Walker v. StateWalker v. State
Lead Opinion
¶ 1 Willie Earl Walker entered a negotiated plea of guilty to the charge of Larceny of Merchandise From a Retailer with a Value of at Least Fifty Dollars but Less than Five Hundred Dollars after former conviction of one felony (
¶ 2 Walker raises the following propositions of error in this appeal:
1. The trial court did not advise the defendant of several fundamental rights which in totality present reversible error;
2: The judgment and sentence rendered in this case is erroneous as a matter of law.
¶ 3 We do not reach the merits of the first proposition, for Walker waived the issue by failing to raise it in his motion to withdraw guilty plea. Rule 4.2(B), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (1996) Sed Rule 1.0(D).
¶4 The second proposition raises a two-pronged argument in support of the position that a sentence for Larceny of Merchandise from a Retailer ($50.00-$499.99) after former conviction of one felony cannot be enhanced by
¶5 Walker builds his argument on the general statutory definition that felony crimes are those punishable by “death or by imprisonment in the penitentiary.”
¶ 6 Two general rules of statutory construction defeat this argument. The power to define crime and punishment in this state lies with the legislature. Salyers v. State,
¶ 7 Applying these rules of construction to the apparent conflict between § 5 and
¶8 Section 51 sets forth three factors which determine a person’s eligibility for an enhanced sentence. The first limits enhancement to those defendants who have a prior conviction for “any offense punishable by imprisonment in the State Penitentiary.” Walker qualifies. The State used his former conviction for embezzlement from an employer to enhance. Walker was sentenced to five years in the penitentiary for that offense.
¶ 9 The second factor also concerns prior convictions. When the State seeks to enhance punishment with one prior conviction, only those offenses “punishable by imprisonment in the State 'Penitentiary” may be used.
¶ 10 The third factor determines whether a pending sentence, is eligible for enhancement. If the State seeks to enhance punishment with one prior conviction, the crime must be punishable by imprisonment in the penitentiary.
¶ 11 This factor shields Walker from enhancement. Larceny of Merchandise from a Retailer ($50.00 — $499.99) is not punishable by incarceration in the penitentiary, and the State sought to enhance with only one prior qualifying conviction. Had the plea bargain required Walker to retain at least two of his qualifying former convictions, his sentence could have been enhanced and would have had the starting point of twenty years.
¶ 12 Walker correctly argues his plea was not knowingly and intelligently made for he was not advised of the correct range of punishment. See King v. State,
¶ 13 The order of the trial court denying Petitioner’s motion to withdraw is REVERSED, and the matter REMANDED to the District Court of Tulsa County for proceedings consistent with this opinion.
Notes
.
Dissenting Opinion
dissenting:
¶ 1 I agree with the Court that the Petitioner waived his first proposition of error by failing to raise it in his motion to withdraw plea of guilty. I also agree with the Court’s discussion of the Legislature’s power to define crime and punishment and the crime of larceny of merchandise from a retailer ($50.00 — $499.99) is a felony crime. However, in its zeal to seek an opportunity to interpret the provisions of
¶2 In its brevity, the Court omits some very important factual matters in this record. On September 9, 1996, the Petitioner, with counsel, appeared before the Honorable, B.R. Beasley, Associate District Judge. Beginning at page 2 of the transcript of that proceeding, the following took place on the record:
THE COURT: This is CF-96-1772, Willie Walker, larceny of merchandise from retailer after how many formers?
MS. ATTEBERRY: Your Honor, there is — he has five former convictions.
THE COURT: Five former convictions, Mr. Walker. ■
MR. LEIPPERT: We. show six, one transactional.
THE COURT: Five or six. It just takes two or more to get 20 years for the minimum.
MR. WALKER: I want to enter a plea this evening. ■
THE COURT: You want to enter a plea?
MR. WALKER: Yes.
THE COURT: All right. I’ll let your attorney fill out the form.
MS. ATTEBERRY: Judge, he wants to enter a plea, but he won’t say to what time. I told him it was for eight years and he doesn’t—
THE COURT: It will be eight years. You can enter a plea and reserve your right to appeal, if you wanted to. I would sentence you to eight years. That’s what the other defendant received.
MR. WALKER: I want to enter a plea this evening.
THE COURT: Okay. Go out and fill out the form. It will be eight years. Do you understand that?
MR. WALKER: Yes. Did you get my letter that I mailed to you? .
As a result of that exchange, the State dismissed all but one prior felony. After completing the petition to enter a plea of guilty, Judge Beasley administered an oath and inquired of Petitioner as to his understanding of the questions and the answers he had given and accepted his plea of guilty. The Court then sentenced Petitioner to eight years incarceration, $500.00 fine, and $250.00 victims compensation fee, as the Court had advised Petitioner prior to accepting the plea. On page 5 of the transcript, the Court inquires of Petitioner, “Is that the agreement you understood?”, to which Petitioner answered “yes”. After requesting immediate transportation to the Department of Corrections and being advised of his right of appeal, Petitioner advised the Court he did not have any questions. However, as a postscript to the proceedings, Petitioner’s attorney then stated, “Your Honor, at this time for the record, I would like to inform the Court that Mr. Walker has been informed as to that his attorney does not believe that Title — that Title 21