Apollo Gabriel Gonzalez v The State Of Oklahoma
M-2018-259
Filed: Jun. 27, 2019
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Apollo Gabriel Gonzalez appealed his conviction for Domestic Abuse - Assault and Battery. Conviction and sentence were a $1,000 fine for one charge and a $500 fine for the other charge. Judge Kuehn wrote the opinion. Judges Lewis, Lumpkin, Hudson, and Rowland agreed with the decision. In this case, Gonzalez was accused of domestic abuse in two separate incidents. A jury found him guilty and he was fined. Gonzalez argued that he did not have a fair trial because his lawyer didn't use evidence that could have helped prove he was acting in self-defense. He wanted to show that the person he harmed was actually the aggressor. The court found that Gonzalez did not present enough proof to show that his lawyer made a mistake that affected the outcome of his trial. Additionally, Gonzalez said the trial court made a mistake by combining the two charges into one trial. However, the court determined that there was no real error in doing this since the jury could decide each charge separately. Because of these reasons, the court decided to keep Gonzalez's conviction and sentence as they were.
Decision
The Judgment and Sentence of the trial court is AFFIRMED. Appellant's Application to Supplement the Record Pursuant to 22 O.S., Art. Section III, $3.11[sic], tendered for filing with the Clerk of this Court on July 25, 2018, is ordered to be FILED and is DENIED. Pursuant to Rule 3.15, Rules, supra, the MANDATE is ORDERED issued upon the filing of this decision.
Issues
- Was Appellant deprived of a full and fair trial due to his trial counsel's deficient performance?
- Did the trial court's consolidation of Appellant's two separate offenses of domestic abuse at his jury trial constitute reversible error?
Findings
- Appellant's claim of ineffective assistance of trial counsel is denied.
- Appellant's claim regarding the consolidation of offenses is denied.
- The Judgment and Sentence of the trial court is affirmed.
- The Application to Supplement the Record is denied.
M-2018-259
Jun. 27, 2019
Apollo Gabriel Gonzalez
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
KUEHN, VICE PRESIDING JUDGE:
On July 12, 2016, Appellant was charged in Oklahoma County District Court with Domestic Abuse – Assault and Battery, in violation of 21 O.S.Supp.2014, § 644(C) in Case No. CM-2016-1848. On September 23, 2016, Appellant was charged in Oklahoma County District Court with Domestic Abuse – Assault and Battery, in violation of 21 O.S.Supp.2014, § 644(C) in Case No. CM-2016-2515. A jury trial was conducted and by agreement of the parties Case Nos. CM-2016-1848 and CM-2016-2515 were consolidated and presented to the jury as Counts 1 and 2, respectively. The jury found Appellant guilty and the Honorable Geary L. Walke, Special Judge, sentenced him according to the jury’s recommendation to a $1,000 fine for Count 1 and a $500 fine for Count 2. Appellant appeals.
Appellant raises two propositions of error in support of his appeal:
I. APPELLANT WAS DEPRIVED A FULL AND FAIR TRIAL AS HIS TRIAL COUNSEL’S PERFORMANCE WAS DEFICIENT AND APPELLANT WAS PREJUDICED BY TRIAL COUNSEL’S DEFICIENT PERFORMANCE.
II. THE APPELLANT WAS PREJUDICED BY THE TRIAL COURT’S CONSOLIDATION OF APPELLANT’S TWO SEPARATE OFFENSES OF DOMESTIC ABUSE AT HIS JURY TRIAL AND THE SAME CONSTITUTED REVERSIBLE ERROR.
After thorough consideration of the entire record before us, including the original record, transcripts, exhibits, and briefs, we find that the law and evidence do not require relief. In his first proposition of error, Appellant argues trial counsel was ineffective for failing to introduce certain evidence Appellant alleges would show Robert Chiles, the alleged victim, was the aggressor and Appellant acted in self-defense. According to Appellant’s claims, the evidence consists of video recordings, audio recordings, emails, and written statements.
In support of this claim, and pursuant to Rule 3.11(B)(3)(b) of the Rules of this Court, Appellant tendered for filing an application for evidentiary hearing and a request to supplement the record. Rule 3.11(B)(3)(b) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to utilize available evidence which could have been made available during the course of trial.
