Blog

1043782577* ORIGINAL IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA ANTHONY PAUL ORNDER, Appellant, ) NOT FOR PUBLICATION ) V. ) No. F-2018-43 ) STATE OF OKLAHOMA, ) FILED IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. JUL 25 2019 SUMMARY OPINION JOHN D. HADDEN CLERK HUDSON, JUDGE: Appellant, Anthony Paul Ornder, was tried by a jury and convicted in Washington County District Court, Case No. CF-2016- 346, of two counts of Possession of a Firearm, After Former Felony Conviction, After Two or More Previous Convictions, in violation of 21 O.S.Supp.2014, § 1283(A) (Counts 1-2); and one count of Falsely Personate Another to Create Liability, After Two or More Previous Convictions, in violation of 21 O.S.2011, § 1531(4) (Count 3). The jury recommended a sentence of forty years imprisonment each on Counts 1 and 2 and forty-five years imprisonment on Count 3. The Honorable Russell C. Vaclaw, Associate District Judge, sentenced Ornder in accordance with the jury’s verdicts. Judge Vaclaw ordered all three sentences to run concurrently and ordered credit for time served. Ornder now appeals. Appellant alleges the following propositions of error on appeal: I. APPELLANT’S CONVICTION WAS OBTAINED IN VIOLATION OF THE 5TH AND 14TH AMENDMENTS OF [SIC] TO THE UNITED STATES CONSTITUTION AND ARTICLE II, SECTION 7 OF THE OKLAHOMA CONSTITUTION, BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT APPELLANT ACTUALLY OR CONSTRUCTIVELY POSSESSED THE 22-CALIBER REVOLVER AS CHARGED IN COUNT II; II. APPELLANT’S CONVICTION WAS OBTAINED IN VIOLATION OF THE 5TH AND 14TH AMENDMENTS OF [SIC] TO THE UNITED STATES CONSTITUTION AND ARTICLE II, SECTION 7 OF THE OKLAHOMA CONSTITUTION, BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT APPELLANT RECEIVED ANY BENEFIT BY PROVIDING A FALSE IDENTITY TO OFFICER ELKINS; III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DEPRIVED APPELLANT OF AN OPPORTUNITY TO PRESENT HIS DEFENSE, AND REQUIRES THAT HIS CONVICTIONS BE REVERSED; and IV. APPELLANT’S SENTENCE IS EXCESSIVE AND SHOULD BE MODIFIED. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the 2 parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED. Propositions I and II. The sole issue in these propositions is whether, taken in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crimes charged in Counts 2 and 3 beyond a reasonable doubt. Jackson U. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Davis U. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111. This analysis requires examination of the entire record. Young U. State, 2000 OK CR 17, I 35, 12 P.3d 20, 35. “This Court will accept all reasonable inferences and credibility choices that tend to support the verdict.” Davis, 2011 OK CR 29, I 74, 268 P.3d at 111. Further, the law makes no distinction between direct and circumstantial evidence and either, or any combination of the two, may be sufficient to support a conviction. Miller v. State, 2013 OK CR 11, I 84, 313 P.3d 934, 965. Our review of the record confirms that sufficient evidence when taken in the light most favorable to the State was presented at trial to allow any rational trier of fact to convict on both counts. See Barkus v. State, 1996 OK CR 45, I 4, 926 P.2d 312, 313; Hill v. State, 3 1995 OK CR 28, IT 34, 898, P.2d 155, 166. Propositions I and II are denied. Proposition III. To prevail on an ineffective assistance of counsel claim, the appellant bears the burden of showing both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland U. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Fulgham v. State, 2016 OK CR 30, I 15, 400 P.3d 775, 780. Appellant’s claims of ineffectiveness are wholly speculative, conclusory and lack any supporting evidence. See id., 2016 OK CR 30, I 18, 400 P.3d at 780-81 (rejecting speculative claim of ineffective assistance of counsel). On appeal, Appellant has done nothing to develop these claims beyond citing to the existing record which does not show ineffectiveness. Appellant has not filed an application for evidentiary hearing under Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) with corresponding affidavits supporting his claim that trial counsel failed to present witnesses at trial whose testimony may have changed the outcome of the trial. See Lamar U. State, 2018 OK CR 8, IT 57, 419 P.3d 283, 297-98. Nor has Appellant presented affidavits or other evidence 4 showing that trial counsel’s performance concerning her handling of plea negotiations was deficient, let alone prejudicial. We observe too that Appellant’s complaint that trial counsel was deficient in communicating the State’s plea offer is flatly contradicted by the record. The record shows that Appellant was presented the plea officer and rejected it. Moreover, Appellant was aware of the basic substance of the State’s case after the preliminary hearing held in this case roughly six months before the State’s plea offer was withdrawn. All things considered, Appellant fails to show either deficient performance or prejudice with these claims on this record. Proposition III is denied. Proposition IV. “This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience.” Baird U. State, 2017 OK CR 16, I 40, 400 P.3d 875, 886; Rea v. State, 2001 OK CR 28, IT 5, 34 P.3d 148, 149. In judging whether a defendant’s sentence is excessive, we do not conduct a proportionality review on appeal. Rea, 2001 OK CR 28, I 5, 34 P.3d at 149. Our review of the record shows that Appellant’s sentences are factually substantiated and appropriate, particularly considering his extensive prior convictions 5 and his violent resistance to the officers in this case while he was in possession of two loaded firearms. Under the total circumstances, the sentences imposed in this case do not shock the conscience and are not excessive. Proposition IV is denied. DECISION The Judgment and Sentence of the district court 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 delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY THE HONORABLE RUSSELL C. VACLAW ASSOCIATE DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL KRISTI SANDERS NICOLLETTE BRANDT ATTORNEY AT LAW OKLA. INDIGENT DEFENSE 415 SOUTH DEWEY, SUITE 302 SYSTEM BARTLESVILLE, OK 74003 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT MARK KANE MIKE HUNTER ATTORNEY AT LAW OKLA. ATTORNEY GENERAL 301 SOUTHEAST ADAMS JAY SCHNIEDERJAN BARTLESVILLE, OK 74003 ASST. ATTY. GENERAL COUNSEL FOR DEFENDANT 313 N.E. 21 ST STREET AT FORMAL SENTENCING OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE 6 BRETT MIZE ASSISTANT DISTRICT ATTORNEY WASHINGTON COUNTY 420 SOUTH JOHNSTONE BARTLESVILLE, OK 74003 COUNSEL FOR THE STATE OPINION BY: HUDSON, J. LEWIS, P.J.: CONCUR KUEHN, V.P.J.: CONCUR LUMPKIN, J.: CONCUR ROWLAND, J.: CONCUR 7

Click Here To Download PDF