Weeks v. State

• Decision Date: 23 November 2015
• Docket Number: No. C–2015–258.,C–2015–258.
• Citation: 362 P.3d 650
• Parties: Jimmy Robert WEEKS, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

362 P.3d 650

Jimmy Robert WEEKS, Petitioner,

v.The STATE of Oklahoma, Respondent.

No. C–2015–258.

Court of Criminal Appeals of Oklahoma.

Nov. 23, 2015.

David L. Ashbaugh, Attorney at Law, Claremore, OK, Counsel for Defendant.

David L. Ashbaugh, Attorney at Law, Claremore, OK, Counsel for Petitioner.

OPINION DENYING CERTIORARI

LUMPKIN, Vice Presiding Judge.

¶ 1 Petitioner, Jimmy Robert Weeks, was charged by Amended Information in the District Court of Rogers County, Case No. CF–2014–229, with Sex Offender Loitering within 500 Feet of a Child Care Center (Counts 1–2) (21 O.S.Supp.2010, § 1125 ). Petitioner filed a motion challenging the constitutionality of the statute under which he was charged and, in the alternative, seeking to quash the Information for insufficient evidence. The District Court denied Petitioner's motion on December 4, 2014.

¶ 2 Petitioner's case came on for jury trial on February 9, 2015 before the Honorable J. Dwayne Steidley, District Judge. On that date, Petitioner waived his right to trial and entered a negotiated no contest plea to Count 2 of the Amended Information. Pursuant to the plea agreement, the State dismissed Count 1 but stood moot as to the issue of punishment as to Count 2.

¶ 3 The District Court accepted Petitioner's plea and sentenced him to six (6) months in the county jail with credit for the six (6) months that he had spent in jail awaiting trial. The District Court further ordered Petitioner to pay a fine in the amount of $250.00, a $100.00 Victims Compensation Assessment, and the costs of the action.

¶ 4 On February 19, 2015, Petitioner filed his Application to Withdraw Plea. At a hearing held on March 11, 2015, the District Court denied Petitioner's Motion. It is that denial which is the subject of this appeal.

¶ 5 Petitioner raises the following propositions of error in support of his appeal.

I. That Title 21, Section 1125(A) is unconstitutional for being vague and overbroad.

II. There was insufficient evidence to find Petitioner guilty.

¶ 6 After thorough consideration of the propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we affirm the trial court's ruling.

¶ 7 In his first proposition of error, Petitioner contends that 21 O.S.Supp.2010, § 1125(A), is unconstitutional. He does not claim that his plea was not knowingly and voluntarily entered, but, simply claims that the statute upon which he was convicted does not give fair notice of what is prohibited.¹ Therefore, we must determine whether Petitioner's claim is reviewable in a certiorari proceeding.

¶ 8 The United States Supreme Court has clearly established that a guilty plea has a preclusive effect on a petitioner's collateral attacks on his conviction. "[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). "A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence." United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett, 411 U.S. at 267, 93 S.Ct. at 1608.

¶ 9 A valid guilty plea forecloses inquiry into pre-plea defenses. Id., 411 U.S. at 266, 93 S.Ct. at 1607. It also forecloses independent inquiry into a claim of discrimination in the selection of the grand jury. Id. "[A] counseled defendant may not make a collateral attack on a guilty plea on the allegation that he misjudged the admissibility of his confession." Broce, 488 U.S. at 572, 109 S.Ct. at 764, citing McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970). Even a double jeopardy claim may be waived by the entry of a guilty plea. Id., 488 U.S. at 576, 109 S.Ct. at 765, citing Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195 (1975). Thus, a valid guilty plea forecloses review of those claims, constitutional and otherwise, which a petitioner had before entering the plea. Tollett, 411 U.S. at 266, 93 S.Ct. at 1607.

¶ 10 While claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not independent grounds for relief. Id., 411 U.S. at 267, 93 S.Ct. at 1608. Instead, a petitioner is limited to attacks on the voluntary and intelligent nature of the plea. Id.; Broce, 488 U.S. at 573–74, 109 S.Ct. at 764–65.

