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ORIGINAL 1043784538* IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA DONNIE GRAHAM, ) NOT FOR PUBLICATION ) Appellant, ) ) V. ) Case No. F-2018-336 ) THE STATE OF OKLAHOMA, ) ) Appellee.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: 1Appellant 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 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 U. 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 community supervision for not less than three (3) years. The judgment and sentence will be modified to require the correct term of post-imprisonment community supervision. 2 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 U. State, 2010 OK CR 6, I 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. 3 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 APPEARANCES ON APPEAL ROBIN ROCHELLE WILLIAM H. BOCK 511 S.W. C AVE. 6402 N. SANTA FE AVE., STE. A LAWTON, OK 73501-4309 OKLAHOMA CITY, OK 73116 ATTORNEY FOR DEFENDANT LAURA K. DESKIN JILL OLIVER 400 N. WALKER AVE., STE. 230 GRAHAM FISHBURN OKLAHOMA CITY, OK 73102 ASST. DISTRICT ATTORNEYS 315 S.W. 5TH ST., RM. 502 ATTORNEYS FOR APPELLANT LAWTON, OK 73501-4360 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 4 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 the 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). 2

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