144 P.3d 903 (Okla.Crim.App. 2006), F-2005-520, Jiminez v. State

Docket Nº:F-2005-520.
Citation:144 P.3d 903, 2006 OK CR 43
Party Name:Jose De Jesus Garcia JIMINEZ, Petitioner, v. The STATE of Oklahoma, Appellee.
Case Date:October 03, 2006
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 903

144 P.3d 903 (Okla.Crim.App. 2006)

2006 OK CR 43

Jose De Jesus Garcia JIMINEZ, Petitioner,

v.

The STATE of Oklahoma, Appellee.

No. F-2005-520.

Court of Criminal Appeals of Oklahoma

October 3, 2006

Page 904

An Appeal from the District Court of Oklahoma County; the Honorable Patricia Parrish, District Judge.

Cynthia Tedder Viol, Assistant Public Defender, Oklahoma City, OK, attorneys for defendant at trial.

Steve Deutsch, Aaron Etherington, Assistant District Attorneys, Oklahoma City, OK, attorneys for the State at trial.

Andrea Digiglio Miller, Assistant Public Defender, Oklahoma City, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Diane L. Slayton, Assistant Attorney General, Oklahoma City, OK, attorneys for the State on appeal.

OPINION

LEWIS, Judge.

¶1 Jose de Jesus Garcia Jiminez, Appellant, was tried by jury and found guilty in the District Court of Oklahoma County, Case No. CF-2003-1187, of Count 1, burglary in the second degree, in violation of 21 O.S.2001, § 1435; Count 2, possession of burglar's implements, in violation of 21 O.S.Supp.2003, § 1437; Count 3, possession of drug paraphernalia, in violation of 63 O.S. Supp.2002, § 2-405; and Count 4, possession of a false ID document card, in violation of 21 O.S.Supp.2003, § 1550.41(B)(3); after former conviction of a felony. The jury sentenced Appellant to twelve (12) years imprisonment on Count 1; one (1) year imprisonment on Count 2; one (1) year imprisonment and a $1,000.00 fine on Count 3; and a $31.25 fine on Count 4. The Honorable Patricia Parrish, District Judge, imposed judgment and sentence accordingly, ordering all terms served concurrently. Mr. Jiminez appeals.

¶2 Along with his appellate brief, Appellant filed a Notice of Extra-Record Evidence Supporting Proposition I of the Brief of Appellant and, Alternatively, Rule 3.11 Motion to Supplement Direct Appeal Record or for An Evidentiary Hearing. Appellant's Proposition I argues that trial counsel rendered ineffective representation when she failed to timely communicate to Appellant a plea bargain offer that was later withdrawn by the State. On direct appeal, counsel is strongly presumed to render effective representation in the trial court. Supplementation of the appellate record and/or remand for evidentiary hearing requires that Appellant's application and affidavits show by clear and convincing evidence a strong possibility that counsel rendered ineffective assistance under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rule 3.11(B)(3)(b)(i), 22 O.S.Supp.2005, Ch. 18, App.

¶3 This Court found that Appellant's submissions pursuant to Rule 3.11 contained assertions of fact that, if proven, strongly suggested trial counsel rendered objectively deficient representation under prevailing professional norms. The case was remanded to District Court for an evidentiary hearing and findings of fact. The District Court conducted the evidentiary hearing and filed findings of fact in compliance with the order. Appellant and the State of Oklahoma

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have timely filed supplemental briefs as permitted by the order of remand. Appellant's application to supplement the record with the transcript of the evidentiary hearing is hereby GRANTED.

¶4 This case was originally scheduled for jury trial on April 25, 2005. The State encountered witness problems that required a continuance. Probably as a consequence of this difficulty, the State tendered a plea bargain offer to defense counsel. The State offered a recommendation of a five-year sentence on Count 1 in exchange for Appellant's guilty plea, to run concurrent with a sentence on a second felony charge in Case No. CF-2002-3516...

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