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FILED *1044684108 ORIGINAL IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA IN THE COURT OF CRIMINAL APPEALS DEC – 5 2019 OF THE STATE OF OKLAHOMA JOHN D. HADDEN BRYAN LEE GUY, ) CLERK ) Appellant, NOT FOR PUBLICATION V. ) Case No. F-2018-1083 ) THE STATE OF OKLAHOMA, Appellee. SUMMARY OPINION ROWLAND, JUDGE: Appellant Bryan Lee Guy appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2016-4792, for Robbery with a Dangerous Weapon, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 801. The Honorable Dawn Moody, Special Judge, presided over Guy’s jury trial and sentenced him, in accordance with the jury’s verdict, to thirty-seven years imprisonment. 1 Guy appeals raising the following issues: (1) whether the instruction on inconsistent statements was incomplete; (2) whether the trial court erred in giving unnecessary and conflicting instructions; 1 Under 21 O.S.Supp.2015, § 13.1, Guy must serve 85% of his sentence of imprisonment before he is eligible for parole consideration. (3) whether the trial court erred in giving the instruction on mandatory post-imprisonment supervision; and (4) whether he was denied effective assistance of counsel. We find relief is not required and affirm the Judgment and Sentence of the district court. 1. Guy argues that the trial court erred in failing to instruct the jury that the victim’s prior inconsistent statements at preliminary hearing could be used as substantive evidence for determining guilt or innocence. “It is settled law that trial courts have a duty to instruct the jury on the salient features of the law raised by the evidence with or without a request.” Hogan v. State, 2006 OK CR 19, I 39, 139 P.3d at 923 (citing Atterberry v. State, 1986 OK CR 186, “I 8, 731 P.2d 420, 422). See also Soriano v. State, 2011 OK CR 9, I 36, 248 P.3d 381, 396. Because the record does not show that trial counsel either objected to the trial court’s failure to give the instruction at issue or request the same, review on appeal is for plain error. See Rutan v. State, 2009 OK CR 3, I 78, 202 P.3d 839, 855. To be entitled to relief for plain error, an appellant must show: “(1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or 2 obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding.” Hogan, 2006 OK CR 19, I 38, 139 P.3d at 923. “This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice.” Stewart v. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514. See also 20 O.S.2011 § 3001.1 (“No judgment shall be set aside or a new trial granted by an appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”). Defense counsel argued that the victim’s trial testimony was inconsistent with his preliminary hearing testimony and requested that the jury be given OUJI-CR (2d) (Supp.2009) 9-20 on impeachment by prior inconsistent statements. The trial court agreed that the instruction was warranted and gave it as requested. However, the second paragraph of this instruction, advising the jury that they 3 could consider the prior inconsistent statement from preliminary hearing for proof of innocence or guilt, was omitted. We find under the facts of this case this omission was not plain error and relief is not required. 2. The trial court instructed the jury on return of verdict – prior convictions (first stage)² and lesser included offenses – second degree burglary. 3 Guy argues on appeal that the trial court erred in giving the instruction on return of verdict – prior convictions (first stage) because it unnecessarily advised the jury that the issue of punishment was not before them at this time, was inconsistent with the lesser included offenses instruction, and misdirected the jury on how to deal with the charged crime of robbery with a dangerous weapon. Because this objection was not met with objection at trial review for all but plain error has been waived. See Rutan, 2009 OK CR 3, I 78, 202 P.3d at 855. To be entitled to relief for plain error, an appellant must show plain error under the analysis set forth in Hogan, 2006 OK CR 19, I 38, 139 P.3d at 923. This Court will only 2 OUJI-CR (2d) (Supp.2000) 10-15. 3 OUJI-CR (2d) (Supp.2003) 10-24. 4 correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. The instructions at issue do not conflict with one another and did not misdirect the jury. The fact that both advised the jury that the issue of punishment was not yet before them was not error, plain or otherwise. This proposition is without merit. 3. The trial court instructed the jury on mandatory post- imprisonment supervision under OUJI-CR (2d) 10-13C. The Notes on Use provide that this instruction should only be given when the defendant is charged with listed offenses involving sexual abuse or sexual exploitation. Guy asserts that this instruction was not warranted in his case because the charged crime was not one of the listed offenses. Again, because he did not object to this instruction below, we review the claim for plain error on appeal. See Rutan, 2009 OK CR 3, “I 78, 202 P.3d at 855. To be entitled to relief for plain error, an appellant must show plain error under the analysis set forth in Hogan, 2006 OK CR 19, “I 38, 139 P.3d at 923. This Court will only 5 correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. The instruction on mandatory post-imprisonment supervision was not warranted and the State concedes that it was given in error. However, this error did not affect Guy’s substantial rights; it did not affect the outcome of the trial. Accordingly, it did not rise to the level of plain error and relief is not required. 4. Guy contends that he was denied constitutionally effective assistance of counsel by numerous failings of defense counsel. This Court reviews claims of ineffective assistance of counsel de novo, to determine whether counsel’s constitutionally 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, Guy must affirmatively prove prejudice resulting from his attorney’s actions. 6 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. The merits of most of the claims underlying Guy’s ineffective assistance of counsel challenge have been rejected in the preceding propositions of error. In his remaining claim Guy argues that defense counsel rendered constitutionally ineffective assistance for failing to reassert his pretrial motion to dismiss at the start of trial and at sentencing. In rejecting his pretrial motion to dismiss pursuant to 21 O.S.2011 §11, the trial court found that his prosecutions for possessing a stolen vehicle in Payne County and in Tulsa County for robbery with a dangerous weapon did not constitute double punishment. He also asserts that trial counsel was ineffective for failing to request at the start of trial that the trial court take judicial notice of Payne County documents showing his conviction for possession of a stolen vehicle. Guy has shown neither that defense counsel’s performance was deficient for these alleged failings nor that he was prejudiced by the alleged failings. In conjunction with this claim, Guy filed an application for evidentiary hearing and motion to supplement the record attaching 7 supporting affidavit and documents. 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-o evidence.” Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). Having reviewed Guy’s request for an evidentiary hearing to develop his claim and the materials offered to support that request, we find 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). Therefore, Guy 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 U. State, 2010 OK CR 6, IT 53, 230 P.3d 888, 905-06. DECISION The Judgment and Sentence of the district court is AFFIRMED. The Application for Evidentiary Hearing and Motion to Supplement 8 the Record 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. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE DAWN MOODY, SPECIAL JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL SOFIA JOHNSON RICHARD COUCH ASSISTANT PUBLIC DEFENDER TULSA COUNTY PUBLIC 423 S. BOULDER, STE. 300 DEFENDER’S OFFICE TULSA, OK 74013 423 S. BOULDER, STE. 300 COUNSEL FOR DEFENDANT TULSA, OK 74013 COUNSEL FOR APPELLANT JULIANNE G. BURTON MIKE HUNTER KEVIN KELLER ATTORNEY GENERAL ASSISTANT DISTRICT OF OKLAHOMA ATTORNEYS DIANE L. SLAYTON 500 S. DENVER, NINTH FLOOR ASSISTANT ATTORNEY TULSA, OK 74103 GENERAL COUNSEL FOR STATE 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: ROWLAND, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur in Results HUDSON, J.: Concur 9

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