Supplemental Brief — Daryl A. Hess, Petitioner v. Oklahoma

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12/8/23, 9:21 AM Hammon v. State | WestlawNext

2023 WL 8232856

Court of Criminal Appeals of Oklahoma.

Glen Dale HAMMON, Petitioner

Vv.

The STATE of Oklahoma, Respondent

Case Number: PC-2023-176

Decided: November 28, 2023

ORDER REVERSING DISMISSAL OF POST-CONVICTION APPLICATION

*1 71 Petitioner, pro se, appeals the order of the District Court of Oklahoma County dismissing his application for

post-conviction relief in Case No. CF-2000-6659. In December 2001, a jury convicted Petitioner of drug and firearms

offenses. He was sentenced to terms of imprisonment totaling seventy years. The convictions and sentences were

affirmed on direct appeal in an opinion handed down on April 1, 2003. See Hammon v. State, Case No. F-2001-1496

(Okl.Cr. April 1, 2003) (not for publication).

112 At the time Petitioner's judgment and sentence was affirmed, there was no limitations period governing the filing

of a post-conviction application pursuant to the Post-Conviction Procedure Act. See 22 O.S.2001, § 1080, et

seq. 1 This remained the case until November 1, 2022, when Section 1080.1 of Title 22 of the Oklahoma

Statutes became effective. This Section instituted a limitations period for filing post-conviction applications which

provides in pertinent part:

A one-year period of limitation shall apply to the filing of any application for post-conviction relief, whether an

original application or a subsequent application. The limitation period shall run from the latest of:

1. The date on which judgment of conviction or revocation of suspended sentence became final by the conclusion

of direct review by the Oklahoma Court of Criminal Appeals or the expiration of the time for seeking such review by

the Oklahoma Court of Criminal Appeals[.]

22 O.S.Supp.2022, § 1080.1 (A)(1).2 The statute permits several narrow exceptions to this one-year period, none of

which apply here.

{3 On January 5, 2023, Petitioner filed the post-conviction application that is the subject of this appeal. On February

6, 2023, the State filed a motion to dismiss the application. The State argued that because more than one year had

elapsed since Petitioner's conviction became final, his application should be barred under Section 1080.1. On

February 8, 2023, the Honorable Cindy Truong, District Judge, granted the State's motion and dismissed the

application as time barred.

114 Petitioner appealed. He filed his petition in error and brief on March 7, 2023. On July 3, 2023, we directed Judge

Truong, or her designated representative, to respond to Petitioner's claim that Section 1080.1 should not be applied

to retroactively bar his application. The District Court's response was filed on August 17, 2023. On August 11, 2023,

we granted the motion of the Oklahoma Attorney General's Office to file an amicus curiae brief. The Attorney

General's brief was filed on September 25, 2023.

*2 75 “A law is retrospective if it changes the legal consequences of acts completed before its effective date.” Miller v.

Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (citations omitted). Application of the new

limitations period to Petitioner would bar the filing of any post-conviction application as of April 1, 2004, some

eighteen years prior to the statute's effective date. There is a heavy presumption against such a result. See Landgraf

v. USI Film Products, 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (‘If the statute would operate

retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring

such a result.”).

116 The presumption against retroactive legislation is “deeply rooted in our jurisprudence, and embodies a legal

doctrine centuries older than our Republic.” /d., at 265, 114 S.Ct. 1483. Retroactive statutes are disfavored because

they raise “special concerns” due to the government's “unmatched powers ... to sweep away settled

expectations....” N.S. v. SE Cyr, 533 U.S. 289, 315, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). The presumption

against them is founded on “[e]lementary considerations of fairness” and is “express[ed] in several provisions of our

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12/8/2% 9:21 AM Hammon v. State | WestlawNext

114 IT IS SO ORDERED.

SCOTT ROWLAND, Presiding Judge

ROBERT L. HUDSON, Vice Presiding Judge

GARY L. LUMPKIN, Judge

DAVID B. LEWIS, Judge

WILLIAM J. MUSSEMAN, Judge

All Citations

--- P.3d ----, 2023 WL 8232856, 2023 OK CR 19

Footnotes

1 In fact, on two previous occasions Petitioner sought and was denied postconviction relief by the District Court, once in 2004 and again in 2020. We

affirmed these denials in Hammon v. State, Case No. PC-2004-513 (OkI.Cr.

