relying on § 1089(C) to deny claims for post-conviction relief which “could have been raised on direct appeal, but were not”
How later courts described this case
- relying on § 1089(C) to deny claims for post-conviction relief which “could have been raised on direct appeal, but were not”
Written by the judges who cited it.
The opinion
LUMPKIN, Judge,
concur in results.
¶ 1 I concur in the result reached in this opinion and much of the Court’s analysis. However, I write to address two points.
¶ 2 First, as I have stated numerous times before, when addressing ineffective assistance of counsel, we should not focus on whether Appellant has shown “the outcome would have been different”. Rather, we must look at whether the verdict was reliable, i.e. “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674 (1984). “To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369-370 , 113 S.Ct. 838, 842-843 , 122 L.Ed.2d 180 (1993). We should apply the Strickland test, as established by the United States Supreme Court, in accordance with that Court’s further delineation of its applicability. In Lockhart v. Fretwell, the Court clearly stated a different outcome is not the legal criteria to use.
¶3 Secondly, I disagree with the notion that we cannot use Appellant’s alleged rape of Melissa to support second stage aggrava-tors. The rape should be treated in the same way we treat an unadjudicated offense. While I agree that the alleged rape, a crime of which Appellant was acquitted, could not be used as the predicate crime to support the aggravator of committing a murder for the purpose of avoiding or preventing a lawful arrest or prosecution, I believe the alleged rape could be used to support the continuing threat aggravator. A “verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” U.S. v. Watts, 519 U.S. 148 , 117 S.Ct. 633, 638 , 136 L.Ed.2d 554 (1997). Here, the testimony from Juanita that a rape occurred, which was somewhat supported by the testimony of Sherry, together with the other facts of the case, is sufficient to prove the rape was committed by a preponderance of the evidence. The fact that Juanita and Sherry were possible accomplices to the crime of rape is irrelevant in the second stage because 22 O.S.1991, § 742 does not require corroboration of second stage accomplice testimony.