857 P.2d 802 (Okla.Crim.App. 1993), 92-1001, Grasso v. State

Docket Nº:C 92-1001.
Citation:857 P.2d 802
Party Name:Thomas Joseph GRASSO, Petitioner, v. The STATE of Oklahoma, Respondent.
Case Date:July 15, 1993
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 802

857 P.2d 802 (Okla.Crim.App. 1993)

Thomas Joseph GRASSO, Petitioner,

v.

The STATE of Oklahoma, Respondent.

No. C 92-1001.

Court of Criminal Appeals of Oklahoma.

July 15, 1993.

Page 803

An Appeal from the District Court of Tulsa County; Clifford Hopper, District Judge.

Thomas Grasso, petitioner, entered pleas of guilty to the crimes of First Degree Burglary and First Degree Murder, in Case No. CF-91-3404, in the District Court of Tulsa County. Petitioner was sentenced to five hundred years imprisonment on the burglary conviction and was assessed the death penalty on the murder conviction. Petitioner's judgements and sentences are AFFIRMED.

Ron Wallace, David Iski, Asst. Public Defenders, Johnie O'Neal, Public Defender, Tulsa, for petitioner.

David Moss, Dist. Atty., Tulsa, Susan Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for respondent.

OPINION

LANE, Judge:

Petitioner in this case, Thomas Grasso, entered pleas of guilty to the crimes of First Degree Burglary, in violation of 21 O.S.1991, § 1431, and First Degree Murder, in violation of 21 O.S.1991, § 701.7, in the District Court of Tulsa County, Case No. CF-91-3404. Petitioner was sentenced to five hundred (500) years incarceration on

Page 804

the burglary conviction and was assessed the death penalty on the murder conviction.

Preliminary hearing was held in his case on September 4, 1992. Petitioner was at this time bound over for further proceedings. On September 11, 1992, defense counsel filed an application for determination of competency in the District Court. Following a hearing on this date, the trial court granted petitioner's application and ordered Dr. William Cooper, a licensed clinical psychologist with a Ph.D. in Clinical Psychology, to examine petitioner.

On September 28, 1992, before the trial court, the petitioner expressed a desire to waive trial and enter a plea of guilty. Before accepting petitioner's plea of guilty, a competency proceeding was held. Dr. William Cooper, testified he saw petitioner on two different occasions for about five hours. He concluded petitioner clearly understood the nature of the charges against him and clearly was capable of assisting his attorney in his defense. Dr. Cooper saw no indication petitioner was not competent at the time the offense was committed, nor did he find petitioner to be mentally ill requiring treatment. 1 Petitioner's attorney also stated he believed petitioner to be competent.

Petitioner provided a factual basis for his guilty pleas to the crimes of robbery and murder by stating that on December 24, 1990, he went to the home of Hilda Johnson, an eighty-seven year old woman, with the intent to rob her. He knocked on the door and when Ms. Johnson answered it, he pushed his way into the house. After he entered the house, he took an extension cord from the Christmas tree and used it to choke Ms. Johnson. He also hit her with an iron and a piece of wood from a plant. After he believed her to be dead, petitioner searched the house for money. He took a few dollars and some change and a television set which he later pawned for $125.00. To support the alleged former convictions, petitioner also stated he had been convicted, in the State of Florida, of the crimes of Unlawful Delivery of Marijuana, Burglary, Possession of Barbiturates, Aggravated Battery, Armed Robbery and Aggravated Battery.

After hearing the petitioner's recited factual basis, the trial court again apprised petitioner of his rights and stated petitioner was at that time allowed to withdraw all of his guilty pleas if he so desired. Being convinced petitioner was competent, fully advised of his constitutional rights, and that the petitioner had waived his right to a jury or non-jury trial and entered his pleas of guilt knowingly and voluntarily, the trial court accepted the pleas and found the petitioner guilty of the charges alleged.

At the beginning of the sentencing stage of the proceeding, petitioner advanced his intent to waive his right to have a jury determine punishment. This waiver was allowed only after the trial court determined, after inquiry of petitioner and his counsel, that it was knowingly and voluntarily made. With regard to sentencing, petitioner was specifically advised he could present evidence in mitigation. Petitioner's attorney stated petitioner did not wish to present any evidence in mitigation and this was confirmed upon further inquiry of petitioner. Over the objection of petitioner to the delay, the trial court passed the actual sentencing for two days after petitioner pled guilty, to allow him time to reconsider his decision and to withdraw his plea of guilty if he so desired.

