F-2018-975

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Mickey Joe Edward Richardson v The State Of Oklahoma

F-2018-975

Filed: Jan. 30, 2020

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Mickey Joe Edward Richardson appealed his conviction for multiple crimes, including Assault and Battery on a Police Officer and Larceny of an Automobile. His conviction and sentences included 5 years for assault, 20 years for larceny, 30 years for pointing a firearm, life for being a felon in possession of a firearm, and 1 year for escape. Judge Kuehn, who wrote the opinion, affirmed the lower court's decision. Judge Lewis and Judge Lumpkin agreed with the decision, while there were no dissenting opinions.

Decision

The Judgment and Sentence of the District Court of Haskell County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there an error in the trial court's jury instructions regarding the sentencing range for possession of a firearm after former conviction of a felony?
  • Did the trial court violate Mr. Richardson's Fourteenth Amendment due process rights by failing to properly instruct the jury?
  • Were improper victim impact statements considered during the sentencing hearing, depriving Mr. Richardson of a fair proceeding?
  • Was the district court's policy of imposing consecutive sentences an abuse of discretion?
  • Was Mr. Richardson denied his right to effective assistance of trial counsel?
  • Did cumulative errors deprive Mr. Richardson of a fair proceeding and reliable outcome?

Findings

  • The court did not err in instructing the jury on the sentencing range for Count 5.
  • The trial court did not violate due process rights regarding jury instructions.
  • The trial court's consideration of victim impact statements was proper.
  • The trial court did not abuse its discretion in enforcing consecutive sentences.
  • Appellant was not denied effective assistance of trial counsel.


F-2018-975

Jan. 30, 2020

Mickey Joe Edward Richardson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE:

Appellant, Mickey Joe Edward Richardson, was convicted by a jury in Haskell County District Court, Case No. CF-2016-91, of the following crimes, and received the following sentences:

– Assault and Battery on a Police Officer, After Conviction of a Felony (Count 1) – 5 years
– Larceny of an Automobile, After Conviction of a Felony (Count 2) – 20 years
– Feloniously Pointing a Firearm, After Conviction of a Felony (Count 4) – 30 years
– Felon in Possession of a Firearm, After Conviction of a Felony (Count 5) – life
– Escape from Detention (Count 8) – one year

On September 11, 2018, the Honorable Brian C. Henderson, Associate District Judge, imposed the sentences recommended by the jury and ordered them to be served consecutively. This appeal followed. Appellant raises six propositions of error in support of his appeal:

**PROPOSITION I.** THE TRIAL COURT ERRED WHEN IT MISINSTRUCTED THE JURY AS TO THE SENTENCING RANGE FOR COUNT V – POSSESSION OF A FIREARM AFTER FORMER CONVICTION OF A FELONY.

**PROPOSITION II.** MR. RICHARDSON’S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS WERE VIOLATED WHEN THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY.

**PROPOSITION III.** IMPROPER VICTIM IMPACT STATEMENTS DEPRIVED MR. RICHARDSON OF A FAIR SENTENCING HEARING.

**PROPOSITION IV.** THE DISTRICT COURT’S POLICY OF RUNNING SENTENCES CONSECUTIVELY IF THE DEFENDANT EXERCISES HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL WAS AN ABUSE OF DISCRETION.

**PROPOSITION V.** MR. RICHARDSON WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7, 9, AND 20, OF THE OKLAHOMA CONSTITUTION.

**PROPOSITION VI.** CUMULATIVE ERRORS DEPRIVED MR. RICHARDSON OF A FAIR PROCEEDING AND RELIABLE OUTCOME.

After thorough consideration of these propositions, the briefs of the parties, and the entire record on appeal, we affirm. Appellant was convicted of several crimes after he attacked a sheriff’s deputy, stole his patrol car, and attempted to evade other officers while sticking a shotgun out of the driver-side window of the stolen vehicle. Appellant was apparently high on methamphetamine at the time, but the particular facts of the incident are not at issue here.

In Proposition I, Appellant claims the trial court erred in its punishment instructions as to Count 5, Possession of a Firearm After Conviction of a Felony. He claims the correct range was one to ten years. 21 O.S.2011, § 1284. Since Appellant did not object to the instructions on these grounds below, our review is only for plain error; Appellant must demonstrate a plain or obvious deviation from a legal rule which violated his substantial rights, i.e., affected the outcome of the proceeding. Daniels v. State, 2016 OK CR 2, ¶ 3, 369 P.3d 381, 383. The State presented evidence that Appellant had two recent felony convictions. One was designated as an element needed to complete the offense charged in Count 5; the other was reserved for sentence enhancement, should the jury find Appellant guilty on that count.

Possession of a Firearm After Conviction of a Felony requires the State to prove one prior felony which makes the possession criminal. If the defendant has additional felony convictions, they may be used to enhance sentence under 21 O.S. § 51.1. Although trials are sometimes held in stages to prevent jurors from learning about the defendant’s criminal history when deciding guilt or innocence, Appellant’s decision to testify obviated this requirement. See generally Chapple v. State, 1993 OK CR 38, ¶ 10, 17-18, 866 P.2d 1213, 1216, 1217. The jury was properly instructed on the sentencing range. 21 O.S.2011, §§ 51.1(A)(2), 1284. There was no error here. Proposition I is denied.

