Wester v. State

OPINION

PARKS, Judge:

The petitioner, Jimmy Ray Wester, entered a plea of nolo contendere to the charges of Larceny From a House (21 O.S. 1981, § 1723) and Second Degree Burglary (21 O.S.1981, § 1435), Case Nos. CRF-85-4789 and CRF-86-618, in Tulsa County District Court, before the Honorable Jay Dalton, District Judge. The trial court accepted the plea and upon the State’s recommendation, sentenced petitioner to five (5) years imprisonment on each count, to run concurrent. Petitioner filed a timely application to withdraw his plea. Following a hearing on petitioner’s application, the trial court denied the petitioner’s request. Petitioner has filed a petition for a Writ of Certiorari. We assume jurisdiction.

Petitioner urges that the trial court erred in accepting his pleas of nolo contendere without making an appropriate interrogation regarding his competency. Because we find this issue determinative, a discussion of petitioner’s remaining proposition is unnecessary. A thorough review of the records reveals that the trial court asked only two questions regarding petitioner’s mental status. The extent of the trial court court’s inquiry was whether petitioner was under the influence of medication and whether he had ever been declared incompetent. Although the petitioner’s attorney was present, the trial court did not direct any questions to the attorney to ascertain his opinion as to petitioner’s competency.

King v. State, 553 P.2d 529, 534 (Okla.Crim.App.1976) dictates the minimum requirements which must be met before the trial court may accept a guilty or nolo contendere plea from a defendant. The first consideration is the competency of the defendant. The trial court must, by appropriate interrogation of the defendant and his attorney, as well as by the defendant's demeanor, determine whether the defendant is competent to enter a plea. This requirement was further explained by this Court in Coyle v. State, 706 P.2d 547, 548 (Okla.Crim.App.1985), wherein it was held that the trial judge’s scant interrogation regarding competency was insufficient. In Coyle, the trial judge asked defense counsel if he thought the defendant was competent and asked the defendant if he thought himself to be competent. This Court ruled that “[t]his brief dialogue falls short of satisfying the requirement of an ‘appropriate interrogation ... regarding the defendant’s past and present mental state....’”

In petitioner’s case, the dialogue regarding petitioner’s competency was not even as inclusive as was the dialogue in Coyle. The trial judge made no inquiry of petitioner’s attorney, nor did he ask about petitioner’s present mental state. Clearly, this requirement was not met.

Furthermore, the trial court failed to ascertain that there was a factual basis for the plea. The transcript is void of any facts which would form an adequate basis for a nolo contendere plea. After a thorough review of the record, we have been unable to find any testimony or other summary of the facts except that which is contained in the Informations. This alone is insufficient. Coyle v. State, 706 P.2d at 548. The present case is distinguished from Davis v. State, 704 P.2d 497, 499 (Okla.Crim.App.1985), in that petitioner did not admit his guilt to the acts charged in the Informations.

Because the trial court failed to make an appropriate inquiry into the competency of petitioner and failed to determine that there was a factual basis for the petitioner’s plea, it was an abuse of discretion to refuse to allow petitioner to withdraw his pleas. Accordingly, this cause is REVERSED and REMANDED for further proceedings consistent with the views expressed herein.

BRETT, P.J., concurs. BUSSEY, J., dissents.