P. v. Morris

Filed 6/19/07 P. v. Morris CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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On November 10, 2003, pursuant to a search warrant, police searched the home of appellant, Shawn Jason Morris, and found approximately 9.78 grams of methamphetamine, a gram scale, and a pay-owe ledger.^[1] Morris admitted that these items belonged to him.

On March 8, 2004, Morris was charged with one count of possession for sale of methamphetamine, having two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c) and having two felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4).

Morris was originally represented by the public defenders office but then retained private counsel. On July 27, 2004, Morris appeared with private counsel and entered a plea of no contest to possession for sale of methamphetamine in exchange for the dismissal of the prior conviction allegations. However, at his sentencing hearing on September 30, 2004, Morris appeared without counsel and advised the court that he wanted to withdraw his plea. He also indicated that he did not want to represent himself and needed time to get counsel or to prepare a motion to withdraw plea.

On October 8, 2004, Morris filed a motion to withdraw plea, in propria persona, alleging he was misinformed about the sentence range, was denied access to his case file until July 23, 2004 (four days before he entered his plea), and his attorney coerced him into entering a plea.

On October 14, 2004, the court denied Morriss motion to withdraw his plea, appointed the public defender to represent him for sentencing purposes only, and continued the matter one week.

On October 21, 2004, the court sentenced Morris to a two-year term, suspended execution of sentence and placed him on three years probation on condition that he serve 270 days local time.

On May 6, 2006, following a timely appeal in an unpublished opinion (case No. F046664 this court found that Morris was denied his Sixth Amendment right to counsel during a critical part of the proceedings, i.e., in presenting his motion to withdraw his plea, and remanded for the limited purpose of allowing Morris to obtain counsel to evaluate and possibly present a motion to withdraw plea.

On August 1, 2006, the trial court appointed the public defenders office to represent Morris. On that same date, appointed counsel filed a motion to withdraw plea on Morriss behalf wherein Morris alleged that his previous counsel coerced him into entering a plea and misinformed him regarding the sentencing range.

On August 23, 2006, when the prosecutor stated that Morriss former counsel would be a witness, the court stated it was not going to have him testify. In ruling on Morriss motion, the court reviewed the transcript of the change of plea proceedings and noted that during these proceedings, it had advised Morris of the sentencing range for his offense and that he did not say anything even though the court gave him the opportunity to speak to the court and ask questions. After hearing from Morris and his defense counsel, the court denied the motion to withdraw plea and reimposed the previous sentence.

Morriss appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Morris has not responded to this courts invitation to submit additional briefing.

Further, following independent review of the record we find that no reasonably arguable factual or legal issues exist.

The judgment is affirmed.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^*Before Wiseman, Acting P.J., Levy, J., and Dawson, J.

^[1] The court, on its own motion, hereby takes judicial notice of the unpublished opinion in case No. F046664, filed on May 9, 2006.