Blog

F-2018-1190

  • Post author:
  • Post category:F

Walter Lee Roundtree v State Of Oklahoma

F-2018-1190

Filed: Jan. 23, 2020

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Walter Lee Roundtree appealed his conviction for violations related to the Sex Offender Registration Act. His conviction and sentence were set to four years for Count I and five years for Count II, which will be served one after the other (consecutively). Roundtree claimed that the proof was not strong enough to show he was guilty. The court found that the evidence showed he did not register his new address, which was closer to a school than allowed by law. He also argued that being punished for both violations was unfair and that his lawyer did not help him properly. However, the court decided that the crimes were different enough that he could be punished for both, and his lawyer's actions did not significantly hurt his case. The opinion was mostly agreed upon, but one judge disagreed, believing Roundtree shouldn't be punished for both violations since they stemmed from the same action of moving. In conclusion, the court affirmed the judgment and sentences against Roundtree.

Decision

The JUDGMENT and SENTENCE is AFFIRMED. The Notice of Extra Record Evidence Supporting Propositions III and IV of the Brief of Appellant and, Alternatively, Rule 3.11 Motion to Supplement Direct Appeal Record or For an Evidentiary Hearing is DENIED. 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 the State's evidence insufficient to prove Appellant's guilt beyond a reasonable doubt?
  • did Appellant's separate convictions for violation of the Sex Offender Registration Act and Failure to Comply with the Sex Offender Registration Act violate prohibitions against double jeopardy?
  • was Appellant's punishment improperly enhanced based on a transactional prior in violation of statutory provisions?
  • did trial counsel's failure to object to the use of transactional priors to enhance Appellant's penalty violate his right to effective assistance of counsel?

Findings

  • evidence was sufficient to support the conviction of Failure to Comply with the Sex Offender Registration Act
  • Appellant's convictions did not violate the statutory ban on double punishment
  • there was no error in the use of the kidnapping conviction to enhance Appellant's sentence
  • Appellant failed to demonstrate ineffective assistance of counsel

F-2018-1190

Jan. 23, 2020

Walter Lee Roundtree

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Walter Lee Roundtree was tried by jury and found guilty of Violation of the Sex Offender Registration Act (Count I) (57 O.S.2011, § 590) and Failure to Comply with the Sex Offender Registration Act (Count II) (57 O.S.2011, §§ 584 & 587), in the District Court of Oklahoma County, Case No. CF-2017-6557. The jury recommended as punishment four (4) years imprisonment in Count I and five (5) years imprisonment in Count II. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. The State’s evidence was insufficient to prove Appellant’s guilt beyond a reasonable doubt, making the evidence insufficient to support the conviction.

II. Appellant’s separate convictions for violation of the Sex Offender Registration Act and Failure to Comply with the Sex Offender Registration Act violates 21 O.S.2011, § 11 and constitutional prohibitions against double jeopardy.

III. Appellant’s punishment was improperly enhanced based on a transactional prior in violation of 21 O.S.2011, § 51.1(B).

IV. Trial counsel’s failure to object to the use of transactional priors to enhance Appellant’s penalty violated Appellant’s right to effective assistance of counsel guaranteed him by both the federal and state constitutions.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

In Proposition I, Appellant challenges the sufficiency of the evidence supporting his conviction in Count II, Failure to Comply with the Sex Offender Registration Act. Specifically, he argues that the State failed to prove the element of failure to register. Appellant asserts that he did register as required and that the State did not prove he had moved and was living with Ms. Baker in her duplex. We review Appellant’s challenge to the sufficiency of the evidence supporting his conviction in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. *Mitchell v. State*, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. In reviewing sufficiency of the evidence claims, this Court does not reweigh conflicting evidence or second-guess the decision of the fact-finder; we accept all reasonable inferences and credibility choices that tend to support the verdict. *Mitchell*, 2018 OK CR 24, ¶ 11, 424 P.3d at 682. The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts. *Rutan v. State*, 2009 OK CR 3, ¶ 49, 202 P.3d 839, 849.

Reviewing the evidence in this manner, we find any rational trier of fact could have found the essential elements of Failure to Comply with the Sex Offender Registration Act beyond a reasonable doubt. The State’s evidence showed that Appellant initially registered an address of S.E.59th and Eastern in Oklahoma City. However, he subsequently moved to a duplex in the 1200 block of N. Purdue Ave., in Oklahoma City where he lived with Ms. Baker and her daughter. Appellant failed to notify law enforcement that he was moving from the old address to the new address as required by See 57 O.S.2011, §§ 582, 583. This challenge to the sufficiency of the evidence is denied.

