Lawrence Raymond Silver, Jr. v The State Of Oklahoma

F-2017-1189

Filed: Apr. 11, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Lawrence Raymond Silver, Jr. appealed his conviction for Solicitation for First Degree Murder. His conviction and sentence were set to thirty-seven years in prison. Judge Lumpkin disagreed with part of the opinion. Silver argued several points in his appeal. First, he believed that the prosecutor acted unfairly during the trial, but the court found no serious mistakes that would have affected his fairness. Second, Silver said his three years of supervision after prison was too long since it should only be nine months to one year. The state agreed and corrected it to nine months to one year after the appeal. Third, Silver claimed his lawyer did not help him well, but the court decided his lawyer did not make any mistakes that affected the outcome of the trial. Finally, Silver stated that even if no single mistake was significant, all the errors together should lead to a new trial. The court found no errors to consider. In the end, the court confirmed Silver's conviction, and his request to add more details to his appeal was denied.

Decision

The Judgment and Sentence of the district court is AFFIRMED. Application to Supplement Appeal Record or in the Alternative Remand for Evidentiary Hearing on Sixth Amendment Claims is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there cumulative prosecutorial misconduct that deprived him of a fair trial
• did the trial court's imposition of three years post-imprisonment supervision constitute an improper sentence
• was he denied effective assistance of counsel
• did cumulative errors warrant a new trial or sentence modification

Findings

• the court erred with regard to the issue of prosecutorial misconduct, finding no plain error
• the trial court's imposition of three years post-imprisonment supervision was improper, but the issue is moot as the error was corrected
• the claim of ineffective assistance of counsel is denied, as there was no showing of prejudice
• the claim of cumulative errors is denied as there were no errors to consider

F-2017-1189

Apr. 11, 2019

Lawrence Raymond Silver, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant Lawrence Raymond Silver, Jr., appeals his Judgment and Sentence from the District Court of Pottawatomie County, Case No. CF-2017-41, for Solicitation for First Degree Murder in violation of 21 O.S.2011, § 701.16. The Honorable John Canavan, Jr., District Judge, presided over Silver’s jury trial and sentenced him, in accordance with the jury’s verdict, to thirty-seven years imprisonment. Silver appeals raising the following issues: (1) whether cumulative prosecutorial misconduct deprived him of a fair trial; (2) whether the trial court’s imposition of three years post-imprisonment supervision was improper; (3) whether he was denied effective assistance of counsel; and (4) whether cumulative errors deprived him of a fair trial. We find relief is not required and affirm the Judgment and Sentence of the district court.

1. Silver argues he was denied a fair trial because of prosecutorial misconduct. None of the challenged statements drew an objection below. A prosecutor’s conduct not met with objection is reviewed for plain error only. Harney v. State, 2011 OK CR 10, I 23, 256 P.3d 1002, 1007. [W]e evaluate the alleged misconduct within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. Hanson U. State, 2009 OK CR 13, I 18, 206 P.3d 1020, 1028. Both sides have wide latitude to discuss the evidence and reasonable inferences therefrom. Harmon U. State, 2011 OK CR 6, I 81, 248 P.3d 918, 943. Relief is only granted where the prosecutor’s flagrant misconduct so infected the defendant’s trial that it was rendered fundamentally unfair. Jones v. State, 2011 OK CR 13, IT 3, 253 P.3d 997, 998. It is the rare instance when a prosecutor’s misconduct during closing argument will be found so egregiously detrimental to a defendant’s right to a fair trial that reversal is required. See Pryor v. State, 2011 OK CR 18, I 4, 254 P.3d 721, 722. There is nothing in any of the challenged comments, individually or cumulatively, that exceeds the wide latitude parties have to discuss the evidence and reasonable inferences from it. The record reveals the prosecutor’s challenged remarks, read in context, are not improper. There was no error, plain or otherwise. This claim is denied.

2. The trial court sentenced Silver to serve a term of three years post-imprisonment supervision upon his release from prison. Silver argues on appeal that this term of post-imprisonment supervision is allowed only upon conviction for certain enumerated sex crimes. See 22 O.S.Supp.2017, § 991a(A)(1)(f). He argues that because he was not convicted of one of the listed crimes he could only be sentenced to a term of post-imprisonment supervision for a period of not less than nine (9) months nor more than one (1) year following confinement. See 22 O.S.Supp.2012, § 991a-21(A). The State responds, agreeing that the trial court was without authority to order three years of post-imprisonment supervision, and was limited to imposing nine months to one year of post-imprisonment supervision. The State advises that on September 7, 2018, the trial court issued a Second Amended Judgment and Sentence which struck the language imposing three years of post-imprisonment supervision and instead sentenced Silver to a period of nine months to one year of post-imprisonment supervision. The Second Amended Judgment and Sentence was filed in the district court on September 7, 2018. The State requests that this Court take judicial notice of the Second Amended Judgment and Sentence pursuant to 12 O.S.2011, § 2202. We do so and find that Silver’s request for relief on this issue is moot as the error has been corrected. This claim is denied.

