# MITCHELL v. STATE

> Court of Criminal Appeals of Oklahoma · October 7, 2016 · 387 P.3d 934

URL: https://www.frixlaw.com/law-library/cases/9837321

## Case

- **Full name:** Emanuel Dewayne MITCHELL, Appellant, v. the STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** October 7, 2016
- **Citations:** 387 P.3d 934; 2016 OK CR 21; 2016 Okla. Crim. App. LEXIS 21; 2016 WL 5936884
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Smith, Vice-Presiding, Lumpkin, Johnson, Lewis, Hudson
- **Cited by:** 32 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/9837321

## How later opinions describe it (automated extraction)

- finding error, but neither plain error nor prejudice, from evidence indicating a suspended sentence

## Opinion text

LUMPKIN, VICE-PRESIDING JUDGE:
SPECIAL CONCUR
¶ 1 I commend my colleague on a well written and thorough analysis of the issues in this case. I specially concur to complement her analysis.
¶ 2 First, Judge Henderson should be complimented on his patient and painstaking assurance that Appellant thoroughly understood the dangers of self-representation and the limited role of standby counsel. The Oklahoma Uniform Jury Instruction Committee-Criminal should be urged to fashion an instruction to inform the jury when a defendant has exercised his constitutional right to represent himself and of the limited role of standby counsel.
¶ 3 Second, I appreciate the opinion’s guidance to appellate counsel regarding the objective test that must be met to succeed on appeal with a claim of plain error and laying out the legal distinction between plain error and structural error. 1 To further enlighten those lawyers who serve as appellate counsel in criminal cases as to how they must analyze plain error, I would add the following additional guidance. In footnote 3, this Court recognized the foundational principles of Simpson v. State, 1994 OK CR 40 , 876 P.2d 690 , which sets the plumb line of plain error analysis. Simpson laid to rest the undefined term “fundamental error” and applied the principles of the Oklahoma Evidence Code, 12 O.S. § 2101 et. seq. In giving a more thorough breakdown of the plain error analysis, the Court in Hogan v. State, 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 , set forth the step by step process for raising and analyzing a proposition of error based on plain error. Under this test, this Court determines whether the appellant has shown an actual error, which is plain or obvious, and which affects his or 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. Jackson v. State, 2016 OK CR 5, ¶ 4 , 371 P.3d 1120, 1121 (quoting Hogan, 2006 OK CR 19, ¶ 38 , 139 P.3d at 923 ); Levering v. State, 2013 OK CR 19, ¶ 6 , 315 P.3d 392, 395 ; Simpson, 1994 OK CR 40, ¶¶ 10, 26, 30 , 876 P.2d at 694, 699, 701 .
¶4 To provide effective assistance of appellate counsel, lawyers must utilize the analysis that puts into legal perspective the viability of the challenge, rather than depend on the emotional use of a particular word. Of course, the best representation at trial *947 evolves through trial counsel raising objections and preserving alleged errors rather than leaving appellate counsel to clean up the record. Over my tenure on this Court, the representation of defendants by attorneys from the Oklahoma Indigent Defense System and the Offices of the Public Defender of both Oklahoma and Tulsa Counties has improved substantially. However, there is always room to grow in the profession. It is this Court’s responsibility to give clear, consistent interpretation of the law that allows all members of the legal profession, whether judge, prosecutor or defense counsel, the perspective they need to fulfill their role in the judicial process. This opinion provides that guidance.
. For a discussion of the parameters of structural error see my separate writing in Golden v. State, 2006 OK CR 2 , 127 P.3d 1150 (Lumpkin, V.P.J. dissent).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9837321. Public record. Not legal advice.