July 8, 2004) (not for publication) and Hammon v. State, Case No. PC-2022-

265 (Okl.Cr. April 19, 2022) (not for publication), respectively.

2 This order only interprets this particular section of the legislation.

End of © 2023 Thomson Reuters. No claim to original U.S. Government Works.

Document

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SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

October 30, 2023

Daryl A. Hess

#262508

PO Box 97

McAlester, OK 74502-0097

RE: Hess v. Oklahoma

OKCRA No. PC-2022-1068

Dear Mr. Hess:

The above-entitled petition for a writ of certiorari was originally postmarked July 14,

2023 and received again on October 2, 2023. The papers are returned for the following

reason(s):

The petition is out-of-time. The date of the lower court judgment or order denying a

timely petition for rehearing was April 7, 2023. Therefore, the petition was due on or

before July 6, 2023. Rules 13.1, 29.2 and 30.1. When the time to file a petition for a

writ of certiorari in a civil case (habeas action included) has expired, the Court no longer

has the power to review the petition.

Sincerely,

Scott S. Harris, Clerk

By:

Clayton R. Higgins, Jr.

(202) 479-3019

Enclosures

Hess V. Sted é

“TOISG county

CE- 200 7T- A334

a

Hess ve Stet é

Apard’£S

IN THE DISTRICT COURT IN AND FOR TULSA COUNT RIE Cote,

_ STATE OF OKLAHOMA i= rs

DARRELL BESS, ) Sep FEB 20 2023

ee y Sie Ge BE Ray Cops

Petitioner, ) Usa pis Gerke

)

vs. ) CF-2007-2334

)

STATE OF OKLAHOMA, )

)

Respondent. )

POST-CONVICTION

ORDER DISMISSING PETITIONER’S APPLICATION FOR

RELIEF

Conviction Relief comes before this Court for

Petitioner’s Application for Post-

consideration under the Post-Conviction Procedure Act, 22 O.S. §§ 1080-1089. This Court has

reviewed the Application, the State’s Response, and the records in rendering its decision. This

Court finds that the Application fails to present any issue of material fact requiring a formal hearing

with the presentation of witnesses and the taking of testimony; this matter can be decided on the

and records reviewed. Johnson vy. State, 1991 OK CR 124, 7 10, 823 P.2d 370, 373-74.

pleadings

Also, this Court finds it unnecessary to appoint counsel for Petitioner. See 22 O.S. § 1082.

STATEMENT OF RELEVANT FACTS

In 2007, Petitioner was charged with three different robbery cases in Tulsa County: CF-

2007-2334, CF-2007-2643, and CF-2007-2646. His cases, while pending and now in this post-

conviction posture, are in front of different district judges.

requested post-conviction relief again on June 18, 2013, and that request was also denied.

and raise claims adjudicated in CE

ARGUMENT AND AUTHORITY

Oklahoma’s Post-Conviction Procedure Act, 22 O'S. § 1080-1089, provides that the

District Court may dismiss an application when it is satisfied “on the basis of the application, the

answer or motion of resp ondent, and the record, that the applicant is not entitled to post-

22 O.S. § 1083(B).

conviction

rehef and no purpose would be Served by any finther proceedings.”

Accordingly, dismissal on the pleadings is improper where there exists a material issue of fact. Id.

So, as in the case at bar, where a Petitioner fails to state a meritorious claim for relief and fails to

Present any material fact for thig Court to consider, it should dismaiss the application. Petitioner’s

Application is fit for dismissal.

L PETITIONER’S CLAIMS ARE PROHIBITED BY 22 OS. § 1080.1.

The Oklahoma Legislature has limited post-conviction relief under the Post-Conviction

Procedure Act available to petitioners. Under 22 O.S. § 1080. 1, petitioners have one year to initiate

Claims for post-conviction relief: and that timeline is calculated based upon the following:

A. A one-year period of limitation shall apply to the filing of any application for

Post-conviction relief whether aa original application or a subsequent

application. The limitation period shall rn from the latest of

2. The date on which the Governor revoked parole or conditional

release, if the petitioner is challenging the lawfulness of said

revocation: 8

3. The date on which any impediment to filing an application

created by a state actor in violation of the Constitution of the United

States or the Constitittion of the State of Oklahoma, or laws of the

State of Oklahoma, is removed, if the petitioner was prevented from

filing by such action;

4. The date on which the constitutional right asserted was initially

recognized by the United States Supreme Court, ifthe right has been

newly recognized by the United States Supreme Court and made

retroactively applicable to cases on collateral review: or

this section, this limitation period shall

raised in the application and shal]

lacked subject-matter jurisdiction.