3. Silver argues defense counsel rendered constitutionally ineffective assistance at trial. This Court reviews claims of ineffective assistance of counsel to determine whether counsel’s deficient performance, if any, prejudiced the defense so as to deprive the defendant of a fair trial with reliable results. Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206. Under this test, Silver must affirmatively prove prejudice resulting from his attorney’s actions. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067; Head U. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148. To accomplish this, it is not enough to show the failure had some conceivable effect on the outcome of the proceeding. Id. Rather, Silver must show that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. This Court need not determine whether counsel’s performance was deficient if there is no showing of prejudice. See Malone, 2013 OK CR 1, I 16, 293 P.3d at 207. Silver argues that defense counsel provided constitutionally ineffective assistance because counsel failed to object to the prosecutorial misconduct alleged above in Proposition 1. None of the alleged instances of prosecutorial misconduct were found to be meritorious. Defense counsel cannot be found to have rendered ineffective assistance of counsel for failing to object to proper argument. In conjunction with this claim, Silver filed a motion to supplement the record and application for evidentiary hearing on claim of ineffective assistance of counsel contemporaneously with his brief attaching a supporting affidavit and transcript. This Court will order an evidentiary hearing if the application and affidavits contain sufficient information to show this Court by clear and convincing evidence [that] there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). Having reviewed Silver’s request for an evidentiary hearing to develop his claim and the materials offered to support that request, this Court finds that he has failed to meet his burden as he has not shown a strong possibility that the outcome of his trial would have been different. Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). Silver is not entitled to an evidentiary hearing to further develop his ineffective assistance of counsel allegations, and his motion, as well as this claim, is denied. See Simpson v. State, 2010 OK CR 6, I 53, 230 P.3d 888, 905-06.

4. Silver asserts that even if no individual error in his case merits reversal, the cumulative effect of the errors committed warrants a new trial or sentence modification. The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal. Although each error standing alone may be of insufficient gravity to warrant reversal, the combined effect of an accumulation of errors may require a new trial. Martinez U. State, 2016 OK CR 3, I 85, 371 P.3d 1100, 1119. Cumulative error does not deprive the defendant of a fair trial when the errors considered together do not affect the outcome of the proceeding. Baird v. State, 2017 OK CR 16, I 42, 400 P.3d 875, 886. A cumulative error claim is baseless when this Court fails to sustain any of the alleged errors raised on appeal. Id. There were no errors, either individually or when considered together, that deprived Silver of a fair trial. This claim is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED. Application to Supplement Appeal Record or in the Alternative Remand for Evidentiary Hearing on Sixth Amendment Claims is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. See 22 O.S.Supp.2017, § 991a(A)(1)(f).
2. See 22 O.S.Supp.2012, § 991a-21(A).
3. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Malone v. State, 2013 OK CR 1, "I 14, 293 P.3d 198, 206.
4. Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148.
5. See Malone, 2013 OK CR 1, I 16, 293 P.3d at 207.
6. Simpson v. State, 2010 OK CR 6, I 53, 230 P.3d 888, 905-06.
8. Baird v. State, 2017 OK CR 16, I 42, 400 P.3d 875, 886.
9. See Moss v. District Court of Tulsa County, 1989 OK CR 68, 795 P.2d 103, 105.
10. See 22 O.S.Supp.2012, § 991a-21(A).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.16 (2011) - Solicitation for First Degree Murder
• Okla. Stat. tit. 22 § 991a(A)(1)(f) (Supp. 2017) - Post-imprisonment supervision
• Okla. Stat. tit. 22 § 991a-21(A) (Supp. 2012) - Post-imprisonment supervision
• Okla. Stat. tit. 12 § 2202 (2011) - Judicial notice
• Okla. Stat. tit. 22, Ch. 18, App. Rule 3.11(B)(3)(b)(i) (2019) - Evidentiary hearing
• Okla. Stat. tit. 22, Ch. 18, App. Rule 3.11 (2019) - Evidentiary hearing

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:

• Harney v. State, 2011 OK CR 10, I 23, 256 P.3d 1002, 1007
• Hanson v. State, 2009 OK CR 13, I 18, 206 P.3d 1020, 1028
• Harmon v. State, 2011 OK CR 6, I 81, 248 P.3d 918, 943
• Jones v. State, 2011 OK CR 13, IT 3, 253 P.3d 997, 998
• Pryor v. State, 2011 OK CR 18, I 4, 254 P.3d 721, 722
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
• Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148
• Simpson v. State, 2010 OK CR 6, I 53, 230 P.3d 888, 905-06
• Martinez v. State, 2016 OK CR 3, I 85, 371 P.3d 1100, 1119
• Baird v. State, 2017 OK CR 16, I 42, 400 P.3d 875, 886
• Moss v. District Court of Tulsa County, 1989 OK CR 68, 795 P.2d 103, 105