821 P.2d 371 (Okla.Crim.App. 1991), C-88-37, Allen v. State

Docket Nº:C-88-37.
Citation:821 P.2d 371
Party Name:Gary Thomas ALLEN, Appellant, v. STATE of Oklahoma, Appellee.
Case Date:March 18, 1991
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 371

821 P.2d 371 (Okla.Crim.App. 1991)

Gary Thomas ALLEN, Appellant,

v.

STATE of Oklahoma, Appellee.

No. C-88-37.

Court of Criminal Appeals of Oklahoma.

March 18, 1991.

Rehearing Denied Dec. 19, 1991.

Page 372

An appeal from the District Court of Oklahoma County; William R. Saied, District Judge.

GARY THOMAS ALLEN, Appellant, plead guilty to the crimes of Murder in the First Degree, Assault with a Dangerous Weapon After Former Conviction of a Felony and Possession of a Firearm After Former Conviction of a Felony in Case Nos. CRF-86-6295 and CRF-86-6469 in the District Court of Oklahoma County before the Honorable William R. Saied, District Judge. Appellant was sentenced to serve a term of life for Assault with a Dangerous Weapon After Former Conviction of a Felony and a term of ten (10) years for Possession of a Firearm After Former Conviction of a Felony. The trial court assessed the death penalty for the Murder, finding the existence of three aggravating circumstances which outweighed the mitigating evidence offered by Appellant: 1) that the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) that the defendant knowingly created a great risk of death to more than one person; and 3) that there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Appellant has perfected this appeal from the denial of his request to withdraw his guilty plea. All three Judgments are AFFIRMED, as are the SENTENCES for Assault with a Dangerous Weapon After Former Conviction of a Felony and Possession of a Firearm After Former Conviction of a Felony. The sentence of death for Murder in the First Degree is vacated and the case is REMANDED for resentencing in accord with this opinion.

Pete Gelvin, Asst. Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen. and Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LANE, Presiding Judge:

On November 10, 1987, Appellant pled guilty to charges of Murder in the First Degree (21 O.S.Supp.1985, § 701.7), Assault with a Dangerous Weapon After Former Conviction of a Felony (21 O.S.1981, § 645) and Possession of a Firearm After Former Conviction of a Felony (21 O.S.1981, § 1283.) He entered his pleas before the Honorable William R. Saied in Oklahoma County District Court Cases CRF-86-6295 and CRF-86-6469. After the acceptance of the pleas, the court conducted a non-jury trial to determine punishment.

Following the evidence presented by both sides, the trial court sentenced Appellant to serve a term of life for the Assault charge and a term of ten (10) years for the Firearms charge. The trial court assessed the death penalty for the Murder, finding the existence of three aggravating circumstances which outweighed the mitigating evidence offered by Appellant: 1) that the defendant was previously convicted of a felony involving the use or threat of violence

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to the person; 2) that the defendant knowingly created a great risk of death to more than one person; and 3) that there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Appellant filed his request to withdraw his guilty plea to the murder within the statutory time period. Upon the denial of that request, he has appealed to this Court. Although we find that the trial court properly denied Appellant's request to withdraw his guilty plea, we find that Appellant has raised an issue which requires relief from this Court with regard to his death sentence. Accordingly, we need only address the errors which relate to the acceptance of the plea, along with the error which is dispositive of the sentencing stage of the proceedings.

Appellant was charged with First Degree Murder for the killing of his girlfriend, LaWanna Gail Titsworth, outside of an Oklahoma City day care center. After shooting Titsworth four times, Appellant walked away from the center, down a nearby alley. Police officers found him soon after the killing and attempted an arrest, during which Appellant attacked one of the officers. During the attack, Appellant grabbed the officer's gun. While struggling over the gun, Appellant was shot in the head. The gun used to kill Titsworth was found in Appellant's pocket.

We are concerned in this proceeding only with Appellant's plea to the murder charge. Although Appellant has raised issues in the present proceedings concerning his pleas to the crimes of Assault with a Dangerous Weapon After Former Conviction of a Felony and Possession of a Firearm After Former Conviction of a Felony, he did not seek to withdraw these pleas in the trial court. The only reason for withdrawal of the pleas raised at the trial court was the sufficiency of the evidence supporting the death penalty. Accordingly, Appellant has not properly invoked the jurisdiction of this Court with regard to the counts other than the murder charge. See Rule 4.1, Rules of the Court of Criminal Appeals.

We will deal first with Appellant's claim that the trial court did not sufficiently inquire into Appellant's mental competency at the time the plea was entered. This claim is not borne out by the record. Prior to entering the plea in question, Appellant underwent a full-blown competency evaluation at the request of his counsel. He was admitted to Eastern State Hospital for treatment. After a four month stay at the hospital, during which time he received treatment, Appellant was pronounced competent after a jury trial on the issue. The competency trial occurred on October 19 and 20. The instant plea was entered less than one month later.

At the time the plea was entered, the trial court inquired as to any past or present mental illness, asking both counsel and Appellant. The court was told of Appellant's head injury and recent treatment at Eastern State Hospital. The fact that Appellant had suffered a head injury was explained, as was the fact that Appellant had not taken his medication, described as a mild pain reliever...

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