Petition for Writ of Certiorari — Johnson v. Oklahoma

Supreme Court, u.s.

FILED

98 1956 JUN 1 - 1999

OFFICE OF FHE Tio

No.

In The

Supreme Court of the United States

October Term, 1998

REGINALD RONALD JOHNSON,

Petitioner,

THE STATE OF OKLAHOMA,

Respondent.

On Petition for Writ of Certiorari

To the Oklahoma Court of Criminal Appeals

Vance William Armor

One North Hudson, Ste. 1000

Oklahoma City, OK 73102

Telephone Number: 405/235-7654

ATTORNEY FOR PETITIONER

Bpoee

QUESTIONS PRESENTED

A. Question One:

Reginald Ronald Johnson entered a plea of guilty before the District

Court of Oklahoma County, State of Oklahoma, on February 9, 1998, to six

felony counts. Before he entered his plea, his attorney told him that if he

was unhappy with the sentence that the judge would render, that he could

withdraw his plea. Furthermore, his attorney assured him that the trial

court would sentence Mr. Johnson to a cumulative sentence of twenty-five

years imprisonment. The trial court denied Mr. Johnson’s application to

withdraw his guilty plea after sentencing him to a total of 160 years on the

six felony counts.

The Oklahoma Court of Criminal Appeals held that there was no

showing how any omission by counsel in explaining the difference between

“withdrawing the guilty plea” and “moving to withdraw the

guilty plea” was prejudicial, and thus, there was no ineffective assistance

of counsel pursuant to Strickland v. Washington, 466 U.S. 686, 696, 104

S.Ct. 2052, 2070, 80 L.Ed.2d 674, 699 (1984).

The question presented here is whether Mr. Johnson was prejudiced

within the meaning of his Sixth and Fourteenth Amendment right to effective

assistance of counsel when his counsel made a material misrepresentation

of the procedure available to Mr. Johnson concerning an application to

withdraw his guilty plea, where the sentence ultimately received was much

harsher than that represented to him by his attorney?

B. Question Two:

On direct appeal from the denial of the application to withdraw

guilty plea, the Oklahoma Court of Criminal Appeals held that Mr. Johnson

waived any claim of double jeopardy under the Fifth and Fourteenth

Amendments by entering his guilty plea. The Oklahoma Court of Criminal

*

Appeals cited Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81

L.Ed.2d 437 (1984), in support of this holding.

The question presented here is whether the Oklahoma Court of

Criminal Appeals erred in holding that a double jeopardy claim under the

Fifth and Fourteenth Amendments in a direct appeal from a denial of an

application to withdraw a guilty plea is a collateral attack and not a direct

attack upon the guilty plea and whether the double jeopardy claim is subject

to waiver corresponding to a similar claim under federal habeas corpus

review in Mabry v. Johnson, supra?

C. Question Three:

At his February 9, 1998, guilty plea hearing, Mr. Johnson appeared

with his attorney Michael S. Johnson before the District Court of Oklahoma

County. On the summary of facts/plea of guilty form, Mr. Johnson circled

the word “no” in response to the question on the form, “You have a right

to a record made of these proceedings by a Court Reporter. Do you waive

this right? (O.R. 90). The trial judge’s court reporter gave an affidavit

Stating that she had no stenographic notes of the February 9, 1998, guilty

plea hearing. (O.R. 90).

On direct appeal Mr. Johnson alleged that his plea of guilty was

unknowing and involuntary and that it was error to assume regularity in a

guilty plea challenge from a silent record on direct appeal. The Oklahoma

Court of Criminal Appeals found that there was no error under Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The question presented here is whether the Oklahoma Court of

Criminal Appeals erred under the Fourteenth Amendment’s Due Process

Clause in finding that Mr. Johnson’s plea of guilty was knowing and voluntary

despite Mr. Johnson’s refusal to waive a court reporter?

a

TABLE OF CONTENTS

QUES TIONS PRESENTED 52.csccecoccovsvvessceessrneeceeverveveeveserserevvecsseerssemveveeson i

le a fo ST ee TE I

Sass eaTnTTIITTINTITINT cis alah dicidenabadeeitintinesneipiaciannansimeisecectnteaiiinecs l

CONSTITUTIONAL PROVISIONS

SFO IPT REE? BOO TONE LIU oreececcrsneesvivencsoviovpincnertuniceitinmimmeicbensn 2-3 |

STATUTES AND RULES INVOLVED IN THIS CASE .o....cccccccccsceece 3-5

STATEMENT OF THE CASE...........cs:cssssccssscssscsoseceesescesscessesseesensecesees 6-11

REASONS FOR GRANTING THE WRIT ...0......ccccsccsssecsseccseceseseoees 11-15

I. THE OKLAHOMA COURT OF CRIMINAL APPEALS’

OPINION DIRECTLY CONFLICTS WITH THIS COURT’S

SIXTH AMENDMENT EFFECTIVE ASSISTANCE OF

COUNSEL PRECEDENTS BY REFUSING TO FIND

PREJUDICE WHERE A CRIMINAL DEFENDANT IS

PUNISHED MUCH MORE HARSHLY THAN THE

EXPECTED RESULT WHICH HIS ATTORNEY

REPRESENTED TO HIM, WHERE THE PLEA OF

GUILTY WAS INDUCED BY THE ATTORNEY’S

MATERIAL MISREPRESENTATION OF THE

PROCEDURE TO WITHDRAW THE GUILTY PLEA ............. 11-12

I]. THE OKLAHOMA COURT OF CRIMINAL APPEALS’

OPINION ERRONEOUSLY EXTENDS THE WAIVER

DEFENSEAGAINST A CLAIM OF DOUBLE JEOPARDY

ON COLLATERAL REVIEW TO A CASE ON DIRECT

SUPINE Stink sisiaaiaibesssicdentsinittienesedeprewrewnintesnocsincsuselscoiecsen 13-14

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II]. THE OKLAHOMA COURT OF CRIMINAL APPEALS’

OPINION ERRONEOUSLY FOUND THAT MR.

