Kelley v. State, Case No. F-2018-12

Decision Date03 October 2019
Docket NumberCase No. F-2018-12
Parties Daniel Bryan KELLEY, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
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 Kelley v. State, Case No. F-2015-963 (unpublished) (Okl.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.3d 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 Kelley's exposure. He understood that resentencing was not in Kelley's best interest.4 Appellate counsel was aware that this Court was not bound by his request for relief and that it could remand Kelley's case for resentencing. He was also aware that the Court had recently rejected an appellant's request for sentence modification in an unrelated case and instead ordered resentencing.

¶7 We need not dwell on whether appellate counsel's representation was deficient in this case because Kelley cannot show the necessary prejudice to prevail.5 Kelley must show the outcome of his appeal would have been different had appellate counsel advised him of the possible adverse consequences of appealing his original conviction and sentence. In other words, Kelley must show either that he would not have raised his sentencing error claim or appealed at all. Kelley was unable to convince the district court that he would have forgone his sentencing error claim on direct appeal.

¶8 Appellate counsel wrote Kelley a letter the day after he received the Court's opinion, remanding Kelley's case for resentencing. (State's Exhibit 1) Appellate counsel informed Kelley, via the letter, that he had been granted partial relief because of the improper use of one of his prior convictions for sentence enhancement. Appellate counsel further informed Kelley that "either the judge or the jury will be able to sentence you within a range of ten to life." He pointed out the risk of resentencing, noting specifically "[a]s unfair as it sounds, you could get more than the twenty years that you already have been sentenced to." Shortly thereafter, Kelley spoke with appellate counsel by telephone. During this phone call, appellate counsel followed up on his letter and discussed the present posture of the case. He understood Kelley to approve, after the fact, of his decision to raise the sentencing error claim and to decline his offer to try to dismiss the appeal. Although appellate counsel proposed dismissing Kelley's successful appeal because of the risk of a longer sentence, Kelley said he wanted to proceed. The district court rejected Kelley's testimony disputing appellate counsel's recollection of his willingness to risk resentencing and dismissed appellate counsel's belief that he misunderstood Kelley's intentions about moving forward. The district court found the fact that Kelley wanted to move forward with resentencing, despite his exposure to a longer sentence, was proof he would have raised the sentencing error claim in his direct appeal even if appellate counsel had informed him of the risks of appeal.

¶9 The district court evaluated the credibility of the witnesses and the evidence supports its finding that Kelley would have accepted the risk of resentencing had he been advised of the possible adverse consequences of appealing. Based on the record before us, Kelley has not shown the required prejudice to prevail. For that reason, we deny Kelley's ineffective assistance of appellate counsel claim.

2. Jury Instruction

¶10 Kelley contends the district court abused its discretion by refusing his requested range of punishment jury instruction. Kelley asked the district court to instruct his...

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