Smith v. State

• Decision Date: 11 July 1994
• Docket Number: No. PC-94-191,PC-94-191
• Citation: 878 P.2d 375
• Parties: Phillip DeWitt SMITH, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 375

878 P.2d 375

Phillip DeWitt SMITH, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-94-191.

Court of Criminal Appeals of Oklahoma.

July 11, 1994.

An appeal from the District Court of Muskogee County; Thomas H. Alford, Associate District Judge.

Randy A. Bauman, Vicki Ruth Adams Werneke, Oklahoma Indigent Defense System, Norman, for petitioner.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for respondent.

OPINION DENYING POST-CONVICTION RELIEF

LUMPKIN, Presiding Judge:

Petitioner Phillip DeWitt Smith has appealed to this Court from an order of the District Court of Muskogee County denying his application for post-conviction relief in Case No. CRF 83-659. Petitioner's first degree murder conviction and death sentence were affirmed by this Court in Smith v. State, 737 P.2d 1206 (Okl.Cr.1987). The United States Supreme Court subsequently denied a Petition for Certiorari. See Smith v. Oklahoma, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987). Petitioner's first application for post-conviction relief was denied by the District Court and a subsequent appeal of that denial was affirmed by this Court in Smith v. State, 826 P.2d 615 (Okl.Cr.1992). A second Petition for Certiorari filed with the United States Supreme Court was denied in Smith v. Oklahoma, 506 U.S. 952, 113 S.Ct. 405, 121 L.Ed.2d 331 (1992). A second application for post-conviction was filed by Petitioner in the District Court and relief was denied. It is that denial which Petitioner now appeals.

Petitioner raises nine (9) allegations of error in this second application, any one of which he claims should entitle him to relief from this Court. Based upon the entire record in this case, including that of the two previous appeals, we find it is not necessary to address every allegation of error. Allegations concerning issues which were raised on direct appeal are barred from reconsideration by res judicata. ¹ While issues which could have been raised on direct appeal or in the first post-conviction application, but were not, are waived. ² Smith v. State, 826 P.2d 615 (Okl.Cr.1992); Johnson v. State, 823 P.2d 370 (Okl.Cr.1991). 22 O.S.1991, § 1086. An exception to these exclusionary rules exists when the court finds a ground for relief asserted which "for sufficient reason was not asserted or was raised inadequately in the prior application for post-conviction relief." 22 O.S.1991, § 1086. See also 22 O.S.1991, § 1080, (a person may institute a proceeding under the Post-Conviction Procedure Act by claiming the "conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore unavailable".) An intervening change in constitutional law which impacts the judgment and sentence has been held a sufficient reason for not previously asserting a claim for relief. Stewart v. State, 495 P.2d 834, 836 (Okl.Cr.1972). See also Rojem v. State, 829 P.2d 683, 684 (Okl.Cr.1992).

It is this exception which Petitioner claims in his second proposition of error entitles him to relief. He argues that our recent decision of Mitchell v. State, 876 P.2d 682 (Okl.Cr.1993) constitutes an intervening change in the law which raises a claim heretofore unavailable to him; that of an improper jury instruction on flight. He contends the instruction given in his case violated his fundamental right to the presumption of innocence. Assuming arguendo, Mitchell represents a change in the law that rises to constitutional dimensions, see Dowling v. United States, 493 U.S. 342, 352-353, 110 S.Ct. 668, 674, 107 L.Ed.2d 708, 720 (1990) ³, any complaint as to a jury instruction on flight is barred from reconsideration as it is not a ground "which for sufficient reason was not asserted" in a prior proceeding. See 22 O.S.1991, § 1086. As Appellant's appeal has been final for some six (6) years and as this is the first time he has raised any allegation of error concerning the flight instruction, we find his complaint waived. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987) (wherein the Supreme Court held that a "new rule for the conduct of criminal prosecutions ... applies retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break with the past.") See also Powell v. Nevada, 511 U.S. 79, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994).

Petitioner further argues the trial court erred in failing to grant his motion for default judgment based upon the State's failure to file a timely response to his second application for post-conviction relief. ⁴ The trial court ruled "the law was not clear as to the defendant's response time, and that, in any event, entry of a default was inappropriate in a case of this importance."

The time in which the State has to respond to an application for post-conviction relief is set forth in Section 1083 of the Post-Conviction Procedure Act, 22 O.S.1991, § 1080 et seq. Section 1083 provides in part "[w]ithin thirty (30) days after the docketing of the application, or within any further time the court may fix, the state shall respond by answer or by motion which may be supported by affidavits". It is a common rule of statutory construction that when the language is plain and unambiguous and its meaning clear, the enactment will be accorded the meaning as expressed by the language therein employed. Oklahoma Journal Publishing Company v. City of Oklahoma City, 620 P.2d 452, 454 (Okl.App.1980). The phrase "or within any further time the court may fix" indicates that the imposition of the thirty (30) day time limit for the State's response is discretionary with the trial court, not mandatory. See Guinyard v. State, 260 S.C. 220, 195 S.E.2d 392 (1973). Therefore, the trial court did not err in extending the State's response time and overruling the motion for default judgment.

In his fourth proposition of error, Petitioner alleges he was denied effective assistance of counsel at trial, on appeal and during post-conviction. Complaints concerning the performance of trial counsel are now barred as the claim was raised on direct appeal. Complaints concerning the assistance of counsel on direct appeal are also barred as that claim could have been raised during the first application for post-conviction relief, but was not. Complaints addressed to the performance of counsel during post-conviction, being raised now at the first available opportunity, will be addressed on the merits. ⁵

In Cartwright v. State, 708 P.2d 592, 594 (Okl.Cr.1985), we held that the test for determining the effectiveness of both trial and appellate counsel is the standard of "reasonably effective assistance" set for in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693 (1984). In hearing a claim of ineffectiveness of counsel, the reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. 466 U.S. at 694-696, 104 S.Ct. at 2070, 80 L.Ed.2d at 699. The burden rests with the appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 698, 104 S.Ct. at 2070.

Counsel on the first post-conviction application raised nine (9) allegations of error. An evidentiary hearing was held on that first application. Several of the claims were the same as presented now. ⁶ The fact that counsel was not successful does not make her ineffective. Further, the fact that she raised issues different from those raised on this successive application or raised similar issues in a different manner does not make counsel ineffective. ⁷ In Boltz v. State, 806 P.2d 1117, 1126 (Okl.Cr.1991), this Court stated:

"[A]n attorney who makes a strategic choice to channel his investigation into fewer than all plausible lines of defense upon which he bases his strategy are reasonable and his choices on the basis of those assumptions are reasonable...