JOHNSON’S RIGHT TO DUE PROCESS OF LAW WAS

NOT VIOLATED WHEN THE PLEA WAS TAKEN

WITHOUT A COURT REPORTER DESPITE HIS

REFUSAL TO WAIVE A COURT REPORTER .............0:::ccc00 14-15

CIE RI UIOS sincrncsnntioninscnessibicavninnnsnivibesmtutiaiateviintasiuimmiaiumemimniname 15

CR TUNee CIE SUEY TEE ercitncncctinsinsniccimicctiinissianiineinrnieiicnmiinccnisitin 16

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V

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,

Sa Pade TIP CIID sccicieessssintecetstesonantditnedentnccisiatiansludiacabineuaie vats 14-15

Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88

Be LTE ON PONS URADT oF SE War 7, 8, 13

Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543,

Se I CIE ccciccnarethcenctosensoasedsiatiectadeeameteciaasninticea te 14

McMann vy. Richardson, 397 U.S. 790, 90 S.Ct. 1441,

Be ee PEE ccaticinateicstsaanteeianiaate tenet ea 7, 12

Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46

BF: Ne, ASOT a 80 e RTE REN IGT 13, 14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

Be ee ET eocincstiecrrnincsdescersccinaieasia ocean stan: 8, 13

Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602,

Fe ee BE cethieinednesiddaice ee a 12

STATE CASES

Allen v. City of Oklahoma City, 965 P.2d 387

SUL, TUTE is cecsutiiniachadetdhischashuplattiaisciataterenindicuasteaatuete 1]

Braun v. State, 909 P.2d 783 (Okla.Crim.App.

PITIED siitscschiscaibeindailapedshaasdaasaliededunierea tata tinesd ott Soin Ge ee 7

Carpenter v. State, 929 P.2d 988 (Okla.Crim.

EL SHEE Adadateiiaatisbasincebatmnoeiedaenesan ake 10

vi

Estell v. State, 766 P.2d 1380 (Okla.Crim.

PID. CIID -0\nisicrsersnsencenstniatemeennsiiehiiminicmiamiiamamaiai 7

LeMay v. Rahhal, 917 P.2d 18 (Okla.Crim.

Powell v. District Court of Seventh Judicial District,

473 P.2d 254, 256 (Okla.Crim. App. 1970) 0.0... ccccseseseseeeeeeeeeeees 9

STATUTES AND RULES

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Rule 4.2, Rules of the Oklahoma Court of Criminal

Appeals, 22 OKLA. STAT. ch. 18, app. (1998)... ceeeteeeeeeeees 3-5

CONSTITUTIONAL AUTHORITIES

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U.S. Const. amend. VI ........ccccccevccccccsvccsecescecceceseeseccevecrereconseconeeees 2, 6, 7,8

U.S. Const. amend XIV, 31 oo. cccceeesceeseseeescesseseeeeeenes 2, 8, 10, 15

ee IE, TOE TD Se cetcesneeenpevereeversussineeiniennriesnninianprensicatasiatandiitianasaas 7, 10

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PETITION FOR WRIT OF CERTIORARI

Reginald Ronald Johnson respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the Oklahoma Court of Criminal

Appeals entered in this proceeding on March 3, 1999, in order to resolve .

conflicts on matters of federal constitutional law between that court and

this Court on the important issues presented herein.

OPINIONS BELOW

The Summary Opinion Denying Certiorari of the Oklahoma Court

of Criminal Appeals and the Order Denying Rehearing and Directing Issuance

of Mandate, both of which give rise to this petition, are unpublished. The

Summary Opinion Denying Certiorari is restated verbatim and in its entirety

in the Appendix to this petition.. The Order Denying Rehearing and Directing

Issuance of Mandate is restated verbatim and in its entirety in the appendix

to this petition.

JURISDICTION

On December 29, 1998, the Oklahoma Court of Criminal Appeals

issued and filed with the clerk of that court a Summary Opinion Denying

Certiorari affirming Mr. Johnson’s motion to withdraw guilty plea. On

March 3, 1999, the Oklahoma Court of Criminal Appeals issued and filed

with the clerk of that court an Order Denying Rehearing and Directing

Issuance of Mandate. Pursuant to Supreme Court Rules 13.1 and 13.3, this

petition has been filed within ninety (90) days from the denial of rehearing.

The jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED IN THIS CASE

The Fifth Amendment to the United States Constitution states:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, danger; nor shall

any person be subject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use, without

just compensation. U.S. CONST. amend. V.

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein

the crime shall have been previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence. U.S. CONST.

amend. VI.

Section | of the Fourteenth Amendment to the United States

Constitution states:

Section 1. All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States, nor

shall any State deprive any person of life, liberty, or property, without due

process of law, nor deny to any person within its jurisdiction the equal

protection of the laws.

3

STATUTES AND RULES INVOLVED IN THIS CASE

STATUTES

22 OKLA. STAT. § 1051.

(a) An appeal to the Court of Criminal Appeals may be taken by

the defendant, as a matter of right from any judgment against him, which

shall be taken as herein provided; and, upon the appeal, any decision of the

court or intermediate order made in the progress of the case may be reviewed;

provided further, all appeals taken by petition for writ of certiorari to the

Court of Criminal Appeals, as provided in paragraph (b) of this section,

provided such petition must be filed within ninety (90) days from the date

of said conviction. The Court of Criminal Appeals may take jurisdiction of

any case for the purpose of correcting the appeal records when the same do

not disclose judgment and sentence; such jurisdiction shall be for the sole

purpose of correcting such defect or defects.

