For free consultation call 918 582 1313
Sentences Received Ater A Plea Must Be Challenged By Withdrawing The Plea,
Not With A Direct Appeal Or Post-Conviction
If a defendant receives a sentence in Oklahoma state criminal court; after a plea of guilty or no contest and wants to challenge that sentence; a direct appeal and/or the post-conviction relief process is not the way to challenge that sentence. Pleas MUST BE WITHDRAWN, NOT APPEALED. The Appeals and Post-Conviction Relief process are for challenging sentences received at trial, not for challenging sentences received after a plea. The belief that you can challenge a sentence received after a plea, with a direct appeal or post-conviction relief process, is a common misunderstanding.
If you are talking to a lawyer, or anyone else, that is telling you that you can challenge a sentence received after a plea through direct appeal or the post-conviction relief process, stop talking to that lawyer, because they DO NOT KNOW WHAT THEY ARE TALKING ABOUT.
A. Application to Withdraw Plea. In all cases, to appeal from any conviction on a plea of guilty or nolo contendere, the defendant must have filed in the trial court clerk's office an application to withdraw the plea within ten (10) days from the date of the pronouncement of the Judgment and Sentence, setting forth in detail the grounds for the withdrawal of the plea and requesting an evidentiary hearing in the trial court. See Oklahoma Court of Appeals Rule 4.2 A
The proper process for challenging a sentence received in Oklahoma State Court, after a plea of guilty or no contest is listed below:
To appeal from a conviction, or order deferring sentence, on a plea of guilty or no contest, a defendant must file in the District Court Clerk's Office of the court that accepted the plea, a written Application to Withdraw the Plea of Guilty within ten (10) days from the sentencing date. The defendant must set forth in detail why they are requesting to withdraw their plea. The trial court must hold a hearing and rule upon the Application within thirty (30) days from the date it is filed. If the trial court denies the Application, the defendant has the right to ask the Court of Criminal Appeals to review the District Court's denial by filing a Petition for Writ of Certiorari within ninety (90) days from the date of the denial. Within ten (10) days from the date the application to withdraw plea of guilty is denied, the defendant must file a notice of intent to appeal and designation of record pursuant to Oklahoma Court of Criminal Appeals Rule 4.2(D). If indigent a defendant has the right to be represented on appeal by a court appointed attorney.
In considering motions to withdraw a plea the only two things the courts will consider is 1. whether or not the plea was knowingly and voluntarily entered? and 2. did the court that accepted the plea have jurisdiction? If a defendant makes a motion to withdraw their plea they must explain to the Court why their plea was not knowingly and voluntarily entered.
If a defendant failed to file an application to withdraw the plea within 10 days of the sentencing date, then the law presumes that they waived their right to attempt to withdraw the plea and they must first go through a process to overcome the legal presumption of a waiver. Then the process to challenge the sentence and conviction is more complicated. A defendant must file a request to “withdraw the plea out of time” with the trial court. The trial court will consider why it was that the defendant did not file the request to withdraw your plea within 10 days and make a recommendation about whether or not you should be allowed to attempt to withdraw your plea out of time. (The court is considering whether or not you have a good reason for failing to file your motion within the 10 day period.) The defendant must then file with the Oklahoma Court of Criminal Appeals a Motion to Withdraw Plea Out of Time and attach the trial court’s recommendation. Only the Court of Criminal Appeals can grant a defendant the right to file their motion to withdraw their plea out of time. If the Court of Criminal Appeals grants that right, then they go back to the trial court and file their motion to withdraw the plea and the case proceeds in the same manner as if it was filed within 10 days.
If a defendant is successful in withdrawing their plea you are then placed in the same position that you were prior to entering the plea, meaning you are still facing the same criminal charges. If your charges was reduced as part of a plea agreement in all likelihood your original charges will be re-instated. This writing is not focused on withdrawing of pleas. This writing is focused on appeal of trial verdicts.
For a detailed explination of direct appeal, Oklahoma post conviction relief and federal habeas read Understanding Oklahoma's Criminal Appeal Process- An Overview of the Criminal Appeals Process from Direct Appeal through Federal Habeas.You may also find the videos below helpful.