935 P.2d 366 (Okla.Crim.App. 1997), PC-95-1246, Wallace v. State

Docket Nº:PC-95-1246.
Citation:935 P.2d 366
Party Name:George Kent WALLACE, Petitioner, v. The STATE of Oklahoma, Respondent.
Case Date:March 18, 1997
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 366

935 P.2d 366 (Okla.Crim.App. 1997)

George Kent WALLACE, Petitioner,


The STATE of Oklahoma, Respondent.

No. PC-95-1246.

Court of Criminal Appeals of Oklahoma.

March 18, 1997.

Page 367

[Copyrighted Material Omitted]

Page 368

Randy A. Bauman, Deputy Division Chief, Capital Post Conviction, Oklahoma Indigent Defense System, Norman, for Petitioner.





Petitioner George Kent Wallace through post-conviction counsel has filed a "Revised Initial Application for Post-Conviction Relief, Request for Extension of Time to Amend,

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and Request for Discovery and Evidentiary Hearing." Petitioner entered a plea of guilty to two counts of Murder, First Degree, in the District Court of LeFlore County in Cases No. CRF-91-1 and CRF-91-2. Petitioner waived his right to direct appeal; and on mandatory sentence review, this Court affirmed the judgments and sentences in each case. Certiorari was denied by the United States Supreme Court. Wallace v. State, 893 P.2d 504 (Okl.Cr.), cert. denied, 516 U.S. 888, 116 S.Ct. 232, 133 L.Ed.2d 160 (1995). Before filing his Application for Post-Conviction Relief, Petitioner filed a motion for discovery, which this Court denied, holding we had no jurisdiction at that time to grant discovery in his case. Wallace v. State, 910 P.2d 1084 (Okl.Cr.1996). Petitioner then filed an Application for Post-Conviction Relief on June 3, 1996. This Court on June 19, 1996, issued an unpublished order granting additional time to comply with the Rules of this Court, as the argument and authorities section of his application exceeded 50 pages. See Rules of the Court of Criminal Appeals, Rule 9.7(A)(4), 22 O.S.Supp.1996, Ch. 18 App. Petitioner filed his revised Application on July 9, 1996.

In his revised Application, Petitioner has presented eight grounds for relief: (1) that his appointed counsel suffered from conflicts of interest impermissible under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and similar provisions of the Oklahoma Constitution; (2) ineffective assistance of trial counsel and/or failure of the State to disclose exculpatory information, combined with inaccurate information provided by state officials, deprived Mr. Wallace's sentencer of mitigating evidence vital to an accurate determination of sentence; (3) trial counsel's failure to investigate Mr. Wallace's death wish and counsel him against death constituted ineffective assistance; (4) Mr. Wallace was deprived of the Ake expert to which he was entitled in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; (5) the competency determination in Mr. Wallace's case is constitutionally defective under the Eighth and Fourteenth Amendments; (6) the trial court lacked subject matter jurisdiction to convict and sentence Mr. Wallace; (7) to any extent issues presented on direct appeal were deemed waived or any issues in this application are deemed waived or barred, previous counsel was ineffective for not preserving them, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution; and (8) the trial court violated Mr. Wallace's federal and state constitutional rights when it declined to apply a rule of criminal law, decided in his case, to him.


Petitioner has also presented a preliminary complaint, that the new capital post-conviction regime, on its face and as applied, denies both adequate and equal access to the courts and deprives Petitioner of due process, all in violation of the Sixth, Eighth, and Fourteenth amendments to the United States Constitution, the Ex Post-Facto Clause of that document, and similar provisions of the Oklahoma Constitution. We addressed this issue in Hatch v. State, 924 P.2d 284 (Okl.Cr.1996), and found no merit to it. We need not address it again.


For his first proposition, Petitioner complains his court-appointed counsel suffered from an impermissible conflict of interest. Petitioner admits this claim is presented for the first time in post-conviction proceedings. The amended version of Section 1089 is very specific as to the scope of claims which can be raised in post-conviction application:

  1. The only issues that may be raised in an application for post-conviction relief are those that:

  1. Were not and could not have been raised in a direct appeal; and

  2. Support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.

22 O.S.Supp.1995, § 1089(C). It is a well established rule of statutory construction that statutes are to be construed according to the plain and ordinary meaning of their language.

