Estell v. State

766 P.2d 1380, 1988 WL 135888
CourtCourt of Criminal Appeals of Oklahoma
DecidedDecember 9, 1988
DocketC-86-49
StatusPublished
Cited by18 cases

This text of 766 P.2d 1380 (Estell v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estell v. State, 766 P.2d 1380, 1988 WL 135888 (Okla. Ct. App. 1988).

Opinion

OPINION

BUSSEY, Judge:

Kevin Michael Estell, appellant, entered pleas of guilty to charges of Possession of a Controlled Dangerous Substance (Marijuana) with Intent to Distribute, After Former Conviction of Two or More Felonies, in Case No. CRF-85-2366; and Burglary in the Second Degree, After Former Conviction of a Two or More Felonies, Assault and Battery with a Dangerous Weapon, After Former Conviction of Two or More Felonies, and two counts of Robbery With a Dangerous Weapon, After Former Conviction of Two or More Felonies, in Case No. CRF-85-2801 in the District Court of Oklahoma County. The trial court accepted the pleas and sentenced appellant to five terms of life imprisonment with each to run consecutively. Appellant moved to withdraw his pleas of guilty. The trial court denied his motion, and the case comes before this Court on Petition for Writ of Certiorari.

*1382 For his first and second assignments of error, appellant contends that the trial court erred in denying his motion to withdraw his pleas of guilty because it was evident that the pleas were the direct result of ignorance, misunderstanding, misapprehension, and ineffective assistance of counsel.

In order to establish that counsel was so ineffective as to warrant reversal, appellant must show that counsel’s performance was deficient, and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Keller v. State, 738 P.2d 186 (Okla.Crim.App.1987), cer t. denied, — U.S. —, 108 S.Ct. 323, 98 L.Ed.2d 351 (1987). Furthermore, appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound strategy because this Court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065. See also Guance v. State, 751 P.2d 1074, 1076 (Okla.Crim.App.1988).

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the U.S. Supreme Court held that the two-part Strickland v. Washington test applies to challenges of guilty pleas based on ineffective assistance of counsel. The Court reasoned that the deficient performance standard was appropriate and that requiring a showing of prejudice would serve the fundamental interest in the finality of guilty pleas. See United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). The Court further stated that to prove prejudice, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 370.

As evidence of counsel’s deficient performance, appellant argues that his attorney told him that he would possibly receive a sentence as short as 20 years imprisonment and not more than 35 or 40 years imprisonment. He claims that he would have been satisfied with a sentence of 35 years but would not have pled guilty had he known he would receive a life sentence. The record indicates that the trial court followed the guidelines of King v. State, 553 P.2d 529 (Okla.Crim.App.1976) in accepting the plea and thoroughly questioned appellant on his understanding of the minimum and maximum penalties. Appellant concedes that he was aware that life imprisonment was a possibility. At the motion to withdraw hearing, appellant, as well as two other witnesses, testified that the attorney never stated that he had reached a plea agreement with the prosecution or the trial court. However, all three witnesses said that because the attorney was so “confident” about the sentence appellant would receive, they thought that he had reached an agreement with someone. We do not believe that these facts establish that counsel’s performance was deficient, because as the court in Iaea v. Sunn, 800 F.2d 861 (9th Cir.1986) held, a mere inaccurate prediction by counsel, standing alone, would not constitute ineffective assistance.

Appellant further complains that counsel’s inaccurate statements concerning sentencing along with other conduct, when reviewed together, show the deficiency of counsel’s performance. The other conduct complained of is as follows: (1) counsel’s failure to separate the drug possession charge from the more aggravated offenses when pleading; (2) counsel’s failure to notice discrepancies in the after former conviction of a felony portion of the Informa-tions; (3) counsel’s failure to present mitigating evidence or to rebut the State’s aggravation evidence during the pre-sentence hearing; (4) counsel’s failure to object to potentially inadmissible testimony; and (5) counsel’s failure to subpoena any witnesses for the trial which was scheduled for the day on which appellant pled guilty. After a review of the record, we cannot say that appellant has overcome the presumption that, under the circumstances, these in *1383 stances might be considered sound strategy. Appellant failed to prove to the trial court’s satisfaction that he was denied effective assistance of counsel as he deliberated on what plea to enter. Therefore, we will not disturb the trial court’s finding on appeal.

When a defendant claims that his guilty plea was entered through inadvertence, ignorance, influence, or without deliberation, he has the burden to show not only that the plea was entered as a result of one of these reasons, but also, that there is a defense that should be presented to the jury. See Lee v. State, 520 P.2d 697 (Okla.Crim.App.1974). Having failed to establish either inadvertence, ignorance, influence, or lack of deliberation, and having failed to allege any defense, we find that appellant voluntarily entered a plea of guilty. The fact that he relied upon an inaccurate prediction as to what sentence would be imposed does not make his plea any less voluntary. Therefore, we find that the trial court did not abuse its discretion in refusing to grant appellant’s motion to withdraw the plea of guilty. Id. The assignments of error are therefore without merit.

In his third assignment of error, appellant initially argues that the trial court erred in accepting his guilty plea to possession of marijuana with intent to distribute. Appellant contends that the trial court did not properly determine that a factual basis for the offense existed, and thus, the requirements of King v. State, 553 P.2d 529 (Okla.Crim.App.1976) were not met. In King, this Court pronounced guidelines for trial courts to follow in accepting a plea of guilty. One of the determinations that a court must make under these guidelines is that there is a factual basis for the plea of guilty. In following the King procedure, the court had the following conversation with appellant:

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Bluebook (online)
766 P.2d 1380, 1988 WL 135888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estell-v-state-oklacrimapp-1988.