Bryan v. State

1230 COURT OF THIS

FINDINGS BRYAN, Petitioner, Leroy DISCIPLINE AND Robert behavior, ¶ Respondent’s 13 Given private with him that a Oklahoma, Respondent.

we cannot The STATE of satisfy goals reprimand is sufficient No. PC-96-884. regard discipline. agree with the PRT We Respondent I violated ing and find the Count Appeals Criminal of Oklahoma. Court of of Professional 1.3 1.4 of the Rules 30, 1997. Oct. facts this Based on the before Conduct. Court, ninety-day suspension to be As Nov. Corrected we find his hav discipline light in disciplined. Ac twice suspended from the cordingly, Respondent is ninety days period for a

practice of law day opinion final.

begin this becomes on disciplin in proceedings of the this costs

ary the amount of action $413.63 ninety days Respondent

paid by the within day opinion final.

from the becomes SUSPENDED FROM

RESPONDENT FOR NINETY

THE PRACTICE OF LAW AND TO PAY COSTS.

DAYS ORDERED

¶ KAUGER, HODGES, C.J., 14

LAVENDER, and ALMA SIMMS

WILSON, JJ., concur.

¶ V.C.J., SUMMERS, part concurs part.

and dissents

¶ JJ., WATT, OPALA and dissent.

¶ OPALA, Justice, dissenting. longer impose respondent on this my

period suspension. For views about be im- proper discipline quantum offenders,

posed repeat see State ex bar Holden, Bar

rel. Oklahoma Ass’n. J., (Opala, dissent-

OK

ing); rel. Bar Ass’n. State ex Oklahoma (Opalo,

Wolfe, 1996 OK

J., dissenting).

Benjamin MeCullar, Randy Law Firm of Parsons, Shawnee, petitioner C. ap- peal.

