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Anderson v. State

Court of Criminal Appeals of Oklahoma

May 17, 2018

DESMOND DEANTHONY ANDERSON, Petitioner
v.
THE STATE OF OKLAHOMA, Respondent.

          AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY THE HONORABLE JOHN G. CANAVAN, JR., DISTRICT JUDGE

         APPEARANCES IN DISTRICT COURT

          KAREN E. BYARS COUNSEL FOR THE DEFENSE

          RICHARD L. SMOTHERMON DISTRICT ATTORNEY ABBY NATION ASSISTANT DISTRICT ATTORNEY POTTAWATOMIE CO. COURTHOUSE COUNSEL FOR THE STATE

         APPEARANCES ON APPEAL

          ROBERT W. JACKSON COUNSEL FOR PETITIONER

          NO RESPONSE NECESSARY

          SUMMARY OPINION GRANTING CERTIORAR I AND REMANDING FOR EVIDENTIARY HEARING

          LUMPKIN, PRESIDING JUDGE

         ¶1 Petitioner Desmond Deanthony Anderson entered blind pleas of guilty in the District Court of Pottawatomie County, Case No. CF-2016-521, to Trafficking in Illegal Drugs, (Count I) ( 63 O.S.Supp.2015, § 2-415 ) and Possession of a Controlled Dangerous Substance with Intent to Distribute (Count II) ( 63 O.S.Supp.2012, § 2-401 (A)(1)), both counts After Former Conviction of Two or More Felonies. The Honorable John G. Canavan, Jr., District Judge, accepted Petitioner's pleas and sentenced him to twenty (20) years imprisonment in each count plus a $25,000.00 fine in Count I. Judge Canavan ordered credit for time served, suspended the fine in Count I, imposed various fees and costs for both counts, and ordered the sentences to be served concurrently. Petitioner, represented by counsel, timely filed a Motion to Withdraw Plea which was summarily denied. Petitioner appeals the denial of his motion, and raises the following propositions of error:

I. The trial court erred in failing to hold a hearing on the motion to withdraw the pleas;
II. Petitioner failed to receive the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution and Article II, Section 20 of the Oklahoma Constitution.

         ¶2 After thorough consideration of these propositions and the entire record before us on appeal, we have determined that certiorari should be granted and the case should be remanded to the district court for an evidentiary hearing with respect to the motion to withdraw guilty plea.

         ¶3 The requirements for certiorari appeals are set forth in Rule 4.2(A) and (B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018). Rule 4.2(B) states that the "trial court shall hold an evidentiary hearing and rule on the application [to withdraw plea] within thirty (30) days from the date it was filed." Pursuant to the rules of statutory construction, the use of the term "shall" in a statute usually indicates a mandatory duty. See Kingdomware Technologies, Inc. v. United States, 579 U.S. ___, ___, 136 S.Ct. 1969, 1977, 195 L.Ed.2d 334 (2016) ("[u]nlike the word 'may,' which implies discretion, the word 'shall' usually connotes a requirement"); United States v. Gabaldon, 522 F.3d 1121, 1125 (10th Cir. 2008) ("[t]he word 'shall' indicates a mandatory duty"); Jordan v. State, 1988 OK CR 227, ¶ 4, 763 P.2d 130, 131 ("it is a rule of statutory construction that the term 'shall' is mandatory"). We interpret our court rules under the same principles. By the use of the term "shall", this Court has made the evidentiary hearing on the motion to withdraw plea mandatory upon the filing of an application to withdraw plea, and not discretionary or conditional upon a request of the defendant. The application to withdraw guilty plea and the evidentiary hearing are both necessary and critical steps in securing the appeal rights as provided by Rule 4.1. Randall v. State, 1993 OK CR 47, ¶ 5, 861 P.2d 314, 316. The use of "shall" in Rule 4.2(B) is unambiguously a mandatory directive.

         ¶4 This Court reviews a trial court's decision to deny the withdrawal of a guilty plea for an abuse of discretion. Weeks v. State, 2015 OK CR 16');">2015 OK CR 16, ¶ 16, 362 P.3d 650, 654; Lewis v. State,2009 OK CR 30, ¶ 5, 220 P.3d 1140, 1142; Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998. Inherent in this type of appeal is a review of the trial court's actions taken as a result of the defendant's motion to withdraw his plea. Whitaker v. State, 2015 OK CR 1, ¶ 10, 341 P.3d 87, 90. If a matter is not presented to the trial court, there is nothing for this Court to review. Id. If the trial court does not hold the requisite hearing, there is nothing upon which this Court can base a ruling regarding ...


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