In re OBannon

Filed 9/12/07 In re OBannon CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ORIGINAL PROCEEDING, application for writ of habeas corpus. Bruce F. Marrs, Judge. Writ petition denied.

Murray A. Rosenburg, under appointment by the Court of Appeal, for Petitioner.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Respondent.

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In his petition for a writ of habeas corpus, Pierre OBannon contends that he suffered ineffective assistance of counsel because his trial attorney failed to request and obtain a certificate of probable cause so that he could appeal the courts denial of his motion to withdraw his plea of no contest. The writ petition is denied.

FACTUAL AND PROCEDURAL BACKGROUND

OBannon and two co-defendants were charged by second amended information with six counts of first degree burglary. It was further alleged OBannon had suffered four prior felony convictions within the meaning of Penal Code section[1] 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i) and three felony convictions within the meaning of section 667, subdivision (a)(1) and section 667.5, subdivision (b).

On June 9, 2005, after both co-defendants entered into plea agreements, OBannon entered into a plea agreement wherein he pled no contest to counts I through IV and admitted three prior felony convictions pursuant to section 667, subdivision (a)(1) and one prior felony conviction within the meaning of section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). On the date set for sentencing, OBannon moved to withdraw and vacate the plea. After a hearing on the merits, the court denied the motion.

Pursuant to the terms of the plea agreement, the court sentenced OBannon to 35 years.

On October 11, 2005, OBannon, through Thomas S. Byrnes, his then attorney of record, filed a timely notice of appeal and a request for appointment of counsel on appeal, which included OBannons declaration that he wished to challenge the courts denial of his motion to withdraw his plea because he believed his plea was coerced and not voluntary. Although Byrnes failed to file a request for a certificate of probable cause, the trial court certified probable cause for an appeal while specifically noting the absence of a request for probable cause.

Subsequently, OBannon filed a timely notice of appeal. On appeal, OBannon contended he had been denied the effective assistance of counsel. After supplemental briefing, without reaching the merits, this court dismissed OBannons appeal for his failure to comply with section 1237.5 by not filing a request for a certificate of probable cause. Subsequently, OBannon filed this petition for a writ of habeas corpus.

DISCUSSION

OBannon contends that Byrness failure to file a request for a certificate of probable cause amounted to ineffective assistance of counsel that must be remedied through a new appeal.

However, OBannon is not automatically entitled to a new appeal because this court can properly hear the merits of his claim in this habeas petition. Considering the merits, the trial court did not err in denying OBannons motion to withdraw his plea of no contest. Therefore, the petition for writ of habeas corpus is denied.

1. Ineffective Assistance of Counsel

To succeed on a claim of ineffective assistance of counsel, a defendant must establish that: (1) counsels representation was deficient, meaning that it fell below an objective standard of reasonableness; and (2) that the deficient representation resulted in prejudice such that, but for counsels errors, there was a reasonable probability that the result of the proceeding would have been different. (People v. Hart (1999) 20 Cal.4th 546, 623; In re Jones (1996) 13 Cal.4th 552, 561.) The defendant must overcome the presumption that, under the circumstances, the challenged action might have been made for legitimate tactical reasons. (See Strickland v. Washington (1984) 466 U.S. 668, 689.)

The parties agree that OBannon suffered from deficient assistance of counsel. In a telephone conversation with OBannons current attorney, Byrnes admitted that he was unaware that he needed to file a request for a certificate of probable cause, overcoming the presumption that there was a legitimate reason for Byrnes failure to file the request. Moreover, in the return to the order to show cause, the Attorney General effectively concedes that Byrness failure to file a request for a certificate of probable cause amounted to deficient representation.

The parties disagree on whether this deficient assistance of counsel was prejudicial. OBannon contends that the presumption of prejudice for failure to properly file a client-requested notice of appeal, thus depriving the defendant of access to appellate proceedings altogether, as discussed in Roe v. Flores-Ortega (2000) 528 U.S. 470, 481-484, should apply to Byrness failure in this case. However, the Roe court further held that the determination of whether the defendant has sufficiently shown prejudice will turn on the facts of a particular case. (Id., at p. 485.) OBannon argues that the failure to file a request for a certificate of probable cause was prejudicial because it denied him an opportunity to have his appeal heard on the merits, effectively denying him access to the judicial process.

