Appellant: Jerri Darlene Stevens
Appellee: State of Oklahoma
( A. Johnson )
SUMMARY OPINION
Appellant Jerri Darlene Stevens was tried by jury and convicted in the District Court of Pottawatomie County, Case No. CF-2009-295B, of Burglary in the Second Degree, in violation of 21 O.S. 1435 (2001)(Count 1) and Knowingly Concealing Stolen Property, in violation of 21 O.S. 1713 (2003) (Count 2), each after former conviction of three felonies. The jury fixed punishment at twenty years imprisonment on each count. The Honorable Douglas L. Combs, who presided at trial, sentenced Stevens accordingly and ordered the sentences to be served consecutively.
From this Judgment and Sentence Stevens appeals, raising the following issues:
(1) whether convictions for both burglary in the second degree and knowingly concealing stolen property violate her protection against double punishment;
(2) whether the sentences are excessive;
(3) whether she was denied the effective assistance of counsel;
(4) whether she was denied a full and complete record; and
(5) whether cumulative error deprived her of a fair trial. Stevens also submits an Application for Evidentiary Hearing on Sixth and Fourteenth Amendment Claims.
We find reversal is not required and affirm the Judgment and Sentence of the District Court.
1. Multiple Punishment
Stevens' convictions for Burglary in the Second Degree and Knowingly Concealing Stolen Property do not violate 21 O.S. 11 (2011) ( double jeopardy ) and the prohibition against multiple punishment because the acts are separate and distinct. Head v. State, 2006 OK CR 44, 11, 146 P.3d 1141, 1144; see also Davis v. State, 1999 OK CR 48, 13, 993 P.2d 124, 126.
2. Excessive Sentence
We reject Stevens' claim that her sentences are excessive. Her sentences are within the range of punishment provided by law and the sentences do not shock our conscience given the facts and circumstances of this case. Gomez v. State, 2007 OK CR 33, 18, 168 P.3d 1139, 1146; Rea v. State, 2001 OK CR 28, 5, n.3, 34 P.3d 148, 149 n.3. The other claims raised within this proposition are waived for failure to comply with Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012). Even if we considered these sub-claims properly presented, no relief is required.1
3. Ineffective Assistance of Counsel
Stevens' claim of ineffective assistance of counsel is rejected because she can show neither that trial counsel was ineffective at trial or in his investigation nor that there is a reasonable probability that the outcome of her trial would have been different had trial counsel handled the case differently.2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ball v. State, 2007 OK CR 42, 59, 173 P.3d 81, 95; Head v. State, 2006 OK CR 44, 23, 146 P.3d 1141, 1148; Davis v. State, 2005 OK CR 21, 7, 123 P.3d 243, 246. Having reviewed Stevens' Request for an Evidentiary Hearing and the materials offered to support that request, we find that she has failed to show by clear and convincing evidence that there is a strong possibility trial counsel was ineffective for failing to investigate and use available evidence at trial. Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012). Stevens is not entitled to an evidentiary hearing to further develop her ineffective assistance of counsel allegations. Her motion is DENIED. See Simpson v. State, 2010 OK CR 6, 53, 230 P.3d 888, 905-906, cert. denied, -- U.S. --, 131 S.Ct. 1009, 178 L.Ed.2d 838 (2011).
4. Incomplete Record
Stevens is not being denied meaningful review on appeal because bench conferences were not recorded. See Black v. State, 2001 OK CR 5, ¶86, 21 P.3d 1047, 1075; Parker v. State, 1994 OK CR 56, 23-27, 887 P.2d 290, 294 - 295. Nor has she shown that counsel was ineffective for waiving the recording of jury selection. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064; Head, 2006 OK CR 44, 23, 146 P.3d at 1148.
5. Cumulative Error
Cumulative error did not deprive Stevens of a fair trial. DeRosa v. State, 2004 OK CR 19, 100, 89 P.3d 1124, 1157.
DECISION
The Judgment and Sentence of the District Court is AFFIRMED. Stevens' request for an evidentiary hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY THE HONORABLE DOUGLAS L. COMBS, DISTRICT JUDGE
OPINION BY: A. JOHNSON, P.J.
LEWIS, V.P.J.: Concur in Results
LUMPKIN, J.: Concur in Results
C. JOHNSON, J.: Concur in Part and Dissent in Part
SMITH, J.: Concur
(FOOTNOTES):
1 The claims include that the jury was incorrectly instructed on the range of punishment for knowingly concealing stolen property, that trial counsel was ineffective for failing to object to the erroneous instruction on the range of punishment, that the district court abused its discretion in running her sentences consecutively, and the inability to present mitigating evidence during trial deprived her of equal protection.
The State concedes that the jury was improperly instructed that the range of punishment for knowingly concealing stolen property was six years to life when the actual range was four years to life. Appellee's Brief at 13. Under plain error review, we reverse only if we conclude that the error was not harmless or that the error constitutes a miscarriage of justice or a substantial violation of a constitutional or statutory right. McIntosh v. State, 2010 OK CR 17, 10, 237 P.3d 800, 803 (erroneous instruction providing the incorrect minimum sentence was not harmless when jury imposed the minimum sentence for the range it was given); see also Logsdon v. State, 2010 OK CR 7, 26, 231 P.3d 1156, 1166 ("reversal is not warranted for plain error if the error was harmless"); Andrew v. State, 2007 OK CR 23, 112, 164 P.3d 176, 199-200 ("this Court will not reverse on instructional error unless the error resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right"); 20 O.S. 3001.1 (2001) ("[n]o judgment shall be set aside . . . unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right").
The jury's verdict in Stevens' case shows that the jury was not considering the minimum sentence and the difference of two years in the minimum sentence provided in the instruction and the actual statutory sentence had no effect on the verdict and was harmless.
Stevens cannot prove prejudice (a reasonable probability that the outcome would have been different) from trial counsel's failure to object to the incorrect range of punishment instruction for knowingly concealing stolen property. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Head v. State, 2006 OK CR 44, 23, 146 P.3d 1141, 1148.
Stevens contends that the district court abused its discretion in running her two 20-year sentences consecutively in light of the questions asked by the jury during deliberations that suggested a preference for concurrent sentences and the fact that the prosecutor asked the jury to impose 20 years. The record shows the prosecutor asked the jury to impose "no less than 20 years" and "at least 20 years." Stevens cannot show an abuse of discretion on this record.
Stevens also asks this Court to reconsider its decision in Malone v. State, 2002 OK CR 34, 58 P.3d 208, holding that a defendant has no right to present mitigating evidence in a non-capital sentencing proceeding before a jury. The Court has been unwilling to alter its position or reconsider its decision in Malone and has consistently rejected the constitutional claim raised by Stevens. See McGee v. State, 2006 OK CR 30, 4, 127 P.3d 1147, 1149.
2 Stevens claims that trial counsel was ineffective for failing to ensure the preparation of a complete record including the recording of bench conferences, for waiving the transcription of voir dire, for failing to present mitigating evidence to the jury and court and for failing to make a sentence request or argue for concurrent sentences.