Sundeep Kishore v The State Of Oklahoma

F 2005-659

Filed: Aug. 2, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Sundeep Kishore appealed his conviction for Conspiracy to Commit Murder and Embezzlement. Conviction and sentence were affirmed, but the restitution order of $100,000 was vacated. Judge A. Johnson dissented.

Decision

The Judgment and Sentences imposed in Oklahoma County District Court, Case No. CF 2003-1331, are hereby AFFIRMED, but the order of restitution is VACATED and REMANDED TO THE DISTRICT COURT for further proceedings consistent with this Summary Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a denial of a fair trial due to the State's failure to disclose that one of its key witnesses was a paid FBI informant?
• Did the trial court err in assessing restitution to the Appellant based on money missing from Watson's checking account?
• Was the punishment imposed on the Appellant excessive given the facts and circumstances of the case?

Findings

• The court erred in not requiring relief for the failure to disclose a witness's status as a paid informant.
• The restitution order was vacated due to lack of statutory compliance and certainty in the determined amount.
• The court did not find the punishment excessive and affirmed the sentences imposed.

F 2005-659

Aug. 2, 2006

Sundeep Kishore

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Appellant, Sundeep Kishore, was convicted by a jury in Oklahoma County District Court, Case No. CF 2003-1331, of Conspiracy to Commit Murder, in violation of 21 O.S.2001, § 421 (Count 1), and of Embezzlement, in violation of 21 O.S.2001, § 1451.1 (Counts 2, 3, 5-9). Jury trial was held on April 26th – May 3rd, 2005, before the Honorable Tammy Bass-Jones, District Judge. The jury set punishment on Count 1 at ten (10) years imprisonment; five (5) years imprisonment on Counts 7 and 8; and, two (2) years imprisonment each on Counts 2, 3, 5, 6, and 9. Formal sentencing was held on June 30, 2005, and Judge Bass-Jones sentenced Appellant in accordance with the jury’s verdicts and ordered the sentences to be served consecutively. The trial court also ordered Appellant to pay One Hundred Thousand Dollars ($100,000.00) in restitution. Thereafter, Appellant perfected this appeal. Mr. Kishore raises three (3) propositions of error: 1. Appellant was denied a fair trial when the State failed to disclose prior to trial that one of the State’s key witnesses was a paid FBI informant; 2. The trial court erred in assessing restitution to Appellant, based on money missing from Watson’s checking account, depriving Appellant of his constitutional rights; and 3. The punishment is excessive given all the facts and circumstances of this case, and the Court should modify the sentences, pursuant to its statutory authority, if the judgments are affirmed.

After thorough consideration of the propositions raised, the Original Record, the transcripts and briefs of the parties, we find Mr. Kishore’s convictions and sentences should be and are hereby affirmed, but the order of restitution is hereby vacated and the determination of restitution is remanded to the district court for the reasons set forth below. Proposition One does not require relief. Although defense counsel did not learn a key witness obtained a fee for his disclosure of this crime to government officials until the day of trial, such evidence was not material impeachment evidence and, had it been disclosed sooner, cannot reasonably be taken to put the whole case in such a different light as to undermine confidence in the jury’s verdict. See Anderson V. State, 2006 OK CR 6, 9 28, n.36, 130 P.3d 273, 283, n.36 (the prosecution is required to turn over any evidence favorable to an accused which is material to guilt or punishment and includes impeachment evidence); Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Proposition Three also does not require relief. The individual terms of the sentences imposed fall within the appropriate statutory ranges. See 21 O.S.2001, § 421(6) and 21 O.S.2001, § 1451.1(B). Further, Judge Bass-Jones acted within her discretion when she ordered the sentences to run consecutively. See 22 O.S.2001, § 976; Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534. The sentences imposed do not shock the conscience of the Court. Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148. In Proposition Two, we find the trial court acted within its statutory authority by ordering restitution. See 22 O.S.2001, § 991f. However, the State did not submit the statutorily required restitution form and the restitution amount was not determined to a reasonable degree of certainty. Both are required by statute. 22 O.S.2001, § 991f. Accordingly, the one hundred thousand dollar ($100,000.00) order of restitution is hereby VACATED and the matter is remanded to the district court for a hearing to determine the proper amount of restitution.

DECISION

The Judgment and Sentences imposed in Oklahoma County District Court, Case No. CF 2003-1331, are hereby AFFIRMED, but the order of restitution is VACATED and REMANDED TO THE DISTRICT COURT for further proceedings consistent with this Summary Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. 21 O.S.2001, § 421.
2. 21 O.S.2001, § 1451.1.
3. Anderson v. State, 2006 OK CR 6, n.36.
4. Kyles v. Whitley, 514 U.S. 419 (1995).
5. 21 O.S.2001, § 421(6).
6. 21 O.S.2001, § 1451.1(B).
7. 22 O.S.2001, § 976.
8. Riley v. State, 1997 OK CR 51.
9. Rea v. State, 2001 OK CR 28.
10. 22 O.S.2001, § 991f.
11. 22 O.S.2001, § 991f.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 421 (2001) - Conspiracy to Commit Murder
• Okla. Stat. tit. 21 § 1451.1 (2001) - Embezzlement
• Okla. Stat. tit. 22 § 976 (2001) - Sentencing
• Okla. Stat. tit. 22 § 991f (2001) - Restitution

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:

• Anderson v. State, 2006 OK CR 6, I 28, n.36, 130 P.3d 273, 283, n.36
• Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490
• Riley v. State, 1997 OK CR 51, I 20, 947 P.2d 530, 534
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148