B. Subject to the exceptions provided for in

apply imespective of the nature of the clai

include jurisdictional claims that the trial court

C. The provisions of this section shall apply to any post-conviction application

filed on or after the effective date of this act.

22 O.S. § 1080.1 (effective N ov. I, 2022). Petitioner’s Judgment and sentence became final when

the OCCA affirmed his Judgment and sentences in 2009. Petitioner’s current Application is

prohibited under 22 O.S. § 1080.1, and the Court dismisses his Application on this basis.

ce PETITIONER’S CLAIM IS PRO CEDURALLY BARRED.

Oldahoma’s Post-

2, 93, 293 P.3q 969, 973. The Post-Conviction Procedure Act is not totended to provide a second

appeal. Richie vy. State, 1998 OK.CR 26, 957 P_2d 1192. Accordingly, “[i}t is not the office of the

Post-Conviction Procedure Act, 22 O.S.1991, § 1080 er Séq. to provide a second appeal under the

mask of post-conviction application” Thomas » State, 1994 OK CR 85, 888 Pod 522, 525.

Finality of judgments is of the utmost importance in the post-conviction posture and should be

Stressed accordingly-

Cannon v. State, 1997 OK CR 13, 933 P2d 926, 928. This commandment is embodied in the Post-

“All grounds for relief available to the application under this act must

Conviction Procedure Act:

22 OS. § 1086. The doctrine of

be raised in the original, supplemental or amended application.”

res judicata procedurally bars issues which were already raised and ruled upon; the doctrine of

waiver bars issues which could have been raised on review, but were not. Id King v. State, 2001

OK CR 22,7 4,29P.3d] 089, 1090 (noting that petitioner’s claims should have been raised prior

to his guilty plea, but most certainly in a direct appeal, and, therefore, his claims were barred). See

also Webb v. State, 1992 OK CR 38, 7 6, 835 P.2d 115, 116, overruled on other grounds (holding

that petitioner’s third attomey was procedurally barred from raising an ineffective assistance claim

in petitioner’s second application for post-conviction relief).

The Legislature has provided a narrow exception, allowing for subsequent applications

when there exists a “sufficient reason”

consequently fails to advance any reason indicating how his claims were madequately raised in his

PHor direct appeal and/or in prior applications; Petitioner fails ‘to overcome the procedural bar

CONCLUSION

Petitioner’s claims are both fit for dismissal under 22 O.S. § 1080.1 and procedurally barred

under 22 O.S. § 1086. The Court dismisses the Petitioner’s Application for Post-Conviction Relief.

etttoner’s Application

for Post-Conviction Relief is hereby DENIED.

SOORDERED this 23 day of fe, | , 2023.

i

DISTRICT LODRT TODGE

CERTIFICATE OF MAING

This Court certifies that on the date of filing,

a true and correct copy of the above and foregoing

Order was delivered to-

Darrell Hess

' Oklahoma State Penitentiary

P.O. Box 97

= McAlester, OK 74502-0097

~-&-

Meghan Hilbom, OBA #33908

Assistant District Attomey ©

500 South Denver, Suite 900

Tulsa, Oldahoma 74103-3832

DON NEWBERRY, COURT CLERK

BY:

Deputy Court Clerk

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

FILED

IN COURT OF CRIMINAL

DARYL A. HESS, STATE OF OKLAHOMA E>

a.k.a. DARRELL ALLEN HESS, MAY 17-2003

Petitioner, SOHN HADEN

Vv. No. PC-2023-226

THE STATE OF OKLAHOMA,

Respondent.

ORDER AFFIRMING DENIAL OF THIRD APPLICATION

FOR POST-CONVICTION RELIEF

Petitioner, pro se, appeals to this Court from an order of the

District Court of Tulsa County denying post-conviction relief in Case

No. CF-2007-2334.

On March 25, 2009, Petitioner pleaded guilty to Robbery with a

Firearm and Kidnapping and was sentenced to twenty years

imprisonment for each offense, to be served concurrently with each

other and concurrently with Petitioner’s sentence in Tulsa County

District Court Case No. CF-2007-2646. He did not attempt to withdraw

his guilty plea. The district court denied Petitioner’s first application

for post-conviction relief on May 19, 2010, and this Court affirmed.