In order to rebut the strong presumptions of the regularity of district court proceedings and the competency of his trial counsel, Appellant’s application and affidavits must contain sufficient information to show this Court by clear and convincing evidence that there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Appellant did not include any actual evidence with his application. The materials attached to the request to supplement and application for an evidentiary hearing fail to establish by clear and convincing evidence that there is a strong possibility that trial counsel was ineffective. As a result, Appellant’s application to supplement the record is DENIED.
Claims of ineffective assistance of trial counsel are decided pursuant to the standard set forth in Strickland v. Washington. Under Strickland, an appellant must show both (1) deficient performance, by demonstrating that his counsel’s conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. And we recognize that a court considering a claim of ineffective assistance must apply a ‘strong presumption that counsel’s representation was within the ‘wide range of reasonable professional assistance. Trial counsel is presumed to be competent.
Pursuant to Strickland, if it is easier to dispose of an ineffectiveness claim by finding a lack of sufficient prejudice then that course should be followed. It is Appellant’s burden to show that counsel’s performance was deficient, and that the deficiency resulted in prejudice. Even if we were to assume trial counsel was deficient, Appellant never proves it is reasonably probable that the outcome of this trial would have been different but for this alleged error.
To prevail in this proposition Appellant must prove this evidence would have added something beyond his testimony that would have changed the outcome of his trial. Appellant provided no such proof. After examining Petitioner’s Proposition I claims, pursuant to the Strickland standard stated above, we find Petitioner’s ineffective assistance of trial counsel claim is without merit and is denied.
At Proposition II, Appellant argues his convictions should be reversed based on Kramer v. State. Citing Kramer, he argues the verdict form including both cases’ verdicts on the same form requires relief. Appellant made no objection to joinder of the offenses or the jury instructions below. Appellant has therefore waived appellate review of the issue for all but plain error.
To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding.
The jury in Kramer was required to choose between guilty on all cases or not guilty on all cases as a whole. Kramer is not persuasive authority as the jury in this case was able to decide each case individually. Appellant has not established any error occurred, and even if we were to assume error was present, he has not established any error affected the outcome of the proceeding. Proposition II is denied.
DECISION
The Judgment and Sentence of the trial court is AFFIRMED. Appellant’s Application to Supplement the Record Pursuant to 22 O.S., Art. Section III, $3.11[sic], tendered for filing with the Clerk of this Court on July 25, 2018, is ordered to be FILED and is DENIED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the filing of this decision.
Footnotes:
- 21 O.S.Supp.2014, § 644(C)
- Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019)
- Lamar v. State, 2018 OK CR 8, IT 57, 419 P.3d 283, 297
- Simpson v. State, 2010 OK CR 6, I 53, 230 P.3d 888, 905-06
- Davis v. State, 2011 OK CR 29, I 188, 268 P.3d 86, 130
- Dodd v. State, 2004 OK CR 31, "I 114, 100 P.3d 1017, 1050
- Lott v. State, 2004 OK CR 27, I 135, 98 P.3d 318, 351
- Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
- Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 766, 145 L.Ed.2d 756 (2000)
- Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011)
- Kramer v. State, 1953 OK CR 69, 97 Okl. Cr. 36, 257 P.2d 521
- Simpson v. State, 1994 OK CR 40, 10-11, 23, 876 P.2d 690, 694-95, 698
- 20 O.S.2011, § 3001.1
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 644(C) (2014) - Domestic Abuse - Assault and Battery
- Okla. Stat. tit. 22 § 3001.1 (2011) - Relief under the plain error doctrine
- Okla. Stat. tit. 22, Art. III, § 3.11 (2019) - Request for evidentiary hearing
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:
- Lamar v. State, 2018 OK CR 8, I 57, 419 P.3d 283, 297
- Simpson v. State, 2010 OK CR 6, I 53, 230 P.3d 888, 905-06
- Davis v. State, 2011 OK CR 29, I 188, 268 P.3d 86, 130
- Dodd v. State, 2004 OK CR 31, I 114, 100 P.3d 1017, 1050
- Lott v. State, 2004 OK CR 27, I 135, 98 P.3d 318, 351
- Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
- Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 766, 145 L.Ed.2d 756 (2000)
- Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011)
- Kramer v. State, 1953 OK CR 69, 97 Okl. Cr. 36, 257 P.2d 521
- Simpson v. State, 1994 OK CR 40, 10-11, 23, 876 P.2d 690, 694-95, 698