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Date: 10-20-2022
Case Style:
Demarco Danzell Metoyer v. State of Oklahoma
Case Number: 21022 OK CR 27
Judge: Hudson
Court: Oklahoma Court of Criminal Appeals on appeal from the District Court, Tulsa County
Plaintiff's Attorney:
Defendant's Attorney: Tulsa County District Attorney’s Office
Description: Tulsa, Oklahoma criminal law lawyer represented Defendant, charged with first-degree manslaughter.
¶1 Appellant, Demarco Danzell Metoyer, was tried and convicted by a jury in the District Court of Tulsa County, Case No. CF-2016-5998, of two counts of First Degree Manslaughter, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 711(1). The jury imposed a sentence of twenty years imprisonment on each count.
¶2 The Honorable Sharon K. Holmes, District Judge, pronounced judgment and sentence in accordance with the jury's verdicts but imposed a $600.00 fine on each count as additional punishment. Judge Holmes ordered both sentences to run concurrently and imposed various costs and fees.1
¶3 Metoyer now appeals and alleges eleven propositions of error. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties' briefs, we find that no relief is required under the law and evidence except with respect to the fines imposed. Appellant's judgment and sentence is AFFIRMED except the $600.00 fine imposed for each count is STRICKEN.
¶4 We begin with Proposition IX, the sole ground in this appeal warranting an extended discussion and for which publication is warranted.
THE FINES IMPOSED BY THE TRIAL COURT
AS ADDITIONAL PUNISHMENT WERE UNAUTHORIZED
(Proposition IX)
¶5 In Proposition IX, Appellant challenges the trial court's imposition of a $600.00 fine as additional punishment on each count at formal sentencing. The record shows the jury was correctly instructed that it could impose on each count imprisonment for a term of twenty years to life and a fine not exceeding $10,000.00. The jury's sentencing verdicts, however, do not include a fine, only imprisonment. No objection was made to the trial court's imposition of a fine at formal sentencing. Our review is therefore limited to plain error. See Hubbard v. State, 2002 OK CR 8, ¶ 7, 45 P.3d 96, 99. As discussed below, Appellant shows plain error warranting relief on this issue.
¶6 Appellant complains on appeal that the trial court had no authority to impose a fine as additional punishment in light of the jury's sentencing verdict. Appellant cites 22 O.S.2011, § 926.1 which states:
In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.
¶7 In the present case, the jury assessed and declared Appellant's sentence at the conclusion of the bifurcated sentencing stage. No objection was made to the jury's sentencing verdict when it was returned. The jury was properly instructed on the range of punishment to include not only a term of imprisonment but also a fine. See 21 O.S.2011, § 51.1(B); 21 O.S.2011, § 64(B); 21 O.S.2011, § 715.2 Despite this fact, the jury's sentencing verdict included no fine.
¶8 For over forty years, we have interpreted § 926.1 in the following way. So long as a jury's sentencing verdict is within statutory limits, and is otherwise legally proper, the trial judge has the authority to suspend a sentence in whole or part under 22 O.S.2021, § 991a but the court "may not impose a sentence different from that set by the jury." Howell v. State, 1981 OK CR 82, ¶ 9, 632 P.2d 1223, 1225. E.g., Luker v. State, 1976 OK CR 135, ¶ 12, 552 P.2d 715, 719 ("[W]here the jury declare the punishment in their verdict within the limitations fixed by law, the district courts of this State must render a judgment according to such verdict and are without authority to modify the punishment assessed by the jury in pronouncing judgment upon the conviction."); Fleming v. State, 1988 OK CR 163, ¶ 10, 760 P.2d 208, 210 (no abuse of discretion where the trial court considered and rejected the defendant's request for a suspended sentence "then followed its statutory duty and imposed the sentence set by the jury");3 Luna v. State, 2016 OK CR 27, ¶ 18, 387 P.3d 956, 961-62, overruled on other grounds, White v. State, 2021 OK CR 29, ¶ 8, 499 P.3d 762, 767 ("Section 926.1 vests the jury with authority to render punishment. Once a defendant elects a jury trial and the jury decides punishment within the applicable range of punishment in its verdict, the trial court must impose the jury's punishment verdict."). This interpretation is consistent with neighboring statutes addressing the trial court's duties when the jury fails to agree, or does not declare, such punishment by their verdict or otherwise sets punishment greater than the highest limit declared by law for the offense. See 22 O.S.2021, §§ 927.1-928.1.