Hess v. State, No. PC-2010-504 (Okl. Cr. June 10, 2010). The district

PC-2023-226, Hess v. State

court denied his second application for post-conviction relief on June

18, 2013. Our records do not reflect Petitioner appealed that judgment

to this Court. On January 31, 2023, Petitioner, pro se, filed his third

application for post-conviction relief in the district court. The

Honorable Dawn Moody, District Judge, denied the application in an

order filed on February 28, 2023. It is from this order that Petitioner

appeals.

Post-conviction review is not a means for a second appeal.

Williamson v. State, 1993 OK CR 24, J 4, 852 P.2d 167, 169. Issues

that were previously raised and ruled upon on direct appeal are

procedurally barred from further review under the doctrine of res

judicata, and issues that were not raised previously on direct appeal,

but which could have been, are waived. Logan v. State, 2013 OK CR

2, J 3, 293 P.3d 969, 9773. Reviewable issues in a subsequent postconviction application are even more strictly conscribed. 22 O.S.2011,

§ 1086; Stevens v. State, 2018 OK CR 11, 9 15, 422 P.3d 741, 746

(“There are even fewer grounds available to a petitioner to assert in a

subsequent application for post-conviction relief.”). “This Court has

consistently determined that failure to raise an alleged error, absent a

showing of sufficient reason for failure to raise the issue, or a showing

2

PC-2023-226, Hess v. State

that the issue was inadequately raised in a prior direct appeal or

application, waives the error, and bars it from future consideration.”

Berget v. State, 1995 OK CR 66, J 6, 907 P.2d 1078, 1081-82.

As the district court found, the claims presented in Petitioner’s

current post-conviction application could have been presented in a

timely direct appeal or in Petitioner’s previous post-conviction

applications. Petitioner has not demonstrated a sufficient reason for

failing to adequately raise these claims in prior proceedings. See 22

O.S8.2011, § 1086. Thus, these propositions are waived.

Furthermore, even assuming arguendo these claims are not

barred by waiver, Petitioner has selected the wrong district court case

in which to assert them. As in his post-conviction application before

the district court, Petitioner’s propositions on appeal assert allegations

of error relating to the trial proceedings in his two other robbery cases

pending in the District Court of Tulsa County around the same time

as this case.! However, he raises no discernable claim relating to the

validity of his judgment and sentence in Case No. CF-2007-2334, from

which this appeal arises. As challenges relating to Petitioner’s

1 Whereas Petitioner was convicted at separate jury trials in Case Nos. CF-2007-

2643 and CF-2007-2646, he was convicted in Case No. CF-2007-2334 upon a

plea of guilty.

PC-2023-226, Hess v. State

convictions in other cases are not properly before this Court in this

proceeding, Propositions I, II, III, and IV are denied.

Finally, Petitioner challenges the authenticity and validity of the

district court’s order denying post-conviction relief itself. He baldly

alleges the assistant district attorney who responded to his postconviction application forged a judge’s signature on the order and

then fraudulently filed it in the district court. Petitioner presents

nothing beyond mere rank speculation to support this dubious

accusation. His unsupported assertions are insufficient to rebut the

presumption of regularity in trial court proceedings. See Brown v.

State, 1997 OK CR 1, J 33, 933 P.2d 316, 324-25; see also Hatch v.

State, 1996 OK CR 37, 4 57, 924 P.2d 284, 296 (“Granting any relief

based upon bald allegations or suspicions would clearly go against

the presumption of correctness we attach to trial proceedings, and to

the presumption we use in dealing with counsel as officers of the

court.”). Proposition V is denied.

Petitioner has failed to establish he is entitled to post-conviction

relief. Therefore, the order of the District Court of Tulsa County in

Case No. CF-2007-2334 denying his third application for post-

conviction relief is AFFIRMED. Pursuant to Rule 3.15, Rules of the

4

PC-2023-226, Hess v. State

Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2023), the

MANDATE is ORDERED issued upon the delivery and filing of this

decision.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this

LZLK day of _ Vg , 2023.

Bectheslege)

SCOTT ROWLAND, Presiding Judge

blower J dates

ROBERT L. HUDSON, Vice Presiding Judge

aS Tawi Tides

lea ST. | a

WILLIAM J. MUSSEMAN, Judge