In Proposition II, Appellant argues that his convictions for Violation of the Sex Offender Registration Act (Count I) and Failure to Comply with the Sex Offender Registration Act (Count II) violate the prohibitions against multiple punishment and double jeopardy. Appellant raised a claim of multiple punishment at sentencing but did not raise a claim of double jeopardy before the trial court. Therefore, we review the claim of multiple punishment for an abuse of discretion, *Sanders v. State*, 2015 OK CR 11, ¶ 4, 358 P.3d 280, 283, and the double jeopardy claim for plain error. *Irwin v. State*, 2018 OK CR 21, ¶ 4, 424 P.3d 675, 676.

In reviewing claims of double jeopardy/double punishment, we begin with a statutory double punishment analysis. In *Sanders*, 2015 OK CR 11, ¶¶ 5-6, 358 P.3d at 283 we summarized our analysis under § 11: Title 21 O.S.2011, § 11 (A) governs multiple punishments for a single criminal act. Section 11 provides in relevant part that:

[A]n act or omission which is made punishable in different ways by different provisions of this title may be punished under any of such provisions, but in no case can a criminal act or omission be punished under more than one section of law; and an acquittal or conviction and sentence under one section of law, bars the prosecution for the same act or omission under any other section of law.

The proper analysis of a Section 11 claim focuses on the relationship between the crimes. *Barnard v. State*, 2012 OK CR 15, ¶ 27, 290 P.3d 759, 767; *Davis v. State*, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126. If the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent. *Barnard*, 2012 OK CR 15, ¶ 27, 290 P.3d at 767. If the offenses at issue are separate and distinct, requiring dissimilar proof, Oklahoma’s statutory ban on double punishment is not violated. *Littlejohn v. State*, 2008 OK CR 12, ¶ 16, 181 P.3d 736, 742. Thus, it is first necessary to examine the relationship between the two crimes to determine whether they constitute a single act. *Barnard*, 2012 OK CR 15, ¶ 27, 290 P.3d at 767. A traditional double jeopardy analysis is conducted only if section 11 does not apply. *Irwin*, 2018 OK CR 21, ¶ 5, 424 P.3d at 676.

In Count I, Appellant was convicted of living in a duplex in the 1200 block of N. Purdue Ave., a location of approx. 740-755 feet away from Mayfield Middle School. Title 57 O.S.Supp.2015, § 590(A) prohibits registered sex offenders from living within 2,000 feet of a school. In Count II, Appellant was convicted of moving from his registered address of S.E.59th & Eastern to the duplex on N. Purdue Ave., without notifying law enforcement three (3) business days before his move. Title 57 O.S.Supp.2014 § 584(E) requires a three (3) business day notice to law enforcement before the registered sex offender can move.

Both parties note we have no published cases addressing multiple violations of the Sex Offender Registration Act. However, it is clear from the language of the statute that the Legislature intended to create separate and distinct crimes. Appellant’s failure to register his new address was completed before he ever moved to the duplex on N. Purdue Ave., as he failed to notify law enforcement of the move at least three (3) business days before he moved. The commission of this offense does not prevent Appellant from committing another offense during the time in which he failed to notify law enforcement of his new address.

While both convictions stem from Appellant living at Ms. Baker’s duplex on N. Purdue Ave., the same evidence was not used to support both convictions unlike in *Peacock v. State*, 2002 OK CR 21, ¶ 5, 46 P.3d 713, 714 cited by Appellant. Further, under the evidence, Count II, the failure to comply with the Sex Offender Registration Act and notify law enforcement of his move to a new non-registered address could have been committed without moving within 2,000 feet of a school, as set forth in Count I. Based on the foregoing, Appellant’s convictions do not violate the statutory ban on double punishment.

