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C-2012-381

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Gary Alan Stine v The State Of Oklahoma

C-2012-381

Filed: Nov. 2, 2012

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Gary Alan Stine appealed his conviction for multiple serious charges, including Indecent Exposure and various counts of Rape and Forcible Sodomy. His conviction and sentence included ten years for Indecent Exposure and up to thirty years for other counts, with specific conditions on parole eligibility. After his plea, Stine wanted to withdraw it, claiming that mistakes were made during sentencing and that his lawyer did not help him properly. The court decided that his concerns about the sentence weren't valid and refused to let him change his plea. They found no errors in the trial process that would change the outcome. Stine's plea was considered voluntary and knowing, so his appeal was denied. The court did notice a clerical error in the official documents that needed correction, but overall, they upheld the original ruling. The decision stated that Judge Timothy L. Olsen sentenced Stine and that there was no need for a new trial or significant changes to his case. The opinion was written by Judge Smith, with concurrence from other judges but no dissent.

Decision

The Petition for Writ of Certiorari is DENIED. The case is REMANDED to the District Court of Seminole County for an Order Nunc Pro Tunc correcting the Judgment and Sentence in accordance with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • was Mr. Stine's sentence improperly inflated by the adversarial participation of a guardian ad litem who overstepped her statutory obligation to the child?
  • must Mr. Stine's sentence be modified as it was illegally inflated by the joint efforts of the guardian ad litem and the prosecutor to inflame the passions and prejudices of the sentencing court?
  • was there prejudicial ineffective assistance of counsel due to failure to research, investigate or preserve issues for review?
  • must the written judgment and sentence be corrected to comply with the Court's oral pronouncement of concurrent sentences?
  • did cumulative errors deprive Mr. Stine of a fair proceeding and a reliable outcome?

Findings

  • Propositions I and II are not properly before the Court.
  • Counsel was not ineffective.
  • The Judgment and Sentence document is in error and must be corrected by an Order nunc pro tunc.
  • There is no cumulative error.
  • The Petition for Writ of Certiorari is DENIED.
  • The case is REMANDED to the District Court of Seminole County for an Order Nunc Pro Tunc correcting the Judgment and Sentence.

C-2012-381

Nov. 2, 2012

Gary Alan Stine

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Gary Alan Stine entered an Alford plea to Count I, Indecent Exposure in violation of 21 O.S.Supp.2008, § 1021(A)(1) and 21 O.S.2011, § 1021(A)(1); Count II, Attempted Rape in violation of 21 O.S.Supp.2009, § 1115; Counts III and IV, Second Degree Rape in violation of 21 O.S.Supp.2008, § 1114(B); Counts V, VI and VIII, First Degree Rape in violation of 21 O.S.Supp.1990, § 1114(A)(1) through 21 O.S.Supp.2008, § 1114(A)(1); Count VII, Forcible Sodomy in violation of 21 O.S.Supp.1992, § 888 through 21 O.S.Supp.2009, § 888; Count IX, First Degree Rape in violation of 21 O.S.Supp.2008, § 1114(A)(1); and Count X, Lewd Molestation in violation of 21 O.S.Supp.2008, § 1123 through 21 O.S.Supp.2010, § 1123, in the District Court of Seminole County, Case No. CF-2011-146. After a sentencing hearing, the Honorable Timothy L. Olsen sentenced Stine to ten (10) years imprisonment on Count I; fifteen (15) years imprisonment on each of Counts II, III and IV; twenty (20) years imprisonment on each of Counts VII and X; and thirty (30) years imprisonment on each of Counts V, VI, VIII and IX, with the last five (5) years suspended. All counts ran concurrently. Stine must serve 85% of his sentences in Counts V, VI, VIII, IX and X before becoming eligible for parole consideration.

On April 4, 2012, Stine filed an Application to Withdraw his Plea of Guilty. This was denied after an April 19, 2012 hearing. Stine timely filed a Petition for Writ of Certiorari in this Court. Stine raises five propositions of error in support of his petition:

I. Mr. Stine’s sentence was improperly inflated by the adversarial participation of a guardian ad litem who overstepped her statutory obligation to the child and became a prohibited special prosecutor;

II. Mr. Stine’s sentence must be modified as it was illegally inflated by the joint efforts of the guardian ad litem and the prosecutor to inflame the passions and prejudices of the sentencing court;

III. Alternatively, relief is required because any failure to research, investigate or preserve issues for review in this Court resulted from the prejudicial ineffective assistance of counsel;

IV. Alternatively, the written judgment and sentence must be corrected to comply with the Court’s oral pronouncement of concurrent sentences; and

