Verduzco v. State

2009 OK CR 24, 217 P.3d 625, 2009 Okla. Crim. App. LEXIS 23, 2009 WL 2916810
CourtCourt of Criminal Appeals of Oklahoma
DecidedSeptember 14, 2009
DocketC-2009-88
StatusPublished
Cited by5 cases

This text of 2009 OK CR 24 (Verduzco 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
Verduzco v. State, 2009 OK CR 24, 217 P.3d 625, 2009 Okla. Crim. App. LEXIS 23, 2009 WL 2916810 (Okla. Ct. App. 2009).

Opinions

OPINION

LEWIS, Judge.

{1 Petitioner, Toribio Plataneres Ver-duzco, entered a plea of guilty to Count 1, trafficking in illegal drugs, in violation of 638 0.8.8upp.2005, § 2-415, and Count 2, transporting proceeds derived from a violation of the Uniform Controlled Dangerous Substances Act, in violation of 68 0.8.2001, § 2-503.1, in Oklahoma County District Court, Case No. CF-2008-8520. The Honorable Virgil C. Black, District Judge, found Petitioner guilty and sentenced him to fifteen (15) years imprisonment in Count 1, and ten (10) years imprisonment in Count 2, and ordered the sentence in Count 2 suspended on rules and conditions of probation. Petitioner timely filed a motion to withdraw the plea of guilty. The District Court denied the motion after an evidentiary hearing, and this petition for the writ of certiorari followed.

12 Petitioner's sole claim on appeal is that his plea is involuntary because the Plea Of Guilty Summary Of Facts form does not reflect that he was advised by counsel or the Court that he was ineligible for earned ered-its in the event of a conviction for trafficking in illegal drugs. 68 O.S.Supp.2005, § 2-415(D)(4). He effectively contends that we must extend our holdings in Ferguson v. State, 2006 OK CR 36, 143 P.3d 218, and Pickens v. State, 2007 OK CR 18, 158 P.3d 482, in which the Court held defendants must be advised of the "85% Rule" prior to entry of a guilty or nolo contendere plea, regardless of whether the plea is blind or negotiated. Petitioner interprets recent modifications to the Plea Of Guilty Summary Of Facts form, Form 18.10 in the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S$.Supp.2008, Ch. 18, App., as requiring advice at the time of the plea concerning a defendant's ineligibility for institutional earned credits. To enhance compliance with our rulings in Ferguson and Pickens, Item No. 14 on Form 18.10 was recently modified, and now reads in pertinent part:

(Check if applicable) Do you understand that upon a conviction on plea of guilty to the offense(s) of you will be required to serve a minimum sentence of:
__ 85% of the sentence of imprisonment imposed before being eligible for parole consideration and are not eligible for earned or other type of credits which will have the effect of reducing the length of sentence to less than 85% of the sentence imposed?
_- % of the sentence of imprisonment imposed or received prior to becoming eligible for state correctional earned credits toward completion of your sentence or eligibility for parole?

[627]*627T3 Under the Trafficking in Illegal Drugs Act, 63 0.8.8upp.2005, § 2-415(D)(4), a term of imprisonment imposed for violation of the statute "shall not be subject to statutory provisions for suspension, deferral or probation, or state correctional institution earned credits except for the achievement earned credits authorized by subsection H of Section 188 of Title 57 of the Oklahoma Statutes." 1 Petitioner presented an offer of proof in the evidentiary hearing that plea counsel did not advise him that he was ineligible for earned credits if convicted of drug trafficking, and if he had been advised of this ineligibility he would not have entered his plea to that charge. Testimony from plea counsel corroborated his claim regarding the lack of advice, but counsel believed such advice was not required by Item No. 14 with respect to a conviction for trafficking, which disqualifies Petitioner from institutional earned credits but does not require that Petitioner serve a particular percentage of his sentence in prison.

{4 Petitioner argues that the failure to complete this portion of Form 18.10, and the District Court's failure to ensure he understood this consequence of his conviction, rendered his plea involuntary. Reviewing the language of Form 18.10 and its purpose in light of Ferguson and Pickens, the advice to defendants set forth in Item No. 14 is limited to those offenses for which the Oklahoma Statutes impose a minimum percentage of the sentence which must be served in prison before a defendant is eligible for parole or earned credits. Petitioner's conviction for trafficking in illegal drugs is not currently such an offense. Our prior decisions effectively foreclose the extension of the rule of Ferguson and Pickens to advice concerning ineligibility for earned credits. In Ferguson, the Court said:

Before entering a guilty or nolo contendere plea, a defendant should be advised of the punishment range for the offense. He should also be advised of all material consequences flowing directly from the decision to plead. We have recognized that restrictions on parole eligibility may, in certain cireumstances, fall into this category.

Id. at 8, 148 P.38d at 219 (citations omitted). The Ferguson opinion here cited Robinson v. State, 1991 OK CR 23, 806 P.2d 1128, where the defendant challenged the voluntariness of his plea because the trial court failed to advise him he was ineligible for parole and, based on his prior convictions, also ineligible for a prison work assignment, "credit for which will shorten his time in prison." Id. at 1 7, 806 P.2d at 1130.

15 In Robinson, we recognized that our voluntary plea jurisprudence required "that the trial judge ascertain and question the defendant on his understanding of any mandatory minimum and maximum penalties," and that "inherent in this requirement is our recognition of the importance of the length of incarceration as a consequence to be considered in determining the voluntariness of a guilty plea." Id. at ¶ 9, 806 P.2d at 1130-31, citing King v. State, 1976 OK CR 103, 553 P.2d 529; Estell v. State, 1988 OK CR 287, 766 P.2d 1380; and Walters v. State, 1989 OK CR 43, 778 P.2d 483. Consequently, we held that a trial court must advise a defendant, prior to his guilty or nolo contenders plea, on "the question of parole or probation eligibility as a consequence of a guilty plea, where said parole or probation [ineligibility] is a definite practical consequence of the plea." Robinson, id. (emphasis added). However, the Court in Robinson rejected the argument that a voluntary plea must include advice about the defendant's ineligibility for work assignments or the resulting inability to earn credits against a sentence. The Court reasoned:

Eligibility for work credits is an administrative function of the Department of Corrections which the Legislature has invested with broad powers and discretion in establishing guidelines for its orderly administration. A prisoner has no constitutional right to a job and job assignments are matters peculiarly within the discretion [628]*628of prison officials. A sentencing judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. We, therefore, hold that eligibility for work credits is not a consequence to be considered in determining that a guilty plea is made voluntarily with the understanding of the consequences of the plea.

Robinson, at I 11, 806 P.2d at 1131 (emphasis added).

T6 The same reasoning applies to the institutional earned credits at issue here. A statute may render the defendant ineligible for certain earned credits as a consequence of conviction, but the precise effect of this consequence on his sentence is entirely uncertain at the time of the plea.

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Verduzco v. State
2009 OK CR 24 (Court of Criminal Appeals of Oklahoma, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
2009 OK CR 24, 217 P.3d 625, 2009 Okla. Crim. App. LEXIS 23, 2009 WL 2916810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verduzco-v-state-oklacrimapp-2009.