Joshua Paul Nosak v The State Of Oklahoma

F 2011-1045

Filed: Apr. 5, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Joshua Paul Nosak appealed his conviction for first-degree manslaughter, leaving the scene of a fatal accident, driving without a driver's license, and assault with a dangerous weapon. His conviction and sentence included a fifty-year prison term and fines totaling $30,300. The court affirmed Nosak's convictions but agreed to correct an error in how his sentences were stated. Judge C. Johnson dissented.

Decision

This case shall be REMANDED to the district court for the issuance of an order nunc pro tunc to correct the Judgment and Sentence to reflect the correct punishment. In all other respects, the Judgment and Sentence of the district court shall be AFFIRMED. 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 there error in the trial court's failure to quash the Information regarding the alternative charge of first degree manslaughter based on insufficient underlying misdemeanor?
• Did the trial court commit reversible error by admitting misleading, irrelevant, and/or highly prejudicial evidence?
• Was Mr. Nosak denied effective assistance of counsel?
• Should the Judgment and Sentence be corrected by an order nunc pro tunc?
• Did the accumulation of errors deprive Mr. Nosak of a fair trial and reliable verdict?

Findings

• the trial court erred in failing to sustain Mr. Nosak's motion to quash the Information regarding the alternative charge of first degree manslaughter
• the trial court did not commit reversible error by admitting evidence into the record
• Mr. Nosak was not denied effective assistance of counsel
• the case is remanded for an order nunc pro tunc to correct the Judgment and Sentence
• there was no accumulation of errors to deprive Mr. Nosak of a fair trial

F 2011-1045

Apr. 5, 2013

Joshua Paul Nosak

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Joshua Paul Nosak, Appellant, was convicted of, count one, first degree manslaughter by driving while impaired, or alternatively while driving without a valid driver’s license, in violation of 21 O.S.Supp.2009, § 711(1); count two, leaving the scene of a fatal accident, in violation of 47 O.S.2001, § 10-102.1; count three, driving without a driver’s license, in violation of 47 O.S.Supp.2009, § 6-303(A); count four, assault with a dangerous weapon, in violation of 21 O.S.Supp.2006, § 645, in the district court of Tulsa County, case number CF-2010-1869, before the Honorable Kurt G. Glassco, District Judge. The jury assessed sentences of fifty (50) years imprisonment and a $10,000 fine on count one, ten (10) years imprisonment and a $10,000 fine on count two, thirty (30) days in jail and a $300 fine on count three, and ten (10) years imprisonment and a $10,000 fine on count four. The trial court sentenced Nosak in accordance with the jury verdict and ordered that the sentences for counts two, three, and four be served concurrently with each other and consecutively with the sentence for count one. The trial court also suspended payment of the fines.

Nosak perfected an appeal to this Court raising the following propositions of error.

1. The trial court erred in failing to sustain Mr. Nosak’s motion to quash the Information with respect to the alternative charge of first degree manslaughter because the underlying misdemeanor alleged, driving without a valid driver’s license, was insufficient to support the charge.
2. The trial court committed reversible error by admitting misleading, irrelevant and/or highly prejudicial evidence into the record in violation of Mr. Nosak’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Oklahoma constitution.
3. Mr. Nosak was denied effective assistance of counsel in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7, 9, and 20 of the Oklahoma constitution.
4. The Judgment and Sentence should be corrected by an order nunc pro tunc.
5. The accumulation of errors deprived Mr. Nosak of a fair trial and reliable verdict.

After thorough consideration of Nosak’s propositions of error and the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we have determined that the judgment and sentence of the district court shall be affirmed. The case, however, shall be remanded for an order nunc pro tunc to correct the Judgment and Sentence.

In proposition one, we find that Nosak cannot show that he was harmed by any possible error in the inclusion of an alternate charge that his first degree manslaughter charge could be based on the underlying misdemeanor offense of driving without a valid driver’s license. Nosak was found guilty, by jury, of both specific alternative first degree manslaughter theories. The jury found him guilty of first degree manslaughter with the specific underlying offense of driving while impaired by alcohol or drugs. The jury was correctly instructed of the offense as well as the elements of the underlying offense. Because the jury verdict for this offense is sound, he cannot show any prejudice, even if error exists.

In proposition two, we find that there was no contemporaneous objection to the introduction of Nosak’s driving record. Review of this issue is, therefore, waived, except that this Court may review for plain error. 12 O.S.2011, § 2104. Our review for plain error leads us to find that no plain error occurred, because the introduction of this evidence did not affect Appellant’s substantial rights.

The introduction of this evidence neither affected the finding of guilt or the sentence in this case, as the evidence was overwhelming and the sentence was clearly based on the crime committed and not on extraneous information.

In proposition three, we find that, Nosak was not prejudiced by counsel’s failure to object to the introduction of his driving record. Nosak cannot show that the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was met in this case. Again, the evidence in this case was clear and overwhelming, and; furthermore, the mere driving record did not affect the sentence garnered in this horrendous crime.

In proposition four, we find that the Judgment and Sentence of the District Court contains substantial irregularities regarding the sentencing for the crimes for which Nosak was convicted. We, therefore, remand this case to the District Court for an order nunc pro tunc to correct the error which incorrectly shows that all of Nosak’s sentences were ordered to be served consecutively.

We find, in proposition five, that there is no individual error requiring relief; therefore there can be no error to accumulate. Lott v. State, 2004 OK CR 27, I 165, 98 P.2d 318, 357.

DECISION

This case shall be REMANDED to the district court for the issuance of an order nunc pro tunc to correct the Judgment and Sentence to reflect the correct punishment. In all other respects, the Judgment and Sentence of the district court shall be AFFIRMED.

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.2009, § 711(1)
2. 47 O.S.2001, § 10-102.1
3. 47 O.S.Supp.2009, § 6-303(A)
4. 21 O.S.Supp.2006, § 645
5. 12 O.S.2011, § 2104
6. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
7. Lott v. State, 2004 OK CR 27, I 165, 98 P.2d 318, 357
8. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d. 907, 923
9. State v. Haworth, 2012 OK CR 12, 283 P.3d 311
10. State v. Ceasar, 2010 OK CR 15, 237 P.3d 792
11. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711 (2009) - First degree manslaughter
• Okla. Stat. tit. 47 § 10-102.1 (2001) - Leaving the scene of a fatal accident
• Okla. Stat. tit. 47 § 6-303 (2009) - Driving without a driver's license
• Okla. Stat. tit. 21 § 645 (2006) - Assault with a dangerous weapon
• Okla. Stat. tit. 12 § 2104 (2011) - Review of trial court's ruling
• Okla. Stat. tit. 22, Ch. 18 § 3.15 (2012) - Mandate issuance rules
• Okla. Stat. tit. 21 § 701.8 (2011) - Guidelines regarding manslaughter
• Okla. Stat. tit. 22 § 18 - Appeals process

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:

• Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931)
• State v. Haworth, 2012 OK CR 12, 283 P.3d 311
• State v. Ceasar, 2010 OK CR 15, 237 P.3d 792
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d. 907, 923
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
• Lott v. State, 2004 OK CR 27, I 165, 98 P.2d 318, 357