Tony Wayne Welch v State Of Oklahoma

F-2001-1372

Filed: Jan. 10, 2003

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Tony Wayne Welch appealed his conviction for First Degree Burglary and Peeping Tom. The conviction and sentence were thirty years in prison for burglary and one year in jail plus a $500 fine for Peeping Tom, with the sentences running at the same time. Judge Lile dissented.

Decision

The Judgment of the trial court is AFFIRMED. The $500.00 fine imposed for Peeping Tom is VACATED.

Issues

• Was there a violation of Mr. Welch's constitutional rights to a fair trial and due process due to the trial court's refusal to instruct the jury on his theory of defense?
• Did the state materially mislead the jury by arguing that the crime of Peeping Tom satisfied the intent element of burglary?
• Was Mr. Welch deprived of the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution?
• Was the instruction regarding the penalty for Peeping Tom incorrect and prejudicial?
• Did the failure to inform the jury that Mr. Welch would serve 85% of the sentence before being considered for parole result in an excessive sentence?
• Was the sentence imposed excessive and disproportionate to the crime?
• Did trial errors cumulatively deprive Mr. Welch of a fair trial and reliable verdict?

Findings

• the trial court did not err in refusing the requested instruction on breaking and entering
• the State's argument was not materially misleading and did not deny Appellant of a fair trial
• Appellant has failed to prove prejudice which is fatal to his claim of ineffective assistance of counsel
• the trial court committed plain error when it incorrectly instructed the jury on the range of punishment for the crime of Peeping Tom
• the trial court was not required to instruct the jury that Appellant would be required to serve eighty-five percent (85%) of the sentence imposed prior to becoming parole eligible
• the sentence imposed does not shock the conscience of the Court based on this record
• no error that, by itself or in combination with other errors, deprived Appellant of a fair trial
• the Judgment of the trial court is AFFIRMED
• the $500.00 fine imposed for Peeping Tom is VACATED

F-2001-1372

Jan. 10, 2003

Tony Wayne Welch

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE STRUBHAR, J.:

Tony Wayne Welch, Appellant, was tried by jury and convicted of First Degree Burglary, After Former Conviction of Two or More Felonies and Peeping Tom in the District Court of Oklahoma County, Case No. CF-2000-2119. In accordance with the jury’s verdict, District Judge John Scaggs sentenced Appellant to thirty (30) years imprisonment for burglary and one year in the county jail and a $500.00 fine for peeping tom. The trial court ordered the sentences to run concurrently. From this judgment and sentence, he appeals.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm the judgment, but vacate the fine imposed. In reaching our decision, we considered the following propositions of error:

I. Mr. Welch’s constitutional rights to a fair trial and due process were violated by the trial court’s refusal to instruct the jury on his theory of defense, which was that he was guilty, if anything, of the offense of breaking and entering;

II. The state materially misled the jury by arguing that the crime of Peeping Tom satisfied the intent element of burglary;

III. Mr. Welch was deprived of the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution;

IV. The instruction regarding the penalty for Peeping Tom was incorrect and prejudicial;

V. Failure to inform the jury that Mr. Welch would serve 85% of the sentence assessed before being considered for parole resulted in an excessive sentence;

