Joshua Loyd Bullard v The State of Oklahoma

F-2018-1061

Filed: Jan. 30, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Joshua Loyd Bullard appealed his conviction for robbery, assault, and other charges. His conviction and sentence included six months for petty larceny, one year with a $100 fine for resisting a police officer, and seven years for assaulting a police officer, with all sentences running one after the other. Judge Lewis dissented on some points.

Decision

The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there ineffective assistance of counsel due to failure to request a third competency evaluation?
• Did prosecutorial misconduct deprive Appellant of a fair trial?

Findings

• Relief denied as Appellant did not receive ineffective assistance of counsel.
• Relief denied as Appellant did not demonstrate that the prosecutorial misconduct affected the outcome of the trial.
• The judgment and sentence is AFFIRMED.

F-2018-1061

Jan. 30, 2020

Joshua Loyd Bullard

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE:

Joshua Loyd Bullard, Appellant, was charged with one count of Robbery in the Second Degree, in violation of 21 O.S.2011, § 799 (Count 1), one count of Assault and Battery on a Police Officer, in violation of 21 O.S.Supp.2015, § 649(B)(Count 2), and one count of Aggravated Assault and Battery on a Police Officer, in violation of 21 O.S.Supp.2015, § 650(A)(Count 3), in the District Court of Stephens County, Case No. CF-2016-496. Appellant was tried by jury and found guilty of the lesser offense of Petit Larceny, in violation of 21 O.S.Supp.2016, § 1704 (Count 1), the lesser offense of Resisting a Peace Officer, in violation of 21 O.S.2011, § 268 (Count 2), and the lesser offense of Assault and Battery on a Police Officer, in violation of 21 O.S.Supp.2015, § 649(B) (Count 3).

At the close of the second stage of trial, the jury found that Count 3 had been committed after former conviction of a felony and recommended sentences of imprisonment for six (6) months on Count 1, imprisonment for one (1) year and a $100.00 fine on Count 2, and imprisonment for seven (7) years on Count 3. The Honorable Dennis Gay, Associate District Judge, pronounced judgment, and sentenced accordingly ordering the sentences served consecutively and granting credit for time served.

Mr. Bullard appeals in the following propositions of error:
1. Appellant was prejudiced by the ineffective assistance of counsel.
2. Prosecutorial misconduct deprived Appellant of a fair trial.

Appellant claims in Proposition One that he received ineffective assistance of counsel because trial counsel failed to request a third competency evaluation. Ineffective assistance claims are reviewed under the two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687 (1984). To gain relief, Appellant must show not only deficient performance by counsel but that Appellant was prejudiced by it. Id. Counsel’s representation must fail an objective standard of reasonableness, and there must be a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. The Court starts with the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Malone v. State, 2013 OK CR 1, ¶ 15, 293 P.3d 198, 206. In order to overcome this presumption, the defendant must show that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. Generally, defense counsel should request a competency evaluation when he or she has a good faith doubt regarding his or her client’s competency to stand trial. Ryder v. State, 2004 OK CR 2, ¶ 86-87, 83 P.3d 856, 875. This court defines competence to stand trial as a defendant’s present ability to understand the nature of the charges and proceedings brought against him and to rationally assist in his own defense. Grant v. State, 2009 OK CR 11, ¶ 8, 205 P.3d 1, 8. As provided by Oklahoma’s statutory competency-evaluation scheme, the issue of competency may be raised by the prosecutor, the defendant, defense counsel, or by the court. See 22 O.S.2011, §§ 1175.1 et seq.; Allen v. Oklahoma, 1998 OK CR 25, ¶¶ 2-4, 956 P.2d 391, 919; Following the filing of an application for determination of competency, the court reviews the application and determines if sufficient facts are alleged to create a doubt about the defendant’s competency. Id. If the court finds such a doubt, the defendant is ordered to be examined by appropriate medical professionals. Id. These professionals conduct an evaluation answering the questions: whether the defendant is able to understand the nature of the charges; whether he is able to assist his counsel; and whether the defendant is mentally ill or in need of treatment as those terms are defined by law. Allen, 1998 OK CR 25, ¶ 3, 956 P.2d at 919. The professional then submits a report. Next, a post-examination competency hearing is held where evidence regarding competency is presented, and the judge or jury decides whether the defendant is competent to stand trial. Id.

