Collins v. State

OPINION

BUSSEY, Judge:

Appellant, Myra Lee Collins, hereinafter referred to as defendant, was charged in the District Court, Custer County, Case No. CRF-73-1S, with the crime of Unlawful Delivery of a Controlled Dangerous Substance, in violation of 63 O.S.1971, § 2-401. She entered a plea of guilty thereto, and now perfects her appeal from the District Court’s denial of Post-Conviction Relief.

At the preliminary hearing, Deputy Sheriff Wade Langley testified that he went to the defendant’s residence in Weatherford, Oklahoma, . for a meeting with the defendant, which had been arranged by a confidential informant. Defendant indicated that she could supply the undercover officer with some LSD. The officer dealt with the defendant, asking her to supply him. After some further conversation, defendant and Langley drove to a trailer park and defendant entered trailer # 5 while Langley remained in the car. Langley had given the defendant $50.00 in marked bills with which to purchase fifty (50) tablets of LSD. Within a few minutes, defendant emerged from the trailer in the company of a man and the two entered a Ford Torino parked near Langley’s car. Approximately five minutes later, the two got out of the Ford, the man carrying a cellophane baggie. From there the two returned to the trailer, remaining there momentarily, and defendant returned to Langley’s car and gave him a baggie containing fifty (50) tablets of LSD and $10.00 in change. Langley testified he dealt with defendant at all times during this transaction.

Defendant makes two assignments of error. She asserts first that she was not guilty of the crime of Unlawful Delivery of LSD, but was rather “a valid purchasing agent” for the undercover agent and, consequently, guilty only of the offense of Possession. She contends her plea was, therefore, unknowledgeable and inadvertent.

Secondly, defendant asserts that the provisions of the Post-Conviction Procedure Act, 22 O.S.1971, § 1080 et seq., are sufficiently broad to allow the Court to consider fundamental issues not previously presented, regardless of the guilty plea.

Defendant relies on the recent decision of Posey v. State, Okl.Cr., 507 P.2d 576 (1973), to sustain her first assignment of error. In that case the defendant, Posey, was approached by an undercover officer who offered to buy marihuana from the defendant, and we stated:

“Defendant advised the officer that he didn’t have any marihuana, but that he could take him to someone who might sell him some. Defendant got into the officer’s automobile and they drove to Nineteenth and Francis Street, where defendant left the car for a few minutes and returned with co-defendant Mayes. . Defendant . . . got out of the car to go and buy the marihuana for the officer. The officer gave a twenty dollar bill to Mayes and instructed them if they could not buy hashish for fifteen dollars, then they should ‘call off the whole thing.’ The two men entered a nearby residence and were gone for five or ten minutes when they returned to the officer’s car. Defendant handed the officer an aluminum foil wrapper. Mayes handed the officer a five dollar bill, and they told the officer they had gotten the price down to fifteen dollars. The officer put the packet and the money in his pocket and returned defendant and Mayes to the respective points at which they were picked up.”

In Posey, supra, the officer instructed the defendant to buy hashish and *828intended throughout the transaction that a third party seller would be contacted. The officer dealt with the seller through an agent, the defendant. In the case at bar, the officer intended to deal with the defendant. The fact that she later dealt with a third party does not place her in the role of an agent. She had not agreed to be an agent, but rather stated that she could supply the undercover officer with LSD.

In her second assignment of error, defendant asserts jurisdiction of the court to hear fundamental issues not previously presented, even after a plea of guilty. In the case of Dunn v. State, Okl.Cr., 488 P.2d 606 (1971), we answered this question as follows:

“We have consistently held that where an appeal is taken by an accused from a judgment entered upon a plea of guilty, the appeal will ordinarily present only such questions as go to the free and voluntary character of the plea, or that accused was not of competent intelligence, or was not advised of his legal rights and the nature and consequences of his plea, or as to the sufficiency of the indictment or information to confer jurisdiction, or the legality of the sentence.”

