Feaster v. State, C--75--357

• Decision Date: 21 July 1975
• Docket Number: No. C--75--357,C--75--357
• Citation: 539 P.2d 401
• Parties: Clifford F. FEASTER, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 401

539 P.2d 401

Clifford F. FEASTER, Petitioner, v. The STATE of Oklahoma, Respondent.

No. C--75--357.

Court of Criminal Appeals of Oklahoma.

July 21, 1975.

Rehearing Denied Aug. 6, 1975.

Lucas & Cate, Norman, for petitioner.

Larry Derryberry, Atty. Gen., for respondent.

OPINION

BLISS, Judge:

Appellant, Clifford F. Feaster, hereinafter referred to as defendant, entered pleas of guilty on the 4th day of March, 1975, in the District Court, Oklahoma County, in Case No. CRF--74--3628 to the offense of Robbery in the First Degree and in Case No. CRF--74--3136 to the offense of Grand Larceny, in violation of 21 O.S.1971, §§ 791 and 797 and 21 O.S.1971, § 1704, respectively. Thereafter on the 1st day of April, 1975, judgment and sentence was imposed in each of said cases and pursuant thereto defendant was sentenced to a term of twenty (20) years imprisonment in Case No. CRF--74--3628 and five (5) years imprisonment in Case No. CRF--74--3136, said sentences to run concurrently. Thereafter on the 11th day of April, 1975, defendant filed an application to withdraw his pleas of guilty in said cases; whereafter, on the 25th day of April, 1975, an evidentiary hearing was conducted at which time the defendant's application was denied.

Defendant contends the trial court erred in denying defendant's application to withdraw his plea of guilty in each case because defendant did not intelligently enter said pleas because he was not adequately advised by the court of his constitutional rights and, consequently, he did not voluntarily and intelligently waive said rights. Defendant asserts the trial court record supports him in this contention in that it reflects the trial judge failed to comply with the prerequisites for acceptance of a plea of guilty as enunciated in previous decisions of this Court, citing Copenhaver v. State, Okl.Cr., 431 P.2d 669 (1967) and Smith v. Oklahoma City, Okl.Cr., 513 P.2d 1327 (1973).

Although the procedure outlined in Smith, supra, citing Copenhaver, supra, is not constitutionally mandated, it was designed to assist the trial judge in making the constitutionally required determination that a defendant's plea of guilty is truly voluntarily and intelligently entered. In Smith, supra, this Court set forth the procedure to be followed by the trial court in determining whether a defendant's plea of guilty was voluntarily and intelligently entered. In pertinent part this Court stated:

'In order to clarify the procedure, for all future cases, to be followed by the trial court in determining whether a defendant is voluntarily and understandingly entering a plea of guilty, whether represented by court-appointed counsel, public defender, retained counsel, or appears without counsel, the trial court must first determine if the defendant is competent by interrogation of defense counsel and the defendant as to the defendant's past and present mental state as well as by observation of the defendant. In the event the court finds there is substantial question as to the competency of the defendant, the court should commit the defendant for observation as provided by law. If the trial court determines the defendant is competent, he must then advise the defendant:

'1. That he has a right to court-appointed counsel, if the defendant appears without counsel;

'2. That he has a right to trial by jury;

'3. That he has a right to be confronted by witness who would testify against him;

'4. That he has a privilege against compulsory self-incrimination guaranteed by the Fifth Amendment;

'5. The nature and consequences of such plea, including the minimum and maximum punishment provided by law for the crime of which he stands charged;

'6. That the trial court is not bound by any recommendation made by the prosecuting attorney or any agreement entered into be defense attorney and the prosecuting attorney.

'An affirmative waiver of these requirements must be reflected in the record prior to the acceptance of a plea of guilty.'

However, we further note this Court's language in Cobbler v. State, Okl.Cr., 521 P.2d 838 (1974), the progeny of Smith, supra, wherein in pertinent part it reads:

'In the first paragraph of the Syllabus in Peterson v. State, Okl.Cr., 473 P.2d 293, we stated:

"The words of the Miranda warning do not constitute a ritualistic formula which must be repeated without variation in order to be effective, but words which convey the substance of the warning along with the required information are sufficient.'

