Man's third strike reversed 

Court ruling means new trial in domestic violence case 
 

Kimberly Bolander
Record Searchlight 

January, 18 2002 — 3:52 a.m.
A Redding man who admitted guilt to his third strike in 1998 was back in Shasta County Superior Court on Thursday after an appeals court reversed his potential life-in-prison conviction. 

Four years ago, Jerry Wayne Morgan, 57, pleaded no contest to a felony charge of domestic violence. 

Morgan, who is now being held in the Shasta County Jail, also admitted to two then-27-year-old convictions in Arkansas: kidnapping and assault with intent to kill, court records show. 

Deputy District Attorney Doug Gardner had argued both crimes were strikes. Shasta County Superior Court Judge Wilson Curle agreed, sentencing Morgan to 25 years to life in accordance with California's "three strikes" legislation. The law, enacted in 1994, can put repeat offenders in prison for life after their third serious or violent felony conviction. 

But the 3rd District Court of Appeal in Sacramento ruled Morgan's Redding attorney, Elliot Burick, erred when he allowed his client to admit that the 1971 Arkansas convictions apply as strikes. 

Burick advised Morgan without first obtaining the out-of-state records, the August ruling reads. It cites ineffectiveness of counsel as its grounds for reversing the conviction. 

Burick, an attorney in public defender Stephen Kennedy's office, was out of the office Thursday and could not be reached, his secretary said. 

According to the appellate ruling, Burick said he told his client that the time to challenge the strikes issue would be at Morgan's sentencing, after he pleaded no contest to the domestic violence charge. 

Gardner said Morgan only agreed to the plea believing his defense attorney would then file a motion asking the judge not to consider the Arkansas convictions as strikes. That motion was not filed before Morgan's sentencing five weeks later, Gardner said. 

The court opinion reads Burick had told the judge he was having trouble getting paperwork from courts in Arkansas and couldn't make his motion without it. 

Hours before he pleaded no contest, Morgan asked for a new attorney, but a judge denied that request, the opinion reads. 

The opinion quotes Morgan as saying soon after: "If there are two strikes, I got them, I guess. I got them. I'm guilty of what's on that piece of paper," he said, referring to the criminal complaint. 

However, at his sentencing, Judge Curle warned Morgan that because the Arkansas convictions were so old, he might not consider them strikes if he had more information about them. Morgan refused to wait, demanding he be sentenced at that time, the opinion reads. 

Morgan appeared Thursday in Shasta County Superior Court to set a fresh trial date of Feb. 13, Gardner said. 

The law office of Jeffery Jens was assigned to represent him this week, said one of its attorneys, Jeff Gorder. 

"Basically, he's back where he was in the beginning of the case with his not guilty plea, and the matter is set for trial," Gorder said. 

Gorder, who will likely handle Morgan's case, said he doesn't know yet if Morgan will plead guilty to the felony charge of corporal injury to a spouse, as he did in 1998, or face trial on all the allegations. 

In 1998, prosecutors charged Morgan with that crime as well as arson, multiple allegations that he was convicted of the Arkansas crimes and two convictions in Tennessee, for assault with intent to kill and assault to commit murder, both on separate dates in 1981, court records show. 

Because of changes to Arkansas law since Morgan's convictions in 1971, Gardner had to apply 1998 legal codes when describing those prior convictions, he said. 

The appellate court ruled those laws did not apply to Morgan's offenses. 

"Accordingly, we find there is a probability of a different outcome sufficient to undermine our confidence in the outcome of the plea bargain," their opinion reads. 
 

Reporter Kimberly Bolander can be reached at 225-8339 or at  [email protected] .
 

Friday, January 18, 2002