In Appellant’s case, on September 7, 2017, defense counsel, and on January 25, 2018, the State joined by defense counsel, filed an Application for Determination of Competency. On November 9, 2017, and July 17, 2018, Appellant was thoroughly evaluated by mental health professionals. Both times defense counsel stipulated to the evaluation report, and the court found Appellant competent to stand trial. On October 1, 2018, Appellant proceeded to trial. There is no indication that defense counsel’s performance was deficient. Here, defense counsel did not fail to request a competency evaluation but did so twice. Appellant was thoroughly evaluated by two medical professionals who both concluded that Appellant could understand the charges against him and rationally assist in his defense. One evaluation was less than three months before trial and Appellant did not exhibit any changes in behavior following the evaluation. The completion of two competency evaluations with no change in behavior would not reasonably give rise to a good faith doubt regarding a client’s competency to stand trial. There was no defective performance by defense counsel. Proposition One is without merit and relief is denied.

Appellant claims in Proposition Two that improper statements made by the prosecutor during the first closing argument in the second stage denied him a fair trial. He complains that the prosecutor improperly referenced Appellant’s prior suspended sentence. Counsel failed to object. When a defendant fails to raise a timely objection, the defendant waives all review but plain error. Malone, 2013 OK CR 1, ¶ 40, 293 P.3d at 211. To be given relief for plain error, an appellant must show: 1) the existence of an actual error; 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. After these three requirements are met, this Court will only correct plain error if it seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. However, regardless of a lack of objections, a trial court has a duty to ensure that closing arguments remain proper. McCarty v. State, 1988 OK CR 271, ¶ 16, 765 P.2d 1215, 1221. This Court has long allowed counsel for the parties a wide range of discussion and illustration in closing argument. Sanders v. State, 2015 OK CR 11, ¶ 21, 358 P.3d 280, 286. This court found the prosecution is permitted to discuss the relevant proof of prior conviction in closing argument, including any evidence that a defendant previously received probation, suspension, or deferral of a sentence and any acceleration or revocation of such a sentence. Terrell v. State, 2018 OK CR 22, ¶ 6, 425 P.3d 399, 401. Furthermore, the Court has found that no error occurred where the State merely mentions the sentences given in the prior convictions. Massingale v. State, 1986 OK CR 6, ¶ 8, 713 P.2d 15, 16. Moreover, in this case, Appellant has not shown that this alleged error affected the outcome of the sentencing proceeding. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923. Here, the evidence of the defendant’s crime against Sergeant Bishop (Count 3), which was committed after the former conviction of a felony, readily supported the jury’s assessment of punishment. Even though the prosecutor asked the jury to sentence the defendant to the maximum sentence on Count 3 to ten years, the jury returned a moderate verdict of seven years. Because Appellant has not shown that the comments affected the outcome of his case, he has not met his burden for relief under the plain error test. Proposition Two is denied.

DECISION

The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 799
2. Okla. Stat. tit. 21 § 649(B)
3. Okla. Stat. tit. 21 § 650(A)
4. Okla. Stat. tit. 21 § 1704
5. Okla. Stat. tit. 21 § 268
6. 22 O.S.2011, §§ 1175.1 et seq.
7. Allen v. Oklahoma, 1998 OK CR 25, II 2-4, 956 P.2d 918
8. Ryder v. State, 2004 OK CR 2, I 86-87, 83 P.3d 856
9. Grant v. State, 2009 OK CR 11, I 8, 205 P.3d 1
10. Malone v. State, 2013 OK CR 1, I 15, 293 P.3d 198
11. Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907
12. McCarty v. State, 1988 OK CR 271, I 16, 765 P.2d 1215
13. Terrell v. State, 2018 OK CR 22, IF 6, 425 P.3d 399
14. Massingale v. State, 1986 OK CR 6, 8, 713 P.2d 15
15. Terrell, 2018 OK CR 22, I 5, 425 P.3d at 404 (Lewis, P.J., dissenting)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 799 - Robbery in the Second Degree
• Okla. Stat. tit. 21 § 649(B) - Assault and Battery on a Police Officer
• Okla. Stat. tit. 21 § 650(A) - Aggravated Assault and Battery on a Police Officer
• Okla. Stat. tit. 21 § 1704 - Petit Larceny
• Okla. Stat. tit. 21 § 268 - Resisting a Peace Officer
• Okla. Stat. tit. 22 § 1175.1 - Competency to Stand Trial

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:

• Malone v. State, 2013 OK CR 1, I 15, 293 P.3d 198, 206
• Ryder v. State, 2004 OK CR 2, I 86-87, 83 P.3d 856, 875
• Grant v. State, 2009 OK CR 11, I 8, 205 P.3d 1, 8
• Allen v. Oklahoma, 1998 OK CR 25, II 2-4, 956 P.2d 3 918, 919
• Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923
• McCarty v. State, 1988 OK CR 271, I 16, 765 P.2d 1215, 1221
• Sanders v. State, 2015 OK CR 11, 21, 358 P.3d 280, 286
• Terrell v. State, 2018 OK CR 22, IF 6, 425 P.3d 399, 401
• Massingale v. State, 1986 OK CR 6, 8, 713 P.2d 15, 16