Berget v. State

• Decision Date: 06 November 1995
• Docket Number: No. PC-94-1125,PC-94-1125
• Citation: 907 P.2d 1078
• Parties: Roger James BERGET, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1078

907 P.2d 1078

Roger James BERGET, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-94-1125.

Court of Criminal Appeals of Oklahoma.

Nov. 6, 1995.

An appeal from the District Court of Oklahoma County; Richard W. Freeman, District Judge.

James T. Rowan and Tim Wilson, Okla. County Public Defender, Oklahoma City, for Petitioner at trial.

Robert H. Macy, District Attorney and Ray Elliott, Assistant District Attorney, Oklahoma City, for the State at trial.

Randy A. Bauman, Deputy Div. Chief and Steven M. Presson, Capital Post-Conviction Division, Oklahoma Indigent Defense System, Norman, for Petitioner on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma and Sandra D. Howard, Assistant Attorney General, Oklahoma City, for Respondent on appeal.

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

LANE, Judge:

Petitioner, Roger James Berget, pled guilty to one count of First Degree Murder, four counts of First Degree Burglary and one count of Felon in Possession of a Firearm in the District Court of Oklahoma County, Case Nos. CRF-86-4533, -4264, -4278,-4475,-4476, and-4478, respectively, before the Honorable John M. Amick. Petitioner was sentenced to death for the murder, four consecutive life sentences for the burglaries and ten (10) years imprisonment for the firearms charge. Petitioner's motion to withdraw his guilty plea was denied, and his convictions affirmed by this Court following Petitioner's request for certiorari to have the death sentence vacated. Berget v. State, 824 P.2d 364 (Okl.Cr.1991), cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992). Petitioner filed his application for post-conviction relief on January 10, 1994, in the District Court of Oklahoma County, which was denied on October 12, 1994 by the Honorable Richard W. Freeman.

In this first application for post-conviction relief, Petitioner has raised fourteen propositions of error, the majority containing multiple sub-propositions of error. Our consideration of these claims will be strictly limited by the statutory rules which establish our authority in post-conviction matters, 22 O.S.1991, § 1086. We held in Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985), that the provisions of 22 O.S.1981, § 1080 et seq. are to be applied only to those claims which, for whatever reason, could not have been raised on direct appeal. See also Castro v. State, 880 P.2d 387, 388 (Okl.Cr.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1375, 131 L.Ed.2d 229 (1995); Fowler v. State, 873 P.2d 1053, 1056-57 (Okl.Cr.), cert. denied, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994); Mann v. State, 856 P.2d 992, 993 (Okl.Cr.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994); Brecheen v. State, 835 P.2d 117, 119 (Okl.Cr.1992), cert. denied, 506 U.S. 1085, 113 S.Ct. 1063, 122 L.Ed.2d 368 (1993). In keeping with this authority, we will address only those propositions which could not have been brought at the time of the direct appeal. All other allegations are not properly before the Court.

Issues which were raised on direct appeal are barred from further consideration by res judicata, and issues which were not raised on direct appeal, but could have been, are waived. Castro, 880 P.2d at 388; Fowler, 873 P.2d at 1056; Mann, 856 P.2d at 993; Rojem v. State, 829 P.2d 683, 684 (Okl.Cr.), cert. denied, 506 U.S. 958, 113 S.Ct. 420, 121 L.Ed.2d 343 (1992); Brecheen, 835 P.2d at 119. Propositions I, II and IV are the only propositions containing issues which were not raised, and could not have been raised, on direct appeal. Propositions III and V through XIV were either considered on direct appeal, and are therefore res judicata, or were not raised and are therefore waived. In either case, we will not address these issues again. ¹

Petitioner alleges at Proposition I that the trial court denied him due process when it determined that the majority of issues presented on post-conviction were res judicata and/or barred by Petitioner's failure to raise them on direct appeal. Petitioner then alleges consideration of an ineffective assistance of counsel claim is always appropriate on post-conviction, citing Brecheen v. Reynolds, 41 F.3d 1343, 1364 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2564, 132 L.Ed.2d 817 (1995).

In Brecheen, the Tenth Circuit criticized this Court's procedure requiring appellants to raise ineffective assistance of counsel claims on direct appeal or risk waiving the claim at any future state appellate proceeding. ² The Tenth Circuit's concern seems to center around claims of ineffective assistance involving factual allegations which are outside of the scope of the trial court record.