(b) The procedure for the filing of an appeal in the Court of Criminal

Appeals shall be as provided in the Rules of the Court of Criminal Appeals;

and the Court of Criminal Appeals shall provide by court rules; which will

have the force of statute, and be in furtherance of this method of appeal: (1)

The procedure to be followed by the trial courts in the preparation and

authentication of transcripts and records in cases appealed under this act;

(2) the procedure to be followed for the completion and submission of the

appeal taken hereunder; and (3) the procedure to be followed for filing a

petition for and the issuance of a writ of certiorari.

(c) The scope of review to be afforded on certiorari shall be prescribed

by the Court of Criminal Appeals.

COURT RULES

Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, 22 OKLA

STAT., ch. 18., app. (1998):

Rule 4.2. Requirements for Commencement of Certiorari Appeal

A. Application to Withdraw Plea. In all cases, to appeal from any conviction

on a plea of guilty or nolo contendere, the defendant must have filed in the

trial court clerk’s office an application to withdraw the plea within ten (10)

days from the date of the pronouncement of the Judgment and Sentence,

setting forth in detail the grounds for the withdrawal of the plea and requesting

an evidentiary hearing in the trial court. See Sections 1051 and 1054 of

Title 22.

B. Evidentiary hearing. The trial court shall hold an evidentiary hearing

and rule on the application within thirty (30) days from the date it was

filed. No matter may be raised in the petition for writ of certiorari unless

the same has been raised in the application to withdraw the plea, which

must accompany the records filed wich this Court. PROVIDED HOWEVER,

if the trial court fails to hold the evidentiary hearing within thirty (30) days,

petitioner may seek extraordinary relief with this Court.

C. Motion for a New Trial. No motion for a new trial is required.

D. Notice of Intent to Appeal and Designation of Record. A defendant

seeking to appeal a denial of the application to withdraw the plea shall file

notice of intent to appeal, together with the designation of record, in the

trial court within ten (10) days from the date the application to withdraw

the plea of guilty or nolo contendere is denied. It shall be the responsibility

of trial counsel to file all jurisdictional documents required to seek a petition

for writ of certiorari before this Court, including the notice of intent to

appeal form required by Rule 1.14(C) and Rule 13.4; however, Form 13.4

can be amended to comply with the requirements for certiorari. The filing

of the Notice of Intent to Appeal and Designation of Record in the district

court is jurisdictional and failure to timely file constitutes waiver of the

right to appeal. A certified copy of the Notice of Intent to Appeal and

Designation of Record shall also be filed by trial counsel with the Clerk of

this Court within ten (10) days from the date the Notice is filed in the trial

court. See Section II, Rule 2.5(B), for procedures on counter designation

of record.

Amended effective Nov. 1, 1995.

STATEMENT OF THE CASE

Reginald Ronald Johnson entered a plea of guilty to eight felony

counts in the District Court of Oklahoma County, State of Oklahoma, on

February 9, 1998. Mr. Johnson was sentenced on March 27, 1998, to a

cumulative sentence of 160 years on the eight felony counts. Mr. Johnson

timely filed his motion to withdraw plea of guilty, pursuant to Rule 4.2,

Rules of the Oklahoma Court of Criminal Appeals, 22 OKLA. STAT., ch.

18, app. (1998), and the district court held an evidentiary hearing on the

motion to withdraw plea of guilty on April 29, 1998. The District Court of

Oklahoma County, the Hon. Richard W. Freeman, District Judge, issued an

order denying Mr. Johnson’s application to withdraw his plea of guilty.

Mr. Johnson perfected his direct appeal pursuant to 22 OKLA.

STAT. §1051 to the Oklahoma Court of Criminal Appeals from the denial

of his motion to withdraw his plea of guilty. Mr. Johnson raised four

propositions of error in his direct appeal.

He first alleged that he was deprived of effective assistance of

counsel under the Sixth and Fourteenth Amendments to the Constitution.

The Oklahoma Court of Criminal Appeals found that Mr. Johnson was not

deprived of effective assistance of counsel, and the appellate court further

found that Mr. Johnson has failed to show how any omission by counsel in

explaining the difference between “withdrawing the guilty plea” and “moving

to withdraw the guilty plea” was prejudicial.

Pursuant to Rule 14(g)(i) of the Rules of the Supreme Court, Mr.

Johnson shows the Court that his Sixth and Fourteenth Amendment claim

was raised in his written application to withdraw pleas of guilty in the court

of first instance on pages two and three of that application, which was filed

in the District Court of Oklahoma County, State of Oklahoma, on April 6,

1998. (O.R. 108-112). The pertinent verbatim quotation from Mr. Johnson’s

application to withdraw plea of guilty is as follows:

4. That the Defendant was denied effective assistance of counsel

under the Sixth and Fourteenth Amendments to the federal

Constitution and Article II, § 21 of the Oklahoma Constitution

when his attorney, Michael S. Johnson,assured Defendant that by

entering a plea of guilty on February 9, 1998, that the Defendant

would be sentenced to a term of twenty-five (25) years imprisonment,

with the terms of imprisonment to run concurrently in the above

numbered cases. See e.g. Hill vy. Lockhart, 474U.S. 52, 106 S.Ct.

