Katherine Marie Houser v The State Of Oklahoma

F-2018-202

Filed: May 16, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Katherine Marie Houser appealed her conviction for robbery, possession of a firearm, conspiracy, kidnapping, and possession of a controlled substance. Conviction and sentence were affirmed by the court. Judge Hudson dissented.

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 ineffective assistance of counsel due to trial counsel's failure to pursue a multiple punishment/double jeopardy claim?
• Did the trial court err by imposing a fine without orally pronouncing it at sentencing?

Findings

• the court erred
• the court erred

F-2018-202

May 16, 2019

Katherine Marie Houser

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Katherine Marie Houser, Appellant, was tried by jury and found guilty of Count 1, robbery with a dangerous weapon (a firearm or imitation firearm), in violation of 21 O.S.2011, § 801; Count 2, possession of a firearm in the commission of a felony, in violation of 21 O.S.Supp.2012, § 1287; Count 3, conspiracy to commit a felony, in violation of 21 O.S.2011 § 421; Count 5, kidnapping, in violation of 21 O.S.Supp.2012, § 741; and Count 6, possession of a controlled dangerous substance, in violation of 63 O.S.Supp.2012, § 2-402, in the District Court of Oklahoma County, Case No. CF-2016-877. The jury sentenced her to five (5) years imprisonment in Count 1, two (2) years imprisonment in Count 2, five (5) years imprisonment in Count 3, six (6) months imprisonment in Count 5, and two (2) months imprisonment and a $300.00 fine in Count 6. The Honorable Cindy H. Truong, District Judge, pronounced judgment and ordered the sentences in Counts 1, 3, and 5 to run concurrently. 1, 2 The court imposed a $400.00 fine and various fees.

Ms. Houser appeals in the following propositions of error:

1. Appellant was prejudiced by ineffective assistance of counsel;
2. Appellant’s fines must be modified.

In Proposition One, Appellant argues that she was denied the effective assistance by trial counsel’s failure to pursue a multiple punishment/double jeopardy claim that would have resulted in pre-trial dismissal of Count 2, possession of a firearm in the commission of a felony. Though Count 2 was ultimately dismissed by the State and Appellant has not suffered multiple punishment, she argues that being tried for this additional count prejudiced the jury’s verdicts and sentences in other counts. 1 The court dismissed Counts 2 and 6 before sentencing at the State’s request. 2 Appellant must serve 85% of her sentence on Count 1 before being eligible for consideration for parole. 22 O.S.Supp.2015, § 13.1(8).

We review this claim under Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requiring that Appellant show not only that counsel performed deficiently, but that Appellant was prejudiced by the deficient performance. Id., 466 U.S. at 687. Counsel’s performance must be objectively deficient under prevailing professional norms. Prejudice is established when, but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 694. Assuming that a pre-trial challenge to Count 2 would have been sustained, and that counsel’s performance was deficient in this respect, we nevertheless conclude that an earlier dismissal of Count 2 creates no reasonable probability of a different outcome at trial. Evidence of Appellant’s guilt in the remaining counts was strong. Dismissal of Count 2 would not have changed the evidence. Appellant’s controlling sentence is the minimum for armed robbery; she received only six (6) months for kidnapping. The jury was not inflamed by a surplus charge in Count 2. Proposition One is denied. 3

In Proposition Two, Appellant argues that the $400.00 fine appearing on the judgment and sentence must be vacated because the trial court failed to orally pronounce the fine at sentencing. Appellant raised no objection at the time, waiving all but plain error. See Simpson v. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694, 695, 698. She must now show a plain or obvious error in the imposition of the fine. We will remedy unpreserved plain error only where it seriously affects the fairness, integrity, or public reputation of the proceedings. Id., 1994 OK CR 40, I 30, 876 P.2d at 701. Appellant shows no plain or obvious error. 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. 4

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE CINDY H. TRUONG, DISTRICT JUDGE

APPEARANCES AT TRIAL
BILLY COYLE
125 PARK AVE., 1ST FLOOR
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

APPEARANCES ON APPEAL
JEREMY STILLWELL
P. O. BOX 926
NORMAN, OK 73070

EVAN W. KING
620 N. ROBINSON, STE. 203
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR DEFENDANT

DAVID W. ILLINGWORTH, II
ASST. DISTRICT ATTORNEY
MIKE HUNTER
ATTORNEY GENERAL

MADELINE COFFEY
LEGAL LICENSED INTERN
KATHERINE R. MORELLI
ASST. ATTORNEY GENERAL
320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK 73102
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE
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 court dismissed Counts 2 and 6 before sentencing at the State's request.
2. 2 Appellant must serve 85% of her sentence on Count 1 before being eligible for consideration for parole. 22 O.S.Supp.2015, § 13.1(8).
3. 3 In Proposition Two, Appellant argues that the $400.00 fine appearing on the judgment and sentence must be vacated because the trial court failed to orally pronounce the fine at sentencing. Appellant raised no objection at the time, waiving all but plain error. See Simpson v. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694, 695, 698.
4. 4 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.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2011) - Robbery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 1287 (2012) - Possession of a Firearm in the Commission of a Felony
• Okla. Stat. tit. 21 § 421 (2011) - Conspiracy to Commit a Felony
• Okla. Stat. tit. 21 § 741 (2012) - Kidnapping
• Okla. Stat. tit. 63 § 2-402 (2012) - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 13.1 (2015) - Parole Consideration

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:

• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
• Simpson v. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694, 695, 698