888 P.2d 522 (Okla.Crim.App. 1994), PC-94-534, Thomas v. State

Docket Nº:PC-94-534.
Citation:888 P.2d 522
Party Name:Derrell Lynn THOMAS, Petitioner, v. The STATE of Oklahoma, Respondent.
Case Date:December 30, 1994
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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888 P.2d 522 (Okla.Crim.App. 1994)

Derrell Lynn THOMAS, Petitioner,

v.

The STATE of Oklahoma, Respondent.

No. PC-94-534.

Court of Criminal Appeals of Oklahoma.

December 30, 1994.

Page 523

[Copyrighted Material Omitted]

Page 524

ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF

Derrell Lynn Thomas, Petitioner, was convicted of First Degree Murder and Robbery by Force after a jury trial in the District Court of Creek County, Case No. CRF-87-94. The jury recommended the death penalty for the murder charge and a term of ten (10) years imprisonment for the robbery charge. The trial court imposed sentence accordingly.

Petitioner's judgment and sentence were affirmed by this Court in Thomas v. State, 811 P.2d 1337 (Okl.Cr.1991). The Supreme Court of the United States denied his petition for writ of certiorari on January 13, 1992. 502 U.S. 1041, 112 S.Ct. 895, 116 L.Ed.2d 798 (1992). Upon the Supreme Court's denial of relief, Petitioner filed an Application for Post-Conviction Relief in the

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District Court of Creek County on May 13, 1992. The district court held evidentiary hearings from June, 1992 to July, 1993 on the Petitioner's request for post-conviction relief. The district court denied post-conviction relief on April 28, 1994. It is from the district court's denial of post-conviction relief that Petitioner makes his present appeal.

Petitioner's first two propositions of error allege: (1) there was insufficient evidence to support the aggravating circumstance that the murder was especially heinous, atrocious or cruel, and (2) the especially heinous, atrocious, or cruel aggravator is unconstitutional as applied and interpreted. These issues were raised on direct appeal. Thomas at 811 P.2d 1337, 1347-1352. It is not the office of the Post-Conviction Procedure Act, 22 O.S.1991, § 1080 et seq. to provide a second appeal under the mask of post-conviction application. Williamson v. State, 852 P.2d 167 (Okl.Cr.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2122, 128 L.Ed.2d 677 (1994); James v. State, 818 P.2d 918, 920 (Okl.Cr.1991), cert. denied, 502 U.S. 1111, 112 S.Ct. 1214, 117 L.Ed.2d 452 (1992); Ellington v. Crisp, 547 P.2d 391, 393 (Okl.Cr.1976). The doctrine of res judicata bars consideration in post-conviction proceedings of issues which have been, or which could have been, raised on direct appeal. James at 818 P.2d 918, 920. We find that these propositions have been satisfactorily answered on direct appeal and are therefore barred from post-conviction review. Thomas v. State, 811 P.2d 1337, 1348-1349 (Okl.Cr.1991).

In his third proposition of error Petitioner claims that he was denied his constitutional rights due to ineffective assistance of trial counsel. This proposition could have been raised on direct appeal, and therefore we find the proposition waived for collateral review. Fowler v. State, 873 P.2d 1053 (Okl.Cr.1994).

However, a review of the performance of trial counsel is necessary to resolve Petitioner's fourth proposition of error: that he was denied his constitutional rights by appellate counsel's failure to raise a claim of ineffective assistance of trial counsel. The district court reviewed this proposition on the merits after a series of evidentiary hearings. This Court will also address this proposition on the merits.

Indigent criminal appellants are constitutionally entitled to effective assistance of appellate counsel during appeals of first right under the Fourteenth Amendment's Due Process Clause. Evitts v. Lucey, 469 U.S. 387, 395, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). U.S. Const. amend. XIV. The test for determining the effectiveness of both trial and appellate counsel is the standard of "reasonably effective assistance" set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-93 (1984). The basic test for ineffectiveness of counsel is, "Whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on has having produced a just result." Strickland at 466 U.S. 686, at 104 S.Ct. 2064. In such cases, the Court will indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Nguyen v. State, 844 P.2d 176, 179 (Okl.Cr.1992), cert. denied, 509 U.S. 908, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993). In Nguyen we reviewed an ineffective assistance of appellate counsel claim on post-conviction review where the petitioner claimed that appellate counsel failed to raise an ineffective assistance of trial counsel claim. Nguyen at 844 P.2d 176, 179-180. While all issues which are not frivolous need not be raised in an effective appellate brief, failure to raise an issue warranting reversal, modification of sentence or remand for resentencing may well prove counsel was ineffective. Mann v. State, 856 P.2d 992, 994 (Okl.Cr.1993). The question is whether appellate counsel's conduct so undermined the adversarial process that there emerged an unjust result in violation of Petitioner's due process rights. Williamson; Nguyen. In order to effectively address this issue, our focus will be on the conduct of trial counsel:

Petitioner claims: (1) that trial counsel only spent about ten out-of-court hours preparing for trial; (2) trial counsel did not request or have an expert investigator, psychiatrist,

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or co-counsel assist him;1 (3) trial counsel was operating under stringent limits on the payment of attorney fees for his representation of Petitioner; (4) about two weeks prior to trial counsel was hospitalized with what one physician diagnosed as a heart attack; (5) trial counsel failed to insist on a continuance after the State moved for a late endorsement of three witnesses; (6) trial counsel did not properly object to or move to strike a hearsay remark by a State's witness, Mary Wofford, at trial; (7) trial counsel "barely showed up in the second stage of trial" because he did not call a single witness; (8) no information about Mr. Thomas' mental health condition was presented to the jury during the second-stage of trial; (9) trial counsel did not challenge the jury instructions on the "heinous, atrocious or cruel" aggravating circumstance, and (10) trial counsel did not challenge the aggravating circumstance and present evidence in mitigation.

Because only claims (5) through (10) deal with attorney...

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