366, 88 L.Ed.2d 203 (1985); McMann vy. Richardson, 397 U.S.

759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Lozoya v. State, 932

P.2d 22, 31-33 (Okl.Cr. 1996); Braun v. State, 909 P.2d 783, 789-

791 (OkI.Cr.1995); Estell v. State, 766 P.2d 1380, 1382-1383

(Okl.Cr. 1988); Medlock vy. State, 887 P.2d 1333, 1345 (OkI.Cr.1994).

More specifically, the Defendant was told by his attorney that if

the judge did not sentence the Defendant to a total term of twenty-

five years imprisonment, that the Defendant could withdraw his

plea, and that defense counsel did not explain the difference between

“withdrawing a plea of guilty” and “filing a motion to withdraw

a plea of guilty.”

(O.R. 109-110).

Mr. Johnson further shows the Court that his Sixth and Fourteenth

Amendment claim was raised in the appellate court on the similar grounds.

(Brief at pp. 9-15). Pursuant to Rule 14(g)(i), Mr. Johnson shows the Court

the following verbatim quote from his appellate brief before the Oklahoma

Court of Criminal Appeals:

The question is not whether, for Sixth Amendment purposes,

Petitioner was sentenced within the range of punishment for the

offenses charged, nor whether he was even advised by the trial

court prior to taking his plea of the ranges of punishment. A criminal

defendant will place more assurance in the oral representations of

his attorney, as he should, than in a programmatic recital of

advisements from the trial court. There is no Supreme Court case

law that identifies the Strickland/Hill prejudice prong in a manner

that identifies “prejudice” as being outside the range of statutory

punishment for the offenses charged. Rather, the question for Sixth

Amendment purposes is whether the 160 years he received was

prejudicial after being induced by his attorney that the Petitioner

would receive a sentence of twenty-five years on all counts to run

concurrently. The Court can only conclude that this is actual prejudice

for purposes of the Sixth Amendment, and the Supreme Court of

the United States would agree. U.S. Const. amends. VI, XIV.

(Brief at pp. 13-14).

In his second proposition of error, Mr. Johnson alleged that he

was deprived of due process of law because the state reneged on its plea

agreement which induced the plea resulting in the 160 year sentence. The

appellate court found that a valid plea agreement was not reached among

all the parties and accepted by the court until February 9, 1998. The Oklahoma

Court of Criminal Appeals also found that the record before the appellate

court indicated that discussions were held on January 12, 1998, concerning

a possible plea, but the only summary of facts form contained in the record

is dated February 9, 1998, and that form indicates that the pleas were blind

pleas. The Oklahoma Court of Criminal Appeals held that Mr. Johnson

failed to show that the State “reneged” on any plea agreement and that he

was deprived of his rights to due process by the trial court’s acceptance of

the guilty pleas of February 9, 1998, and subsequent imposition of sentence.

In his third proposition of error, Mr. Johnson alleged that he was

unlawfully subjected to double jeopardy in violation of his constitutional

rights. Mr. Johnson raised the Fifth and Fourteenth Amendments to the

Constitution in support of his claim both in the court of first instance and

before the appellate court. (O.R. 110- 111; Brief at pp. 17-18). In the

motion to withdraw plea of guilty, Mr. Johnson stated as follows:

6. That the Defendant was subjected to double jeopardy at his

sentencing on March 27, 1998, in violation of his constitutional

rights under the Fifth and Fourteenth Amendments to the United

States Constitution and Article II, 21 of the Oklahoma Constitution.

LeMay vy. Rahhal, 917 P.2d 18, 22-23 (OkI.Cr.1996); Powell v.

District Court of the Seventh Judicial Dist., 473 P.2d 254, 256

(OkI.Cr. 1970).

(O.R. 110-111).

Appellant raised the Fifth and Fourteenth Amendment issue of double

jeopardy before the appellate court as well. A verbatim quotation of the

same is as follows:

However, being advised of one’s right to a jury trial is not the test

for determining whether there is a violation of one’s right against

double jeopardy under the Fifth and Fourteenth Amendments to

the United States Constitution and Article II, 21 of the Oklahoma

Constitution. The test is whether a plea of guilty was made, and

although there is no transcript record of the same made on that

date, “there is no doubt whatsoever but that [Petitioner] was in

jeopardy from the moment he entered his plea of guilty (on January

12, 1998].” LeMay v. Rahhal, 917 P.2d at 23, quoting Powell,

473 P.2d at 256.

The overwhelming evidence shows that Petitioner did in fact

enter a guilty plea to the eight counts on January 12, 1998. (Tr.

4/29/98 at 7, 8,9, 12-13, 25, 26, 27, 29). Even the Assistant District

Attorney acknowledged that Petitioner was sentenced on January

12, 1998. (Tr. 4/29/98 at 17). She termed it a “faulty plea.” (Tr.

4/29/98 at 41). Even the trial court acknowledged in direct

contravention of LeMay vy. Rahhal that “in essence” it ordered

Petitioner's plea withdrawn on January 15, 1998. (Tr. 4/29/98 at

10

38). Petitioner was denied his constitutional rights under the Fifth

and Fourteenth Amendments by being forced to enter another plea

and for being punished more harshly the second time after entering

his second plea of guilty on February 9, 1998, and he was also

denied his constitutional rights under Article II, § 21 of the Oklahoma

Constitution. U.S. Const. amends V, XIV; Okl. Const. art. II, §

21.

The Oklahoma Court of Criminal Appeals held that Mr. Johnson

was not only not unlawfully subjected to double jeopardy, but waived any

such claim by the entering of the February 9, 1998, guilty pleas.

