Levering v. State

Decision Date21 November 2013
Docket NumberNo. F–2012–302.,F–2012–302.
Citation315 P.3d 392
PartiesThomas C. LEVERING, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma


An Appeal from the District Court of Oklahoma County; the Honorable Cindy H. Truong, District Judge.

Troy Cowin, David McKenzie, Assistant Public Defenders, Oklahoma City, OK, counsel for the defense at trial.

David Prater, District Attorney, Michele McElwee, Pamela Stillings, Assistant District Attorneys, Oklahoma City, OK, counsel for the state at trial.

Marva A. Banks, Assistant Public Defender, Oklahoma County Public, Defender's Office, Oklahoma City, Ok, counsel for appellant on appeal.

E. Scott Pruitt, Attorney General of Oklahoma, Thomas Lee Tucker, Assistant Attorney General, Oklahoma City, OK counsel for the state on appeal.



¶ 1 Appellant Thomas C. Levering was tried by jury and convicted of Assault with Intent to Commit a Felony, (Count I) (21 O.S.Supp.2007, 681); Kidnapping (Count II) (21 O.S.Supp.2009, 741), and Second Degree Rape by Instrumentation (Counts IV–VII) (21 O.S.Supp.2009, 1111.1), all counts After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CF–2011–729.1 The jury recommended as punishment life in prison in each count and the trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals.

¶ 2 Appellant raises the following propositions of error in support of his appeal:

I. Appellant's punishment was improperly enhanced based on transactional priors in violation of 21 O.S.2002, 51.1(B).

II. Trial counsel's failure to object to the use of transactional priors to enhance Appellant's penalty violated Appellant's right to effective assistance of counsel guaranteed him by both the federal and state constitutions.

III. The trial court erred by reversing its previous decision and admitting propensity evidence that was more prejudicial than probative in contravention of Horn v. State and Appellant's fundamental due process right to a fair trial.

IV. The trial court's failure to give any instruction to the jury on how they were supposed to consider the consciousness of guilt evidence violated Appellant's right to a fair trial.

V. The trial court erred by failing to order the disclosure of S.W.'s mental health records in violation of Appellant's due process rights under the state and federal constitutions.

VI. Appellant was denied his fundamental right to confront witnesses by the trial court's refusal to allow the defense to meaningfully cross-examine S.W. about her claims of suffering from schizoaffective disorder and schizophrenia.

VII. The trial court erred by not allowing Appellant to introduce evidence of S.W.'s prior false allegations of sexual offenses in violation of Appellant's right to due process, to confrontation and to present a defense.

VIII. Trial errors, when considered in a cumulative fashion, warrant a new trial.

¶ 3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts,and briefs of the parties, we have determined that the case should be remanded for resentencing.

¶ 4 Appellant was convicted of sexually assaulting S.W. in January 2011 in Oklahoma City. During the first stage of trial, the State presented propensity evidence in the form of testimony from S.E. that Appellant had sexually assaulted her in 1979. For his acts, Appellant was convicted of three sexual offenses in Case Nos. CF–1979–1443, 1444 and 1445. During the second stage of trial, these three prior convictions as well as four additional prior convictions were admitted to enhance Appellant's sentence. The supplemental materials show that three of these four prior convictions, Case Nos. CF–1979–1476, 1477 and 1478, were for sexual assaults committed on the same day against a single victim, D.C.2

¶ 5 In Proposition I, Appellant's Motion to Supplement the Record with the felony informations in Case Nos. CF–1979–1476, 1477 and 1478, is granted pursuant to Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013).

¶ 6 Now on appeal, Appellant objects to the enhancement of his sentence with all six of his prior sexual assault convictions. However, he did not raise this objection at trial. Therefore we review only for plain error. Hogan v. State, 2006 OK CR 19, ¶38, 139 P.3d 907, 923. To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Id.; 20 O.S.2011, 3001.1. If these elements are met, this Court will correct plain error only if the error “seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings” or otherwise represents a “miscarriage of justice.” Id.

