Michael Wesley Watters v The State Of Oklahoma

F-2017-1247

Filed: May 16, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Michael Wesley Watters appealed his conviction for child abuse and misdemeanor domestic assault. Conviction and sentence of twenty years in prison for child abuse and one year in jail for domestic assault. Judge Lumpkin dissented.

Decision

The order of the district court of Noble County accelerating Appellant's deferred judgment and sentencing in Case No. CF-2015-84 is AFFIRMED. 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

• whether the State's evidence was sufficient to prove he violated probation
• whether the decision to accelerate the deferred sentences was based on acts not alleged in the State's application to accelerate
• whether the trial court abused its discretion by imposing incarceration costs
• whether prosecutorial misconduct deprived him of the right to a fair acceleration hearing
• whether his counsel was constitutionally ineffective
• whether the sentence imposed was excessive
• whether he was denied a fair acceleration hearing by an accumulation of errors

Findings

• the evidence was sufficient to prove he violated probation
• the acceleration of his deferred sentences was based on conduct pled in the State's application to accelerate
• the claims regarding incarceration costs were moot
• the prosecutor's conduct did not deprive him of a fair acceleration hearing
• his counsel was not ineffective
• the challenge to his sentence as excessive was not a proper issue in the acceleration appeal
• the cumulative error argument has no merit

F-2017-1247

May 16, 2019

Michael Wesley Watters

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE:

Appellant Michael Wesley Watters entered negotiated pleas of no contest on August 29, 2016, in Noble County District Court Case No. CF-2015-84, to Child Abuse by Injury (Count 1), in violation of 21 O.S.Supp.2014, § 843.5 and Misdemeanor Domestic Assault and Battery in the Presence of a Minor (Count 2), in violation of 21 O.S.Supp.2014, § 644(G). The Honorable Lee Turner, Special Judge, accepted Watters’ pleas and entered deferred judgments against him for five years on Count 1 and one year for Count 2. On February 6, 2017, the State filed a motion to accelerate Watters’ deferred judgments. On October 2, 2017, Judge Turner granted the State’s motion and, after receipt of a pre-sentence investigation report, sentenced Watters to twenty years imprisonment with the last ten years suspended and a $100.00 fine plus costs and fees for Count 1 and to one year in the Noble County Detention Center for Count 2. Judge Turner ordered the sentences to be served concurrently and awarded credit for time served. Watters appeals the district court’s decision to accelerate his sentences, raising the following issues: (1) whether the State’s evidence was sufficient to prove he violated probation; (2) whether the decision to accelerate the deferred sentences was based on acts not alleged in the State’s application to accelerate; (3) whether the trial court abused its discretion by imposing incarceration costs; (4) whether prosecutorial misconduct deprived him of the right to a fair acceleration hearing; (5) whether his counsel was constitutionally ineffective; (6) whether the sentence imposed was excessive; and (7) whether he was denied a fair acceleration hearing by an accumulation of errors.

1. Appellant claims the evidence produced by the State was insufficient to prove he violated a protective order. We disagree. To prove the crime of Violation of a Protective Order the State was required to prove: 1) willful; 2) violation of a protective order, and; 3) served on the defendant. The factual determination need only be established by a preponderance of the evidence. We find the testimony of Appellant’s former spouse sufficient to prove the essential elements of the charged offense.

2. Appellant claims the acceleration of his deferred sentences was based on conduct not pled in the State’s application to accelerate. This claim finds no support in the record. Judge Turner recognized some of the testimony was relevant only to sentencing and assured the parties it would not be considered in making the acceleration decision. In addition, the presumption is that when a trial court operates as the trier of fact, only competent and admissible evidence is considered in reaching a decision. This proposition of error is denied.

3. Appellant claims he did not receive adequate notice of how jail costs were calculated. He also claims he is a mentally ill person and, as such, he is exempt from paying incarceration fees. The district court’s denial of Appellant’s attempt to withdraw his no contest pleas was the subject of the appeal in Case No. C-2018- 100. There, this Court concluded that Appellant received sufficient notice as to the calculation of jail costs and we remanded for the district court to find whether Appellant is a mentally ill person. In light of these determinations, we find the claims presented in this proposition of error moot.

