Rainey v. State

• Citation: 755 P.2d 89,1988 OK CR 65
• Decision Date: 01 April 1988
• Docket Number: No. F-86-291,F-86-291
• Parties: Roger A. RAINEY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 89

755 P.2d 89

Roger A. RAINEY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-291.

Court of Criminal Appeals of Oklahoma.

April 1, 1988.

Rehearing Denied May 26, 1988.

An appeal from the District Court of Osage County; Don H. Hampton, District Judge.

Roger A. Rainey, appellant, was tried in the District Court of Osage County, in case no. CRF-83-115, for six (6) counts of obtaining merchandise by bogus check after former conviction of a felony and was convicted on five (5) of the six (6) counts. Punishment was set at ten (10) years imprisonment for each count to run consecutively. From these judgments and sentences, he appeals. AFFIRMED.

Anne M. Moore, Sp. Counsel Appellate, Public Defender's Office, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Wellon B. Poe, Jr., Legal Intern, Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Roger A. Rainey, was tried in the District Court of Osage County, in Case No. CRF-83-115, for six (6) counts of Obtaining Merchandise by Bogus Check After Former Conviction of a Felony and was convicted on five (5) of the six (6) counts. Punishment was set at ten (10) years imprisonment for each count to run consecutively.

In the summer of 1983, the appellant owned and operated a business in Hominy, Oklahoma, known as Roger Rainey Enterprises. He sold T-shirts, caps and sportswear, which he purchased from wholesalers and decorated with decals and other printing techniques after receiving orders from his customers. In June and July, 1983, the appellant purchased baseball caps from a wholesaler in Cape Girardeau, Missouri, Civic Supply Company, which were shipped by United Parcel Service (UPS) on cash on delivery terms. The five checks written by the appellant which were used to purchase the baseball caps, totalling some $8,800.00, were not paid by the appellant's bank because he had insufficient funds in his account to cover the checks. Civic Supply Company then contacted the Osage County District Attorney's Office which filed the charges that led to the appellant's conviction.

In his first assignment of error, the appellant alleges that because he was charged by information on September 6, 1983, and was not brought to trial until September 23, 1985, that he was denied his constitutional right to a speedy trial. In determining whether a defendant has been deprived of such a right, this Court has adopted the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Among the factors to be considered are the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant arising out of the delay. However, while these are not absolute factors, each must be balanced with other relevant circumstances in reaching a decision. Simpson v. State, 642 P.2d 272 (Okl.Cr.1982).

Applying the criteria of Barker to the facts of this case, the lapse of time between the filing of the information to the day of the appellant's trial was two years and three weeks. In determining the reason for such a delay, we initially note that the record is incomplete concerning who suggested the numerous continuances and the reasons for each. It is apparant that on September 16, 1983, that the appellant himself sought a continuance before his preliminary hearing while he attempted to secure counsel. He ultimately retained Steven Lowery as his counsel to represent him, preliminary hearings were conducted and the appellant was bound over for trial, set in April, 1984. In March of 1984, Mr. Lowery filed his first motion to withdraw as attorney of record which was denied. In April of 1984, the appellant was arraigned on the charges now on appeal and his prior 1983 suspended sentences for five (5) counts of Obtaining Merchandise by Bogus Check, in Case No. CRF-83-33, were revoked in part. He had originally received a three year suspended sentence on each count to run concurrently. The court ordered the appellant to serve one year in prison and suspended his sentences the next two years on the three-year sentences on each count that had been ordered to run concurrently. The reason for the partial revocation was the appellant's failure to make restitution as agreed.

Mr. Lowery represented the appellant at the arraignment and revocation hearing. From April, 1984, until October, 1984, numerous requests for continuances were granted the appellant. In November, 1984, Mr. Lowery filed his second motion to withdraw as attorney of record which resulted in a misunderstanding as to whether his motion was denied at that time. It was Mr. Lowery's understanding that his motion was overruled at that time until the appellant could appear with new counsel. Upon checking with the Court Clerk's Office at a later date, Mr. Lowery was of the opinion that Gene Seigel had taken the case; therefore, he believed he was released from his obligation.

However, in February, 1985, neither the appellant nor...