Allen v. State

• Decision Date: 27 December 1995
• Docket Number: No. PC-95-259,PC-95-259
• Citation: 909 P.2d 836
• Parties: Wanda Jean ALLEN, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 836

909 P.2d 836

Wanda Jean ALLEN, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-95-259.

Court of Criminal Appeals of Oklahoma.

Dec. 27, 1995.

An Appeal from the District Court of Oklahoma County, Nancy L. Coats, District Judge.

Steven M. Presson, Robert W. Jackson, Appellate Defense Counsel, Oklahoma Indigent Defense System, Norman, for Petitioner.

W.A. Drew Edmondson, Attorney General, Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals, Oklahoma City, for Respondent.

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

LUMPKIN, Judge:

Petitioner Wanda Jean Allen appeals to this Court from the denial of post-conviction relief by the District Court of Oklahoma County, Case No. CRF-88-6621. At the conclusion of a jury trial, Petitioner was convicted of first degree murder. After finding the presence of two aggravating circumstances--that Petitioner had been convicted of a felony involving the use or threat of violence; and she posed a continuing threat to society--the jury recommended Petitioner be sentenced to death. This Court affirmed the convictions on direct appeal, and certiorari was denied by the Supreme Court of the United States. Allen v. State, 871 P.2d 79, (Okl.Cr.), cert. denied, --- U.S. ----, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994).

Petitioner raised four propositions of error in her application presented to the trial court. Those were: (1) she was denied effective assistance of trial counsel; (2) the trial court erred in refusing to define "life without parole"; (3) the giving of a flight instruction denied her her right to due process; and (4) the jury in the second stage was impermissibly tainted by its first-stage decision finding her guilty of felonious possession of a firearm. In the application, she also requested an evidentiary hearing to prove her claims.

The trial court denied relief in an order filed March 10, 1995. Petitioner appeals that denial to this Court, adding as a fifth and final proposition that the district court violated her due process rights by failing to conduct an evidentiary hearing.

As the post-conviction procedure is not intended to be a second direct appeal, Fox v. State, 880 P.2d 383, 385 (Okl.Cr.1994), this Court does not consider an issue which was raised on direct appeal (and is therefore res judicata ), or an issue which could have been raised on direct appeal but which was not (and is therefore waived). Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992).

After thoroughly reviewing Petitioner's brief and the State's response, we have determined the following: Petitioner's second proposition ¹ is waived because it could have been raised on direct appeal but was not. Petitioner's third proposition ² is likewise waived because it could have been raised but was not. Petitioner's fourth proposition ³ is also waived for the same reason. The fact this Court reversed the firearms conviction in no way precluded Petitioner from raising the same issue on her direct appeal.

In her first proposition, Petitioner claims trial counsel was ineffective for failing to raise a question as to Petitioner's competency and for failing to conduct a psychological evaluation of her and present evidence of that evaluation as mitigation evidence at trial. A portion of this allegation of error was addressed in Petitioner's direct appeal, where she claimed counsel was ineffective for failing to investigate her life history to discover readily available mitigating evidence. To that extent, the issue is res judicata. The claim counsel was ineffective because he failed to raise a question as to Petitioner's competency could have been raised on direct appeal, based on the same evidence. To that extent, it is waived for failure to present on direct appeal.

Petitioner claims this Court's refusal to grant an evidentiary hearing for direct appeal counsel to further delve into the competency issue renders it an issue which could not have been raised on direct appeal. Petitioner fails to recognize this Court in her direct appeal specifically addressed the issue in the form of affidavits presented to this Court with the direct appeal brief. Allen, 871 P.2d at 99. We find nothing substantially new in her latest affidavit dealing with this issue which was presented to the district court as a part of the Application for Post-Conviction Relief.

In the alternative, Petitioner claims counsel was ineffective on direct appeal for failing to raise this claim. The 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 as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner bears the burden of showing both that counsel's performance was deficient and that such deficient performance prejudiced her. Id. at 687, 104 S.Ct. at 2064. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id. at 697, 104 S.Ct. at 2069. To meet both the deficient performance and prejudice prongs, Petitioner must establish that her direct appeal counsel failed to raise issues warranting reversal, modification of sentence or remand for resentencing. Hooks v. State, 902 P.2d 1120 (Okl.Cr.1995). Also, an appellate counsel is under no obligation to raise every non-frivolous issue which could be raised. Castro v. State, 880 P.2d 387, 389 (Okl.Cr.1994). Accordingly, although the issue itself is waived, we examine it only insofar as it is necessary to determine whether, had appellate counsel raised it on direct appeal, reversal or modification would be warranted.

We need not determine whether direct appeal counsel's performance was substandard by failing to raise this claim on direct appeal, as Petitioner cannot show prejudice. We are concerned here with Petitioner's competency to stand trial. "Competency" is defined in Section 1175.1 of Title 22 as the "present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him and to effectively and rationally assist in his defense."

We have carefully examined the affidavit of Dale G. Watson, a licensed clinical psychologist from Pinole, California. The affidavit, which was attached to the original application filed in the district court, discusses in some detail various aspects of Petitioner's mental capacity and history, but deals little with whether she is competent as defined by our statutes. Indeed, in the first page of his affidavit, Dr. Watson states that the "purpose of this evaluation was to determine if neuropsychological or psychiatric dysfunction or deficits were present and to specify the degree, nature and effect of any such impairments, including the impact of such dysfunction upon her behavior in the crime for which she has been convicted" (O.R. 102). Nowhere in the affidavit does Dr. Watson allege Petitioner did not understand the nature of the charges and proceedings brought against her. Language in the affidavit indicates she does. For instance, her reading comprehension falls at approximately the eighth-grade level--the same level, as Dr. Watson notes, at which the Miranda warnings are written (O.R. 107). Dr. Watson also noted any impairments she might have had "are not so profound as to render her incapable of understanding language" (O.R. 108).

Concerning her ability to effectively and rationally assist in her defense, the psychologist mentions almost in passing at the end of his affidavit that due to the high level of "distress" Petitioner was experiencing at the time of her trial, it was "entirely possible" she could not adequately assist her attorney (O.R. 114). However, other portions of his affidavit do not support that. The psychologist states that--because Petitioner can be more intensely emotional than other people--she avoids emotional stimulation (O.R. 111). In other words, she tends to compensate in "distressful" times. As noted above, she was capable of communication with her attorney, as she understood the language and performed normally in following instructions (O.R. 108). He also noted Petitioner was a "sweet and personable" individual who was "cooperative, and worked diligently on all tasks" (O.R....