However, this court can evaluate the merits of OBannons case, meaning that OBannon has not been denied access to the judicial process. In order to reverse a judicial decision, the reviewing court must find prejudicial error. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 408, pp. 459-460.) This court can evaluate whether the trial court committed prejudicial error through this writ petition because this court has access to the same facts considered by the trial court when it denied the motion to withdraw the plea. Therefore, OBannons ineffective assistance of counsel claim is not prejudicial unless the trial court erred in denying the motion to withdraw OBannons plea of no contest. Authorizing a new appeal instead of considering OBannons claim on the merits would only cause delay by starting the appellate process all over again.

2. The trial court did not err in denying the motion to withdraw OBannons plea of no contest

A trial court may allow a defendant to withdraw a guilty or nolo contendre plea before entry of the judgment if good cause can be shown. ( 1016, subd. (3); 1018.) Good cause can be shown through mistake, ignorance, or any other factor that overcomes the exercise of free judgment; however, a defendant may not withdraw his plea merely because he changed his mind. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Cruz (1974) 12 Cal.3d 562, 566; In re Brown (1973) 9 Cal.3d 679, 686.) A defendant has the burden of establishing good cause through clear and convincing evidence. (Fairbank, supra, 16 Cal.4th at p. 1254; Cruz, supra, 12 Cal.3d at p. 566.) A reviewing court must affirm a trial courts decision to deny a motion to withdraw a plea unless the defendant can show an abuse of discretion. (Fairbank, supra, 16 Cal.4th at p. 1254.)

OBannon argues that he did not exercise free judgment in entering the plea agreement because his attorney of record at the time that he entered the plea agreement, Ronald Whitenhill, told him that he had no chance of acquittal at trial because he was African-American. At the hearing on the motion to withdraw the plea, Whitenhill explained that OBannon was adamant that Whitenhill tell the court that Whitenhill had advised OBannon that he would lose his case because he was African-American. However, Whitenhill insisted that he did not tell OBannon that he (OBannon) would be convicted because of his race, but rather because of the overwhelming evidence against him. The trial court did not abuse its discretion in finding Whitenhills characterization of his conversation with OBannon more convincing than OBannons.

Evidence in the record supports the trial courts determination that OBannon accepted the plea freely and voluntarily. OBannon initially was offered three choices if he went to trial and lost, his maximum punishment could be a life sentence, plus 165 years; the plea offer was either an indeterminate sentence of 25 years to life or a determinate sentence of 35 years. OBannon rejected the plea bargain. OBannons mother, sister, and girlfriend were present at the hearing and counseled OBannon that the offer was a good one. OBannon spoke with his mother before changing his mind and accepting the plea bargain for a determinate 35 year sentence later the same day. OBannon executed the written change of plea form initialing that he had read and understood the rights and consequences that appeared on the form and had discussed with his attorney the facts of his case and any pleas or legal defenses that might be available.

At the hearing on the motion to withdraw the plea (which was conducted over several days), OBannon claimed he had been presssured by his family to take the deal. The trial court found that OBannons interaction with his family did not amount to coercion sufficient to show good cause. Although OBannon claimed at the hearing that he was hearing voices, receiving medication for a sleeping disorder and had attempted suicide, the trial court noted that the county jail records subpoenaed by OBannons attorney did not indicate any of the mental problems about which OBannon had testified. Finally, the trial court observed that the hearing transcript shows that OBannon gave no verbal indication that he did not understand what was occurring when the plea was taken with the advisement of his rights and his waiver of those rights.

The burden fell on OBannon to show by clear and convincing evidence that forces overcame his exercise of free judgment. His claim lacks support in the record before this court. It is a reasonable inference that OBannon entered the plea voluntarily. We find no abuse of trial court discretion in denying OBannons motion to withdraw his plea. Accordingly, petitioner did not suffer prejudice from his counsels failure to obtain a certificate of probable cause.

DISPOSITION

The petition for a writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J. ZELON, J.

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[1] All statutory references are to the Penal Code.