LAVORCHEK v. STATE
443 P.3d 573
Okla. Crim. App.2019Background
- Jeremy D. Lavorchek was convicted by a jury in Garvin County for nine felonies arising from an armed robbery of Legacy Drug on March 5, 2016, including first-degree robbery, use of a firearm in commission of a felony, conspiracy, three counts of kidnapping, and three counts of assault with a dangerous weapon.
- Victims: three employees were threatened, assaulted, forced to perform tasks, bound with duct tape and electrical cord, and held in fear for nearly an hour while cash and controlled substances were taken.
- Appellant was observed discarding items linked to the crime; he testified and admitted involvement in planning but denied being one of the masked gunmen. He did not challenge sufficiency of the evidence on appeal.
- Jury recommended life sentences on all counts; the trial court sentenced accordingly, ordering Counts 2–9 concurrent with each other but consecutive to Count 1; 85% of Count 1 must be served before parole eligibility.
- On appeal, Lavorchek raised eight propositions: alleged double punishment (robbery vs. assaults, kidnappings, firearm-use), denial of Faretta self-representation, denial of continuance leading to ineffective assistance, improper consideration of aggravating evidence at sentencing, abuse of discretion in consecutive sentencing, and cumulative error.
- The Oklahoma Court of Criminal Appeals affirmed the convictions and sentences in a published summary opinion.
Issues
| Issue | Plaintiff's Argument (Lavorchek) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Double punishment — Robbery v. Assaults (and related claims vs. Kidnapping and Firearm-use) | Assaults and kidnappings were means to commit a single robbery; firearm-use is subsumed by robbery | Crimes were factually distinct acts against three victims over an extended course; statute permits additional penalty for firearm-use | Denied. Separate convictions allowed: distinct victim harms and legislative intent to punish firearm-use additionally. Plain-error review for some claims; none reversible. |
| Faretta/self-representation denial | Trial court refused his clear request to proceed pro se and to make closing argument | Court properly limited invocation because defendant delayed request, absented himself during trial, and sought to assert rights late | Denied. Court did not abuse discretion; defendant’s conduct and timing warranted denial. |
| Denial of continuance / ineffective assistance of counsel | Denial prevented counsel from effectively preparing, harming defense | No specific deficient acts or plausible alternative defenses shown; no prejudice under Strickland | Denied. Appellant failed to show deficient performance or prejudice. |
| Sentencing — consideration of aggravation and consecutive terms | Sentencing process improperly considered certain aggravating evidence and imposed excessive consecutive terms | Prosecutor’s memorandum and presentence info were admissible; court exercised discretion and largely ordered concurrent terms | Denied. Court properly considered relevant information and reduced exposure by grouping sentences; no abuse of discretion. |
Key Cases Cited
- Barnard v. State, 290 P.3d 759 (Okla. Crim. App. 2012) (double-punishment analysis focuses on legislative intent and relationship between offenses)
- Davis v. State, 993 P.2d 124 (Okla. Crim. App. 1999) (course-of-conduct and multiple-victim harms justify separate punishments)
- Davis v. State, 419 P.3d 271 (Okla. Crim. App. 2018) (similar principles on distinct offenses during a criminal episode)
- McElmurry v. State, 60 P.3d 4 (Okla. Crim. App. 2002) (permitting separate convictions where distinct harms occur)
- Williams v. State, 321 P.2d 990 (Okla. Crim. App. 1957) (multiple victims support separate punishments)
- Faretta v. California, 422 U.S. 806 (U.S. 1975) (right to self-representation is qualified and may be denied for abuse or untimely requests)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Malone v. State, 58 P.3d 208 (Okla. Crim. App. 2002) (distinguishes what evidence is proper for verdict-stage versus post-verdict sentencing)