ORDER DENYING APPLICATION FOR POST-CONVICTION RELIEF AND APPLICATION FOR EVIDENTIARY HEARING CHAPEL, Presiding Judge: Leroy Bryan Robert by jury was tried before the Honorable Charles L. Goodwin the District County. Court of Beckham Case No. CF-93-61 he was convicted of Degree Aforethought First Malice Murder in O.S.1991, § violation of 21 701.7. At the con- trial, jury clusion of the first re- guilty. During turned verdict of sentenc- an issue which was raised consider was jury found mg, the judica- felony involving the use or and is therefore barred aof convicted person; ta,7 which has to the we consider an issue of violence nor will threat been, probability it could have but there was been waived because of violence that would acts not, commit criminal raised on direct society. threat continuing a constitute assistance of trial Bryan claims ineffective mur- to death for the Bryan was sentenced I, II, Propositions appellate counsel Bryan appealed judg- conviction. der III, of ineffective assistance and VI. Claims and we to this Court ments and sentences post-conviction re- of trial counsel peti- Bryan’s This denied affirmed.1 Court appeal record.9 quire fact-finding outside the rehearing. The States Su- for United tion Bryan provided the with affidavits has Court Bryan’s yet ruled on preme has not Court I, Propositions II support his claims 7, certiorari, September petition filed for supports a Nothing in the affidavits III. 1997.2 of ineffective assis- finding that these claims 1997, 1, Bryan July filed On the direct require fact-finding outside Post-Conviction Relief direct Application for assis- appeal record. A claim of ineffective post- ly Under Oklahoma’s with this Court.3 properly counsel is before tance of statutes, that can only the issues conviction allegations if that the us if the Court finds which: post-conviction are those raised in be true, the ineffectiveness were “(1) not have been and could [w]ere constitute the denial appellate counsel would (2) [s]upport a appeal; and in a direct raised appel- reasonably competent assistance of of the trial that the outcome conclusion either prevailing professional counsel under late the errors but for been different have Using procedural a norms.10 three-tiered 4 factually innocent.” or that the defendant scheme, peti- first whether a we determine “(1) review, must determine: this Court On was has established counsel’s conduct tioner controverted, previously unresolved whether professional prevailing deficient under legality of the material to the factual issues If determine we will consider norms.11 we so exist; whether applicant’s confinement allegedly claim mishandled the substantive were or could have applicant's grounds by appellate if that claim is other- raised; re whether post-conviction review.12 wise may granted....”5 The Post-Con lief Bryan offers pro Act is not intended viction Procedure (Mrs. Bryan mother Lucille will not affidavits This Court vide second State, (1994); 1997). State, (Okl.Cr. 606 v. 856 P.2d Bryan L.Ed.2d Mann 935 P.2d 338 1. v. denied, 992, (Okl.Cr. 1993), U.S. cert. 511 993 Oklahoma, Bryan 1869, (1994); No. 97-5866. 1100, S.Ct. 128 L.Ed.2d 490 114 State, 1002, (Okl.Cr.), 1005 Walker v. 826 P.2d O.S.Supp.1996, provides § 1089 that an 3. 22 898, 280, denied, S.Ct. 121 cert. 506 U.S. 113 original application for relief (1992). 207 L.Ed.2d Court rather than the shall be filed with this case was tried. The District Court in which the Moore, 1089(C); O.S.Supp.1996, § 22 889 P.2d procedures capital post-conviction do not revised 1056-57; 1255-56; Fowler, 873 P.2d at John original respond require State State, 370, (Okl.Cr.1991), 372 son v. 823 P.2d response Application, State was filed. and no 1984, denied, 926, 112 S.Ct. 118 cert. 504 U.S. (1992). 582 L.Ed.2d 1089(C). § O.S.Supp.1996, 4. 22 1089(D)(4)(a). 1089(D)(4)(b)(l). O.S.Supp.1996, O.S.Supp.1996, § § 5. 22 22 State, 566, (Okl.Cr. 896 P.2d 569 Fowler 1089(D)(4)(b)(2). O.S.Supp.1996, § 10. 22 383, State, (Okl.Cr. 1995); P.2d 384 Fox v. 880 1005, denied, 1994), 514 U.S. 115 S.Ct. cert. State, 327, (Okl.Cr.), 933 P.2d 333 11. Walker 1318, 131 L.Ed.2d 199 2524, denied, -, S.Ct. 138 cert. -U.S. 117 1024(1997). L.Ed.2d State, 1089(C); O.S.Supp.1996, § 7. 22 Moore v. - denied, (Okl.Cr.), cert. 1255 (Okl.Cr.), (1995); U.S.-, 349 12. Mitchell v. 934 133 L.Ed.2d 146 denied, -, (Okl.Cr.), -U.S. S.Ct. 138 cert. Fowler v. (1997); denied, P.2d at 333. S.Ct. L.Ed.2d cert. Bryan) Investigator Stringer subjected Jack State’s case was not to adver- trial, support his testing along claim that counsel created sarial with affidavits by allowing party conflict interest a third from his attorneys sister and civil whom presentation mitigating Bryan evi- to direct consulted on other matters. He ar- gues Bryan’s in the second of trial. Mrs. dence Mrs. affidavit contains state- Bryan appel- constituting avers that she failed to talk ments new evidence which estab- late counsel because she did not it believe lished that trial and counsel were important. Stringer that Mrs. failing was avers ineffective in to investigate alibi personal told him she had knowl- exculpatory little other allegation evidence. The edge Bryan’s of the case or whereabouts that trial effectively ques- counsel failed to during period, the relevant time “of tion investigate and was Mrs. or does not re- help” answering little questions quire fact-finding about the outside the direct record, help- Bryan’s case. or not Whether Mrs. claim of ineffective assis- appellate with ful interviews counsel is not of Appellate trial counsel is barred. however, dispositive, allegations issues, because the counsel failed to raise these so the Bryan’s certainly However, prong Mrs. affidavit were first of Walker is met. any Bryan known to trial counsel. Absent present indica- does not facts showing why ineffective; tion that trial counsel was unavailable this failure is nor does he estab- consultation, we must conclude these facts lish any that counsel breached duties owed him, by appellate judgment could have been obtained coun- or that counsel’s was unrea- acting diligence.13 sel with reasonable On sonable or under the circumstances did not us, professional the record before these facts were avail- fall range within the wide of Bryan’s Instead, appellate Bryan able to counsel thus and assistance.17 attacks this Walker, could have been in his used direct Court’s decision in suggesting the Bryan’s claim of ineffective assistance of trial Court return to the Strickland18 standard by is Appellate counsel barred waiver. coun- for ineffective assistance of counsel in the issue, prong sel failed to raise the first so the context of of appellate ineffective assistance However, Bryan pres- of Walker is satisfied. in capital post-conviction counsel cases. We showing ents no facts counsel’s failure to must this decline invitation as we