¶9 We have identified the right to jury sentencing contained within § 926.1 as being so fundamental that "[t]he defendant may not unilaterally waive the assessment of punishment by a jury which is able to agree." Case v. State, 1976 OK CR 250, ¶ 25, 555 P.2d 619, 625. "[T]he state in our adversary criminal justice system has a valid and legitimate interest in trying its cases before that body which history shows and the framers of our Constitution knew produced the fairest end result--the jury." Id., 1976 OK CR 250, ¶ 26, 555 P.2d at 625. See Love v. State, 2009 OK CR 20, ¶ 3, 217 P.3d 116, 117 (holding that any proposed waiver of jury punishment must be joined by both the prosecutor and trial judge). A defendant thus has no right to have a jury decide his guilt and then have a judge decide his sentence. Case, 1976 OK CR 250, ¶ 26, 555 P.2d at 625; Reddell v. State, 1975 OK CR 229, ¶ 30, 543 P.2d 574, 581-82.
¶10 In Fite v. State, 1993 OK CR 58, 873 P.2d 293, this Court addressed the power of a trial court to impose a monetary fine in the face of a jury's sentencing verdict. In Fite, the jury imposed a $100,000 fine for the defendant's conviction of unlawful cultivation of marijuana. Id. at ¶ 1, 873 P.2d at 294. Defendant's sentence was enhanced, however, using the wrong enhancement provision. Id. at ¶ 4, 873 P.2d at 294. The correct enhancement provision was 21 O.S. § 51(B) which, of course, does not contain a fine. Fite, 1993 OK CR 5, ¶¶ 7-8, 873 P.2d at 295. This meant the general fine provision in 21 O.S. § 64 was applicable. Fite, 1993 OK CR 58, ¶¶ 8-9, 873 P.2d at 295. We ultimately modified the $100,000 fine imposed by the jury to $10,000--the maximum fine authorized under § 64. Fite, 1993 OK CR 58, ¶ 11, 873 P.2d at 295.
¶11 The version of § 64 governing Fite authorized the "court" to impose a fine, not the jury. Fite, 1993 OK CR 58, ¶ 9, 873 P.2d at 295. Fite overruled a prior case--Brown v. State, 1957 OK CR 70, 314 P.2d 362, 366--which interpreted the then-existing sentencing statutes and held inter alia that "where a defendant is tried and sentenced by the jury, the court may not impose a fine under § 64." Fite, 1993 OK CR 58, ¶ 9, 873 P.2d at 295. Because Brown allowed a defendant who pled guilty to be punished more harshly than a defendant who was convicted by a jury, and because the Legislature had enacted 22 O.S. § 991a which authorized the trial court "in certain circumstances, to impose additional, or alternative, sanctions as prescribed by law[,]" we held the following in Fite:
Like § 991a, § 64 should be given effect and the trial court should be allowed to impose an appropriate fine under § 64 even when the defendant is sentenced to a term of imprisonment by the jury. Of course, nothing in § 64, or in this opinion, entitled the trial court to deviate from the term of imprisonment actually imposed by the jury. Accordingly, we overrule Brown v. State . . . to the extent that it is inconsistent with this opinion. Further, we modify the fine imposed on Fite from $100,000 to $10,000, the maximum permissible fine under § 64.
Fite, 1993 OK CR 58, ¶ 11, 873 P.2d at 295.
