AN
APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE
SHARON K. HOLMES, DISTRICT JUDGE
REBECCA NEWMAN STUART SOUTHERLAND ASSISTANT PUBLIC DEFENDERS
COUNSEL FOR DEFENDANT
NICOLE
DAWN HERRON TULSA COUNTY PUBLIC DEFENDER'S OFFICE COUNSEL
FOR APPELLANT
KENNETH ELMORE KEVIN KELLER ASST. DISTRICT ATTORNEYS COUNSEL
FOR STATE
MIKE
HUNTER ATTORNEY GENERAL OF OKLAHOMA THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL COUNSEL FOR APPELLEE
OPINION
ROWLAND, JUDGE
¶1
Before the Court is Appellant Daniel Bryan Kelley's
direct appeal following his resentencing trial in the
District Court of Tulsa County, Case No. CF-2015-694. Kelley
was convicted in his original jury trial of First Degree Rape
by Instrumentation, After Former Conviction of Two Felonies,
in violation of 21 O.S.2011, §§ 1111.1 and 1114(A)
(Count 1) and misdemeanor Assault and Battery, in violation
of 21 O.S.Supp.2014, § 644 (Count 3). The district court
imposed the jury's verdict and sentenced Kelley to twenty
years imprisonment and a $5, 000.00 fine on Count 1 and
ninety days in the county jail on Count 3, with the sentences
running concurrently. Kelley appealed. This Court affirmed
Kelley's convictions on both counts and his sentence on
Count 3, but remanded the case for resentencing on Count 1
because of the erroneous admission of a prior out-of-state
conviction for sentence enhancement. Kelley v.
State, Case No. F-2015-963 (unpublished) (Okl. Cr. July
13, 2017). The prosecution thereafter filed a motion for jury
sentencing. The Honorable Sharon K. Holmes, District Judge,
presided over Kelley's resentencing trial and sentenced
him, in accordance with the resentencing jury's verdict,
to life imprisonment. [1] This appeal followed and Kelley raises
four issues:
(1) whether he received effective assistance of appellate
counsel on direct appeal in Case No. F-2015-963;
(2) whether the district court erred in instructing the jury
on the range of punishment;
(3) whether the district court erred in following the mandate
of this Court and not allowing him to reject the relief
granted by this Court; and
(4) whether his sentence is excessive.
¶2
We find relief is not required and affirm the Judgment and
Sentence of the district court. [2]
1.
Ineffective Assistance of Counsel
¶3
Kelley contends he is entitled to relief because of
ineffective assistance of appellate counsel. Kelley faults
appellate counsel in his original direct appeal for failing
to advise him of the potential adverse consequences of
successfully appealing his conviction and sentence, namely
the risk of a longer sentence. According to Kelley, appellate
counsel failed to adequately advise him that he could receive
a life sentence if he successfully appealed his twenty-year
sentence, otherwise he would not have pursued his sentencing
error claim that resulted in resentencing. Kelley maintains
that he was under the impression that this Court would honor
appellate counsel's request for sentence modification if
the Court found merit in his claim. He claims he was
prejudiced because he received the maximum punishment at his
resentencing trial. This Court granted Kelley's
Application for Evidentiary Hearing and Supplementation of
Record to investigate his claim. Rule 3.11(B)(3)(b)(ii),
Rules of the Oklahoma Court of Criminal Appeals,
Title 22, Ch. 18, App. (2019). The district court found that
Kelley failed to prove appellate counsel was ineffective.
¶4
This Court reviews claims of ineffective assistance of
appellate counsel to determine: (1) whether counsel's
performance was objectively unreasonable; and (2) whether
counsel's performance resulted in prejudice and deprived
the appellant of a fair proceeding with reliable results.
Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Logan v.
State, 2013 OK CR 2, ¶ 5, 293 P.3d 969, 973. We
indulge a strong presumption that counsel's
representation was within the wide range of reasonable
professional assistance. Logan, 2013 OK CR 2, ¶
5, 293 P.2d at 973. The burden is on Kelley to affirmatively
prove prejudice resulting from his appellate attorney's
actions. Strickland, 466 U.S. at 693, 104 S.Ct. at
2067. He must show that there is a reasonable probability
that, but for counsel's unprofessional error, the result
of his appeal would have been different. Id. at 694,
104 S.Ct. at 2068. This Court need not determine whether
counsel's performance was deficient if there is no
showing of harm. See Logan, 2013 OK CR 2,
¶ 7, 293 P.3d at 974. Where an evidentiary hearing has
been held, this Court gives strong deference to the findings
of fact and conclusions of law of the district court, but we
decide the ultimate issue concerning whether counsel was
ineffective. Rule 3.11(B)(3)(b)(iv), Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch. 18,
App. (2019).
¶5
The district court found appellate counsel's failure to
advise Kelley either that the Court could elect a different
remedy than that requested in the appellate brief, or that
resentencing could result in a sentence greater than that
originally imposed, did not fall below the objective standard
of reasonableness imposed by the Sixth Amendment. The
district court further found that Kelley failed to show the
necessary prejudice because its review of the evidence showed
Kelley would have accepted the risk of a longer sentence and
would have elected to submit his sentencing error claim on
appeal even had he been warned of the possibility of
receiving a longer sentence.
¶6
The record reveals the district court advised Kelley of his
right to appeal at formal sentencing of his original trial
and Kelley elected to exercise his right. Appellate counsel
raised seven propositions of error. Six of the claims, if
meritorious, would have resulted in a complete retrial,
exposing Kelley, barring acquittal, to a life sentence and
the risk a second jury would not be as lenient as his first.
The remaining claim alleged an error related to sentencing
only. Had appellate counsel not also included the meritorious
sentencing issue, a successful appeal would have left Kelley
facing a minimum sentence on retrial of twenty years
imprisonment instead of ten years imprisonment. Raising the
sentencing error was therefore Kelley's only chance of
facing a lesser range of punishment if his case was reversed
and remanded based on one of the other errors alleged. On
appeal, this Court found merit in the sentencing error claim
only and opted to remand Kelley's case for resentencing,
his request for sentence modification notwithstanding.
Faulting appellate counsel for raising a meritorious issue is
certainly unusual. [3] The record of the evidentiary hearing,
however, uncovered that Kelley was neither advised of the
claims raised on his behalf nor of the possible consequences
of victory on any claim. Appellate counsel, by his own
admission, thought the sentencing error claim was a winner
and he considered the possibility of prevailing on the
sentencing error claim only, structuring his prayer for
relief accordingly to minimize ...