Lauen v. State, C-73-190

Decision Date15 October 1973
Docket NumberNo. C-73-190,C-73-190
Citation515 P.2d 578
PartiesLewis Eugene LAUEN, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BLISS, Presiding Judge:

In the District Court, Jackson County, Case No. CFR--73--62, appellant, Lewis Eugene Lauen, hereinafter referred to as defendant, was charged, tried and convicted upon his plea of guilty for the offense of Burglary of an Automobile. His punishment was fixed at two (2) years imprisonment, one of which was suspended. On an application for a Writ of Certiorari was filed with this Court and in an order dated August 3, 1973, this Court granted appellant a review of his guilty plea.

The record before this Court reveals that on July 12, 1973, defendant, eighteen years of age, appeared at preliminary hearing, and, after evidence was received by the court, defendant waived further hearing and tendered a guilty plea. Prior to the court's receiving defendant's plea, and with retained counsel present, the court thoroughly informed defendant of the nature and consequences of his plea, his right to a jury trial, his right to a confrontation of witnesses, the presumption of his innocence, and his privilege of maintaining his silence. Following the court's advice, defendant waived these rights and entered an unqualified plea of guilty for the reason that he was guilty. Thereafter, the court entertained arguments from both State and defense in mitigation of this sentence. Including in the prosecutor's argument to enhance defendant's punishment was a detailed summary of defendant's juvenile record at which time he concluded his argument with a recommendation of a five (5) year prison sentence or, in the alternative, a seven (7) year sentence suspended upon his good behavior. Defense counsel in mitigation requested a two (2) year suspended sentence. At a hearing folllwing a plea of quilty, defendant moved to withdraw his guilty plea.

Defense counsel submits the judgment and sentence should be vacated and the case remanded for the reason the prosecutor, during mitigation arguments, commented upon the juvenile record of defendant, a comment prohibited by 10 O.S.1971, § 1127. Before determining whether this argument is prohibited by the above section of the statute, it is first necessary to note, as previously mentioned in this opinion, the court adequately advised defendant of his pre-guilty plea rights. See Copenhaver v. State, Okl.Cr., 431 P.2d 669 (1967); Tipton v. State, Okl.Cr., 498 P.2d 429 (1972); and, Johnson v. State, Okl.Cr., 490 P.2d 1130 (1971). Consequently, defendant's plea of guilty is founded on a legally sufficient predicate. It is within the discretion of the trial court to permit withdrawal...

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6 cases
  • State v. Dicks
    • United States
    • Hawaii Supreme Court
    • 30 Abril 1976
    ...1153 (1973); State v. Dunham, 213 Kan. 469, 517 P.2d 150 (1972); Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 129 (1958); Lauen v. State, 515 P.2d 578 (Okl.Cr.1973); State v. Burnett, 228 Or. 556, 365 P.2d 1060 It is a constitutional requirement that a trial judge ensure that a guilty plea b......
  • Bowman v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 25 Octubre 1978
    ...court against the same child. Title 10 O.S.Supp.1977, § 1127(a). Also see, Young v. State, Okl.Cr., 553 P.2d 192 (1976); Lauen v. State, Okl.Cr., 515 P.2d 578 (1973). Furthermore, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the United States Supreme Court recogni......
  • Vuletich v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 27 Marzo 1987
    ...request. The decision to grant or deny a plea withdrawal request rests within the sound discretion of the trial court. Lauen v. State, 515 P.2d 578 (Okl.Cr.1973). Appellant argues that it was an abuse of discretion to allow a plea withdrawal without a showing of necessity. Cf. Elmore v. Sta......
  • Young v. State, C--76--358
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 23 Junio 1976
    ...and such a consideration violates the statutory proscription in 10 O.S.1971, § 1127, and this Court's prior holding in Lauen v. State, Okl.Cr., 515 P.2d 578 (1973). Title 10 O.S.1971, § 1127, provides in pertinent '. . . A disposition of any child under this Act, or any evidence given in su......
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