are bound by raise the issue amounted to language capital post- ineffective assis- the clear of the times, many tance.15 As this Court has said conviction As statute. has failed to conclusory allegation appellate that counsel failed show counsel’s in- effective, arguably to raise meritorious claim will his substantive claim remains ever, alone, rarely, standing if support Proposition a find- The II claim of ineffec- barred. barred, performance.16 Bryan of deficient has tive assistance of trial counsel is and appellate not appellate established counsel was ineffec- the claim of ineffective of assistance counsel, failing tive in proposition, raise the issue of conflict of this are denied. interest, so the substantive claim remains presents affidavits from mental barred and is not on its reviewed merits. experts support Proposition health III Proposition I claim of ineffective assis- a) claim that trial counsel failed reason barred, tance of trial is counsel and the claim ably investigate, prepare, present rele appellate of ineffective assistance of b) evidence, mitigating appel vant and that proposition, and the are denied. effectively present late counsel failed this Bryan’s proposition also offers Mrs. affida appeal. The claim of support Proposition vit to II claim that ineffective assistance of trial not counsel does State, (Okl.Cr. 13. Robinson v. 937 P.2d 16. 933 P.2d at 336. State, 1997); LaFevers 934 P.2d 358 n. (Okl.Cr. 1997). LaFevers, 934 P.2d (Okl.Cr. 14. Hooker v. Washington, Strickland 1997); (Okl. Cannon 2052, 2064, Cr.1997). 80 L.Ed.2d Hooker, 355; Mitchell, 934 P.2d at 350-51. However, prohib- nothing in the constitution appeal fact-finding outside direct require respecting indeed, enacting from laws final- record; its states the affidavits indicate ity judgment. of Oklahoma has enacted aware of these witnesses. trial counsel was pre- statute which honors raised the issue on Appellate counsel finality judg- legal principle serves prong of first the Walker appeal. Thus the bars, ment,19by applying procedural in order met, claim is and this barred. test is not are final to ensure convictions after Bryan’s ineffective assistance claims of process. proce- appellate barred, full fair State trial and counsel may preclude dural bars consideration oth- proposition this denied. cognizable constitutional claims.20 erwise Proposition Bryan claims tri In VI bypass the order to We will not statute in ineffective for al and counsel were constitutionally-based claims consider federal challenge the instruction on failing to Court’s by procedural default. barred parole. sentencing of life without option Bryan asks this Court to IV assistance The claim of ineffective upholding reconsider its decision “con- fact-finding require outside counsel does tinuing aggravating threat” circumstance Appellate counsel the direct record. Bryan argues that appeal. his direct this issue, prong first failed raise judicata because request is not barred However, Bryan fails to is met. Walker holding the Tenth in United States Circuit’s why present any showing facts this omission intervening an McCullah21 constitutes beyond ar constituted deficient recently change in the law. held We McCul- the guing substantive merits of claim. the intervening change an in the law lah is not to a claim will not consti Mere failure raise purposes capital post- for the of the amended performance. has not tute deficient is proposition This de- conviction statute.22 performance was ineffective shown counsel’s nied. claim remains the barred. and substantive Proposition claim of ineffective assis The VI Proposition Bryan urges In V barred, of is the claim trial counsel adopt to American Bar Court the Association counsel, appellate of ineffective assistance of recommendation of a moratorium on execu proposition, and this denied. proposition properly is not tions. This raised post-conviction the statute and we do under I, II, III Propositions In and VI not consider it. attempts application of Okla to avoid by post-conviction rais homa’s statute Bryan requests VII constitutionally- ing “free-standing federal hearing evidentiary regarding an issues of error, asserting based claim” of ineffective appellate of effective assistance counsel appellate counsel un assistance of trial and that, by argues raised He the Walker. Sixth, Eighth the der Fourteenth any post-conviction may claims extent of Amendments the United States Constitu procedurally appellate barred due to coun jurisdiction claim, tion. This Court has to consider sel’s failure to raise the the Court and, indeed, all must consider constitutional grant evidentiary hearing him on should Bryan certainly (1) ly-based claims of error. adequacy the of the of issues right has a constitutional to effective assis investigation; adequacy counsel’s the of tance of counsel. Oklahoma law allows Indigent System Defense re the Oklahoma Bryan to of assistance appellate investigation raise claims ineffective the sources for appeal stage, appeal; of trial counsel at the direct the extent time his direct procedures and certain claims of ineffective assistance which this Court’s rules and (a) counsel, apprised regarding appeal as time well as claims the direct appeal post-conviction. investigate on counsel that he had direct denied, (10th Cir.1996), cert. 933 P.2d at 331. F.3d -, 1699, 137 L.Ed.2d 825 U.S. S.Ct. (1997). Thompson, 501 U.S. 20. Coleman (1991); Wainwright S.Ct. 115 L.Ed.2d 640 (Okl.Cr. Sykes, 22. Scott v. 760-61 53 L.Ed.2d 1997). procedural in the those claims order avoid same fact-based claim over and over dur- (b) bar, present allowed counsel to appellate process. proposition investigation during of such direct results appeal error on direct was ineffective assis- appeal proceedings. Essentially, Bryan proposition tance of trial counsel. That evidentiary hearing wants an to determine adjudicated. attempting What Petitioner is procedural change the effects on his case of a parse single proposition to do is of error in the law. This is not an issue sub-parts, part into alleged to be evidentiary hearing.23 request for an This part post-conviction. on Howev- denied. er, O.S.Supp.1996, 1089(C)(1), § provides, carefully Bryan’s appli- We have reviewed only may issues that “[t]he be raised in an post-conviction cations for relief and an evi- application post-conviction relief are dentiary hearing, and find is not those that: 1. Were not and could have Application entitled to relief. The for Post- _” appeal; raised a direct Ab- Application Conviction Relief and for an Evi- qualification sent evidentiary hearing for an dentiary Hearing are DENIED. 9.7(D)(1), under Rule the Court STRUBHAR, V.P.J., JOHNSON, J., Appeals, Criminal Title App. Ch. concur. (1996), proposition of error should not be LANE, JJ., addressed on the merits. LUMPKIN and concur in results. Third, opinion states the claim set

