Date: 05-30-2024

Case Style:

Donald Wayne Thomas, Jr. v. State of Oklahoma

Case Number: 2024 OK CR 15

Judge: David B. Lewis

Court: IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

Plaintiff's Attorney: Oklahoma County Oklahoma District Attorney's Office

Defendant's Attorney:

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Description:

Oklahoma City, Oklahoma criminal defense lawyer represented the Defendant with seeking a writ of certiorari.

Petitioner pled guilty on July 11, 2023, and was sentenced the same day. Thirteen days later, Petitioner returned to court and indicated to plea counsel that he wanted to withdraw the plea. Plea counsel assisted Petitioner in filing a written request to withdraw the plea, which Petitioner signed himself. The request alleged that his plea was coerced and thus involuntary. The docket sheet reflects that Petitioner appeared before the court with plea counsel that same day and the request was set for hearing.

¶3 New counsel was assigned to present Petitioner's motion. The trial court heard the request in an untranscribed and unrecorded proceeding on August 22, 2023. That hearing is described by prosecution and defense counsel in affidavits attached to Petitioner's motion to supplement the record on appeal (see the discussion of this motion below). According to these affidavits, Petitioner testified that he believed his motion to withdraw the guilty plea was due within ten business days. It was filed nine business days, but thirteen days, after the pronouncement of judgment and sentence. The trial court deemed the request untimely and denied it after the hearing.

ANALYSIS

¶4 In his sole proposition of error, Petitioner argues that the trial court abused its discretion in denying his motion to withdraw the plea as untimely and not allowing evidence that he entered his plea under duress, threat, and coercion. We ordinarily review such a ruling for an abuse of discretion, Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998, which is a clearly erroneous conclusion and judgment, one that is contrary to the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

¶5 Rule 4.2(A), Rules of the Court of Criminal Appeals, Title 22 O.S., Ch. 18, App. (2024) provides the time limitation for commencing a certiorari appeal from conviction on a guilty 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. (Emphasis added).
¶6 "No matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea." Rule 4.2(B). The failure to present a timely motion to withdraw the plea results in waiver of the right to appeal. See Barnes v. District Court, 1967 OK CR 19, ¶ 5, 423 P.2d 892, 895 (pro se defendant who failed to timely seek to withdraw his plea waived the right to appeal). However, a defendant who has been denied an appeal through no fault of their own may seek an appeal out of time by applying for post-conviction relief in the trial court. See Rule 2.1.

¶7 Counsel acknowledges that Petitioner was properly informed of the ten day rule and filed his motion outside the ten day period, believing he had ten business days. Counsel points out that Petitioner signed the request to withdraw the plea himself and thus nominally pro se. His status as an honestly mistaken pro se litigant is the principal rationale offered for liberalizing the ten day rule in his case. Of course, Petitioner was not pro se in the ten day period. See Randall v. State, 1993 OK CR 47, ¶ 3, 861 P.2d 314, 315 (right to counsel includes the ten day period for filing a notice of intent to appeal). He returned to court after thirteen days and contacted plea counsel, who immediately assisted him in requesting to withdraw the plea. He does not claim that he sought to confirm his beliefs about the time limit or indicated to counsel any wish to withdraw the plea within the ten days allowed by law.

¶8 Despite counsel's argument that we should accommodate his mistaken beliefs as a pro se litigant, this Court has also enforced time limitations of this kind against those acting pro se. See Barnes, supra; Burnham v. State, 2002 OK CR 6, ¶ 9, 43 P.3d 387, 390 (pro se defendant's failure to file notice of appeal was jurisdictional and resulted in dismissal of appeal). Petitioner does not seek an appeal out of time, seeming to tacitly acknowledge that he was not without fault in the delayed filing. Because Petitioner was not free from fault, the trial court cannot have abused its discretion in denying his untimely request. Petitioner waived his right to appeal. His motion to withdraw the plea was therefore properly denied.

¶9 As noted above, pursuant to Rule 2.2(C), appellate counsel has provided affidavits from two defense attorneys and the prosecutor describing what transpired at the untranscribed and unrecorded hearing on the motion to withdraw the plea. Counsel for Petitioner has moved to supplement the record pursuant to Rule 3.11(A) with these affidavits, arguing they are necessary to the resolution of the issues raised on appeal.

¶10 Rule 2.2(C) provides the following procedure for creating an official record of an untranscribed and unrecorded hearing:

If no transcript has been previously prepared and no tape recording is available for any portion of the trial proceedings, the trial attorneys may stipulate or submit affidavits as to what transpired during the proceeding not transcribed or recorded. The trial judge shall enter an order adjudicating any matters upon which the attorneys cannot agree regarding what transpired during the unrecorded or untranscribed proceedings.
¶11 We take this opportunity to discuss the operation of Rule 2.2(C) and its relationship to Rule 3.11. We now hold that Rule 2.2(C) contemplates a proceeding in which counsel must appear before the trial court to offer their stipulations or affidavits (the rule logically would permit live testimony as well) about what transpired in an untranscribed and unrecorded proceeding. The trial court should then enter an order either adopting those statements as the official record of the proceeding or adjudicating any disputed matters recalled about the proceeding on which counsel cannot agree.

¶12 In most cases, the necessity for reconstructing an official record of an untranscribed and unrecorded proceeding should be apparent in the ninety days (or six months in capital cases) between the filing of a notice of appeal and designation of record and the clerk's completion of the original record so designated. See Rule 2.3 (setting time limits for completion of record). The hearing before the trial court should occur during this period and the reconstructed proceeding will be assembled by the clerk and transmitted to this Court with the original record.

¶13 In cases where an untranscribed and unrecorded proceeding has been reconstructed by resort to Rule 2.2(C) after the original record on appeal is transmitted to this Court, appellate counsel may file a motion to supplement the record on appeal under Rule 3.11 with the official record thus created under Rule 2.2(C). We will not ordinarily allow supplementation of the record on appeal under Rule 3.11 with attorney affidavits or stipulations submitted directly by appellate counsel without the adjudicative oversight of the trial court contemplated by Rule 2.2(C).

¶14 We compliment the diligence of appellate counsel and the cooperation of the trial attorneys in presenting these affidavits and attempting to comply with Rule 2.2(C). In this case, we can readily determine the date of the pronouncement of judgment and sentence, the filing of the untimely request to withdraw the plea, and other pertinent facts from the appearance docket and the original record. Because the materials submitted by counsel to reconstruct this proceeding are unnecessary to the resolution of this appeal, neither supplementation of the record on appeal nor remand to trial court for further proceedings under Rule 2.2(C) is required. The motion to supplement the record is DENIED.

Outcome:

The writ of certiorari is DENIED

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