¶12 Since Fite, we have been inconsistent in our unpublished decisions on whether the trial court at formal sentencing may impose a fine. In Frye v. State, No. F-2009-998, slip op. (Okl. Cr. May 5, 2011) (unpublished), we held that the trial court imposed an unauthorized $1,000 fine at sentencing after the jury was properly instructed on the option of ordering the defendant to pay a monetary fine but declined to assess any fine in its sentencing verdict. The State conceded that imposition of the fine under these circumstances was error. We cited Howell, 1981 OK CR 82, ¶ 9, 632 P.2d at 1225 and Luker, 1976 OK CR 135, ¶ 12, 552 P.2d at 719 for the proposition that a trial judge may not impose a sentence different than that set by the jury. In Mixon v. State, No. F-2017-902, slip op. (Okl. Cr. Nov. 15, 2018) (unpublished) and Coke v. State, No. F-2018-384, slip op. (Okl. Cr. May 23, 2019) (unpublished), we found no plain error on the same basic facts and affirmed the trial court's imposition of fines in each case. Mixon and Coke collectively relied upon Fite and 22 O.S. § 991a.
¶13 Fite is distinguishable from the present case. The jury in Fite actually imposed a fine that required modification on appeal by this Court because the defendant was sentenced under the wrong enhancement statute. Further, 21 O.S.1991, § 64 was amended after the trial proceedings in Fite to authorize either "the court or a jury" to impose a fine not exceeding $10,000 in addition to the imprisonment prescribed. 21 O.S.Supp.1993, § 64(B). This version of the general enhancement statute remains in force today and governs Appellant's case. See 21 O.S.2021, § 64(B) (statutory language reprinted in footnote 2, supra).
¶14 The version of § 64 in force at the time of Fite was a major factor behind Fite's ultimate holding. Fite, 1993 OK CR 58, ¶¶ 9 & 11, 873 P.2d at 295. The Legislature's subsequent amendment of § 64 authorizing the court or the jury to impose a fine in addition to the imprisonment prescribed is a clear catalyst for departure from Fite. See Lewis v. City of Oklahoma City, 2016 OK CR 12, ¶ 2, 387 P.3d 899, 900 ("We presume the Legislature 'has not created an absurdity or done a vain or useless act.'" (quoting State v. District Court of Okla. County, 2007 OK CR 3, ¶ 11, 154 P.3d 84, 86)). No longer does the "anomalous situation" described in Fite exist where a defendant who pleads guilty is subject to the general fine provision, and thus greater punishment, compared to a defendant who is convicted and sentenced with priors by a jury. Fite, 1993 OK CR 58, ¶ 10, 873 P.2d at 295. In both scenarios today the defendant is subject to imposition of a fine under § 64. The question becomes simply who has the authority to impose a fine. Nothing in the plain language of § 991a suggests that the trial court's post-verdict sentencing powers include imposition of a fine (1) where the jury declines to impose a fine upon proper instruction or (2) where the jury actually imposed a fine. Whereas the plain language of § 926.1 remains clear and unmistakable: when the jury has assessed and declared the punishment in their verdict "within the limitations fixed by law . . . the court shall render a judgment according to such verdict[.]" 22 O.S.2021, § 926.1 (emphasis added). Fite moreover said very little about this provision in its analysis, instead referencing in passing 22 O.S. § 926 which was addressed in Brown but ultimately repealed in 1999 and re-enacted as § 926.1.
¶15 "We construe statutes together, avoiding any interpretation which would render any part of them useless, superfluous or inconsistent, and will try to reconcile potentially conflicting provisions." Leftwich v. State, 2015 OK CR 5, ¶ 15, 350 P.3d 149, 155. Our review of the governing Oklahoma statutes shows that a jury's sentencing verdict is not merely a recommendation that informs the trial court's ultimate sentencing determination. Where, as here, the jury upon proper instruction declines to impose a fine, Oklahoma law preempts the trial court from imposing a fine.4 The trial court should follow the jury's sentencing verdict unless it is otherwise legally infirm. 21 O.S.2021, § 64; 22 O.S.2021, § 926.1. The authority granted in § 991a(A)(2) for the trial judge to impose a fine is subsumed in this scenario by the jury's sentencing verdict but applies for guilty pleas, bench trials and, of course, those instances where the jury fails to assess and declare punishment. See 22 O.S.2021, § 927.1.
