Carl Wayne Gundrum, Jr. v The State Of Oklahoma

F-2018-284

Filed: Jul. 11, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Carl Wayne Gundrum, Jr. appealed his conviction for first-degree rape and lewd acts with a child under 16. His conviction and sentence were 30 years in prison for the first charge and 20 years for the second, to be served one after the other. Judge Thad Balkman decided the case. Gundrum argued several points in his appeal. He claimed that he was denied a speedy trial, but the court found the time between his arrest and trial was not too long. He also argued that evidence about another crime was wrongly allowed in court, but the judges ruled it was appropriate to include. Gundrum suggested there was misconduct by the prosecutor, but the judges said it wasn't serious enough to impact his trial. He felt his lawyer didn't help him properly, but the court disagreed. Lastly, he asked if all these issues combined made his trial unfair, but since they found no errors, they decided against him on this point too. In the end, the court denied Gundrum's appeal and upheld his convictions and sentences.

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 Mr. Gundrum's constitutional right to a speedy trial violated?
• Did the trial court abuse its discretion when it admitted sexual propensity evidence?
• Did prosecutorial misconduct deprive Mr. Gundrum of a fair trial?
• Was Mr. Gundrum denied his right to effective assistance of trial counsel?
• Did cumulative errors deprive Mr. Gundrum of a fair proceeding and a reliable outcome?

Findings

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

F-2018-284

Jul. 11, 2019

Carl Wayne Gundrum, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Carl Wayne Gundrum, Jr., Appellant, was tried by jury and found guilty of Count 1, first degree rape, in violation of 21 O.S.2011, § 1114; and Count 2, lewd acts with a child under 16, in violation of 21 O.S.Supp.2015, § 1123(A)(2); in the District Court of Cleveland County, Case No. CF-2016-739. The jury sentenced Appellant to thirty (30) years imprisonment on Count 1 and twenty (20) years imprisonment on Count 2. The Honorable Thad Balkman, District Judge, pronounced judgment and ordered the sentences served consecutively.

Mr. Gundrum appeals in the following propositions of error:

1. Appellant must serve 85% of his sentences before being eligible for consideration for parole. 22 O.S.Supp.2015, § 13.1 (10, 18).
2. Mr. Gundrum’s constitutional right to a speedy trial was violated under the Sixth and Fourteenth Amendments to the United States Constitution and Article II of the Oklahoma Constitution;
3. The trial court abused its discretion when it admitted sexual propensity evidence, which deprived Mr. Gundrum of due process and his right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution;
4. The cumulative effect of prosecutorial misconduct deprived Mr. Gundrum of a fair trial in violation of the Fourteenth Amendment of the United States Constitution and Article II, §§ 7 and 9 of the Oklahoma Constitution;
5. Mr. Gundrum was denied his right to the effective assistance of trial counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, §§ 7, 9, and 20 of the Oklahoma Constitution;
6. Cumulative errors deprived Mr. Gundrum of a fair proceeding and a reliable outcome.

Appellant argues in Proposition One that he was denied the constitutional right to a speedy trial. We analyze this claim according to a four-part test considering (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Applying this test, we find the approximately twenty-one months from Appellant’s arrest to trial did not violate his right to speedy trial. Proposition One is denied.

In Proposition Two, Appellant argues the trial court erred in the admission of evidence of another child molestation offense. Defense counsel timely objected to the admission of this evidence and preserved the issue for review. The admission of evidence lies within the trial court’s sound discretion. Pavatt v. State, 2007 OK CR 19, ¶ 42, 159 P.3d 272, 286. An abuse of that discretion is a clearly erroneous conclusion and judgment, contrary to the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. We find the trial court properly admitted this evidence and no error occurred. 12 O.S.2011, § 2414; Horn v. State, 2009 OK CR 7, ¶¶ 40-41, 204 P. 3d 777, 786-87.

In Proposition Three, Appellant claims prosecutorial misconduct deprived him of a fair trial. Most of the alleged misconduct passed without objection at trial, limiting our review to plain error. Appellant must now show that these unpreserved errors were plain or obvious and affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. The Court will correct plain error only where it seriously affects the fairness, integrity, or public reputation of the proceedings. Simpson v. State, 1994 OK CR 40, ¶ 30, 876 P.2d 690, 701. This Court will not grant relief based on prosecutorial misconduct unless the tactics are so flagrant that the resulting convictions or sentences are fundamentally unfair. Nicholson v. State, 2018 OK CR 10, ¶ 18, 421 P.3d 890, 896-97. Considering both the unpreserved allegations of error and the single preserved allegation—that the prosecutor improperly pointed at the defendant during closing argument—we find no prejudicial error or combination of errors warranting relief. Proposition Three is denied.

Appellant argues in Proposition Four that he was denied the effective assistance of counsel by the failure to object to instances of prosecutorial misconduct challenged in Proposition Three. Reviewing this claim under the deficient performance and prejudice test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we find Appellant cannot show the required prejudice, and no relief is warranted. Phillips v. State, 1999 OK CR 38, ¶ 103, 989 P. 2d 1017, 1044.

In Proposition Five, Appellant seeks relief for the accumulation of error. Because we find no individual errors, there is no accumulation of prejudicial effects. Barnett v. State, 2011 OK CR 28, ¶ 34, 263 P.3d 959, 970. Proposition Five 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.

Click Here To Download PDF

Footnotes:

1. Appellant must serve 85% of his sentences before being eligible for consideration for parole. 22 O.S.Supp.2015, § 13.1 (10, 18).
2. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).
3. 12 O.S.2011, § 2414; Horn U State, 2009 OK CR 7, II 40-41, 204 P. 3d 777, 786-87.
4. Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923.
5. Simpson U. State, 1994 OK CR 40, I 30, 876 P.2d 690, 701.
6. Nicholson U. State, 2018 OK CR 10, I 18, 421 P.3d 890, 896-97.
7. Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
8. Phillips U. State, 1999 OK CR 38, I 103, 989 P. 2d 1017, 1044.
9. Barnett U. State, 2011 OK CR 28, "I 34, 263 P.3d 959, 970.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114 (2011) - First degree rape
• Okla. Stat. tit. 21 § 1123 (2015) - Lewd acts with a child
• Okla. Stat. tit. 22 § 13.1 (2015) - Parole eligibility
• Okla. Stat. tit. 12 § 2414 (2011) - Admission of evidence

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:

• Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)
• Pavatt v. State, 2007 OK CR 19, I 42, 159 P.3d 272, 286
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• Horn v. State, 2009 OK CR 7, II 40-41, 204 P.3d 777, 786-87
• Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923
• Simpson v. State, 1994 OK CR 40, I 30, 876 P.2d 690, 701
• Nicholson v. State, 2018 OK CR 10, I 18, 421 P.3d 890, 896-97
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
• Phillips v. State, 1999 OK CR 38, I 103, 989 P.2d 1017, 1044
• Barnett v. State, 2011 OK CR 28, I 34, 263 P.3d 959, 970