LUMPKIN, Judge, concurring proposition results: forth in III “was raised appeal,” then concludes the claim is “barred.” Petitioner’s relief It does not delineate between waiver and res separately should be denied. I write to ad- points. judicata. dress two I assume claim is barred judicata. First, as to Petitioner’s claim this Court three-pronged should abandon its test for Accordingly, I concur in result. ineffective counsel set forth Walker v. (Okl.Cr.1997): I test, this Court should abandon for Id., previously given. reasons Results). J., (Lumpkin, Concurring 341-44 1997 OK CIV APP 66 Second, agree the ineffective trial counsel RAY, Plaintiff/Appellant, Donna I, in propositions claims II III underlying barred. The facts which form the

basis his claim of ineffective counsel on The AMERICAN NATIONAL BANK & (not presenting in evidence of SAPULPA, TRUST COMPANY OF sanity presenting the first and not Oklahoma, Representative as Personal mitigation evidence mental illness as in the Young, of the Estate of De- Glenn O. stage, second see ceased, Defendant/Appellee. (Okl.Cr.1997)) 338, 362-63 are the same un No. 86794. derlying facts which formed the basis for his post-con claim of ineffective counsel in this application.

viction The issue of ineffective Oklahoma, Appeals counsel based on these facts should be res Court of Civil (ineffective counsel) judicata, as that claim No. Division underlying based on that set of facts has March adjudicated. Rehearing May Denied However, equally appellant it is true an duty has the to raise all claims which have as Certiorari Denied Oct. underlying basis the same set of facts. operate

Failure to do so as should waiver.

To petitioner do otherwise would allow a

repeatedly essentially raise what would 9.7(D)(5), Appeals, O.S.Supp.1996, App.

23. Rule the Court Criminal Ch.

Case Details

Case Name: Bryan v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Nov 20, 1997

Citation: 948 P.2d 1230

Docket Number: PC-96-884

Court Abbreviation: Okla. Crim. App.