4. Appellant claims he was deprived of a fair acceleration hearing by the prosecutor’s admission of irrelevant and unfairly prejudicial evidence. Appellant failed to object to the circumstances he challenges on appeal. He has, therefore, waived all but plain error. Plain error requires Appellant to show: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error impacted his substantial rights. The Court will grant relief only where the prosecutor’s misconduct is so flagrant and so infected the defendant’s trial that it was rendered fundamentally unfair. We do not find the prosecutor’s conduct to be improper and, even if marginally relevant evidence was admitted, Appellant has failed to demonstrate prejudice. This proposition of error is denied.

5. Appellant claims he failed to receive the effective assistance of counsel. This Court reviews ineffective assistance of counsel claims under the two-part test announced in Strickland v. Washington. The Strickland test requires Appellant to show: 1) counsel’s performance was constitutionally deficient; and 2) counsel’s deficient performance prejudiced the defense. The analysis begins with the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Appellant must overcome this presumption and demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. To demonstrate prejudice Appellant must show there is a reasonable probability the outcome of the trial would have been different but for counsel’s unprofessional errors.

6. Appellant challenges his sentence as excessive. This is not a proper issue in an acceleration appeal. A claim of excessive sentence upon acceleration of a deferred sentence challenges the appropriateness of the sentence, and this issue is only properly reviewed if the defendant appeals his judgment and sentence, which requires the filing of a petition for writ of certiorari and compliance with the procedures established by this Court’s Rules for perfecting a certiorari appeal. This proposition of error is denied.

7. Appellant seeks relief based on cumulative error. A cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. This proposition of error is denied.

DECISION

The order of the district court of Noble County accelerating Appellant’s deferred judgment and sentencing in Case No. CF-2015-84 is AFFIRMED. 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. Under 21 O.S.Supp.2015, § 13.1, Watters must serve 85% of the sentence imposed on Count 1 before he is eligible for parole consideration.
2. OUJU-CR (2d) 3-24; 22 O.S.2011, § 60.6.
3. Edwards U. State, 1987 OK CR 276, I 8, 747 P.2d 968, 970.
4. State v. Kudron, 1991 OK CR 92, I 19, 816 P.2d 567, 570-71.
5. Long U. State, 2003 OK CR 14, I 4, 74 P.3d 105, 107.
6. 22 O.S.2011, § 979a.
7. 43A O.S.Supp.2013, § 103(3).
8. Malone v. State, 2013 OK CR 1, I 40, 293 P.3d 198, 211.
9. Simpson U. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694-95, 698.
10. Williams v. State, 2008 OK CR 19, I 124, 188 P.3d 208, 230.
11. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
12. Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011).
13. Whitaker U. State, 2015 OK CR 1, I 6, 341 P.3d 87, 89.
14. Pavatt v. State, 2007 OK CR 19, I 85, 159 P.3d 272, 296.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5 - Child Abuse by Injury
• Okla. Stat. tit. 21 § 644(G) - Misdemeanor Domestic Assault and Battery in the Presence of a Minor
• Okla. Stat. tit. 21 § 13.1 - 85% Sentence Requirement
• Okla. Stat. tit. 22 § 60.6 - Violation of a Protective Order
• Okla. Stat. tit. 22 § 979a - Incarceration Fees Exemption
• Okla. Stat. tit. 43A § 103(3) - Definition of Mentally Ill Person

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:

• Edwards v. State, 1987 OK CR 276, I 8, 747 P.2d 968, 970
• State v. Kudron, 1991 OK CR 92, I 19, 816 P.2d 567, 570-71
• Long v. State, 2003 OK CR 14, I 4, 74 P.3d 105, 107
• Malone v. State, 2013 OK CR 1, I 40, 293 P.3d 198, 211
• Simpson v. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694-95, 698
• Williams v. State, 2008 OK CR 19, I 124, 188 P.3d 208, 230
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011)
• Whitaker v. State, 2015 OK CR 1, I 6, 341 P.3d 87, 89
• Pavatt v. State, 2007 OK CR 19, I 85, 159 P.3d 272, 296