Finding no violation of § 11, we conduct a traditional double jeopardy analysis. See *Logsdon v. State*, 2010 OK CR 7, ¶ 19, 231 P.3d 1156, 1165; *Head v. State*, 2006 OK CR 44, ¶ 15, 146 P.3d 1141, 1146; *Jones v. State*, 2006 OK CR 5, ¶ 66, 128 P.3d 521, 543. This Court applies the test set out in *Blockburger v. United States*, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), to evaluate constitutional claims of double jeopardy. *Logsdon*, 2010 OK CR 7, ¶ 19, 231 P.3d at 1165. Under the Blockburger test, this Court asks whether each offense requires proof of an additional fact that the other does not. Id. When a series of acts are involved and the defendant is charged with multiple counts in a single information, the pertinent inquiry is whether the charged crimes require dissimilar proof to prove each. *Weatherly v. State*, 1987 OK CR 28, ¶ 18, 733 P.2d 1331, 1337. The fact that crimes are committed in rapid succession does not negate separate crimes as long as a separation does exist. *Rogers v. State*, 1995 OK CR 8, ¶ 27, 890 P.2d 959, 973.

Applying the Blockburger test, the elements of both crimes are separate and distinct. See 57 O.S.Supp.2015, § 590; 57 O.S.Supp.2014, § 584. Each of these offenses requires proof of an element the other does not. Appellant’s convictions are based upon crimes that are separate and distinct requiring dissimilar proof and any double jeopardy claim fails. Finding no error, plain or otherwise, this proposition is denied.

In Proposition III, Appellant contends his sentences were improperly enhanced with transactional prior convictions. As such, he asks this Court to remand his case for re-sentencing. In a single felony Information, Appellant was charged with two counts – Violation of the Sex Offender Registration Act (Count I) and Failure to Comply with the Sex Offender Registration Act (Count II). In each count, the State alleged Appellant had a prior rape conviction. In support, the State offered Appellant’s conviction for first degree rape in Case No. CF-06-3858 from Tulsa County.

In a single second page, the State alleged Appellant had four (4) prior convictions. During the sentencing stage, the State sought to enhance the sentence with two (2) of these prior convictions – a 2007 conviction for Carrying Drugs where Prisoners are Kept, District Court of Tulsa County, Case No. CF-2007-1900 and a 2007 conviction for Kidnapping, District Court of Tulsa County, Case No. CF-06-3858.

Appellant asserts the rape conviction used as an element of the charges against him and the kidnapping conviction used to enhance his sentence arose out of the same transaction. Therefore, according to Appellant, the kidnapping conviction cannot be used for enhancement purposes. Appellant did not challenge the use of the kidnapping conviction at trial therefore; our review on appeal is for plain error only. *Cooper v. State*, 1991 OK CR 26, ¶ 13, 806 P.2d 1136, 1139. Under the plain error test set forth in *Simpson v. State*, 1994 OK CR 40, 876 P.2d 690, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. 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. Id. See also *Jackson v. State*, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121; *Levering*, 2013 OK CR 19, ¶ 6, 315 P.3d at 395; *Hogan v. State*, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.

Under 21 O.S.2011, § 51.1 a prior conviction may be used to enhance a defendant’s sentence. If more than one conviction is to be used, [f]elony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location. 21 O.S.2011, § 51.1(C). See also *Miller v. State*, 1984 OK CR 33, ¶ 9, 675 P.2d 453, 455. Furthermore, the same prior conviction cannot be used as an element of the offense and to enhance punishment. *Chapple v. State*, 1993 OK CR 38, ¶¶ 17-23, 866 P.2d 1213, 1216-1217; *Snyder v. State*, 1989 OK CR 81, ¶ 4, 806 P.2d 652, 654. However, neither of the parties have directed us to a case analogous to the present case where a prior conviction was used as an element of the offense while a separate conviction for a different crime, albeit allegedly from the same criminal episode, was used for enhancement purposes. Therefore, we find no error in the use of the kidnapping conviction to enhance Appellant’s sentence. Even if the law said transactional prior convictions could not be used as they were used in this case, Appellant has not met his burden of proving that the separate convictions arose out of the same transaction or occurrence.

