Bryan Thomas Delaney v The State Of Oklahoma

F-2013-732

Filed: Feb. 19, 2015

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bryan Thomas Delaney appealed his conviction for Escape from a Penal Institution and Resisting Arrest. His conviction and sentence were affirmed, but the term of post-imprisonment supervision was modified to one year. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the District Court of Ottawa County is MODIFIED to a term of one (1) year of post-imprisonment supervision, and otherwise AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there prejudicial error in the trial court's instruction regarding the consideration of two or more prior felony convictions for sentence enhancement?
• Did the appellant receive ineffective assistance of counsel due to the failure to object to the jury instruction on prior convictions for sentence enhancement?
• Was there plain error in the trial court's imposition of a two-year term of post-imprisonment supervision when the law limited it to one year?

Findings

• The court did not err in the jury instruction regarding the use of prior felony convictions for sentence enhancement.
• The claim of ineffective assistance of counsel was denied.
• The term of post-imprisonment supervision was modified to one (1) year due to plain error.

F-2013-732

Feb. 19, 2015

Bryan Thomas Delaney

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Bryan Thomas Delaney, was tried by jury and found guilty on Count I, Escape from a Penal Institution, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 443, and Count II, Resisting Arrest, in violation of 21 O.S.2011 § 268 in the District Court of Ottawa County, Case No. CF-2012-293. The jury sentenced Defendant to eighteen (18) years imprisonment and a $10,000 fine on Count I, and one (1) year in the county jail on Count II. The Honorable Robert G. Haney, District Judge, pronounced judgment and sentence accordingly. Judge Haney ordered Appellant to complete two (2) years post-imprisonment supervision on Count I pursuant to 22 O.S.Supp.2014, § 991a-21(A).

Mr. Delaney appeals the following propositions of error:

1. Appellant was prejudiced in sentencing by the court’s instruction Appellant could be found guilty after two or more prior felony convictions.
2. Appellant was prejudiced by ineffective assistance of counsel in sentencing.

In his first proposition of error, Appellant claims the trial court erred in its instruction that the jury could find two or more prior convictions for the purpose of sentence enhancement. Appellant failed to object on this basis at trial, waiving all but plain error. To obtain relief, the defendant must prove a plain or obvious error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. Felony offenses relied upon [for the purpose of sentence enhancement] shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location. 21 O.S.2011 § 51.1(C). Appellant’s prior crimes occurred on different days, involved different victims, and were not transactional under 21 O.S.2011 § 51.1(C); Hammer v. State, 1988 OK CR 149, I 10, 760 P.2d 200, 203. He has not shown error, and thus no plain error occurred. Proposition One is denied.

Appellant’s second proposition of error claims defense counsel’s failure to object to the jury instruction that two or more prior convictions could be used for sentence enhancement was ineffective assistance of counsel. Reviewing this claim according to the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674, Appellant must demonstrate that counsel’s performance was constitutionally deficient, and that he was prejudiced by said performance, depriving him of a fair trial with a reliable result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Where objections that might have been raised would have been properly overruled [the appellant fails] to show that any errors by counsel were so great as to render the results of the trial unreliable. Short v. State, 1999 OK CR 15, I 85, 980 P.2d 1081, 1106-07. Proposition Two is denied.

Although neither party raises the issue on appeal, we note that the trial court sentenced Appellant to a two (2) year term of post-imprisonment supervision. This is plain error according to the language of 22 O.S.Supp.2014, section 991a-21(A), which limits such supervision for this offense to a term of nine (9) months to one (1) year. The Court will therefore modify this term to one (1) year of post-imprisonment supervision.

DECISION

The Judgment and Sentence of the District Court of Ottawa County is MODIFIED to a term of one (1) year of post-imprisonment supervision, and otherwise AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT TRIAL

JEFFREY B. JONES
P.O BOX 1387
STILWELL, OK 74960-1387
ATTORNEY FOR DEFENDANT

EDDIE WYANT
DISTRICT ATTORNEY

JENNIFER ELLIS
ASSISTANT DISTRICT ATTORNEY
OTTAWA COUNTY COURTHOUSE
102 E CENTRAL AVENUE
MIAMI, OK 74354-7008
ATTORNEYS FOR APPELLEE

APPEARANCES ON APPEAL

S. GAIL GUNNING
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA

JENNIFER B. WELCH
ASSISTANT ATTORNEY GENERAL
313 NE 21ST STREET
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY LEWIS, J.: Concur
SMITH, P.J.: Concur
LUMPKIN, V.P.J.: Concur
A. JOHNSON, J.: Concur

Click Here To Download PDF

Footnotes:

1. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
2. 21 O.S.2011 § 51.1(C).
3. Hammer v. State, 1988 OK CR 149, I 10, 760 P.2d 200, 203.
4. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674.
5. Short v. State, 1999 OK CR 15, I 85, 980 P.2d 1081, 1106-07.
6. 22 O.S.Supp.2014, § 991a-21(A).
7. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 443 (2011) - Escape from a Penal Institution
• Okla. Stat. tit. 21 § 268 (2011) - Resisting Arrest
• Okla. Stat. tit. 22 § 991a-21(A) (Supp. 2014) - Post-Imprisonment Supervision
• Okla. Stat. tit. 21 § 51.1(C) (2011) - Sentence Enhancement

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:

• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Hammer U. State, 1988 OK CR 149, I 10, 760 P.2d 200, 203
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674
• Short v. State, 1999 OK CR 15, I 85, 980 P.2d 1081, 1106-07