¶ 7 This case presents us with the legal question as to how the admission of propensity evidence under 12 O.S.Supp.2007, 2413; Horn v. State, 2009 OK CR 7, 204 P.3d 777 and James v. State, 2007 OK CR 1, 152 P.3d 255 and the application of 21 O.S.Supp.2002, 51.1(B) regarding the use of transactional prior convictions for enhancement purposes interrelate.3 It is not unusual for this Court to see multiple charges and convictions arising out of a transactional series of sex related offenses perpetrated on a single victim. Pursuant to Horn and James evidence of these acts is admissible in the first stage of trial as propensity evidence. However, during the second stage of trial, the actual “convictions” from each series of offenses can only count as one in accordance with 51.1(B) for enhancement purposes. Here, the trial court erred in admitting all six prior felony convictions.

¶ 8 Whether this error constitutes plain error requires a consideration of the record as a whole, particularly the jury instructions. Any conflicts between the jury's consideration of propensity evidence and the use of transactional felonies for enhancement purposes can be appropriately addressed through proper jury instructions. However, as fully discussed below, the instructions in this case did not sufficiently explain to the jury how to consider both types of evidence for sentencing purposes. The remedy for this plain error is addressed below.

¶ 9 In Proposition II, in support of his claim of ineffective assistance of counsel, Appellant filed contemporaneously with his appellate brief an Application for an Evidentiary Hearing on Sixth Amendment Claims pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013). Having reviewed Appellant's claims under the standard set forth in Rule 3.11, we found sufficient evidence was set forth showing a strong possibility trial counsel was ineffective for failing to raise an objection to the transactional nature of the prior convictions. We remanded the matter to the trial court for an evidentiary hearing on the claim raised in Appellant's motion.

¶ 10 At the conclusion of the evidentiary hearing, in accordance with this Court's request, the trial court's written findings of fact and conclusions of law along with transcripts of the hearing were filed in this Court. In its Findings of Facts and Conclusions of Law, the trial court stated that defense counsel was aware of the transactional nature of Appellant's prior convictions, that defense counsel did not raise any objections because defense counsel was not knowledgeable in the law concerning transactional priors under 21 O.S. 51.1(B), and it was not trial strategy not to raise an objection. The trial court determined that the failure to object did prejudice Appellant and in all likelihood contributed to the jury's sentencing decision.

¶ 11 Under Rule 3.11(B)(3)(b)(iv) the trial court's findings of fact and conclusions of law shall be given strong deference by this Court in determining the proposition raised by appellate counsel; however, this Court shall determine the ultimate issue whether trial counsel was ineffective. Phillips v. State, 1999 OK CR 38, ¶124, 989 P.2d 1017, 1047. Ineffectiveness under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) means deficient performance and prejudice. We have thoroughly reviewed the record, which includes trial proceedings as well as the evidentiary hearing, and Appellant's allegations of ineffectiveness, in order to determine whether Appellant was denied the effective assistance of counsel. We agree with the trial court's finding that counsel's failure to object to the transactional nature of the prior convictions was professionally unreasonable. We must next determine whether Appellant was prejudiced by this deficient performance.

¶ 12 The jury was appropriately instructed in the first stage of trial regarding their consideration of the propensity evidence. During the second stage of trial, the jury was properly instructed regarding the range of punishment for a conviction after two or more felonies under 51.1(B). However, the second stage instructions did not go far enough in explaining how the jury was to consider both types of evidence for sentencing purposes. In the absence of any instruction explaining the jury's consideration of propensity evidence in relation to transactional prior convictions, we find that counsel's deficient performance, combined with the improper admission of all six prior sexual assault convictions, prejudiced Appellant and warrants remand for resentencing.

¶ 13 Pending action by the Committee for the Oklahoma Uniform Jury Instructions–Criminal (OUJI–CR) as to uniform language which should be contained in a jury instruction explaining the relationship of propensity evidence and prior convictions used for enhancement purposes, we offer the...

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