In his fourth proposition of error raised on direct appeal, Mr. Johnson

alleged that his plea of guilty was unknowing and involuntary. Mr. Johnson

raised this in the court of first instance, and specifically alleged as follows:

7. That the plea the Defendant entered was involuntary and

unknowing, made inadvertently and induced by legerdemain on

the part of his former defense counsel, Michael S. Johnson, and/

or the counsel for the State of Oklahoma, and that therefore the

Defendant is entitled to withdraw his plea of guilty under the Due

Process Clauses of the state and federal constitutions. Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);

Carpenter v. State, 929 P.2d 988, 997-998 (OkI.Cr.1996); King

y. State, 553 P.2d 529 (Okl.Cr. 1976).

(O.R. 111).

Mr. Johnson raised his Boykin claim before the Oklahoma Court

of Criminal Appeals. (Brief at pp. 18-19). The Oklahoma Court of Criminal

Appeals held that the record reflected that the pleas entered on February 9,

1998, were knowing and voluntary.

Mr. Johnson timely filed his petition for rehearing. In the petition

for rehearing, Mr. Johnson raised four allegations. Mr. Johnson first alleged

that in concluding that Mr. Johnson “failed to show how any omission by

counsel in explaining the difference between ‘withdrawing the guilty plea’

and ‘moving to withdraw the guilty plea’ was prejudicial, the appellate

court overlooked the arguments and authorities duly submitted by Mr. Johnson

in his appellate brief. The Oklahoma Court of Criminal Appeals found that

with regard to this allegation, all issues raised in the direct appeal were

fully considered by the court and no questions decisive of the case and duly

submitted were overlooked.

In his second proposition for rehearing, Mr. Johnson alleged that

the Court’s decision was in conflict with LeMay v. Rahhal, 917 P.2d 18

(OKI.Cr. 1996); Allen v. City of Oklahoma City, 965 P.2d 387 (OkI.Cr. 1998);

and Lozoya v. State, 932 P.2d 22 (Okl.Cr.1996) and the evidence in the

record in determining that Mr. Johnson’s double jeopardy rights were not

violated. The appellate court found that Allen and Lozoya were not raised

in the appellate brief, and the appellate court further found that Mr. Johnson’s

double jeopardy right was not violated after fully considering all three cases.

The appellate court found LeMay to be distinguishable but it did not elaborate

upon the same.

In his third proposition for rehearing, Mr. Johnson alleged that the

appellate court’s decision was in conflict with Boykin v. Alabama, 395 U.S.

238, 89 S.Ct. 1799, 223 L.Ed.2d 274 (1969). The appellate court found

that Boykin was cited in the appellate brief and fully considered by the

appellate court in determining that the guilty pleas were entered knowingly

and voluntarily.

REASONS FOR GRANTING THE WRIT

I. The Oklahoma Court of Criminal Appeals’ opinion directly conflicts

with this Court’s Sixth Amendment effective assistance of counsel

12

precedents by refusing to find prejudice where a criminal defendant is

punished much more harshly that the expected result which his attorney

represented to him, where the plea of guilty was induced by the attorney’s

material misrepresentation of the procedure to withdraw the guilty plea.

The decision below is directly in conflict with Tollett v. Henderson,

411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) and McMann v.

Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Under

Tollett, a defendant who pleads guilty upon the advice of counsel “may

attack the voluntary and intelligent character of the guilty plea by showing

that the advice he received from counsel was not within the standards set

forth in McMann. Tollett, 93 S.Ct. at 1608. The standard set forth in McMann

is that the voluntariness of the plea depends on whether counsel’s advice

was within the range of competence demanded of attorneys in criminal

cases. McMann, 90 S.Ct. at 1449.

The findings of the Oklahoma Court of Criminal Appeals do not

contradict the evidence that Mr. Johnson’s attorney, Michael S. Johnson,

failed to make a distinction between advising his client that he could “withdraw

his plea” and “move to withdraw his plea.” The evidence in the record

shows conclusively that Mr. Johnson’s attorney told Mr. Johnson that if he

did not like the sentence he received from his plea on February 9, 1998, he

could withdraw the plea. (Tr. 4/29/98 at 31; Brief at p. 9). Attorney Johnson

simply represented to his client that he had ten days to withdraw his plea.

(Tr.4/29/98 at 15, 32; Brief at p. 9). Attorney Johnson told his client that

if he (i.e. the Petitioner) was unhappy with his sentence that he could withdraw

his plea. (Tr.4/29/98 at 15; Brief at 9).

The inducement to get a client to enter a blind plea based upon the

expectation that the client has an absolute right to withdraw the plea, rather

than the right to merely request the same by filing a timely motion, following

the sentence is a material misrepresentation of fact that is not within the

standards of competence demanded of criminal defense attorneys. Such a

representation without more deprives a criminal defendant of his Sixth

ma

13

Amendment right to counsel and is prejudicial where the criminal defendant

is given the expectation that the trial court will sentence the criminal defendant

to a term of years considerably less than that expected by the client and his

attorney. The Court has not addressed the outer boundaries of the “standards

expected of criminal defense attorneys” at guilty plea hearings under its

Sixth Amendment right to counsel cases since the Court reaffirmed the

McMann standard Tollett and McMann in light of Hill v. Lockhart, 474

U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Further, the Court has not

stated whether the “prejudice” prong of the Strickland v. Washington, 466

U.S. 668, 104 §.Ct. 2052, 80 L.Ed.2d 674 (1984) test for evaluating ineffective

assistance of counsel claims is totally independent of the “objective

unreasonable performance prong” under Strickland’s two part test, when

the unreasonable performance is made in an obvious attempt to induce the

guilty plea so that the attorney can avoid a trial. The Oklahoma Court of

Criminal Appeals’ decision is has rendered the McMann standard of what

to expect of criminal defense attorneys in criminal cases meaningless and

the decision is irreconcilable with McMann and its progeny. Therefore,

certiorari is appropriate.

