Larry Gene Luck v The State Of Oklahoma

M 2010-1026

Filed: Dec. 1, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Larry Gene Luck appealed his conviction for Malicious Mischief. Conviction and sentence were upheld, but the restitution order was vacated. Judge Smith dissented.

Decision

The Judgment and Sentence are AFFIRMED, but the restitution imposed is VACATED and the matter is REMANDED to the District Court for a hearing to determine restitution. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there a denial of a fair trial due to the admission of irrelevant and unduly prejudicial evidence?
• Did the court impose an excessive sentence that should be modified in the interest of justice?
• Should the restitution order be vacated due to improper procedure and uncertain determination of actual loss?
• Was Appellant denied effective assistance of counsel, affecting the preservation of issues for review?
• Did the cumulative effect of the alleged errors deprive Appellant of a fair trial?

Findings

• the court erred regarding the admission of evidence
• the sentence was not excessive
• the restitution order is vacated
• the claim of ineffective assistance of counsel is denied
• there is no cumulative error

M 2010-1026

Dec. 1, 2011

Larry Gene Luck

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE C. JOHNSON, JUDGE:

Following a jury trial September 20, 2010, Appellant, Larry Gene Luck, was found guilty in the District Court of Atoka County, Case No. CF-2009-124, of Malicious Mischief, a misdemeanor, in violation of 21 O.S. 2011, § 1787. The Honorable Neal Merriott, Associate District Judge, sentenced Appellant on October 12, 2010, to six months in the Atoka County Jail, a fine of $500.00, court costs in the amount of $551.30, and restitution in the amount of $21,883.00. Appellant appeals from the Judgment and Sentence imposed.

In Appellant’s first proposition of error he argues that the admission and injection of entirely irrelevant and unduly prejudicial evidence and false implications denied him a fair trial and improperly inflated his sentence. We agree with the State’s response that the complained of evidence was res gestae of the charged crime and find no error. See Rogers v. State, 1995 OK CR 8, ¶ 21, 890 P.2d 959.

Appellant’s second proposition of error argues that the sentence is excessive and must be favorably modified in the interest of justice. Pursuant to Section 1788 of Title 21, the punishment range for Malicious Mischief is a fine of not less than $100.00 and not more than $500.00, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment. Finding Appellant’s sentence not so excessive as to shock the conscience of the Court, we decline to modify. Middaugh v. State, 1988 OK CR 295, ¶¶ 20-21, 767 P.2d 432.

Appellant’s third proposition of error argues that the restitution order should be vacated because the proper procedure was not followed, the amount of actual loss was not determined with reasonable certainty, the unnamed insurance company was not a victim entitled to restitution, and all or the majority of the requested recovery has been waived. We agree that the amount of actual loss was not determined with reasonable certainty. See Honeycutt v. State, 1992 OK CR 36, ¶¶ 31-36, 834 P.2d 993. Testimony by the victim is that total damages were a little over $21,000.00 and that insurance covered close to $13,400.00. The State advised the trial court that $13,883.00 was covered by insurance and approximately $8,000.00 was not covered by insurance and asked for restitution in the amount of $21,883.00. Finding merit to this proposition of error, the restitution is vacated and the matter remanded for a hearing to properly determine what the restitution in this matter should be.

Appellant’s fourth proposition of error argues that any failure to preserve issues for review was the result of ineffective assistance of counsel. To prevail on this claim Appellant must demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his/her overall performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Appellant has not met this burden.

Appellant’s final proposition of error argues that the cumulative effect of all the errors addressed above deprived him of a fair trial. In the absence of individual error, there can be no accumulation of error. Appellant has not shown error or a cumulative effect of errors. See Matthews v. State, 2002 OK CR 16, ¶ 57, 45 P.3d 907.

DECISION

The Judgment and Sentence are AFFIRMED, but the restitution imposed is VACATED and the matter is REMANDED to the District Court for a hearing to determine restitution. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. See Rogers v. State, 1995 OK CR 8, ¶ 21, 890 P.2d 959.
2. See Middaugh v. State, 1988 OK CR 295, ¶¶ 20-21, 767 P.2d 432.
3. See Honeycutt v. State, 1992 OK CR 36, ¶¶ 31-36, 834 P.2d 993.
4. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
5. See Matthews v. State, 2002 OK CR 16, ¶ 57, 45 P.3d 907.
6. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1787 - Malicious Mischief
• Okla. Stat. tit. 21 § 1788 - Punishment for Malicious Mischief
• Okla. Stat. tit. 22 § 3.15 - Mandate

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Rogers v. State, 1995 OK CR 8, ¶ 21, 890 P.2d 959.
• Middaugh v. State, 1988 OK CR 295, ¶¶ 20-21, 767 P.2d 432.
• Honeycutt v. State, 1992 OK CR 36, ¶¶ 31-36, 834 P.2d 993.
• Matthews v. State, 2002 OK CR 16, ¶ 57, 45 P.3d 907.