'We are of the opinion that the same holds true as to the procedure to be followed, as outlined in Smith v. Oklahoma City, supra, and hold that the trial court in the instant case, substantially complied with this procedure.

'We believe that the trial court should follow the rule and the directives of Smith v. Oklahoma City, supra, in order to avert a direct or collateral attack; however, in order to meet constitutional standards promulgated by the Supreme Court of the United States and made obligatory on the States by the 14th Amendment, it is sufficient if the record affirmatively reflects that the defendant knowingly and intelligently entered a plea of guilty, with full knowledge of the nature and consequence of such plea and waived his right to a jury trial and/or the right to be represented by counsel. If these requirements are reflected by the record, or can be established, then the judgment and sentence rendered on the plea of guilty should not be disturbed for a failure to comply with a ritualistic formula.'

Assuming the plea minute of March 4 was the only record before us, we would be compelled to find that the District Judge did not fully adhere to the procedure outlined in Smith, supra, and such an infirmity would render the defendant's pleas of guilty invalid as not having been voluntarily and intelligently entered. We further note that the minute of the pleas of March 4 is not illustrative of a procedure which should be emulated by trial judges. However, we must examine the plea minute before us together with the supplementary record made at the hearing on the application to withdraw the defendant's pleas of guilty. This type of supplementation of the original plea minute for the Court's consideration is proper in light of Cobbler, supra. ¹

The language in Cobbler, supra, allows the trial court and this Court, in determining whether or not a plea of guilty was voluntarily and intelligently entered, to consider the testimony taken at a hearing on an application to withdraw plea of guilty. This is certainly consistent with the language of the United States Supreme Court in Brady v. United States, 397 U.S. 742, at 749, 90 S.Ct. 1463, at 1469, 25 L.Ed.2d 747, at 757. ²

An examination of the entire record before us illustrates the trial judge complied with the directives of Smith, supra.

Specifically, the minute of the defendant's pleas affirmatively reflects that the defendant was assisted by counsel, and thus this satisfies the first requirement of Smith, supra. ³ The minute further reflects that the trial judge advised the defendant of the nature and consequences of his plea to which the defendant indicated his understanding; thus satisfying the fifth requirement of the procedure outlined in Smith, supra. ⁴

Requirements number two, three, and four of Smith, supra, involve defendant's constitutional rights. As stated by the United States Supreme Court in McCarthy v. United States, 394 U.S. 459, at 466, 89 S.Ct. 1166, at 1171, 22 L.Ed.2d 418, at 425:

'These two purposes have their genesis in the nature of a guilty plea. A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1466, 146 A.L.R. 357) (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.' (Footnotes Omitted)

With this language in mind, we feel requirement number two is affirmatively reflected as having been satisfied by the defendant's response at the hearing on the application to withdraw his plea of guilty wherein he admitted to having been advised by the trial judge of his right to a jury trial and his desire to waive such right. ⁵

We further feel requirements three and four were satisfied as indicated in the record as the defendant, prior to the entry of his pleas of guilty, while assisted by counsel, prepared the summary of facts sheet; ⁶ thereafter the trial judge made inquiry of defendant regarding the summary of facts sheet. ⁷

Here again the signature of the defendant on the summary of facts sheet illustrates an 'intentional relinquishment or abandonment of a known right or privilege.' See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938).

The last requirement of Smith, number six, is reflected as substantially complied with by the defendant's admission at the hearing on the application to withdraw his plea of guilty at which time he testified that, prior to the entry of his pleas of guilty, the Court informed him of what the State's recommendation of punishment would be. ⁸ Again this is allowed by Cobbler, supra, in that it can be established that the trial judge complied with the requirement mandated by Smith, supra. We further note this requirement is essential as we promote the concept of plea bargaining and we feel such promotion is consistent with the United States Supreme...