In Proposition II, Appellant claims the trial court erred by not instructing the jury on how to determine whether his statement to police was voluntary and therefore worthy of consideration with the rest of the evidence. Appellant did not request such an instruction, so our review is only for plain error. Jones v. State, 2006 OK CR 5, ¶ 39, 128 P.3d 521, 538. This complaint is meritless because Appellant testified at trial, admitted talking to police, and never claimed his statements were involuntary in any way. In fact, Appellant gave no material information in the interview; he claimed that he had no memory of the events after his arrest by the first officer he encountered. At trial, he admitted that account was a lie. Because Appellant never challenged the voluntariness of the statement, there was no error of any sort. Proposition II is denied.

In Proposition III, Appellant claims the trial court erred at formal sentencing by considering victim impact statements from two of the officers involved in the chase. He claims those statements were inadmissible since none of the crimes he was convicted of were violent crimes, as defined by 21 O.S. § 142A-1(8), (9) and 57 O.S. § 571(2). He did not raise this objection at sentencing, so review is only for plain error. Harris v. State, 2019 OK CR 22, ¶ 69, 450 P.3d 933, 958. Appellant’s conviction for Pointing a Firearm was a violent crime. 57 O.S.Supp.2015, § 571(2)(ff). The trial court’s consideration of victim impact statements was therefore proper. Proposition III is denied.

In Proposition IV, Appellant claims the trial court abdicated its discretion by enforcing a policy of running multiple sentences consecutively after a jury trial. The record does not support that conclusion. Consecutive sentencing is the statutory default. 22 O.S.2011, § 976. The fact that, after a jury trial, a trial court adheres to that default in the absence of extenuating circumstances does not transform the decision into an ironclad policy which ignores the facts of the particular case. The trial court properly exercised its discretion, explaining why consecutive sentencing was warranted here. Proposition IV is denied.

In Proposition V, Appellant claims his trial counsel performed deficiently. To show he was denied his Sixth Amendment right to reasonably effective counsel, Appellant must show that counsel made objectively unreasonable decisions which undermine confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Sanchez v. State, 2009 OK CR 31, ¶ 98, 223 P.3d 980, 1012. Appellant faults counsel for not objecting to the errors alleged in Propositions I, II, and III. We found those claims meritless; trial counsel cannot be faulted for failing to make meritless objections. Logan v. State, 2013 OK CR 2, ¶ 11, 293 P.3d 969, 975. Appellant also faults counsel for failing to seek suppression of his police interview, or at least asking that certain information be redacted from it (specifically, references to the fact that he had been to prison and was carrying drugs when arrested). These claims are meritless as well. Appellant cites no legal authority supporting a conclusion that a custodial interview would be deemed involuntary on these facts. When he testified to the jury, Appellant admitted that he was a convicted felon and that he told the officer who first detained him that he was high on methamphetamine. Appellant cannot show a reasonable probability that any information in the interview affected the jury’s verdict. Trial counsel was not ineffective. Proposition V is denied.

As to Proposition VI, having identified no error in the preceding propositions, there is no error to consider cumulatively. Engles v. State, 2015 OK CR 17, ¶ 13, 366 P.3d 311, 315. Proposition VI is denied.

**DECISION**
The Judgment and Sentence of the District Court of Haskell County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.2011, § 1284.
  2. 21 O.S. § 51.1.
  3. 57 O.S. § 571(2).
  4. 57 O.S.Supp.2015, § 571(2)(ff).
  5. 22 O.S.2011, § 976.
  6. Strickland U. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Sanchez v. State, 2009 OK CR 31, 98, 223 P.3d 980, 1012.
  7. Logan v. State, 2013 OK CR 2, "I 11, 293 P.3d 969, 975.
  8. Engles U. State, 2015 OK CR 17, IT 13, 366 P.3d 311, 315.
  9. Okla. Stat. tit. II, §§ 7, 9, and 20.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1284 (2011) - Punishment for Possession of a Firearm After Conviction of a Felony
  • Okla. Stat. tit. 21 § 51.1 (2011) - Prior Conviction of Felony
  • Okla. Stat. tit. 21 § 142A-1 (2011) - Definition of Violent Crimes
  • Okla. Stat. tit. 57 § 571 (2011) - Definition of Violent Crimes for Victim Impact Statements
  • Okla. Stat. tit. 22 § 976 (2011) - Sentencing, consecutive sentences

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:

  • Daniels v. State, 2016 OK CR 2, I 3, 369 P.3d 381, 383
  • Jones v. State, 2006 OK CR 5, I 39, 128 P.3d 521, 538
  • Chapple v. State, 1993 OK CR 38, II 10, 17-18, 866 P.2d 1213, 1216, 1217
  • Camren v. State, 1991 OK CR 75, II 11-12, 815 P.2d 1194, 1196
  • Harris v. State, 2019 OK CR 22, I 69, 450 P.3d 933, 958
  • Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
  • Sanchez v. State, 2009 OK CR 31, 98, 223 P.3d 980, 1012
  • Logan v. State, 2013 OK CR 2, I 11, 293 P.3d 969, 975
  • Engles v. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315