# Browning v. State

> Court of Criminal Appeals of Oklahoma · September 14, 2006 · 144 P.3d 155

URL: https://www.frixlaw.com/law-library/cases/9786942

## Case

- **Full name:** Michael Allen BROWNING, Appellant v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** September 14, 2006
- **Citations:** 144 P.3d 155; 2006 OK CR 37; 2006 Okla. Crim. App. LEXIS 38; 2006 WL 2621095
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Chapel, Vice-Presiding, Johnson, Lewis, Lumpkin
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9786942

## Opinion text

LUMPKIN, VICE-PRESIDING JUDGE:
CONCUR IN RESULTS.
¶ 1 I concur in the results reached and agree the Application for Post-Conviction Relief should be denied. However, as I have noted before, I cannot agree with the cavalier way this Court tosses around the concept of “de novo review” as a shield to unbridled appellate decision-making.
*159 ¶ 2 Pursuant to 22 O.S.Supp.2004, § 1089(D)(4), this Court’s authority on review of post-eonviction applications is limited. Ineffective assistance of counsel claims are broken down into two categories: (1) ineffective assistance of trial counsel “involving a factual basis that was not ascertainable through the exercise of reasonable diligence on or before the time of direct appeal”; and (2) “a claim contained in an original timely application for post-conviction relief relating to ineffective assistance of appellate counsel”. If this Court determines that previously unresolved factual issues do not exist or the claims were or could have been previously raised, then it is required under the statute to enter an order denying the claim and provide findings of fact and conclusions of law to that effect. If the Court determines there are unresolved issues of fact then the case must be remanded to the district court to resolve those factual questions.
¶ 3 One of the hardest traits for appellate courts to exercise is the self-discipline to function within the parameters of the law that limit our scope of authority. This Court should not and cannot adjudicate disputed facts “de novo ”, that is not within our historical scope of authority. While we must ensure the law is applied in a correct manner, we are constrained in our duty by the determination of the trier of facts as to any disputed facts in the case. For these reasons, I believe appellate courts must be vigilant in them application of the rules that ensure the objective and consistent enforcement of our laws, and reticent in merely trying to second guess a trier of fact.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9786942. Public record. Not legal advice.