V. Cumulative errors deprived Mr. Stine of a fair proceeding and a reliable outcome.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief. We find that Propositions I and II are not properly before us. Our review of the trial court’s decision to deny Stine’s application to withdraw his plea is limited to whether the plea was knowing and voluntary and whether the district court had jurisdiction to accept it. Lewis v. State, 2009 OK CR 30, ¶ 5, 220 P.3d 1140, 1142; Cox v. State, 2006 OK CR 51, ¶ 4, 152 P.3d 244, 247. Stine did not enter a plea in return for a negotiated sentence, but was sentenced by the trial court after a pre-sentence investigation and sentencing hearing. For this reason, review of sentencing issues would not be precluded, if the sentencing issues had some bearing on Stine’s pleas. However, Stine’s claims go entirely to the length of his sentence; he does not claim that any issue connected with the guardian ad litem had any effect on his choice to enter a blind plea to all the charges. Furthermore, Stine failed to preserve these issues for review. He did not raise them in either his application to withdraw his plea or his petition for writ of certiorari, and they are not properly before us. Rule 4.3(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011). Any review would be for plain error. Lewis, 2009 OK CR 30, ¶ 4, 220 P.3d at 1142. Even if this Court had the power on certiorari review to modify a sentence where there is no question that the plea was knowing, intelligent, and voluntary, there is no error which would justify such relief.

We find in Proposition III that counsel was not ineffective. Stine must show that counsel’s performance was deficient and that he was prejudiced by counsel’s deficient performance. Wiley v. State, 2008 OK CR 30, ¶ 4, 199 P.3d 877, 878; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). For the Court to reach Stine’s claim of deficient performance, he must show he was prejudiced by counsel’s acts or omissions. Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000); Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Stine argues defense counsel was ineffective for (a) filing a cursory motion to withdraw his pleas and (b) failing to object to participation of the guardian ad litem at sentencing. The second complaint goes to Stine’s dissatisfaction with his sentence and is not properly before the Court. In the first complaint, Stine states defense counsel should have investigated all the circumstances, explored the facts and law, and presented them at the hearing on his motion to withdraw his plea. The plea hearing was meticulous, the plea form is correct, Stine was correctly informed of the charges and the ranges of punishment, he was found competent, and he had no defense to the crimes. He cannot show any prejudice from counsel’s omissions, and counsel was not ineffective.

We find in Proposition IV that the Judgment and Sentence document is in error, and must be corrected by an Order nunc pro tunc. The trial court ordered that Stine’s sentences should run concurrently. The Judgment and Sentence fails to reflect this order. We find in Proposition V that there is no cumulative error. Propositions I, II and part of III are not properly before the Court. Proposition IV concerned a clerical error. Where there is no error, there is no cumulative error. Parker v. State, 2009 OK CR 23, ¶ 28, 216 P.3d 841, 849.

DECISION

The Petition for Writ of Certiorari is DENIED. The case is REMANDED to the District Court of Seminole County for an Order Nunc Pro Tunc correcting the Judgment and Sentence in accordance with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.Supp.2008, § 1021(A)(1)
  2. 21 O.S.2011, § 1021(A)(1)
  3. 21 O.S.Supp.2009, § 1115
  4. 21 O.S.Supp.2008, § 1114(B)
  5. 21 O.S.Supp.1990, § 1114(A)(1)
  6. 21 O.S.Supp.2009, § 888
  7. 21 O.S.Supp.2010, § 1123
  8. Rule 4.3(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011)
  9. Parker v. State, 2009 OK CR 23, 1 28, 216 P.3d 841, 849
  10. Lewis v. State, 2009 OK CR 30, IT 5, 220 P.3d 1140, 1142
  11. Cox v. State, 2006 OK CR 51, II 4, 152 P.3d 244, 247
  12. Wiley v. State, 2008 OK CR 30, I 4, 199 P.3d 877, 878
  13. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
  14. Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000)

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1021.8 (2008) - Indecent Exposure
  • Okla. Stat. tit. 21 § 1115 (2009) - Attempted Rape
  • Okla. Stat. tit. 21 § 1114(B) (2008) - Second Degree Rape
  • Okla. Stat. tit. 21 § 1114(A)(1) (1990) - First Degree Rape
  • Okla. Stat. tit. 21 § 888 (1992) - Forcible Sodomy
  • Okla. Stat. tit. 21 § 1114(A)(1) (2008) - First Degree Rape
  • Okla. Stat. tit. 21 § 1123 (2008) - Lewd Molestation
  • Okla. Stat. tit. 21 § 1123 (2010) - Lewd Molestation
  • Okla. Stat. tit. 22, Ch. 18, App. Rule 4.3(C) (2011) - Oklahoma Court of Criminal Appeals Rules
  • Okla. Stat. tit. 22, Ch. 18, App. Rule 3.15 (2012) - Oklahoma Court of Criminal Appeals Rules
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing Provisions

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:

  • Lewis v. State, 2009 OK CR 30, I 5, 220 P.3d 1140, 1142
  • Cox v. State, 2006 OK CR 51, II 4, 152 P.3d 244, 247
  • Wiley v. State, 2008 OK CR 30, I 4, 199 P.3d 877, 878
  • Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
  • Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000)
  • Parker v. State, 2009 OK CR 23, I 28, 216 P.3d 841, 849

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