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F 2012-1131

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Antonio Herman Cervantes v The State Of Oklahoma

F 2012-1131

Filed: May 8, 2014

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Antonio Herman Cervantes appealed his conviction for sixty-nine counts of child sexual abuse and one count of child physical abuse. His conviction and sentence were affirmed by the court, which means he will serve forty years in prison for each count, but some sentences will be served together instead of one after the other. Judge Kenneth C. Watson presided over the trial. Cervantes argued that there were many errors during his trial, such as improper jury instructions, not having a fair trial, and being denied a speedy trial. He also claimed that his lawyer did not defend him well and that the prosecutor acted unfairly. However, after reviewing everything, the court found that the trial was fair, and Cervantes did not prove that he suffered from any of the claimed mistakes. One judge, A. Johnson, disagreed with the overall opinion.

Decision

The Judgment and Sentence of the district court shall be AFFIRMED. The case, however, is REMANDED to have the Judgment and Sentence corrected, by order nunc pro tunc, to reflect the correct sentence imposed by the trial court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there reversible error due to improper jury instructions at appellant's trial?
  • Did at least sixty-two of Mr. Cervantes' convictions for child sexual abuse violate constitutional prohibitions against double punishment and double jeopardy?
  • Did the trial court fail to act as an impartial tribunal at jury trial resulting in prejudice to Mr. Cervantes?
  • Was Antonio Cervantes denied his constitutional right to a speedy trial, requiring dismissal of this case?
  • Were appellant's prior felony convictions wrongly alleged and improperly proven, resulting in prejudice to Mr. Cervantes?
  • Should the Judgment and Sentence be corrected by an order nunc pro tunc to accurately reflect the verdict of the jury and the oral order of the trial court?
  • Was Mr. Cervantes denied effective assistance of counsel?
  • Did prosecutorial misconduct deprive Mr. Cervantes of a fair trial, create fundamental error, and result in an excessive sentence?
  • Was the consecutive service of appellant's sentences excessive under the facts and circumstances of his case?
  • Did the cumulative effect of all these errors deprive appellant of a fair trial and warrant relief for Antonio Cervantes?

Findings

  • the court did not err in failing to provide proper jury instructions
  • the evidence was sufficient to support multiple convictions for separate acts
  • the trial court acted impartially and did not prejudice the appellant
  • the appellant was not denied his constitutional right to a speedy trial
  • the prior felony convictions were properly proven with no prejudicial error
  • the Judgment and Sentence will be corrected by order nunc pro tunc
  • the appellant was not denied effective assistance of counsel
  • there was no prosecutorial misconduct that deprived the appellant of a fair trial
  • the consecutive service of the appellant's sentences was not excessive
  • there was no cumulative error warranting relief for the appellant

F 2012-1131

May 8, 2014

Antonio Herman Cervantes

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LEWIS, PRESIDING JUDGE:

Antonio Herman Cervantes, Appellant, was convicted of sixty-nine counts of child sexual abuse in violation of 10 O.S.Supp.2006, § 7115(E), and one count of child physical abuse in violation of 10 O.S.Supp.2007, § 7115(A), in Oklahoma County district court case number CF-2009-6889, before the Honorable Kenneth C. Watson, District Judge. The jury set punishment at forty (40) years imprisonment on each count. The trial court sentenced accordingly and ordered that the counts be grouped so that counts two through thirty-three would run concurrently with each other; counts fifty-two through seventy-two would run concurrently with each other; counts seventy-seven through eighty-nine would run concurrently with each other; and counts ninety, and ninety-seven through ninety-nine would run concurrently with each other. Those four groups of counts were ordered to run consecutively with each other.

Cervantes perfected an appeal to this Court and raises the following propositions of error:

1. The trial court committed reversible error by failing to give proper jury instructions at appellant’s trial.
2. At least sixty-two of Mr. Cervantes’ sixty-nine convictions for child sexual abuse violate constitutional prohibitions against double punishment and double jeopardy.
3. The trial court failed to act as impartial tribunal at jury trial resulting in prejudice to Mr. Cervantes.
4. Antonio Cervantes was denied his constitutional right to a speedy trial, requiring dismissal of this case.
5. Appellant’s prior felony convictions were wrongly alleged and improperly proven resulting in prejudice to Mr. Cervantes.
6. The Judgment and Sentence filed herein should be corrected by an order nunc pro tunc to accurately reflect the verdict of the jury and the oral order of the trial court.
7. Mr. Cervantes was denied effective assistance of counsel.
8. Prosecutorial misconduct deprived Mr. Cervantes of a fair trial, created fundamental error, and resulted in an excessive sentence.
9. Consecutive service of Appellant’s sentences is excessive under the facts and circumstances of his case.
10. The cumulative effect of all these errors deprived Appellant of a fair trial and warrants relief for Antonio Cervantes.

After thorough consideration of Cervantes’ 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 Judgment and Sentence filed in the original record, however, shall be corrected by order nunc pro tunc to reflect the correct sentencing pronouncement of the district court.