Here, defendant knowingly and voluntarily entered a plea of guilty to the act of Delivery of LSD. A plea of guilty admits the facts pleaded in the Information. This Court has repeatedly held that a plea of guilty must stand when such a plea was voluntarily and knowingly given with the advice of counsel in a court of competent jurisdiction. In Turner v. State, Okl.Cr., 474 P.2d 670 (1970), we said:

“[T]he defendant entered the pleas of guilty in the trial court, while represented by counsel of his own choice, because he was guilty and that such pleas were not entered as a result of any promise, threats or coercion. Under such circumstances it appears that the trial court had jurisdiction of the person, subject matter and authority under law to pronounce the judgments and sentences imposed, and that the defendant, by freely and voluntarily entering his pleas of guilty, while represented .by counsel, with full knowledge of the nature and consequence of such pleas, waived any objection to any irregularities occurring prior to the entry of such pleas.” [Emphasis added]

We further said, in Osborne v. State, Okl.Cr., 487 P.2d 364 (1971) :

“Defendant contends the plea was entered as the result of misunderstanding since he was mistaken that his co-defendants would be released as a result of his plea. It is true that where a guilty plea was entered as a result of inadvertence, ignorance, misunderstanding, misapprehension, or without deliberation, it is an abuse of discretion to deny an application to withdraw the plea of guilty. Conley v. State, Okl.Cr., 444 P.2d 252 (1968). However, we find no mistake or ignorance which would deprive the plea of its voluntary, intelligent, and competent character. Defendant does not allege, nor does the record show, that his plea was induced by a promise from anyone in authority to release the other co-defendants. Nor does defendant contend that his admission was inaccurate. Defendant may or may not have been singularly motivated by his desire for the release of the co-defendants. But any mistake here was defendant’s own doing, free of outside influences, and does not amount to inducement or coercion rendering the plea involuntary.”

In the instant case the defendant admitted the accuracy of the facts in her plea of guilty. There was no mistake as to the facts. Misunderstanding or ignorance of the application of the applicable statute does not change the commission of the facts of the unlawful delivery.

Defendant places considerable reliance on the case of Manning v. State, Okl.Cr., 374 P.2d 796 (1962), wherein we indicated that a guilty plea given as a result of misunderstanding and misapprehension or ignorance where there is an application for *829withdrawal of the plea made in good faith, is an abuse of discretion in the trial court to not permit such withdrawal.

However, in Manning, supra, defendant was assured by her mother that all she would receive upon her plea of guilty was a lecture from the court about bogus checks. The defendant waived her right to counsel and received a ninety (90) day jail sentence. Here, defendant was under no such misapprehension about the consequences of the guilty plea. She voluntarily entered a plea of guilty and has freely admitted the facts of her offense. Further, she was was represented by counsel at all times.

Consequently, we hold the District Court’s denial of Post-Conviction Relief must be affirmed, as there is no jurisdiction in this Court to go behind the plea of guilty, under the circumstances of this case, as a plea of guilty was apparently free, voluntary, and made with the consequences in mind.

In summary, we hold that a person who freely and voluntarily enters a plea of guilty, with full knowledge of the nature and consequences of such plea, while represented by counsel and after being fully informed of her constitutional rights and effectively waives the same, is estopped from later urging that had she proceeded to trial, the evidence of the State would not have supported a conviction for the charge for which she pled, or would have resulted in an acquittal.1 It should be borne in mind that the plea of guilty entered here was entered after the preliminary examination had been conducted.

We must, accordingly, hold that the Denial of Post-Conviction Relief in the trial court should be, and the same is hereby, affirmed.

BLISS, P. J., concurs. BRETT, J., dissents.

. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, an opinion written by Justice White, the following language may be found:

“Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. * * * In view of the strong factual basis for the plea demonstrated by the State and Alford’s clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it.”