Il. The Oklahoma Court of Criminal Appeals Opinion Erroneously

Extends the Waiver Defense Against a Claim of Double Jeopardy on

Collateral Review to a Case on Direct Review.

The Oklahoma Court of Criminal Appeals’ opinion is directly in

conflict with Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d

195 (1975). In Menna, the Court held that where the State s precluded by

the United States Constitution from haling a defendant into court on a charge,

federal law requires that a conviction on that charge be set aside even if the

conviction was entered pursuant to a counseled plea of guilty. Menna, 423

U.S. at 62; 96 S.Ct. at 242. In the present case, Mr. Johnson presented the

Oklahoma Court of Criminal Appeals with clear and convincing evidence

that Mr. Johnson did in fact enter a guilty plea to all eight counts on January

12, 1998. (Tr.4/29/98 at pp. 7, 8, 9, 12-13, 25, 26, 27, 29; Brief at 17-18).

Mr. Johnson further presented the Oklahoma Court of Criminal Appeals

14

with unrefuted evidence from his own testimony and the testimony of his

former attorney, Michael S. Johnson, that on January 12, 1998, Mr. Johnson,

the petitioner herein, was also sentenced to a term of twenty-five years

imprisonment on each of the counts with the terms of each count to run

concurrently. (Tr.4/29/98 at pp. 7-9; 17, 27, 29, 36, 44; Brief at p. 7). Even

the assistant district attorney who prosecuted Mr. Johnson acknowledged

On the record that Mr. Johnson was sentenced to twenty-five years

imprisonment on January 12, 1998. (Tr. 4/29/98 at p. 17; Brief at p. 7).

The trial judge stated, inexplicably, that he did not remember whether he

sentenced Mr. Johnson that day. (Tr.4/29/98 at p. 44).

The Oklahoma Court of Criminal Appeals holding that even if Mr.

Johnson had a double jeopardy claim, such a claim was waived by his

counseled plea of guilty on February 9, 1998, was error under Menna.

Furthermore, the Oklahoma Court of Criminal Appeals has conflated the

waiver defense against double jeopardy under this Court’s collateral review

jurisprudence in Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81

L.Ed.2d 437 (1984) with cases on direct appeal, such as the instant case.

Such a conflation denudes the protections of the Double Jeopardy Clause

against those who enter a plea of guilty to a charge, are sentenced to the

same, and then enter a subsequent plea of guilty and a second sentence,

despite being represented by counsel at the second plea of guilty. The conflict

between the Oklahoma Court of Criminal Appeals’ decision, Menna and

Mabry are irreconcilable. Therefore, certiorari is appropriate.

Ill. The Oklahoma Court of Criminal Appeals’ Opinion Erroneously

Found that Mr. Johnson’s right to due process of law was not violated

when he plea was taken without a court reporter despite his refusal to

waive a court reporter.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d

274 (1969), the Court stated that presuming waiver from a silent record is

impermissible in determining whether a guilty plea is voluntarily made.

395 U.S. 238, 243; 89 S.Ct. 1709, 1712. Inducements might be a perfect

15

cover-up of unconstitutionality. Id. The question of an effective waiver of

a federal constitutional right in a proceeding is of course governed by federal

standards. Id.

In the instant case, the Oklahoma Court of Criminal Appeals found

that Mr. Johnson’s plea of guilty on February 9, 1998, was made knowingly

and voluntarily. The court reporter for the trial judge gave an affidavit

stating that she had searched her records and had no stenographic records

of taking down notes of a plea of guilty entered by Mr. Johnson on February

9, 1998. (O.R. 139-140). Mr. Johnson explicitly refused to waive his right

to a court reporter. (O.R. 90). The Oklahoma Court of Criminal Appeals

found no error under the Due Process Clause and Boykin.

The Court should grant certiorari to determine if the Due Process

Clause of the Fourteenth Amendment contains the concomitant right to a

transcription of the proceedings at a guilty plea hearing in a felony case

when requested. The Oklahoma Court of Criminal Appeals’ decision is in

conflict with Boykin, and therefore, certiorari is appropriate.

CONCLUSION

For the foregoing reasons, the jy for writ of cerperari should

be granted.

Lecltl

Vance William Armor

One North Hudson, Ste. 1000

Oklahoma City, OK 73102

Telephone Number: 405/235-7654

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing

document, together with the accompanying appendix, was mailed by first

class mail with postage prepaid to the following persons on the Ist day of

June, 1999:

James Patterson

Clerk of the Appellate Courts

2300 North Lincoln Blvd.

Oklahoma City, OK 73105

W. A. Drew Edmondson

Attorney General of Oklahoma

2300 North Lincoln Blvd.

Oklahoma City, OK 73105

Robert Macy

District Attorney

321 West Kerr Ave.

Oklahoma City, OK 73102

William Suter

Clerk, Supreme Court of the U.S.

One First Street, N.E.

Washington, D.C. 20543

(40 copies)

Vance W. Armor

App. |

APPENDIX

The following is a verbatim restatement of the Oklahoma Court of

Criminal Appeals December 29, 1998 Summary Opinion Denying Certiorari

in Reginald Ronald Johnson v. State of Oklahoma, Case No. C-98-533. A

verbatim restatement of the March 3, 1999, order denying rehearing and

directing issuance of mandate follows the summary opinion denying certiorari

within this appendix.

IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF

OKLAHOMA

REGINALD RONALD JOHNSON )

)

Petitioner, ) NOT FOR PUBLICATION

)

V. ) Case No. C-98-533

)

STATE OF OKLAHOMA, )

)

Respondent. )

LUMPKIN, J.

SUMMARY OPINION DENYING CERTIORARI

Petitioner Reginald Ronald Johnson was charged with Concealing

Stolen Property (Count I)(59 O.S.1991, § 1512) and False Declaration of

Ownership to a Pawnbroker (Count II) (21 O.S.1991, § 1713) both counts

After Former Conviction of a Felony, in Case No. CF-97-1644. Petitioner

was also charged in Case Nos. CF-97-2333 and CF-97-3136 with the same

two offenses. In Case No. CF-97-4265, Petitioner was charged with Possession

of a Controlled Dangerous Substance with Intent to Distribute, (63 O.S.1991,

§ 2-401) After Former Conviction of a Felony. In Case No. CF-97-5209,

App. 2

Petitioner was charged with Second Degree Burglary (21 O.S.1991, § 1431),

After Former Conviction of a Felony. On February 9, 1998, Petitioner

entered guilty pleas to all of the above counts before the Honorable Richard

W. Freeman, District Judge, District Court of Oklahoma County. The trial

court accepted the pleas and on March 27, 1998, sentenced Petitioner to

twenty (20) years in each count, said sentences to run consecutively. On

April 6, 1998, Petitioner filed a Motion to Withdraw Pleas of Guilty. After

an April 29, 1998, hearing, the motion was denied. It is that denial which

is the subject of this appeal. Petitioner raises the following propositions of

error in support of his appeal.

I. Petitioner was deprived of effective assistance of counsel.

II. Petitioner was deprived of due process of law because the State

reneged on its plea agreement which induced the plea resulting in

the 160 year sentence.

III. Petitioner has been unlawfully subjected to double jeopardy

in violation of his constitutional rights.

IV. Petitioner's plea on February 9, 1998, was unknowing and

involuntary.

After a thorough consideration of these propositions and the entire

record before us on appeal, including the original record, transcripts, and

briefs of the parties, we have determined that neither reversal nor modification

is required under the law and evidence. In reaching our decision, we find

in Proposition I that Petitioner was not deprived of the effective assistance

of counsel. He has failed to show how any omission by counsel in explaining

the difference between “withdrawing the guilty plea” and “moving to withdraw

the guilty plea” was prejudicial. Strickland v. Washington, 466 U.S. 686,

696, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674, 699 (1984). In Propositions II

and III, we find a valid plea agreement was not reached among all the parties

and accepted by the Court until February 9, 1998. The record before this

App. 3

Court indicates that discussions were held on January 12, 1998, concerning

a possible plea. However, the only Summary of Facts form contained in

the record is dated February 9, 1998. Further, this form, signed by all parties,

indicates the pleas entered were blind pleas. Accordingly, Petitioner has

failed to show the State reneged” on any plea agreement and that he was

deprived of his rights to due process by the trial court’s acceptance of the

guilty pleas of February 9, 1998, and subsequent imposition of sentence.

Further, Petitioner was not only not unlawfully subjected to double jeopardy,

but waived any such claim by the entering of his guilty pleas. See Mabry

v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)(a

voluntary and intelligent plea of guilty made by an accused, who has been

advised by competent counsel, may not be collaterally attacked on appeal);

Frederick v. State, 811 P.2d 601, 603 (Okl.Cr. 1991)(a voluntary guilty plea

waives all nonjurisdictional defenses). In Proposition IV, the record reflects

the pleas entered on February 9, 1998, were knowing and voluntary. See

Ocampo v. State, 778 P.2d 920 (OkI.Cr.1989). Accordingly, the order of

the district court denying Petitioner’s motion to withdraw pleas of guilty is

AFFIRMED and CERTIORARI IS DENIED.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE RICHARD FREEMAN, DISTRICT JUDGE

APPEARANCE IN

DISTRICT COURT APPEARANCE ON APPEAL

MICHAEL S. JOHNSON

1901 N. CLASSEN, STE. 222

OKLAHOMA CITY, OK 73106

COUNSEL FOR PETITIONER

(PLEA HEARING)

VANCE W. ARMOUR VANCE W. ARMOUR

ONE N. HUDSON, STE. 1000 ONE N. HUDSON, STE. 1000

OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73102

App. 4

COUNSEL FOR PETITIONER COUNSEL FOR PETITIONER

(MOTION TO WITHDRAW HEARING)

ROBERT MACY NO RESPONSE NECESSARY

DISTRICT ATTORNEY

KELLY BROWN

ASSISTANT DISTRICT ATTORNEY

OKLAHOMA COUNTY COURTHOUSE

OKLAHOMA CITY, OK 73102

COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.

CHAPEL, P.J.: CONCUR

STRUBHAR, V.P.J.: CONCUR

LANE, J.: CONCUR

JOHNSON, J.: CONCUR

OA

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Ba BEE Reta ES ease. AR, REET HS

App. 5

The following is a verbatim statement of the March 3, 1999, Order

Denying Rehearing and Directing Issuance of Mandate issued by the

Oklahoma Court of Criminal Appeals in Reginald Ronald Johnson vy. State

of Oklahoma, Case No. C-98-533.

IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF

OKLAHOMA

REGINALD RONALD JOHNSON, )

)

Petitioner, )

)

v. ) No. C-98-533

)

STATE OF OKLAHOMA, )

)

Respondent. )

ORDER DENYING REHEARING AND

DIRECTING ISSUANCE OF MANDATE

Petitioner entered guilty pleas to Concealing Stolen Property

(Count 1)(59 O.8.1991, § 1512) and False Declaration of Ownership to a

Pawnbroker (Count II)(21 O.S.1991, 1713), both counts After Former

Conviction of a Felony, in Case No. CF-97-1644. Petitioner also entered

guilty pleas to the same two offenses in Case Nos. CF-97-2333 and CF-

97-3136 as well as to charges of Possession of a Controlled Dangerous

Substance with Intent to Distribute, (63 O.S.1991, § 2-401), After Former

Conviction of a Felony, Case No. CF-97-4265, and Second Degree Burglary

(21 O.S.1991, § 1431), After Former Conviction of a Felony, Case No.

CF-97-5209. The Honorable Richard W. Freeman, District Judge, District

Court of Oklahoma County, accepted the guilty pleas and sentenced Petitioner

to twenty (20) years in each count, said sentences to run consecutively.

Petitioner’s Motion to Withdraw Pleas of Guilty was overruled by the trial

App. 6

court and this Court affirmed that ruling in Johnson v. State, C-98-533

(opinion not for publication December29, 1998).

Petitioner is now before the Court on a Petition for Rehearing

Rule 3.14, Rules of the Oklahoma Court of Criminal Appeals, Title 22,

Ch. 18, App. (1998). According to Rule 3.14, a Petition for Rehearing

shall be filed for two reasons only:

(1) That some question decisive of the case and duly submitted

by the attorney of record has been overlooked by the Court or

(2) That the decision is in conflict with an express statute or

controlling decision to which the attention of this Court was not called

either in the brief or in oral argument.

As grounds for his petition, Petitioner raises four allegations: 1)

in concluding “that Petitioner failed to show how any omission by counsel

in explaining the difference between ‘withdrawing the guilty plea’ and

‘moving to withdraw the guilty plea’ was prejudicial”, this Court has

overlooked the arguments and authorities duly submitted by Petitioner in

his appellate brief; 2) this Court’s decision is in conflict with LeMay v.

Rahhal, 917 P.2d 18 (OkI.Cr.1996), Allen v. City of Oklahoma City, 965

P.2d 387 (OkI.Cr.1998), and Lozoya v. State, 932 P.2d 22 (OklI.Cr.1996)

and the evidence in the record in determining that Petitioner’s double jeopardy

rights were not violated; 3) this Court’s decision is in conflict with Boykin

v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 223 L.Ed.2d 274 (1969) and 20

O.S.1991, § 106.4; and 4) this Court’s decision is in conflict with 21

O.S.1991, § 51 because the sentences for six of the eight counts are excessive

and beyond the statutory range of punishment.

We have reviewed Petitioner’s allegations and find that he is not

entitled to a rehearing. As to Proposition I, all issues raised in the direct

appeal were fully considered by the Court and no questions decisive of the

case and duly submitted were overlooked. Therefore, rehearing is not

warranted. As for Proposition II, two of the cases cited by Petitioner,

Allen v. City of Oklahoma City, 965 P.2d 387 (OkI.Cr.1998) and Lozoya v.

State, 932 P.2d 22 (Okl.Cr. 1996) were not raised in the appellate brief. In

finding that Petitioner’s double jeopardy rights were not violated we fully

considered LeMay v. Rahhal, 917 P.2d 18 (OkI.Cr. 1996), cited in the appellate

Sa lesiiaeiaet hh bs eS 7

28 ai Ra Aa iT Lem lin St eR IEA

App. 7

brief, and found it distinguishable. Having now reviewed the additional

cases of Allen and Lozoya, we find our decision is not conflict with either

of those two cases. Therefore, rehearing is not warranted.

As for Proposition III, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 223 L.Ed.2d 274 (1969) was cited by Petitioner in his

appellate brief and fully considered by this Court in determining the guilty

pleas were entered knowingly and voluntarily. Title 200.S.1991, § 106.4,

cited in the appellate brief, was not specifically addressed by this Court in

the opinion. We find our decision is not in conflict with section 106.4.

The record before this Court shows Petitioner waived his statutory right to

a court reporter at the February 9, 1998, plea hearing. See Higgins v.

State, 506 P.2d 575, 578 (Okl.Cr.1973). Further, the record in this case is

sufficient to allow this Court to fully review the plea proceedings and find

that knowing and voluntary pleas were entered. See O'Dell v. State, 654

P.2d 621, 623 (OkI.Cr.1982). Finally, Proposition IV, Petititioner has raised

a new allegation not previously raised on appeal. New, additional allegations

are not properly raised on rehearing. Rule 3.14, Rules of the Oklahoma

Court of Criminal Appeals, Title 22, Ch. 18, app. (1998).

Having reviewed Petitioner's allegations, we find he is not entitled

to rehearing. Therefore, based upon the foregoing, this Motion for Rehearing

is DENIED. The Clerk of this Court is ordered to issue the mandate forthwith.

IT IS SO ORDERED.

WITNESS OUR HAND AND THE SEAL OF THIS COURT this

3rd day of March, 1999.

s\ Reta M. Strubhar

RETA M. STRUBHAR, Presiding Judge

s\ Gary L. Lumpkin

GARY L. LUMPKIN, Vice Presiding Judge

App. 8

s\ Charles A. Johnson

CHARLES A. JOHNSON, Judge

s\ Charles S. Chapel

CHARLES S. CHAPEL, Judge

s\ Steve Lile

STEVE LILE, Judge

ATTEST:

s\ James Patterson

= — * es

ee i ee