In deciding proposition one, we find that there were no objections to the instructions given to the jury, nor were specific instructions requested by Cervantes, thus this Court is limited to review for plain error only. To be entitled to relief under the plain error doctrine, an appellant must prove, first, that actual error occurred, second, which is obvious in the record, and third, the error affected his substantial rights; meaning the error affected the outcome of the proceeding; moreover, this Court will not grant relief unless the error seriously affected the fairness, integrity or public reputation of the judicial proceeding or otherwise represents a miscarriage of justice. Here, the instructions regarding the separate charges, elements, burdens of proof, and verdicts, when taken as a whole, fairly and accurately state the applicable law; therefore, there is no actual error. Cervantes has failed to meet the threshold requirement of plain error review.

With regard to the instructions on sentencing issues (minimum incarceration requirements and post-incarceration supervision), we find that the failure of the trial court to instruct, sua sponte, on these issues did not affect the outcome of this trial, thus Cervantes has failed to show plain error occurred. Proposition one is denied.

In proposition two, we find that the evidence was sufficient to show that separate acts were committed. Acts are separate if a sufficient gap exists between each occurrence. In proposition three, we find that none of the comments by the trial court which forms the basis for Cervantes’ proposition were met with objections during trial, thus we review for plain error only. After reviewing the comments we find that they certainly do not overcome the presumption of impartiality that every tribunal is due.

In deciding proposition four, we utilize a four-part balancing test to determine whether a defendant was denied a speedy trial. We examine (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) the prejudice to the defendant in not receiving a speedy trial. This Court balances these four factors with other relevant circumstances in making a determination. The State concedes that the length of the delay, thirty-four months, is sufficient to trigger an examination of the remaining factors. We will, therefore, examine the reasons for the delay to determine whether they are reasonable.

Deliberate delay weighs heavily against the government. Neutral reasons, like negligence or crowded courts, weigh slightly in a defendant’s favor, for ultimate responsibility for such circumstances must rest with the government rather than with the defendant. The reasons for the delays are somewhat vague and not very well documented. No one preserved a sufficient record so that this Court can determine the specific reasons for each continuance. Continuances, however, were largely due to the necessity of obtaining or appointing different attorneys for Cervantes.

The majority of the continuances were due to Cervantes’ conflicts with defense counsel or counsel’s scheduling conflicts or illness. The State had no control over these continuances. Looking at the entirety of the delay, it can hardly be said that the delays in this case were deliberate attempts by the State to sabotage Cervantes’ rights.

Even though Cervantes, pro se, asserted his right to a speedy trial soon after being charged, the record is devoid of any other assertion of his rights. The final factor is the prejudice to the appellant. The presumptive prejudice arising from a lengthy delay is always a factor to be considered in applying the speedy trial analysis. In cases of extreme delay, criminal defendants need not present specific evidence of prejudice.

In this case, Cervantes has not made a showing that he was prejudiced by the delay. He does not even try to make a claim that his defense was impaired by the delay. His only claim is oppressive pre-trial incarceration and living under a cloud of suspicion for a significant period of time as prejudicial. Even so, he makes no particularized showing of how he was affected by the incarceration. This Court is reluctant to find a speedy trial violation where there is absolutely no prejudice.

In conclusion, weighing the compilation of continuances, the four factors, and the circumstances involved in this case, we find that Cervantes’ speedy trial rights were not violated. We find that the first factor, the length of the delay, weighs in favor of Cervantes; the second factor, reason for the delay, is at best neutral; the third factor, assertion of the right, weighs in favor of Cervantes; and the fourth factor, prejudice to Cervantes, weighs in favor of the State. After considering all the factors, we find that Cervantes was not deprived of his speedy trial rights.

In proposition five, we find that there were no objections to the methods of proving his prior convictions; therefore, we are limited to review for plain error only. Cervantes complains about portions of the documents used to prove his prior convictions which indicate that he received a suspended sentence. The documents were introduced during the first stage when Cervantes testified. We can find no error in the documents showing that he received a probated sentence for previous felony convictions.

In this proposition, Cervantes also complains that three of his prior robbery convictions arose out of a single transaction. The defendant has the burden to show that the prior convictions arose out of the same transaction or occurrence. Cervantes has not met this burden; thus he cannot show that the admission of separate prior convictions was error.

In proposition six, we find that the Judgment and Sentence reflects a forty (40) year sentence on count one, when in fact Cervantes was acquitted of this count. Additionally, the Judgment and Sentence reflects that counts 2-33 run together; counts 52-72 run together; counts 77-90 run together; counts 97-98 run together; and count 99 is separate; each of these separate groups run consecutively to each other. We, therefore, order that this case be remanded to correct the Judgment and Sentence to reflect the correct oral pronouncement of the sentence.

