Melinda Gayle Henry v The State of Oklahoma
F-2018-814
Filed: Oct. 3, 2019
Not for publication
Prevailing Party: Melinda Gayle Henry
Summary
# Melinda Gayle Henry appealed her conviction for Embezzlement. Conviction and sentence of five years imprisonment and a $10,000 fine. Judge Lewis 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. AN APPEAL FROM THE DISTRICT COURT OF NOWATA COUNTY THE HONORABLE CURTIS L. DELAPP, DISTRICT JUDGE
Issues
- Was there ineffective assistance of counsel due to failure to secure necessary discovery?
- Did Appellant's trial counsel fail to request a continuance of Appellant's trial?
- Was there plain error committed by the judge when forcing Appellant's counsel to trial while unprepared?
Findings
- Appellant's claim of ineffective assistance of counsel due to failure to secure necessary discovery is denied.
- Appellant's claim of ineffective assistance of counsel for failing to request a continuance is denied.
- Appellant's claim of plain error by the trial court forcing counsel to trial unprepared is denied and waived for lack of compliance with court rules.
F-2018-814
Oct. 3, 2019
Melinda Gayle Henry
Appellantv
The State of Oklahoma
Appellee
v
The State of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, JUDGE: Appellant, Melinda Gayle Henry, was tried by jury and convicted of Embezzlement, in violation of 21 O.S.Supp.2012, § 1451, in the District Court of Nowata County Case Number CF-2016-71. The jury recommended punishment of five years imprisonment and payment of a $10,000.00 fine. The trial court sentenced Appellant accordingly. It is from this judgment and sentence that Appellant appeals.
Appellant raises the following propositions of error in this appeal:
I. Appellant’s trial counsel provided ineffective assistance of counsel because he failed to secure the necessary discovery.¹
II. Appellant’s trial counsel was ineffective for failing to request a continuance of Appellant’s trial.
III. Judge DeLapp committed plain error when he forced Appellant’s counsel to trial knowing he was unprepared.
After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted. We combine Propositions One and Two as the underlying claim in both is ineffective assistance of counsel.
This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). The Court begins its analysis with the strong presumption that counsel’s conduct fell within the wide range of reasonable professional² assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Appellant must overcome this presumption and demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id.
When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Bland v. State, 2000 OK CR 11, ¶ 113, 4 P.3d 702, 731 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). To demonstrate prejudice, an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s unprofessional errors. Id., 2000 OK CR 11, ¶ 112, 4 P.3d at 731. The likelihood of a different result must be substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624 (2011).
In her first proposition, Appellant claims counsel was ineffective for failing to obtain necessary discovery. Defense counsel requested certain records from the victim, convenience store The Woodshed, in a letter dated September 27, 2016, sent to the former assistant district attorney handling the case. These records purportedly involved commercial truckers’ fuel card company, Comdata, and one of its³ methods of payment to the store, i.e., debit card. Prior to commencement of trial, defense counsel brought up the issue of these records with the trial court and the prosecutor. After acknowledging that he had requested the documents from the prosecutor, defense counsel admitted he had it on good information that the documents were shredded long before the prosecutor ever heard of the case. After picking the jury, defense counsel made another record initially requesting a mistrial because of something the trial court said during voir dire. He made an additional record regarding the above records, advising the court the records would be very helpful in proving or disproving the case. He admitted The Woodshed office and the prosecutor offered to let him and Appellant come to The Woodshed offices in Edna, Kansas and look at any records they wanted to see, but that he thought the information he sought was either missing or withheld. Defense counsel also told the trial court he heard the records were placed in a dumpster and never made it to The Woodshed main office. The trial court determined that the State offered the records for viewing by the defense, but the defense did not avail itself of the offer.
The court further found that given the lengthy history of the case and Appellant’s knowledge of the records, the defense could have filed motions regarding the alleged failure to receive discovery long before the first day of trial. The trial court denied the motion for mistrial.¹ As shown above, defense counsel claimed, presumably from speaking with Appellant, that the records would be helpful in proving or disproving the case. However, he repeatedly told the trial court that he understood the records he sought from The Woodshed did not exist. Either the records were shredded or they were thrown in a dumpster. The State indicated there were no records regarding Comdata debit card transactions because Comdata did not provide debit card services. Appellant asks this Court to speculate that had the subject records actually existed and had counsel obtained them, there is a reasonable probability that the result of her trial would have been different. This Court cannot make the leap necessary to find prejudice in this case based on speculation alone. Fulgham v. State, 2016 OK CR 30, ¶ 17, 400 P.3d 775, 780. [T]his Court cannot find Strickland prejudice resulted through assumptions and speculation. Appellant has failed to present any evidence demonstrating the reasonable probability of a different result in the proceedings. Appellant’s ineffective assistance of counsel claim is therefore conclusory and speculative. Fulgham, 2016 OK CR 30, ¶ 18, 400 P.3d at 780-81. As in Fulgham, Appellant’s claim regarding the records is too speculative to support a finding of prejudice. Accordingly, this claim is denied.