Title 22 O.S.1991, § 1086 dictates, in no uncertain terms, that all grounds for relief available to an appellant under the Post-Conviction Procedure Act, 22 O.S.1991, § 1080, et seq., must be raised in his original, supplemental or amended application. Section 1086 clearly outlines waiver:

Any ground finally adjudicated or not so raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for subsequent application....

This Court has consistently determined that failure to raise an alleged error, absent a showing of sufficient reason for failure to raise the issue, or a showing that the issue was inadequately raised in a prior direct appeal or application, waives the error, and bars it from future consideration. See Castro, 880 P.2d at 388; Fowler, 873 P.2d at 1056; Mann, 856 P.2d at 993; Brecheen, 835 P.2d at 119. Claims raised and previously decided are barred by res judicata. See Sellers v. State, 889 P.2d 895, 897 (Okl.Cr.1995), cert. denied, --- U.S. ----, 116 S.Ct. 214, 133 L.Ed.2d 146 (1995); Coleman v. State, 693 P.2d 4, 5 (Okl.Cr.1984); Grimes v. State, 512 P.2d 231, 233 (Okl.Cr.1973); Harrell v. State, 493 P.2d 461, 462 (Okl.Cr.1972). We have also determined that the plain language of § 1086 makes it applicable to subsequent post-convictions applications. Rojem v. State, 888 P.2d 528, 529-530 (Okl.Cr.1995).

This Court recognizes that there are exceptions to the waiver and res judicata rules, and has ruled accordingly, where appropriate. See Allen v. State, 874 P.2d 60, 64 (Okl.Cr.1994); Jones, 704 P.2d at 1140; Castleberry v. State, 590 P.2d 697, 701 (Okl.Cr.1979); Stewart v. State, 495 P.2d 834, 836 (Okl.Cr.1972). However, we have also made it clear that the post-conviction process is not a second appeal. See Moore v. State, 889 P.2d 1253, 1255 (Okl.Cr.), cert. denied, --- U.S. ----, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995); Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied, --- U.S. ----, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Williamson v. State, 852 P.2d 167, 169 (Okl.Cr.1993), cert. denied, 511 U.S. 1115, 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, 392 (Okl.Cr.1976).

On May 25, 1995, the Tenth Circuit issued an opinion, on rehearing en banc, setting forth its new procedure for addressing ineffective assistance of counsel claims in federal cases. U.S. v. Galloway, 56 F.3d 1239 (10th Cir.1995). The Circuit Court reaffirmed and reemphasized the central principle laid down in Beaulieu v. United States, 930 F.2d 805, 806-807 (10th Cir.1991) ³, and ruled that ineffective assistance claims are now to be brought only in collateral proceedings, not on direct appeal. The Tenth Circuit held such claims brought on direct appeal are presumptively dismissible and virtually all will be dismissed. ⁴ Galloway, 56 F.3d at 1240. Moreover, the fact that an ineffectiveness claim is raised and adjudicated on direct appeal will not procedurally bar an ineffectiveness claim in a proceeding under 28 U.S.C. § 2255 where new reasons are advanced in support of that claim. Id. at 1242-43.

In response to the numerous claims of ineffective assistance of trial and appellate counsel, the Tenth Circuit's answer was to entirely remove that issue from consideration on direct appeal, and to reserve it for another proceeding. The court stated:

The problem with ... procedural bar, is that they are absurdly easy to circumvent on the one hand, and painfully labor intensive to sort through and apply on the other. The usual tactic to force a second review is to claim in a post-conviction proceeding that appellate counsel was ineffective for failing to advance all possible reasons showing why trial counsel was ineffective, and that appellate counsel was ineffective for not raising other issues relating to trial and sentencing. Technically, this is a first-time claim of ineffectiveness which cannot be procedurally barred and which is not unitary with the claim of ineffectiveness of trial counsel advanced on direct appeal. In this circumstance we are then forced to examine and determine two levels of ineffectiveness relating to two different sets of counsel en route to a distant destination of, perhaps, a favorable decision on the merits.

Id. at 1241-1242.

We agree with the analysis presented in Galloway which opines that the ineffective assistance doctrine created by the Supreme Court operates as "open sesame", forcing review of closed cases and defying all attempts at finality. Id. at 1242. We are also cognizant of the fact that unless and until the doctrine is tailored in this area, the seemingly endless litigation of alleged ineffective assistance claims will continue. However, allowing appellants carte blanche in deciding when such a claim can be raised only prolongs the appellate process, encouraging appellants to "lay behind the log" instead of presenting their claims as soon as they become known. The result is endless delay and lack of finality in addressing an appellant's claim, and endless rehashing of...