DIAZ v. STATE

DIAZ v. STATE
2013 OK CR 20
Case Number: PC-2013-717
Decided: 12/04/2013
MARCO BARRIOS DIAZ, Petitioner, v. THE STATE OF OKLAHOMA, Respondent.

ORDER REMANDING MATTER TO DISTRICT COURT FOR FURTHER PROCEEDINGS

¶1 On July 31, 2013, Petitioner, by and through counsel, appealed to this Court from an order of the Oklahoma County District Court denying him post-conviction relief in Case No. CF-2010-3044.1

¶2 On April 27, 2011, while represented by counsel, Petitioner pled guilty in Case No. CF-2010-3044 to Count 1: Concealing Stolen Property; Count 2: Concealing Stolen Property; Count 3: Possession of an Offensive Weapon While Committing a Felony; and Count 4: Possessing a Fictitious Identification Card. Pursuant to the plea agreement, the District Court entered an order deferring imposition of Petitioner's Judgment and Sentence for five years. Petitioner did not timely file a motion to withdraw his plea or otherwise appeal this order as permitted by Rule 1.2 (D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013).

¶3 In an order filed July 1, 2013, the Honorable Jerry D. Bass, District Judge, denied Petitioner's application for post-conviction relief in Case No. CF-2010-3044. Petitioner's application in the District Court claims his plea of guilty was not knowingly and voluntarily entered and he seeks permission to withdraw his plea of guilty. The District Court denied Petitioner's application for post-conviction relief for lack of jurisdiction. Judge Bass held that the Uniform Post-Conviction Procedure Act did not confer jurisdiction over Petitioner's claim and denied it without addressing the merits. While making no finding regarding the merits of his claim, this Court finds that Petitioner's application contains sufficient language to be construed as a request for a District Court order recommending an out of time certiorari appeal. See Rules 1.2(D)(5)(a)(iii) and 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013).

¶4 The right to withdraw a guilty plea pursuant to 22 O.S.2011, § 1051 extends to individuals receiving orders deferring judgment and sentence. Gonseth v. State, 1994 OK CR 9, ¶¶ 5-10, 871 P.2d 51, 53-54. Pursuant to Gonseth, this Court's Rule 1.2(D)(5)(a)(iii) allows a person who receives a deferral of Judgment and Sentence to seek to withdraw their plea and specifies they must comply with the procedures for appeal by certiorari. The procedure for filing a certiorari appeal is prescribed by the Rules of this Court and those Rules have the effect of statute. 22 O.S.2011, § 1051. The scope of review on certiorari shall be prescribed by this Court. Id. Pursuant to Rule 2.1(E)(1) and (4), the proper procedure to seek an out of time certiorari appeal is to file an application for post-conviction relief in the trial court where the order denying relief was imposed. Lewis v. State, 2001 OK CR 6, ¶ 6, 21 P.3d 64, 65 (a defendant who did not timely challenge the validity of his plea following the imposition of a deferred judgment and sentence must file a post-conviction application seeking an out of time certiorari appeal if he or she believes they have been deprived of the right to seek to withdraw his or her guilty plea).

¶5 Therefore, this matter is REMANDED to the District Court of Oklahoma County, the Honorable Jerry D. Bass, District Judge, for further proceedings to consider Petitioner's application for an out of time certiorari appeal. The District Court shall act on the application within forty-five days from the date of this order with a certified copy of the order forwarded to this Court and Petitioner. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

¶6 IT IS SO ORDERED.

¶7 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 4th day of December, 2013.

/S/DAVID B. LEWIS, Presiding Judge

/S/CLANCY SMITH, Vice Presiding Judge

/S/GARY L. LUMPKIN, Judge

/S/CHARLES A. JOHNSON, Judge

/S/ARLENE JOHNSON, Judge

ATTEST:

/s/Michael S. Richie
Clerk

FOOTNOTES

1 Petitioner's pleadings filed in the District Court prior to his Notice of Post-Conviction Appeal are styled "Marco Antonio Barrios." Beginning with the Notice of Post-Conviction Appeal the pleadings are styled "Marco Barrios Diaz."