In *Cooper*, 1991 OK CR 26, ¶ 13, 806 P.2d at 1139 this Court held the burden is on the defense to raise an objection under the Habitual Offender Act and prove that separate convictions arose out of the same transaction or occurrence. See also *Jones v. State*, 1990 OK CR 17, ¶ 7, 789 P.2d 245, 248; *Bickerstaff v. State*, 1983 OK CR 116, ¶ 10, 669 P.2d 778, 780. In an attempt to make this showing, Appellant has filed a Notice of Extra Record Evidence Supporting Propositions III and IV of the Brief of Appellant and, Alternatively, Rule 3.11 Motion to Supplement Direct Appeal Record or For an Evidentiary Hearing. Attached to this Notice/Motion is the felony Information filed in the District Court of Tulsa County, Case No. CF-06-3858, which shows the rape and kidnapping offenses were committed on the same day, along with the crimes of robbery with firearms and forcible sodomy. The Informations indicate the robbery and kidnapping were committed against four (4) victims with one of those individuals listed as the victim in the rape and sodomy counts. Appellant requests this Court grant his Motion to Supplement the Record under Rule 3.11(A).

The attachments filed in support of Appellant’s motion to supplement/request for an evidentiary hearing are not considered, by reason of their filing with this Court, part of the trial record. *Bland v. State*, 2000 OK CR 11, ¶ 115, 4 P.3d 702, 731; *Dewberry v. State*, 1998 OK CR 10, ¶ 9, 954 P.2d 774, 776. Rule 3.11(A) provides: After the Petition in Error has been timely filed in this Court, and upon notice from either party or upon this Court’s own motion, the majority of the Court may, within its discretion, direct a supplementation of the record, when necessary, for a determination of any issue; or, when necessary, may direct the trial court to conduct an evidentiary hearing on the issue.

This provision is seldom used. *Coddington v. State*, 2011 OK CR 17, ¶ 21, 254 P.3d 684, 698. The main purpose of 3.11(A) is to allow this Court, or either party, to supplement the record on appeal with matters previously filed as part of the trial court record, but not as part of the appeal record, i.e., matters submitted in the trial court and subject to adversary proceedings but not submitted with the appellate record. Rule 3.11(A) is not intended to allow parties to bolster a trial record with additional evidence. See *Day v. State*, 2013 OK CR 8, ¶ 10, 303 P.3d 291, 297. The contents of Appellant’s attachments were not presented to the trial court. They will be considered on appeal only in regards to the application for evidentiary hearing on sixth amendment claims addressed in Proposition IV. Supplementation of the record is not necessary for a determination of any issue in this case. Appellant’s motion to supplement the record is denied.

Appellant has not provided any authority finding that separate convictions, even if occurring in the same transaction, cannot be used to support an element of the offense and enhancement of the sentence, as long as the same prior conviction is not used for both. In light of Appellant’s failure to present any legal authority supporting his claim that his prior convictions for rape and kidnapping were improperly used in this case, we find no error and thus no plain error. Remanding the case for resentencing is not warranted and this proposition is denied.

In Proposition IV, Appellant argues that he was denied the effective assistance of counsel by counsel’s failure to object to the use of the prior kidnapping conviction to enhance his sentences after his rape conviction from the same case had been used to prove an element of the charged offenses. Claims of ineffective assistance are reviewed under the standard set forth in *Strickland v. Washington*, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). *Sanders v. State*, 2015 OK CR 11, ¶ 29, 358 P.3d 280, 287. In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Id., citing *Strickland*, 466 U.S. at 687, 104 S.Ct. at 2064. In *Strickland*, the Supreme Court said there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound trial strategy. Id. at ¶ 29, 358 P.3d at 287.

To establish prejudice, Appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id., at ¶ 29, 358 P.3d at 287. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id., citing *Harrington v. Richter*, 562 U.S. 86, 111-112 (2011). When a claim of ineffective assistance of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. *Strickland*, 466 U.S. at 696.

In the contemporaneously filed Notice of Extra Record Evidence Supporting Propositions III and IV of the Brief of Appellant and, Alternatively, Rule 3.11 Motion to Supplement Direct Appeal Record or For an Evidentiary Hearing Appellant argues that an evidentiary hearing is warranted to develop more precisely the facts of his claims. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to utilize available evidence which could have been made available during the course of trial. *Frederick v. State*, 2017 OK CR 12, ¶ 166, 400 P.3d 786, 826-827 overruled on other grounds, *Williamson v. State*, 2018 OK CR 15, ¶ 51, n. 1., 422 P.3d 752, 762, n.1.

Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Id. In order to meet the clear and convincing standard sufficient to warrant an evidentiary hearing, Appellant must present this Court with evidence, not speculation, second guesses or innuendo. *Lott v. State*, 2004 OK CR 27, ¶ 136, 98 P.3d 318, 351. Having thoroughly reviewed the attachments to Appellant’s request for an evidentiary hearing, we find he has not shown the strong possibility that counsel’s failure to present the prior felony Information to the trial court resulted in a breakdown of the adversarial process so serious that the trial cannot be deemed to have produced a reliable result. Appellant’s request to remand for evidentiary hearing under Rule 3.11 is denied.

When we review and deny a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we necessarily make the adjudication that Appellant has not shown defense counsel to be ineffective under the more rigorous federal standard set forth in *Strickland*. *Simpson v. State*, 2010 OK CR 6, ¶ 53, 230 P.3d 888, 906. Therefore, the claims of ineffective assistance of counsel raised in the appellate brief accompanying the extra-record claims raised in the 3.11 motion are hereby denied.

Accordingly, this appeal is denied.

DECISION

The JUDGMENT and SENTENCE is AFFIRMED. The Notice of Extra Record Evidence Supporting Propositions III and IV of the Brief of Appellant and, Alternatively, Rule 3.11 Motion to Supplement Direct Appeal Record or For an Evidentiary Hearing is DENIED. 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.

Click Here To Download PDF

Footnotes:

  1. Okla. Stat. tit. 57 § 590
  2. Okla. Stat. tit. 57 § 584
  3. Okla. Stat. tit. 21 § 11
  4. Okla. Stat. tit. 21 § 51.1(B)
  5. Okla. Stat. tit. 21 § 51.1
  6. Okla. Stat. tit. 21 § 51.1(C)
  7. Okla. Stat. tit. 21 § 51.1(A)(3)
  8. Okla. Stat. tit. 57 § 590(A)
  9. Okla. Stat. tit. 57 § 584(E)
  10. Okla. Stat. tit. 21 § 51.1(A)

Oklahoma Statutes citations:

  • Okla. Stat. tit. 57 § 590 (2011) - Violation of the Sex Offender Registration Act
  • Okla. Stat. tit. 57 § 584 (2011) - Failure to Comply with the Sex Offender Registration Act
  • Okla. Stat. tit. 57 § 587 (2011) - Failure to Comply with the Sex Offender Registration Act
  • Okla. Stat. tit. 21 § 11 (2011) - Prohibition Against Multiple Punishments
  • Okla. Stat. tit. 21 § 51.1 (2011) - Enhancement of Sentences with Prior Convictions
  • Okla. Stat. tit. 21 § 51.1(C) (2011) - Prior Convictions Not Arising from Same Transaction

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:

  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
  • Mitchell U. State, 2018 OK CR 24, IT 11, 424 P.3d 677, 682
  • Rutan U. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849
  • Sanders v. State, 2015 OK CR 11, IT 4, 358 P.3d 280, 283
  • Irwin U. State, 2018 OK CR 21, I 4, 424 P.3d 675, 676
  • Barnard V. State, 2012 OK CR 15, I 27, 290 P.3d 759, 767
  • Davis V. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126
  • Littlejohn V. State, 2008 OK CR 12, I 16, 181 P.3d 736, 742
  • Logsdon U. State, 2010 OK CR 7, I 19, 231 P.3d 1156, 1165
  • Head U. State, 2006 OK CR 44, II 15, 146 P.3d 1141, 1146
  • Jones U. State, 2006 OK CR 5, IT 66, 128 P.3d 521, 543
  • Weatherly U. State, 1987 OK CR 28, IT 18, 733 P.2d 1331, 1337
  • Rogers v. State, 1995 OK CR 8, IT 27, 890 P.2d 959, 973
  • Cooper v. State, 1991 OK CR 26, IT 13, 806 P.2d 1136, 1139
  • Jones U. State, 1990 OK CR 17, I 7, 789 P.2d 245, 248
  • Bickerstaff U. State, 1983 OK CR 116, I 10, 669 P.2d 778, 780
  • Miller U. State, 1984 OK CR 33, I 9, 675 P.2d 453, 455
  • Chapple v. State, 1993 OK CR 38, 1917 - 23, 866 P.2d 1213, 1216-1217
  • Snyder v. State, 1989 OK CR 81, I 4, 806 P.2d 652, 654
  • Frederick V. State, 2017 OK CR 12, I 166, 400 P.3d 786, 826-827
  • Simpson U. State, 2010 OK CR 6, I 53, 230 P.3d 888, 906

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,