In proposition seven, we find that a claim of ineffective assistance requires that an appellant show that his attorney’s actions fell below reasonable standards and that the appellant was prejudiced by the actions. Cervantes claims he was deprived of effective assistance of counsel due to several factors including failure to object to jury instructions, failure to have prior judgments redacted, and failure to address prosecutorial misconduct. Cervantes has not shown how counsel’s conduct fell below reasonable standards or how the conduct resulted in prejudice. Additionally, Cervantes does not argue that the pre-trial motion to quash has merit. Consequently, we find that Cervantes was not denied effective assistance of counsel.

In proposition eight, we review the alleged misconduct in context with the entire trial. This Court will not reverse a trial on the allegations of prosecutorial misconduct unless an appellant is deprived of a fair trial. In examining the allegations of misconduct, we conclude that Cervantes was not deprived of a fair trial.

In proposition nine, we find that the sentences in this case do not shock this Court’s conscience. Finally, in proposition ten, we have found no individual error requiring relief; therefore there can be no error to accumulate.

DECISION

The Judgment and Sentence of the district court shall be AFFIRMED. The case, however, is REMANDED to have the Judgment and Sentence corrected, by order nunc pro tunc, to reflect the correct sentence imposed by the trial court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. 10 O.S. Supp. 2006, § 7115(E)
  2. 10 O.S. Supp. 2007, § 7115(A)
  3. 21 O.S. Supp. 2004, § 13.1(14)
  4. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d. 907, 923
  5. Hanson v. State, 2003 OK CR 12, ¶ 25, 72 P.3d 40, 53
  6. Gregg v. State, 1992 OK CR 82, ¶ 27, 844 P.2d 386, 878
  7. Doyle v. State, 1989 OK CR 85, 785 P.2d 317, 324
  8. Hepp v. State, 1988 OK CR 8, 749 P.2d 553, 554
  9. Colbert v. State, 1986 OK CR 15, 714 P.2d 209, 212
  10. Frederick v. State, 2001 OK CR 34, ¶ 175, 37 P.3d 908, 951
  11. Carter v. State, 1994 OK CR 49, ¶ 13, 879 P.2d 1234, 1242
  12. Lott v. State, 2004 OK CR 27, ¶ 7, 98 P.3d 318, 327
  13. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)
  14. Ellis v. State, 2003 OK CR 18, ¶ 30, 76 P.3d 1131, 1136
  15. Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir. 2004)
  16. Doggett v. United States, 505 U.S. 647, 655-56, 112 S.Ct. 2682, 2692-93, 120 L.Ed.2d 520 (1992)
  17. United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986)
  18. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149
  19. Lott v. State, 2004 OK CR 27, ¶ 165, 98 P.2d 357
  20. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
  21. Cooper v. State, 1991 OK CR 26, ¶ 13, 806 P.2d 1136, 1138

Oklahoma Statutes citations:

  • Okla. Stat. tit. 10 § 7115 (2006) - Child Sexual Abuse
  • Okla. Stat. tit. 10 § 7115 (2007) - Child Physical Abuse
  • Okla. Stat. tit. 21 § 13.1 (2004) - Sentencing and Parole Eligibility
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing Guidelines
  • Okla. Stat. tit. 22 § 106 (2011) - Speedy Trial Rights
  • Okla. Stat. tit. 22 § 108 (2011) - Continuances
  • Okla. Stat. tit. 22 § 303 (2011) - Ineffective Assistance of Counsel

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 407 U.S. § 514 - Speedy Trial
  • 407 U.S. § 531 - Speedy Trial
  • 505 U.S. § 647 - Speedy Trial
  • 390 F.3d § 1254 - Speedy Trial
  • 474 U.S. § 302 - Speedy Trial
  • 600 F.2d § 248 - Speedy Trial
  • 466 U.S. § 668 - Effective Assistance of Counsel

Other citations:

No other rule citations found.

Case citations:

  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
  • Hogan v. State, 2006 OK CR 19, "I 38, 139 P.3d. 907, 923
  • Hanson v. State, 2003 OK CR 12, I 25 72 P.3d 40, 53
  • Gregg v. State, 1992 OK CR 82, " 27, 844 P.2d 3 867, 878
  • Doyle v. State, 1989 OK CR 85, 785 P.2d 317, 324
  • Hepp U. State, 1988 OK CR 8, 749 P.2d 553, 554
  • Colbert v. State, 1986 OK CR 15, 714 P.2d 209, 212
  • Frederick v. State, 2001 OK CR 34, "I 175, 37 P.3d 908, 951
  • Carter U. State, 1994 OK CR 49, "I 13, 879 P.2d 1234, 1242
  • Lott v. State, 2004 OK CR 27, "I 7, 98 P.3 3d 318, 327
  • Ellis v. State, 2003 OK CR 18, I 30, 76 P.3d 1131, 1136
  • Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir.2004)
  • Doggett v. United States, 505 U.S. 647, 655-56, 112 S.Ct. 2682, 2692-93, 120 L.Ed.2d 520 (1992)
  • United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986)
  • Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149
  • Lott, 2004 OK CR 27, I 165, 98 P.2d at 357
  • Cooper U. State, 1991 OK CR 26, 13, 806 P.2d 1136, 1138

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