.
II.
The appellants’ second proposition is that they were not allowed a sufficient amount of time to consult with their counsel and were thereby denied their Sixth Amendment right to effective assistance of counsel. Appellants have failed to include this proposition of error in their motion for new trial. Furthermore, the appellants urged prior to trial that they had been denied their right to a speedy trial. Just prior to doing so, both of the appellants stated that they were satisfied with the counsel‘s representation of them and that they desired to go forward with the trial in spite of the fact that their counsel was without the aid of the preliminary hearing transcript. This proposition of error is without merit.
III.
As their third assignment of error, the appellants allege that the trial court abused its discretion in admitting immaterial evidence, the effect of which was more prejudicial than probative. The evidence consisted of a letter, a diagram of Conners Correctional Center (from which the appellants escaped) and a pair of homemade “wirecutters,” all of which were found during an inventory of the appellants’ cells. The appellants assert that these items had no probative value as to whether they did in fact escape, as all of the items were found in one or the other‘s cell between the time of their escape and the time of their recapture. The letter, found in Timothy Owens’ cell, referred to a planned escape, although it was unclear whether the signature upon it was “Tim” or “Jim.” The diagram of the tunnel complex at Conners, also found in Timothy Owens’ cell, allegedly depicted a possible escape route. The apparently homemade “wirecutters” were found in Gary Short‘s cell.
Clearly, none of these items were actually employed in the escape itself, as all were located in the appellants’ cells during the time of their escape. And, as it was conceded at trial, the appellants’ escape route was not that which was depicted in
IV.
The appellants’ final assignment of error is that the trial court improperly excluded evidence offered by them for the purpose of mitigation of punishment. The appellants sought to introduce evidence concerning the length and nature of punishment they had already received from correction officials at the Oklahoma State Penitentiary at McAlester immediately following, and as a result of, their escapes. Prior to trial and following defense counsel‘s offer of proof as to proposed testimony of two inmate witnesses regarding institutional acts toward the appellants as a result of their escapes, the trial court stated that the testimony would be allowed if a conviction resulted. Subsequent cross-examination of another witness by defense counsel elicited detailed information concerning the length of the appellants’ incarceration in disciplinary segregation and the nature of restrictions and loss of privileges associated with disciplinary segregation. Upon the State‘s attempts on redirect to ascertain whether the appellants had received institutional punishment on any prior occasions, the trial judge struck the testimony of the witness in its entirety and admonished the jury not to consider it in their deliberations. Subsequent attempts to offer the testimony of the two inmate witnesses were denied by the trial court.
THEREFORE, and for the foregoing reasons, the judgments and sentences are AFFIRMED.
BUSSEY, Presiding Judge, specially concurring:
I agree that the judgments and sentences should be affirmed and wish only to observe that the challenge to the jury panel came too late in the motion for new trial.
A challenge to the panel must be taken before a jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge.
This statute has been long and uniformly construed to preclude a challenge to the jury panel made after the verdict has been rendered. See, Queenan v. Territory, 11 Okl. 261, 71 P. 218, 61 L.R.A. 324, affirmed, 190 U.S. 548, 23 S.Ct. 762, 47 L.Ed. 1175 (1903); see also, Johnson v. State, 559 P.2d 466 (Okl.Cr.1977).