# Petition for Writ of Certiorari — Johnson v. Oklahoma

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 819

## Text

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
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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
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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0936%3A1. Public record. Not legal advice.