¶ 11 We have similarly recognized this rule. This Court has held that a valid guilty plea waives any irregularity in the proceedings that occurred prior to the plea. Frederick v. State, 1991 OK CR 56, ¶ 5, 811 P.2d 601, 603 (recognizing valid guilty plea fatal to petitioner's claim that he had a defense or mitigating evidence to present at trial); Stokes v. State, 1987 OK CR 114, ¶ 6, 738 P.2d 1364, 1365 (finding guilty plea waives claim that crimes charged were inappropriate in light of facts presented at preliminary hearing); Maynard v. State, 1986 OK CR 35, ¶¶ 3–4, 715 P.2d 1341, 1342–43 (finding petitioner's nolo contendre plea waived review of challenge to sufficiency of search warrant resulting in charges); Brown v. State, 1965 OK CR 104, ¶ 5, 405 P.2d 698, 701 (holding guilty plea waives right to question any irregularities in preliminary hearing). We have limited certiorari review to determining "whether or not the plea was entered voluntarily and intelligently." Frederick, 1991 OK CR 56, ¶ 5, 811 P.2d at 603, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

¶ 12 The United States Supreme Court has recognized a single exception to this rule. A guilty plea does not preclude review of a claim that implicates "the very power of the State to bring the defendant into court to answer the charge brought against him." Blackledge v. Perry, 417 U.S. 21, 30–31, 94 S.Ct. 2098, 2103–04, 40 L.Ed.2d 628 (1974), citing Tollett, 411 U.S. at 266, 267, 93 S.Ct. at 1607, 1608. A guilty plea does not foreclose a subsequent challenge that the charge, judged on its face, is one which the State may not constitutionally prosecute. Broce, 488 U.S. at 575, 109 S.Ct. at 765.

¶ 13 Consistent with the Supreme Court's pronouncement, this Court has held that a valid guilty plea does not preclude review of a claim that implicates the State's power to prosecute the case, or concomitantly, on the trial court's power to hear the case. Cox v. State, 2006 OK CR 51, ¶¶ 4, 9, 152 P.3d 244, 247, 248. We have recognized that following a plea of guilty or nolo contendere, the certiorari review process permits a petitioner to raise a facial challenge to the constitutionality of the statute upon which their conviction rests. Maxwell v. State, 2006 OK CR 33, ¶¶ 2–7, 141 P.3d 564, 566–67 ; Hayes v. Mun. Court of Oklahoma City, 1971 OK CR 274, ¶ 2, 487 P.2d 974, 975 (finding jurisdictional failure in trial court entertaining prosecution of violation of ordinance unconstitutional on its face). However, this exception does not apply to a challenge that the statute was unconstitutional as applied to the defendant. Poke v. State, 1973 OK CR 422, ¶ 15, 515 P.2d 252, 255 (refusing to consider constitutionality of application of habitual offenders statute first raised on appeal); United States v. De Vaughn, 694 F.3d 1141, 1149–50, 1154 (10th Cir.2012) (recognizing that guilty plea precludes direct inquiry into as-applied constitutional claim).

¶ 14 We emphasize that this exception is very narrow. For the vast majority of challenges, the only remedy is to go to trial and preserve the issue for a regular appeal. See Maynard, 1986 OK CR 35, ¶ 5, 715 P.2d at 1342–43. This Court has even recognized that a bench trial may be the most expedient way to preserve appellate review of an issue. Maxwell, 2006 OK CR 33, ¶ 7 n. 10, 141 P.3d at 567 n. 10.

¶ 15 Turning to the present case, Petitioner argues that § 1125(A) is unconstitutional as written. He does not argue that the statute is unconstitutional as applied to him. Therefore, this Court may properly review Petitioner's facial challenge to the constitutionality of the statute.

¶ 16 Generally, this Court reviews a trial court's decision to deny the withdrawal of a plea for an abuse of discretion. Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998. Because Petitioner's challenge to the constitutionality of § 1125(A) raises a question of statutory interpretation, it presents a question of law that we review de novo. Murphy v. State, 2012 OK CR 8, ¶ 30, 281 P.3d 1283, 1292

¶ 17 The party attacking the constitutionality of a statute has the burden of proving the statute is unconstitutional. Id., 2012 OK CR 8, ¶ 32, 281 P.3d at 1292 ; Romano v. State, 1993 OK CR 8, ¶ 66, 847 P.2d 368, 384. We defer to our sister branch of the government and indulge every presumption in favor of the constitutionality of an act of the Legislature. State ex. rel. Mashburn v. Stice, 2012 OK CR 14, ¶ 12, 288 P.3d 247, 250–51 ; Murphy, 2012 OK CR 8, ¶ 32, 281 P.3d at 1292.

¶ 18 The standards by which we are to determine the constitutionality of a challenged statute are clear. State v. Saunders, 1994 OK CR 76, ¶ 5, 886 P.2d 496, 497. "When vagueness permeates the text of [a] law, it is subject to facial attack." Chicago v. Morales, 527 U.S. 41, 55, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67 (1999). "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103...