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Oklahoma mother convicted of child neglect can withdraw plea, appellate court rules

The Oklahoma Court of Criminal Appeals sends the case of Crystal Lynn Erb back to Seminole County to allow her to withdraw her Alford plea to a charge of child neglect. She was charged in connection with the 2008 death of her 3-month-old daughter, Tamberlynn Wheeler.
BY MICHAEL MCNUTT mmcnutt@opubco.com Published: April 20, 2013
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Oklahoma's criminal appellate court ruled Friday that a woman from Seminole serving a 30-year prison sentence in connection with the death of her infant daughter should be allowed to withdraw her plea.

The case of Crystal Lynn Erb was sent back to Seminole County District Court where a new conflict-free attorney should be appointed to represent her so she can withdraw her Alford plea, according to an opinion by the Oklahoma Court of Criminal Appeals. Under an Alford plea, a defendant accepts a sentence for a crime while still asserting innocence.

Erb entered her plea in October 2011 and was sentenced last year. Her 3-month-old daughter, Tamberlynn Wheeler, died April 8, 2008.

Erb, now 24, was represented by the same attorney when she entered her plea and then sought to withdraw her plea.

The attorney during Erb's hearing to withdraw her plea didn't present any specific reasons why she should be allowed to do so, the court opinion states.

“Hence it is not surprising that this counsel did not allege, in Erb's application to withdraw her plea, that he himself was constitutionally ineffective at the time of Erb's plea,” wrote Vice Presiding Judge Clancy Smith.

“It is rather surprising, however, that this same counsel failed to allege any legally cognizable theory under which Erb might possibly have been allowed to withdraw her Alford plea.

“As this court has often recognized, it is unreasonable and unrealistic to expect an attorney in this situation to ‘independently' review the record, discover any instances or his or her own incompetence, and then effectively demonstrate to the trial court that he himself (or she herself) was constitutionally ineffective in his/her representation of the defendant at the time of the plea,” Smith wrote.

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