VI. The sentence imposed was excessive and disproportionate to the crime; and

VII. The trial errors cumulatively deprived Mr. Welch of a fair trial and reliable verdict.

As to Proposition I, we find the trial court did not err in refusing the requested instruction on breaking and entering because it was not warranted by the evidence. Shrum v. State, 991 P.2d 1032, 1036 (Okl.Cr.1999). As to Proposition II, we find under the unique facts of this case and more importantly the State’s entire argument, the State’s argument was not materially misleading and did not deny Appellant of a fair trial. Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995)(This Court will not grant relief for prosecutorial misconduct unless the cumulative effect of the misconduct deprived the defendant of a fair trial.) As to Proposition III, we find Appellant has failed to prove prejudice which is fatal to his claim of ineffective assistance of counsel. Humphreys v. State, 947 P.2d 565, 578 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). See also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Accordingly, no relief is required. As to Proposition IV, we find the trial court committed plain error when it incorrectly instructed the jury on the range of punishment for the crime of Peeping Tom. See Taylor v. State, 45 P.3d 103, 106 n. 3 (Okl.Cr.2002) and cases cited therein. Because Appellant’s sentences were run concurrently and a year has elapsed since formal sentencing (Nov. 19, 2001), there is no remedy to cure his sentence of imprisonment since it has already been served. However, we find the $500.00 fine imposed should be vacated. As to Proposition V, we find the trial court was not required to instruct the jury that Appellant would be required to serve eighty-five percent (85%) of the sentence imposed prior to becoming parole eligible. Nguyen v. State, 769 P.2d 167, 173 (Okl.Cr.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989); Miller v. State, 522 P.2d 642, 644 (Okl.Cr.1974) See also Johnson v. State, Case No. F-2001-523 (June 14, 2002). As to Proposition VI, we find the sentence imposed does not shock the conscience of the Court based on this record. Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149. As to Proposition VII, we find no error that, by itself or in combination with other errors, deprived Appellant of a fair trial. Accordingly, no relief is required. Lewis v. State, 1998 OK CR 24, I 63, 970 P.2d 1158, 1176, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999).

DECISION

The Judgment of the trial court is AFFIRMED. The $500.00 fine imposed for Peeping Tom is VACATED.

APPEARANCES AT TRIAL

BOB CARPENTER
ATTORNEYS FOR APPELLANT
LEANN JONES PETERS
CURTIS BUSSETT
OKLAHOMA INDIGENT DEFENSE SYSTEM
217 N. HARVEY
OKLAHOMA CITY, OK 73102

APPEARANCES ON APPEAL

GREG MASHBURN
HEATHER MENDOZA
ATTORNEY GENERAL
ASSISTANT DISTRICT ATTORNEYS OF OKLAHOMA
320 ROBERT S. KERR, RM. 505
OKLAHOMA CITY, OK 73102

W.A. DREW EDMONDSON
KEELEY L. HARRIS
ASSISTANT ATTORNEY GENERAL
ATTORNEYS FOR THE STATE
2300 N.LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR
CHAPEL, J.: CONCUR

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Footnotes:

1. Okla. Stat. tit. 21 § 1436
2. Okla. Stat. tit. 21 § 1436.2
3. Okla. Stat. tit. 21 § 51.1
4. Okla. Stat. tit. 21 § 142
5. Okla. Stat. tit. 21 § 51
6. Okla. Stat. tit. 21 § 40
7. Okla. Stat. tit. 57 § 332.7
8. Okla. Stat. tit. 22 § 1053
9. Okla. Stat. tit. 21 § 117
10. Okla. Stat. tit. 22 § 991a

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 - First Degree Burglary
• Okla. Stat. tit. 21 § 1021 - Peeping Tom
• Okla. Stat. tit. 21 § 701.8 - Sentences for Certain Crimes
• Okla. Stat. tit. 21 § 51.1 - Sentencing Guidelines
• Okla. Stat. tit. 57 § 332.7 - Parole Eligibility
• Okla. Stat. tit. 21 § 6 - Rights to a Fair Trial
• Okla. Stat. tit. 22 § 1064 - Jury Instructions

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:

• Shrum v. State, 991 P.2d 1032, 1036 (Okl.Cr.1999)
• Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995)
• Humphreys v. State, 947 P.2d 565, 578 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)
• Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
• Taylor v. State, 45 P.3d 103, 106 n. 3 (Okl.Cr.2002)
• Nguyen v. State, 769 P.2d 167, 173 (Okl.Cr.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989)
• Miller v. State, 522 P.2d 642, 644 (Okl.Cr.1974)
• Johnson v. State, Case No. F-2001-523 (June 14, 2002)
• Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149
• Lewis v. State, 1998 OK CR 24, 970 P.2d 1158, 1176, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999)