Donnie Graham v The State Of Oklahoma
F-2018-336
Filed: Jan. 21, 2021
Not for publication
Prevailing Party: The State of Oklahoma
Summary
Donnie Graham appealed his conviction for first degree rape. The court found him guilty and sentenced him to fifteen years in prison, along with a $1,000 fine, and two years of community supervision after prison. Graham argued that his lawyer did not do a good job by not investigating past accusations made by the victim, which he believed could help his case. The court looked at this and decided that there was not enough proof that Graham's lawyer had failed him. They modified the sentence to include three years of community supervision, but the conviction was mostly upheld. Judge Rowland disagreed with the decision to deny Graham's appeal.
Decision
The judgment and sentence is MODIFIED to include a term of three (3) years post-imprisonment community supervision, and otherwise 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 a violation of Mr. Graham's Sixth Amendment right to the effective assistance of counsel due to his trial counsel's failure to investigate prior rape allegations made by the complaining witness?
- Did the trial counsel fail to comply with the rape shield statute and utilize available impeachment evidence, denying Mr. Graham effective assistance of counsel?
- Was there sufficient evidence to justify an evidentiary hearing regarding Mr. Graham's claim of ineffective assistance of counsel?
- Did the trial court err in sentencing Mr. Graham without including the correct term of post-imprisonment community supervision?
Findings
- The court denied the assertion of ineffective assistance of counsel.
- The court modified the judgment to include a term of three years post-imprisonment community supervision.
- The court affirmed the conviction and sentence otherwise.
F-2018-336
Jan. 21, 2021
Donnie Graham
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LEWIS, PRESIDING JUDGE:
Donnie Graham, Appellant, was tried by jury and found guilty of first degree rape, in violation of 21 O.S.2011, §§ 1111, 1114(A)(1)(5), in the District Court of Comanche County, Case No. CF-2016-446. The jury sentenced Appellant to fifteen (15) years imprisonment and a $1,000.00 fine. The Honorable Gerald Neuwirth, District Judge, pronounced judgment and sentence accordingly and ordered two (2) years of post-imprisonment community supervision by the Department of Corrections. Mr. Graham appeals in the following proposition of error:
1 Appellant must serve 85% of his sentence before being eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1 1(10). Under 21 O.S.2011, § 1115 and 22 D.S.Supp. 2014, § 991a(A)(1)(f), a sentence of confinement of more than two (2) years for first degree rape requires a term of post-imprisonment community supervision.
1. Mr. Graham’s Sixth Amendment right to the effective assistance of counsel was violated because his trial counsel failed to investigate prior rape allegations made by the complaining witness and failed to timely make an offer of proof to the trial court regarding the falsity of prior accusations. Appellant argues in Proposition One that trial counsel’s failure to comply with the rape shield statute, utilize available impeachment evidence, and investigate additional evidence, denied his right to effective assistance of counsel. Appellant has filed a motion for an evidentiary hearing in connection with this claim. See Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp.2018, Ch. 18, App.
This Court reviews this claim to determine whether counsel’s performance was unreasonably deficient under prevailing professional norms; and, if so, whether that performance deprived Appellant of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We review Appellant’s accompanying motion for evidentiary hearing, the attached affidavits, and extra-record evidence to determine whether Appellant has provided sufficient information to show clear and convincing evidence of a strong possibility that trial counsel was ineffective. Rule 3.11(B)(3)(b). This standard is less demanding than Strickland, as it is easier to show clear and convincing evidence of a strong possibility that counsel was ineffective than to show, by a preponderance of the evidence, that counsel’s performance was both unreasonably deficient and resulted in prejudice. When we grant an evidentiary hearing under this standard, we do not find that counsel was ineffective, but that Appellant has shown a strong enough possibility that he should be afforded a further opportunity to develop his claim. When we deny a request for evidentiary hearing, we necessarily find that Appellant has not shown defense counsel to be ineffective under at least one of the two required prongs of Strickland. Simpson v. State, 2010 OK CR 6, ¶ 47, 230 P.3d 888, 904.
Reviewing Appellant’s Proposition One and his motion for evidentiary hearing under these standards, we find that no relief is warranted. Proposition One and the motion for evidentiary hearing are denied.
DECISION
The judgment and sentence is MODIFIED to include a term of three (3) years post-imprisonment community supervision, and otherwise 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 COMANCHE COUNTY
THE HONORABLE GERALD NEUWIRTH, DISTRICT JUDGE
APPEARANCES AT TRIAL
ROBIN ROCHELLE
511 S.W. C AVE.
LAWTON, OK 73501-4309
ATTORNEY FOR DEFENDANT
APPEARANCES ON APPEAL
WILLIAM H. BOCK
6402 N. SANTA FE AVE., STE. A
OKLAHOMA CITY, OK 73116
LAURA K. DESKIN
400 N. WALKER AVE., STE. 230
OKLAHOMA CITY, OK 73102
GRAHAM FISHBURN
315 S.W. 5TH ST., RM. 502
LAWTON, OK 73501-4360
ATTORNEYS FOR APPELLANT
JILL OLIVER
ASST. DISTRICT ATTORNEYS
ATTORNEYS FOR THE STATE
MIKE HUNTER
ATTORNEY GENERAL
THEODORE M. PEEPER
ASST. ATTORNEY GENERAL
313 N.E. 21 ST ST.
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.: Specially Concur
ROWLAND, JUDGE, SPECIALLY CONCURRING:
I concur in denying Graham’s sole proposition of error and his motion for an evidentiary hearing, and what follows are the reasons which I think compel that conclusion. Graham’s claim is that his trial counsel was constitutionally deficient for failing to adequately investigate and present evidence of the victim’s prior reports of rape, which he now alleges to be false or at the very least misleading. On at least one of these two prior occasions, there is evidence to indicate the victim was not entirely truthful in her reports to the police, and such evidence of prior false accusations will often survive the normally strict exclusionary rule of Oklahoma’s Rape Shield Law. However, in this case it is Graham’s own admissions via text messages to the victim shortly after the events, and in later conversations with his own daughter, which harm him the most. In these communications he admits forcing sex with the victim after the point in time when she indicated she wanted him to stop. Thus, even had trial counsel used this information to cast doubt on the victim’s truthfulness, at least as regards the prior incident(s), that does nothing to blunt the force of Graham’s own admissions and his somewhat contradictory and inculpatory trial testimony. As the majority notes, he therefore cannot show prejudice under the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Footnotes:
- 21 O.S.Supp.2015, § 13.1
- 21 O.S.2011, § 1115
- 22 O.S.Supp. 2014, § 991a(A)(1)(f)
- Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp.2018, Ch. 18, App.
- Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
- Simpson v. State, 2010 OK CR 6, ¶ 47, 230 P.3d 888, 904
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 1111 - Rape
- Okla. Stat. tit. 21 § 1114 - Forcible Rape; Classification
- Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
- Okla. Stat. tit. 21 § 1115 - Sentence for Rape
- Okla. Stat. tit. 22 § 991a - Post-Imprisonment Supervision
- Okla. Stat. tit. 22 Ch. 18, App. - Rules of the Oklahoma Court of Criminal Appeals
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, 2010 OK CR 6, I 47, 230 P.3d 888, 904