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25 O.S.1991, § 1. See also Virgin v. State, 792 P.2d 1186, 1188 (Okl.Cr.1990); Parker v. State, 424 P.2d 997, 1000 (Okl.Cr.1967). "A statute must be held to mean what it plainly expresses and no room is left for construction and interpretation where the language employed is clear and unambiguous." Abshire v. State, 551 P.2d 273, 274 (Okl.Cr.1976). The use of the conjunctive "and" between the two parts of this subsection indicate both portions must be present before this Court can review a claim.

In the case sub judice, Petitioner was afforded an opportunity to pursue a direct appeal; he specifically declined to do so. Wallace, 893 P.2d at 509-10. 1 As a result, he is bound by that earlier decision; as a consequence of that decision, he has forfeited his right to have this Court consider the issue of his trial counsel's alleged conflict, which would have been readily available for that direct appeal. Accordingly, Petitioner's first proposition is waived.


In his second proposition, Petitioner claims ineffective trial counsel, combined with failure of the prosecution to disclose exculpatory information and inaccurate information provided by State officials, deprived him of mitigating evidence vital to the court's determination of his sentence. In this vein, Petitioner first claims there was ample evidence in mitigation which trial counsel did not find, because he did not seek it. This argument could have been presented on a direct appeal, which Petitioner waived. This portion is therefore waived for review here. 22 O.S.Supp.1995, § 1089(C). Waived on the same grounds is Petitioner's claim his waiver of the presentation of mitigating evidence was not knowing, intelligent and voluntary.

Petitioner also claims exculpatory evidence was available, but not turned over to him or trial counsel. In support of this, he cites "the report of the interview with Kenny Williams and the information still retained by Sheriff Grimes." Brief at 22-23. Petitioner does not cite to the record or supplemental materials where this information is contained. He provides no other examples. Accordingly, he has waived this portion of his claim for review. See Rules of the Court of Criminal Appeals, Rule 9.7(A)(3)(g), 22 O.S.Supp.1996, Ch. 18 App. 2

Accordingly, this proposition is likewise waived.


For his third proposition, Petitioner again claims trial counsel was ineffective, this time for failing to investigate his death wish and to counsel him against desiring the death penalty. This, too, is waived, as it could have been presented on a direct appeal. 22 O.S.Supp.1995, § 1089(C).


For his fourth proposition, Petitioner claims he was deprived of an expert psychiatrist to which he was entitled under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). He admits this claim has not been raised before. As a consequence, it is waived, as it could have been presented on a direct appeal. 22 O.S.Supp.1995, § 1089(C).

Further, we are confused by Petitioner's seemingly contradictory argument. At one point he cites to a transcript made before judgment and sentence was passed as support for his claim that an Ake request was made, while at the same time admitting the language in the record to which he cites as

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authority was "less than ideal." 3 He then alleges the claim "relies on extra-record evidence," brief at 29, while not telling this Court what that evidence is. He therefore has failed to adequately show this Court that such a request was even made under Ake. See Rules of the Court of Criminal Appeals, Rule 9.7(A)(3)(g), 22 O.S.Supp.1996, Ch. 18 App.

This proposition is likewise waived.


For his fifth proposition of error, Petitioner alleges he was determined to be competent under an unconstitutional standard. This Court addressed this proposition of error in Petitioner's mandatory sentence review, finding it invalid under Cooper v. State, 889 P.2d 293 (Okl.Cr.1995). The Supreme Court of the United States reversed that case, holding a due process violation occurred when an appellant was required to prove by clear and convincing evidence he was not competent to stand trial. Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996).

Again, we find we cannot address this proposition. Subsection (C)(1) of Section 1089 specifically states the only issues which can be raised on post-conviction relief are those which were not and could not have been raised on direct appeal. Petitioner raised this claim on direct appeal; accordingly, it is res judicata, and we cannot address it again. 4

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In his sixth proposition of error, Petitioner claims the trial court lacked subject matter jurisdiction to convict and sentence him. He alleges, correctly, that both crimes charged were committed very near the Arkansas-Oklahoma state line; he also alleges, correctly, that even though not raised on direct appeal, issues of subject matter jurisdiction...

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