LeJeanna Sue Chronister v State Of Oklahoma

F-2018-940

Filed: Sep. 19, 2019

Not for publication

Prevailing Party: State of Oklahoma

Summary

LeJeanna Sue Chronister appealed her conviction for Aggravated Manufacture of Controlled Substance - Methamphetamine. Conviction and sentence: 20 years in prison. No judge 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.

Issues

• Was there a violation of Appellant's rights under Anderson U. State regarding the 85% Rule?
• Did Appellant receive ineffective assistance of counsel regarding her awareness of the 85% Rule?
• Does cumulative error warrant relief in this case?

Findings

• the court erred
• the evidence was not sufficient
• cumulative error did not warrant relief

F-2018-940

Sep. 19, 2019

LeJeanna Sue Chronister

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellant LeJeanna Sue Chronister was found guilty in a non-jury trial before the Honorable Danita G. Williams, District Judge, of Aggravated Manufacture of Controlled Substance- Methamphetamine (63 O.S.Supp.2002, § 2-401(G), in the District Court of LeFlore County, Case No. CF-2002-472. The trial court sentenced Appellant to twenty (20) years in prison.¹ It is from this judgment and sentence that Appellant appeals.²

Appellant raises the following propositions of error in support of her appeal:

I. The Appellant’s sentence is in violation of the United States and Oklahoma Constitutions because it rests on a violation of her rights, under Anderson v. State, to be informed of the effect of the 85% Rule.

II. The Appellant’s sentence is in violation of the United States and Oklahoma Constitutions because she was deprived of her right to effective assistance of counsel.

III. Cumulative error warrants relief.

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.

In Proposition I, Appellant contends that her twenty (20) year sentence for Aggravated Manufacturing is illegal because she was not informed that the 85% Rule applied to her case. She argues that under Anderson v. State, 2006 OK CR 6, 130 P.3d 273 and its progeny this Court has found the failure to advise a defendant of the 85% Rule warrants sentence modification.² Appellant did not raise this claim before the trial court. Therefore, our review on appeal is for plain error. See Duclos v. State, 2017 OK CR 8, 91 5, 400 P.3d 781, 783. Under the plain error test set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id.

Appellant acknowledges that in Anderson, this Court held that juries should be advised on the 85% Rule, if such is applicable to the charge on trial. 2006 OK CR 6, I 24, 130 P.3d at 282. Appellant also acknowledges that this Court has held that before a defendant enters a guilty or nolo contendere plea, whether blind or negotiated, he/she has a right to be informed of the 85% Rule. The failure to do so renders the plea involuntary. Pickens v. State, 2007 OK CR 18, I 2, 158 P.3d 482, 483; Ferguson v. State, 2006 OK CR 36, I 3, 143 P.3d 218, 219. Appellant also acknowledges that this Court has not specifically ruled that a defendant proceeding to a non-jury trial must be notified of the 85% Rule, but argues the trend of cases following Anderson are clear on the point that affirmative knowledge of the 85% Rule is an essential requirement for a defendant’s decision to be knowing, intelligent and voluntary. Appellant’s argument is not persuasive.

Throughout her argument, Appellant presents her claim as a part of plea negotiations and agreements in additional counts in this case that were dismissed, and in other unrelated cases. Much of what Appellant discusses is not a part of the record before us. The record on appeal is formulated only by matters which have been admitted during the proceedings in the trial court. Rule 3.11(B)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011). Appellant has not filed a motion for new trial under 22 O.S.2011, § 952 nor has she filed an application to supplement the record pursuant to Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011).

The appeal in this case is a direct felony appeal of a non-jury trial. It is not a certiorari appeal. Appellant’s filing of a Post-Conviction Application 14 years after the conclusion of her trial does not bring those issues within our purview. Items not within the existing record will not be considered on appeal. Dewberry v. State, 1998 OK CR 10, 9 9, 954 P.2d 774, 4 776. Therefore, what occurred prior to the trial in this case forms no part of our consideration of the allegation of error before us.

As stated above, this Court has not specifically addressed the role of the 85% Rule in a bench trial. Its applicability is questionable. In Anderson and its progeny, the reasoning behind the decision was to ensure that the sentencer, the jury, was provided information about the impact of state laws that determine a defendant’s future eligibility for parole. This Court found informing juries of the 85% Rule discouraged jury speculation about parole matters and assisted them in making a more informed sentencing decision. 2006 OK CR 6, 9 23, 130 P.3d at 282.

In a guilty/nolo plea situation, the 85% Rule and parole eligibility was determined to be a material consequence of any guilty plea about which a defendant must be informed in order to enter a voluntary plea. Ferguson, 2006 OK CR 36, I 2, 143 P.3c at 219. Neither of these concerns is present in a non-jury trial. In any trial, the judge must sentence the defendant within the applicable statutory range of punishment. See 22 O.S.2011, § 927.1 (the court shall assess and declare the punishment and render the judgment accordingly). In a bench trial, where [t]he decision maker [was] a judge, not a jury, and unless proven otherwise, we will presume the decisions made with respect to sentencing were in compliance with the law. Marshall v. State, 1998 OK CR 30, IT 32, 963 P.2d 1, 11. The trial judge is presumed to know the law. Magnan v. State, 2009 OK CR 16, I 51, 207 P. 3d 397, 412. Therefore, it is not necessary to expand Anderson and Ferguson in some way to bench trials by requiring some statement on the record that the defendant understands their case is subject to the 85% Rule. Here, the applicable range of punishment for Aggravated Manufacturing of Methamphetamine is 20 years to life. 63 O.S.2011, § 2-401(G). Appellant was sentenced to the minimum 20 years. She has not shown this sentence to be in error. Finding no error, we find no plain error and this proposition is denied.

