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Kelley v. State

Court of Criminal Appeals of Oklahoma

October 3, 2019

DANIEL BRYAN KELLEY, Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          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 Kelley v. State, Case No. F-2015-963 (unpublished) (Okl.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 ...


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