Formal sentencing was scheduled for September 30, 1992. On this date the trial court found three of the four aggravating circumstances alleged had been proven beyond a reasonable doubt. Counsel for petitioner advised the trial court that petitioner, against counsel's advice, requested the

Page 805

death penalty be imposed. Defense counsel opined that petitioner was aware of the options, possibilities and the consequences of his actions. This was confirmed by the trial court upon questioning the petitioner. Thereupon, the trial court sentenced petitioner to five hundred years imprisonment on the robbery conviction and imposed the death penalty on the murder conviction. The trial court, again, asked petitioner if it was still his desire this punishment be carried out or whether he wanted to withdraw his pleas of guilty and have a jury trial, whereupon petitioner replied that he did not wish to withdraw his pleas.

The district court ordered petitioner's sentence of death be executed on December 4, 1992. A notice of execution date with an affidavit was filed by petitioner in this Court on October 21, 1992. 2 The notice asserted petitioner desired no appeal of his plea of guilty and sentence. On November 12, 1992, a motion to expedite sentence review, along with affidavits executed by petitioner's trial attorney and his appellate counsel, were filed in this Court. Petitioner asked he be allowed to waive any direct appeal by writ of certiorari and that this Court expedite its mandatory statutory review of the death sentence.

On November 23, 1992, this Court ordered petitioner's execution be stayed in order that a mandatory review of petitioner's sentence could be brought pursuant to 21 O.S.1991, § 701.13. In an order entered November 24, 1992, this Court denied petitioner's motion to expedite mandatory capital sentence review as the statutory period within which an appeal brief was due had not yet expired and no valid waiver of the right to submit such a brief had been filed in this Court.

On March 1, 1993, petitioner filed a Motion to Set Oral Argument concerning his death sentence and its propriety. This Court granted petitioner's motion to set oral argument and gave notice of oral argument to be held on April 20, 1993. In this order, we noted that the language in section 701.13 unquestionably requires a review be made by this Court whenever the death penalty is imposed. However, we also found that the language in 21 O.S.1991, § 701.13 and 22 O.S.1991, § 1051, clearly sets forth that the Legislature intended that a direct appeal may be waived. Section 1051, directs that, "[a]n appeal to the Court of Criminal Appeals may be taken by the defendant, as a matter of right from any judgment against him,...." Section 701.13(A) directs that "[w]henever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Oklahoma Court of Criminal Appeals...." Section 701.13(F) adds that, "[t]he sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration...." (emphasis added). We further noted the right of appeal is a privilege granted by the laws of the State to persons who are convicted of crime and the option of exercising the same, when in compliance with the statute and rules of the Court, ordinarily rests in the discretion of the party appealing. Edmondson v. State, 379 P.2d 866, 867 (Okl.Cr.1963). Accordingly, the parties were directed to file an oral argument statement addressing the following issues:

(1) whether Appellant is competent and has the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence;

(2) whether the evidence supports the judge's finding of a statutory aggravating

Page 806

circumstance as enumerated in Section 701.12 of Title 21; and

(3) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.

Petitioner's Oral Argument Statement was filed April 7, 1993. Petitioner also filed a request that he be allowed to attend oral argument as he was anxious that the Court have an opportunity to observe him so that any questions regarding his competency or wish for a speedy execution could be answered and to demonstrate that his attorney acted only at his wish and command. This Court granted petitioner's request to attend oral argument due to the unique nature of this proceeding and the facts of this case. Oral argument, with petitioner present, was held April 20, 1993.

DISCUSSION OF WAIVER ISSUE

As this Court has already determined, Oklahoma's capital statutory scheme does not mandate that a criminal defendant convicted of a capital offense take an appeal from the judgment rendered. Accordingly, the statutory right to a direct appeal of the judgment may be waived. However, when a defendant sentenced to death declines to exercise his or her statutory right to a direct appeal of the judgment, this Court will not allow such waiver absent evidence that the waiver was executed in a way which did not offend Oklahoma or Federal Constitutional...

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