Ocampo v. State, C-88-136

• Decision Date: 27 July 1989
• Docket Number: No. C-88-136,C-88-136
• Citation: 778 P.2d 920,1989 OK CR 38
• Parties: Ignacio OCAMPO, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 920

778 P.2d 920

Ignacio OCAMPO, Appellant, v. The STATE of Oklahoma, Appellee.

No. C-88-136.

Court of Criminal Appeals of Oklahoma.

July 27, 1989.

An Appeal from the District Court of Jackson County; Joseph Watt, Associate District Judge.

Ignacio Ocampo, Appellant, pled guilty to Assisting a Prisoner to Escape, Use of a Firearm While Committing a Felony, Unauthorized Use of a Vehicle, Feloniously Pointing a Weapon, and Grand Larceny in Jackson County District Court, Case No. CRF-87-94, sentenced to ten (10) years, ten (10) years, two (2) years, ten (10) years, and two (2) years imprisonment respectively, counts one, two and four to run consecutively and counts three and five to run concurrently, and appeals. AFFIRMED as to counts one, two, three and five, and REVERSED as to count four, Feloniously Pointing a Weapon.

Gloyd McCoy, Asst. Appellate Public Defender, Norman, for appellant.

No response necessary.

OPINION

LUMPKIN, Judge:

The Appellant, Ignacio Ocampo, pled guilty to Assisting a Prisoner to Escape (Count I), Use of a Firearm While Committing a Felony (Count II), Unauthorized Use of a Motor Vehicle (Count III), Feloniously Pointing a Weapon (Count IV), and Grand Larceny (Count V), in Jackson County District Court, Case No. CRF-87-94, before the Honorable Joseph Watt, Associate District Judge. Appellant's motion to withdraw his guilty plea was overruled by the trial court. We affirm.

Appellant first contends the trial court failed to make an appropriate interrogation to determine whether he was competent at the time he pled guilty pursuant to the guidelines set forth in King v. State, 553 P.2d 529 (Okl.Cr.1976). The record reflects that the trial judge presided over the selection of the jury to try the case. Appellant was present with counsel throughout the jury selection process. At the conclusion of jury selection, defense counsel informed the court that Appellant desired to withdraw his plea of not guilty and enter a plea of guilty. The trial judge made inquiry of the Appellant and established a knowing and voluntary waiver of rights, together with a factual basis for the plea. The court then ordered a pre-sentence investigation to be completed prior to the date of sentencing. This order included a requirement to provide the court with Appellant's version of the offense, marital history, education, religion, mental health history, physical health history, prior adult and juvenile criminal records, residence, leisure time activities, military service record, employment history, family background and other matters. The trial court subsequently reviewed this pre-sentence investigation report and received testimony from Appellant prior to sentencing. At the time the plea was entered an interpreter was used to inquire of Appellant as to the waiver of rights and the factual basis, which examination was observed by the court. On the date of sentencing, however, defense counsel called Appellant to the witness stand and inquired of him in English, without the necessity of an interpreter.

This Court adopted a procedure for the trial court's acceptance of a defendant's plea of guilty in King v. State, 553 P.2d at 534. Since 1976 this procedure has evolved from a guideline for the trial court in the taking of a guilty plea to a mandatory checklist that must be followed in order to have a valid plea of guilty. The King decision is predicated upon the United States Supreme Court's decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), wherein it was mandated that a court must ensure that a plea of guilty is voluntarily and intelligently entered. The Boykin decision did not mandate a checklist approach to determining the validity of a guilty plea. Rather, the Court stated that the standard to be used in determining the voluntariness of a guilty plea should be the same standard applied in determining the voluntariness of a waiver of counsel. It was emphasized that waiver cannot be presumed from a silent record. The Court then discussed the federal constitutional rights involved in a waiver which are also present when a plea of guilty is entered in a state criminal trial. Those rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's own accusers. Each of these requirements is to be determined from the totality of the circumstances surrounding the plea and matters known by the court which are in the record.