In Proposition II, Appellant contends she did not receive the effective assistance of counsel as counsel did not inform her that a conviction for Aggravated Manufacturing was subject to the 85 % Rule. Appellant incorporates much of her argument from Proposition I and asserts that counsel was ineffective for providing misinformation during plea negotiations regarding parole eligibility.

As stated above, this is not a certiorari appeal and much of what Appellant alludes to by incorporating her argument in Proposition I is not properly before this Court for our consideration on appeal. Appellant’s claim of ineffective assistance is reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Sanders v. State, 2015 OK CR 11, I 29, 358 P.3d 280, 287 citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In Strickland, the Supreme Court said there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound trial strategy. Sanders, 2015 OK CR 11, IT 29, 358 P.3d at 287. To establish prejudice, Appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id., at I 29, 358 P.3d at 287. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id, citing Harrington v. Richter, 562 U.S. 86, 111-112, 131 S.Ct. 770, 791-792, 178 L.Ed.2d 624 (2011).

When a claim of ineffective assistance of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Strickland, 466 U.S. at 696, 104 S.Ct. at 2070, 80 L.Ed.2d at 699. Appellant’s claim of prejudice is pure speculation and an unsuccessful attempt to rewrite the history in this case. Assuming for the sake of argument, counsel did not tell Appellant about the 85% Rule (which the record indicates that at sentencing both court and counsel were well aware it was an 85% crime) Appellant has failed to show that but for counsel’s failure to so inform her, the result of the proceeding would have been different. Appellant has not contested her guilt and she received the minimum sentence. Having thoroughly reviewed Appellant’s claim of ineffective assistance, we find she has failed to carry her burden of showing prejudice resulting from counsel’s alleged omissions. Warner v. State, 2006 OK CR 40, II 206, 144 P.3d 838, 893. This proposition is denied.

In Proposition III, Appellant argues the accumulation of errors denied her a fair trial. This Court has held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Engles v. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315; Williams v. State, 2001 OK CR 9, I 127, 22 P.3d 702, 8 732. None of the errors raised by Appellant warrant relief. Therefore, we find no relief is warranted by the accumulation of errors. Accordingly, this appeal 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 LeFLORE COUNTY
THE HONORABLE DANITA G. WILLIAMS, DISTRICT JUDGE

APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
J. MICHAEL MILLER
21 E. CARL ALBERT PRKWY
P.O. BOX 1073
OKLAHOMA CITY, OK 73118

COUNSEL FOR THE DEFENSE
KALYN FREE
2248 E. 48TH ST.
TULSA, OK 74105
COUNSEL FOR APPELLANT

FARLEY W. WARD
MIKE HUNTER
DISTRICT ATTORNEY
ATTORNEY GENERAL OF
MARION FRY
OKLAHOMA

MARGARET NICHOLSON
KATHERINE R. MORELLI
ASST. DISTRICT ATTORNEYS
ASST. ATTORNEY GENERAL
P.O. BOX 888
313 N.E. 21 ST.
POTEAU, OK 74953
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.
LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur in Result
HUDSON, J.: Concur
ROWLAND, J.: Concur

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Footnotes:

1. Appellant must serve 85% of her sentence before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1.
2. In August 2018, this Court granted Appellant's request for an appeal out of time.
3. Anderson U. State, 2006 OK CR 6, 130 P.3d 273.
4. Duclos U. State, 2017 OK CR 8, 91 5, 400 P.3d 781, 783.
5. Simpson U. State, 1994 OK CR 40, 876 P.2d 690.
6. Marshall U. State, 1998 OK CR 30, IT 32, 963 P.2d 1, 11.
7. Magnan U. State, 2009 OK CR 16, I 51, 207 P. 3d 397, 412.
8. 63 O.S.2011, § 2-401(G).
9. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
10. Sanders U. State, 2015 OK CR 11, I 29, 358 P.3d 280, 287.
11. Harrington v. Richter, 562 U.S. 86, 111-112, 131 S.Ct. 770, 791-792, 178 L.Ed.2d 624 (2011).
12. Warner U. State, 2006 OK CR 40, II 206, 144 P.3d 838, 893.
13. Engles U. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315.
14. Williams U. State, 2001 OK CR 9, "I 127, 22 P.3d 702, 8 732.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2002) - Aggravated Manufacture of Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 13.1 (2011) - Parole Eligibility
• Okla. Stat. tit. 22 § 927.1 (2011) - Sentencing Procedures
• Okla. Stat. tit. 22 § 952 (2011) - New Trial
• Okla. Stat. tit. 22 § 18 (2011) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 63 § 2-401 (2011) - Aggravated Manufacture of Controlled Dangerous Substance

Oklahoma Administrative Rules citations:

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Anderson U. State, 2006 OK CR 6, 130 P.3d 273
• Duclos U. State, 2017 OK CR 8, 400 P.3d 781
• Simpson U. State, 1994 OK CR 40, 876 P.2d 690
• Pickens U. State, 2007 OK CR 18, 158 P.3d 482
• Ferguson U. State, 2006 OK CR 36, 143 P.3d 218
• Marshall U. State, 1998 OK CR 30, 963 P.2d 1
• Magnan U. State, 2009 OK CR 16, 207 P.3d 397
• Dewberry U. State, 1998 OK CR 10, 954 P.2d 774
• Warner U. State, 2006 OK CR 40, 144 P.3d 838
• Engles U. State, 2015 OK CR 17, 366 P.3d 311
• Williams U. State, 2001 OK CR 9, 22 P.3d 702