Blog

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA KARENA L. GILBREATH-HANCOCK, ) ) NOT FOR PUBLICATION Appellant, ) vs. ) No. F-2013-974 ) THE STATE OF OKLAHOMA, ) ) FILED Appellee. ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SUMMARY OPINION FEB 18 2015 MICHAEL S. RICHIE SMITH, PRESIDING JUDGE: CLERK Karena Gilbreath-Hancock was tried by jury and convicted of Actual Physical Control of a Motor Vehicle under the Influence of Alcohol, in violation of 47 O.S. Supp.2012, § 11-902, after former conviction of a felony, in the District Court of Bryan County, Case No. CF-2012-214.1 In accordance with the jury’s recommendation the Honorable Mark R. Campbell sentenced Gilbreath-Hancock to two (2) years and six (6) months imprisonment and a $2500 fine. Gilbreath- Hancock appeals from this conviction and sentence. Gilbreath-Hancock raises two propositions of error in support of her appeal: I. The trial court committed reversible error by allowing trial counsel to represent Ms. Gilbreath-Hancock at her jury trial which violated Appellant’s statutory and constitutional right to counsel free from conflict of interest. II. Ms. Gilbreath-Hancock’s Fourteenth Amendment due process rights pursuant to the United States Constitution were violated when the trial court failed to properly instruct the jury. 1 Count II, charging Gilbreath-Hancock with possession of marijuana, was dismissed before trial. After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the case must be remanded for resentencing. We find in Proposition I that there was no conflict between defense counsel, Haggerty, and Gilbreath-Hancock. Gilbreath-Hancock neither objected to Haggerty’s representation nor claimed a conflict of interest. She has waived all but plain error. Faulkner v. State, 2011 OK CR 23, I 5, 260 P.3d 430, 431. A defendant has a right to be represented by counsel free from all conflicts of interest. Carey v. State, 1995 OK CR 55, I 8, 902 P.2d 1116, 1118. We review a trial court’s finding of no actual conflict of interest de novo, while reviewing the court’s resolution of the underlying facts under the “clearly erroneous” standard. Rutan v. State, 2009 OK CR 3, I 63, 202 P.3d 839, 851-52. An actual conflict occurs “where the interests of an attorney and a defendant diverge with respect to a material factual or legal issue or to a course of action.” Harmon v. State, 2005 OK CR 19, I 4, 122 P.3d 861, 863, quoting Livingston v. State, 1995 OK CR 68, I 11, 907 P.2d 1088, 1091-92. If there is only an appearance of conflict, a defendant must show actual harm. Faulkner, 2011 OK CR 23, I 10, 260 P.3d at 433. Personality conflicts, or disagreements over the conduct of the case, do not constitute a conflict of interest sufficient to justify removing an attorney from the case. Johnson v. State, 1976 OK CR 292, I 33, 556 P.2d 1285, 1294. Gilbreath-Hancock wholly fails to show a conflict of interest. At best, her arguments speculate about the possibility of a conflict. Perry v. State, 1988 OK CR 252, 99 9-10, 762 P.2d 892, 896. Nothing in the record supports her claim that 2 Haggerty and Gilbreath-Hancock were SO unable to communicate that an actual conflict, or even the appearance of a conflict, existed. The record shows that, despite disagreeing with his client on strategy, Haggerty properly followed her directions. Smith v. State, 2006 OK CR 38, I 40, 144 P.3d 159, 168; Rule 1.2(a), Rules of Professional Conduct, Title 5, Ch. 1, App. 3-A. Since Haggerty did not know whether Gilbreath-Hancock would testify, delaying opening statement was a reasonable trial strategy within counsel’s discretion. Taylor v. State, 2000 OK CR 6, I 38, 998 P.2d 1225, 1235, abrogated on other grounds by Malone v. State, 2007 OK CR 34, I 22 n.48, 168 P.3d 185, 196 n.48. Haggerty effectively challenged the State’s case and zealously argued on her behalf. This proposition is denied. We find merit in Proposition II. The trial court failed to instruct jurors on every sentencing option listed in 47 O.S.Supp.2012, § 11-902(C)(2). Gilbreath- Hancock did not object to this instruction and we review for plain error. McIntosh v. State, 2010 OK CR 17, I 10, 237 P.3d 800, 803. We have found this failure to instruct is error requiring remand for resentencing. Harney v. State, 2011 OK CR 10, 11 20-21, 256 P.3d 1002, 1006-07; Hicks v. State, 2003 OK CR 10, 11 4-5, 70 P.3d 882, 883.2 The State confesses this error. The case is remanded for resentencing where, if a jury trial is requested, jurors are instructed as to all punishment options under § 11-902(C)(2). Harney, 2011 OK CR 10, I 22, 256 P.3d at 1007. DECISION The Judgment of the District Court of Bryan County is AFFIRMED. The case is REMANDED for RESENTENCING. Pursuant to Rule 3.15, Rules of the Oklahoma 2 Neither of these cases are cited in Appellant’s brief. 3 Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF BRYAN COUNTY THE HONORABLE MARK R. CAMPBELL, DISTRICT JUDGE ATTORNEYS AT TRIAL ATTORNEYS ON APPEAL MICHAEL HAGGERTY, II KATRINA CONRAD-LEGLER HAGGERTY LAW OFFICE, PLLC P.O. BOX 926 716 WEST EVERGREEN STREET NORMAN, OK 73070 DURANT, OK 74701 COUNSEL FOR APPELLANT COUNSEL FOR DEFENDANT JULIE CUESTA-NAIFEH E. SCOTT PRUITT ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA BRYAN COUNTY ASHLEY L. WILLIS DISTRICT ATTORNEY’S OFFICE ASSISTANT ATTORNEY GENERAL 117 NORTH THIRD STREET 313 NE 21ST STREET DURANT, OK 74701 OKLAHOMA CITY, OK 73105 COUNSEL FOR STATE COUNSEL FOR APPELLEE OPINION BY: SMITH, P.J. LUMPKIN, V.P.J.: CONCUR A. JOHNSON, J.: CONCUR LEWIS, J.: CONCUR 4

Click Here To Download PDF