Nathan Simmons v The State Of Oklahoma

F-2018-158

Filed: Jun. 20, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Nathan Simmons appealed his conviction for accessory to first degree murder and robbery with a dangerous weapon. His conviction and sentences were 36 years for accessory to murder, 10 years for robbery, and 17 years for another robbery, all served consecutively. Judge Doug Drummond handled the case. Judge Lewis wrote the opinion, and Judges Kuehn, Lumpkin, Hudson, and Rowland agreed with the decision. Simmons had two main arguments: that the prosecutor said something unfair during closing arguments and that his lawyer didn’t do a good job by not objecting to it. The court found no errors and decided to keep his conviction and sentences as they were.

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. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there prosecutorial misconduct during the State's closing argument that deprived Appellant of a fair trial?
• did the Appellant receive effective assistance of counsel?

Findings

• Proposition One is denied.
• Proposition Two is denied.
• The judgment and sentence is AFFIRMED.

F-2018-158

Jun. 20, 2019

Nathan Simmons

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Nathan Simmons, Appellant, was tried by jury and found guilty of Count 1, accessory to first degree murder, ^1 in violation of 21 O.S.2011, § 173, and Counts 2 and 3, robbery with a dangerous weapon, in violation of 21 O.S.2011, § 801, in the District Court of Tulsa County, Case No. CF-2016-3789. The jury sentenced Appellant to thirty-six (36) years imprisonment in Count 1, ten (10) years imprisonment in Count 2, and seventeen (17) years imprisonment in Count 3. The Honorable Doug Drummond, District Judge, pronounced judgment and ordered the sentences ^1 The jury acquitted Appellant of first degree murder charged in Count 1. served consecutively.^2 Mr. Simmons appeals in the following propositions of error:

1. Prosecutorial misconduct during the State’s closing argument during the punishment stage of trial deprived Appellant of a fair trial;
2. The Appellant was deprived of effective assistance of counsel.

In Proposition One, Appellant argues that the prosecutor’s comment to the jury about the 85% Rule’s application in Counts 2 and 3 indicated to the jury that he would not serve the full term of a sentence in Count 1, and thus caused the jury to prejudicially round up his sentence. Because there was no contemporaneous objection to this comment at trial, Appellant must show the challenged comment was a plain or obvious error that affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. The Court will correct a plain error only where it seriously affects the fairness, integrity, or public reputation of the proceeding. Simpson v. State, 1994 OK CR 40, ¶ 30, 876 P.2d 690, 701. We find no plain or obvious error in the prosecutor’s statement affected the sentencing. Proposition One is denied.

^2 Appellant must serve 85% of his sentence on Counts 2 and 3 before being eligible for consideration for parole. 22 O.S.Supp.2015, § 13.1(8).

In Proposition Two, Appellant argues that trial counsel’s failure to object to the comments challenged in Proposition One denied him the effective assistance of counsel. Reviewing this claim under the two-pronged deficient performance and prejudice test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), no relief is warranted. 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. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE DOUG DRUMMOND, DISTRICT JUDGE

APPEARANCES AT TRIAL
RICHARD KOLLER
423 S. BOULDER AVE., STE 300
TULSA, OK 74106
ATTORNEY FOR APPELLANT

APPEARANCES ON APPEAL
RICHARD COUCH
LORA HOWARD
423 S. BOULDER AVE., STE 300
TULSA, OK 74106
ATTORNEYS FOR DEFENDANT

KEVIN GRAY
ASST. DISTRICT ATTORNEY
500 S. DENVER, STE. 900
TULSA, OK 74103
ATTORNEY FOR THE STATE

MIKE HUNTER
ATTORNEY GENERAL

TESSA L. HENRY
ASST. ATTORNEY GENERAL
313 N.E. 21 ST STREET
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: LEWIS, P.J.
KUEHN, V.P.J.: Concur
LUMPKIN, J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: Concur

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Footnotes:

1. 1 The jury acquitted Appellant of first degree murder charged in Count 1.
2. 2 Appellant must serve 85% of his sentence on Counts 2 and 3 before being eligible for consideration for parole.
3. 3 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 173 - Accessory to first degree murder
• Okla. Stat. tit. 21 § 801 - Robbery with a dangerous weapon
• Okla. Stat. tit. 22 § 13.1 - Parole eligibility

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:

• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
• Simpson v. State, 1994 OK CR 40, I 30, 876 P.2d 690, 701.
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).