Appellant next contends in Proposition Two that defense counsel was ineffective for failing to request a continuance based upon the missing records. However, in light of the trial court’s findings regarding the history of the quest for the subject records, the court would have denied a request for continuance. As previously addressed, the trial court determined that the defense had about a year and a half between the September 27, 2016, letter requesting the records and the trial, but never filed a motion seeking production of the records. Furthermore, the trial court found the State made the offer for the defense to travel to Edna, Kansas, to look through all of The Woodshed’s records, but the defense never accepted the offer. Defense counsel advised the trial court he understood the records did not exist. This record shows the trial court would have denied any request for a continuance. Counsel cannot be deemed ineffective for refusing or failing to raise a baseless claim. Battenfield v. State, 1998 OK CR 8, ¶ 15, 953 P.2d 1123, 1128. Furthermore, as in Fulgham, Appellant offers nothing but rank speculation that had the trial court granted a continuance, the outcome of her trial would have been different. Indeed, failure to request a continuance could not have prejudiced Appellant, as defense counsel believed the records did not exist. Having failed to show prejudice from either of these alleged failures, Appellant has not shown defense counsel was ineffective. Propositions One and Two are denied.
In her last proposition, Appellant argues the trial court committed plain error by forcing defense counsel to trial when he was unprepared. We find this proposition of error is waived for failure to comply with Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). This proposition is devoid of a single citation to the record in support of this claim and consists of nothing more than unsubstantiated allegations. Tryon v. State, 2018 OK CR 20, ¶ 57, 423 P.3d 617, 636 (where the record was not referenced with regard to the location of the alleged error, the claim was waived from appellate review). Proposition Three 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.
AN APPEAL FROM THE DISTRICT COURT OF NOWATA COUNTY
THE HONORABLE CURTIS L. DELAPP, DISTRICT JUDGE
APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
MARK KANE
KEVIN D. ADAMS
BOX 2566
417 W. 7TH STREET, STE. 202
BARTLESVILLE, OK 74005
TULSA, OK 74119
2566
COUNSEL FOR APPELLANT
COUNSEL FOR DEFENDANT
MIKE HUNTER
KEVIN BUCHANAN
ATTY GENERAL OF OKLAHOMA
JAMES PFEFFER
KATHERINE R. MORELLI
ASST. DISTRICT ATTORNEYS
ASST. ATTORNEY GENERAL
NOWATA COUNTY
313 N.E. 21ST ST. COURTHOUSE
OKLAHOMA CITY, OK 73105
NOWATA, OK 74048
COUNSEL FOR THE STATE
COUNSEL FOR THE STATE
OPINION BY: LUMPKIN, J.
LEWIS, P.J.: Concur in Result
KUEHN, V.P.J.: Concur in Result
HUDSON, J.: Concur
ROWLAND, J.: Concur
Footnotes:
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Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 1451 - Embezzlement
- Okla. Stat. tit. 22 § 3.15 - Mandate
- Okla. Stat. tit. 22 § 3.5(A)(5) - Rule on Appellate Procedure
- Okla. Stat. tit. 22 Ch. 18, App. - Rules of the Oklahoma Court of Criminal Appeals
- Okla. Stat. tit. 21 § 701.8 - Instructions on Punishment
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, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)
- Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
- Bland v. State, 2000 OK CR 11, I 113, 4 P.3d 702, 731
- Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624 (2011)
- Fulgham v. State, 2016 OK CR 30, I 17, 400 P.3d 775, 780
- Fulgham v. State, 2016 OK CR 30, I 18, 400 P.3d at 780-81
- Battenfield v. State, 1998 OK CR 8, I 15, 953 P.2d 1123, 1128
- Tryon v. State, 2018 OK CR 20, I 57, 423 P.3d 617, 636