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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA NATHAN SIMMONS, ) NOT FOR PUBLICATION ) Appellant, ) ) V. ) Case No. F-2018-158 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. ) JUN 20 2019 SUMMARY OPINION JOHN D. HADDEN CLERK 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 U. State, 2006 OK CR 19, I 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, I 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). 2 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 APPEARANCES ON APPEAL RICHARD KOLLER RICHARD COUCH LORA HOWARD 423 S. BOULDER AVE., STE 300 423 S. BOULDER AVE., STE 300 TULSA, OK 74106 TULSA, OK 74106 ATTORNEY FOR APPELLANT ATTORNEYS FOR DEFENDANT KEVIN GRAY MIKE HUNTER ASST. DISTRICT ATTORNEY ATTORNEY GENERAL 500 S. DENVER, STE. 900 TESSA L. HENRY TULSA, OK 74103 ASST. ATTORNEY GENERAL ATTORNEY FOR THE STATE 313 N.E. 21 ST STREET OKLAHOMA CITY, OK 73105 ATTORNEYS FOR APPELLEE 3 OPINION BY: LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur 4

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