Levering v. State
2013 OK CR 19
| Okla. Crim. App. | 2013Background
- Thomas C. Levering was convicted by a jury of multiple sex-related offenses (assault with intent to commit a felony, kidnapping, and four counts of second-degree rape by instrumentation) and, after the jury recommended life on each count, the trial court imposed consecutive life sentences.
- At the first stage, the State introduced propensity evidence (testimony from S.E.) about prior sexual assaults by Levering dating to 1979; those acts led to multiple prior convictions from several case numbers.
- During the second (penalty) stage, the State sought to use six prior felony convictions to enhance punishment; three of those convictions arose from a series of offenses against a single victim on the same day (transactional priors).
- Levering did not object to using all six priors at trial; on appeal he argued (among other claims) that transactional priors cannot be double-counted for enhancement and that trial counsel was ineffective for failing to object.
- The Court found no reversible error in the guilt stage (propensity evidence admission), but concluded the trial court erred in admitting all six priors for enhancement and that counsel’s failure to object was professionally unreasonable and prejudicial; the case was remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of transactional priors to enhance punishment | State: all prior convictions properly before jury for sentencing | Levering: priors arising from same transaction/series should count as one under 21 O.S. §51.1(B) | Court: admitting all six priors was error; transactional priors should be treated as one for enhancement; remand for resentencing |
| Ineffective assistance for failing to object to transactional priors | Levering: counsel’s failure to object was deficient and prejudicial | State: no contemporaneous objection at trial; plain error review applies | Court: counsel’s failure was professionally unreasonable and prejudiced defendant; evidentiary hearing supported relief; remand for resentencing |
| Admission of propensity evidence (first stage) | State: evidence of prior sexual acts (S.E.) relevant to propensity and admissible under Horn/James | Levering: propensity evidence prejudicial, more probative of bad character than relevant | Court: admission was proper; limiting instructions were given; no abuse of discretion |
| Jury instruction re: interaction of propensity evidence and priors for sentencing | Levering: jury not instructed how to reconcile propensity evidence with transactional-prior counting | State: jury was instructed on prior-conviction burden and sentencing range | Held: second-stage instructions were insufficient about how to treat propensity evidence as one prior for enhancement; Court provided suggested instruction and ordered resentencing |
Key Cases Cited
- Horn v. State, 204 P.3d 777 (Okla. Crim. App. 2009) (permits propensity evidence of prior sexual acts in first stage)
- James v. State, 152 P.3d 255 (Okla. Crim. App. 2007) (propensity evidence principles for sexual-offense cases)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective-assistance standard: deficient performance and prejudice)
- Hogan v. State, 139 P.3d 907 (Okla. Crim. App. 2006) (plain error review standard)
- Neloms v. State, 274 P.3d 161 (Okla. Crim. App. 2012) (application of propensity-evidence admissibility principles)