In State v. Durant, 609 P.2d 792 (Okl.Cr.1980), this Court reaffirmed the holding of Cobbler v. State, 521 P.2d 838 (Okl.Cr.1974), that the judgment and sentence rendered on the plea of guilty should not be disturbed for a failure to comply with "a ritualistic formula" and stated:

This approach is a reflection of the fact that the constitutional validity of a guilty plea is not wholly dependent upon express mention and waiver of particular rights, such as embodied in our plea guidelines, so long as the record otherwise establishes a truly voluntary and intelligent plea. 609 P.2d at 793.

The King guidelines must therefore be viewed and applied in light of our holding in Durant. We must look at the entire record to determine if the judgment and sentence rendered on the plea of guilty should be disturbed.

Appellant specifically argues that the trial court failed to make an appropriate determination of his competency to enter a guilty plea. If the King procedures are to be applied in a "ritualistic formula", as in several prior cases, certain statutory provisions and legal presumptions regarding competency will be ignored. Title 22 O.S.Supp.1983, § 1175.2(A) provides "The court, at any time, may initiate a competency determination on its own motion, without an application if the court has a doubt as to the competency of the person." (Emphasis added) Title 22 O.S.Supp.1981, § 1175.4(B) presumes a defendant to be competent and requires the defendant to prove incompetency by clear and convincing evidence. The King requirements run contra to this presumption by requiring the court to determine if the defendant is competent through appropriate interrogation of the defendant and his counsel. A proper application of § 1175.4(B) would result in a presumption of the defendant's competency if the issue of competency is not raised by the defense or if the court does not have a doubt as to present competency. In tendering a guilty plea, defense counsel, bound by the Rules of Professional Conduct, should either raise the issue of competency, if there are articulable facts which raise a question of the present condition of the defendant prior to the tender of a plea, or be restrained from utilizing the issue of competency as a tactic to obtain a delay of the proceedings.

In the present case, a guilty plea was entered on the day of trial when the jury was waiting to try the case. The sentencing date was set off at the conclusion of the plea and a pre-sentence investigation was ordered. On the day of the sentencing hearing each of the parties was afforded the opportunity to present evidence concerning aggravation and mitigation of punishment. The Appellant took the stand and testified in his own behalf concerning mitigation of punishment. The court, having had the benefit of presiding at the selection of the jury, reviewing the pre-sentence investigation, and receiving evidence, set the Appellant's sentence. At the conclusion of the sentencing hearing on December 1, 1987, Appellant's attorney advised the court of the possibility of an appeal of the court's sentence. Subsequently, on December 17, 1987, a hearing was held on the Appellant's motion to withdraw his plea of guilty in each of the five (5) counts. At the hearing on the Appellant's motion to withdraw his plea of guilty, the first matter presented to the court by the Appellant was argument that the court had failed to comply with the King criteria and that the court had failed at the time it received the plea of guilty to make sufficient inquiry into the mental competency of the Appellant. No objections were raised at the time the plea was taken or at the sentencing hearing, nor were comments made to the trial court regarding the lack of inquiry into King criteria by the defense attorney or the prosecutor at any time prior to the hearing on the motion to withdraw the pleas. This is a common scenario which raises significant ethical considerations for both the trial judge and the participating attorneys. It is not clear whether the lack of objection or comment at the time the plea is taken is an attempt to secure a continuance of the trial or if it is a failure by the participating attorneys to fulfill their duties as officers of the court if the trial judge fails to substantially comply with the King requirements. Both judges and attorneys are in a position of trust created by the oath of office and as a lawyer. However, the procedures in King seem to disregard the obligations of counsel while placing the entire burden of the plea procedure on the trial judge. Attorneys are officers of the court before having their first client and are deemed to have responsibilities as such which precede their duties to a client. See Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), Thornton v. United States, 357 A.2d 429, 437 (D.C.1976), Dodd v. Florida Bar, 118 So.2d 17, 19 (Fla.1960) and In re: Integration of Nebraska State Bar Association, 133 Neb. 283, 289, 275 N.W. 265, 268 (1937). If a prosecutor or defense attorney has any reservation as to whether the defendant is entering a plea in compliance with Boykin, then they have a duty to advise the court.

A review of the circumstances surrounding the entry of Appellant's guilty plea...