¶16 This view is based on the primacy of jury sentencing expressed by the Legislature in § 64 and § 926.1. True, the Legislature has provided several ways for courts to exercise their discretion post-verdict with respect to sentencing. See 22 O.S.2021, § 927.1 (authorizing the trial court to "assess and declare the punishment" when the jury "fails to agree on the punishment to be inflicted, or does not declare such punishment by their verdict"); 22 O.S.2021, § 982a (allowing for modification of sentence by trial court of sentences imposed pursuant to a plea agreement or jury verdict with consent of the district attorney); 22 O.S.2021, § 991a(A)(1) (allowing the trial court to inter alia "[s]uspend the execution of sentence in whole or in part, with or without probation"); 22 O.S.2021, § 994 (providing for suspension of judgment and sentence by the trial court upon request by the defendant within ten days of a final order of the Court of Criminal Appeals). See also 22 O.S.2021, § 1066 (providing that the Court of Criminal Appeals may modify a sentence on appeal). None of these provisions, however, explicitly state that the jury's sentencing verdict is merely a recommendation or otherwise non-binding on the trial court. Nor does any other statute. Indeed, we have held that advisory sentencing juries are unauthorized in Oklahoma, at least in the context of guilty pleas. Borden v. State, 1985 OK CR 151, ¶ 7, 710 P.2d 116, 118. The same should obviously apply in the context of jury trials when the jury assesses and declares punishment in their verdict. Based upon the foregoing, we find plain error and vacate the trial court's imposition of the fines in this case. Fite v. State, 1993 OK CR 58, 873 P.2d 293 is overruled to the extent it is inconsistent with this opinion. Proposition IX is granted.
APPELLANT'S REMAINING CLAIMS
(Propositions I-VIII and X-XI)
¶17 Metoyer's remaining claims are straightforward to resolve and allege the following propositions of error: (1) the accumulation of error deprived him of due process (Proposition I); (2) insufficient evidence was presented at trial to support his convictions (Proposition II); (3) the trial court failed to fairly and accurately instruct the jury on the crime of first degree misdemeanor manslaughter (Proposition III); (4) the trial court failed to fairly and accurately instruct the jury on the underlying misdemeanor crime of Driving Under the Influence (Proposition IV); (5) the trial court failed to fairly and accurately instruct the jury on causation (Proposition V); (6) the trial court erred in admitting the audio recording of his interview with Trooper Raines because Appellant's statements were coerced and involuntary (Proposition VI); (7) the trial court erred in admitting the audio recordings of his interview with Trooper Raines because Appellant was in custody and the record fails to show he was advised of the Miranda warnings (Proposition VII); (8) the warrantless blood draw violated the Fourth Amendment and the trial court erred in admitting evidence of the subsequent blood analysis (Proposition VIII); (9) prosecutorial misconduct deprived him of a fair trial and due process (Proposition X); and (10) trial counsel was constitutionally ineffective (Proposition XI).
¶18 Proposition I. We deny relief for alleged cumulative error. Mahdavi v. State, 2020 OK CR 12, ¶ 49, 478 P.3d 449, 461. Proposition I is denied.
¶19 Proposition II. Sufficient evidence was presented at trial to support both alternative theories of first degree misdemeanor manslaughter alleged in this case. Taken in the light most favorable to the State, sufficient evidence was presented at trial to allow any rational trier of fact to conclude beyond a reasonable doubt that Appellant was driving under suspension at the time of the collision, and that his conduct in driving while under suspension was a substantial factor in bringing about both victims' deaths. Sufficient evidence was also presented at trial to show alternatively that Appellant plowed into the back of Linda Cervantes's car while driving under the influence of marijuana as charged in this case and that Appellant's commission of driving while under the influence of marijuana was a substantial factor in causing both victims' deaths. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Davis v. State, 2011 OK CR 29, ¶ 74, 268 P.3d 86, 111; State v. Ceasar, 2010 OK CR 15, ¶¶ 9-13, 237 P.3d 792, 794-95; 21 O.S.2011, § 711(1); 47 O.S.Supp.2016, § 6-303 (effective Jan. 1, 2016); 47 O.S.Supp.2013, § 11-902(A)(3). Proposition II is denied.
¶20 Proposition III. Because Appellant did not object to Instruction No. 16 below or request any alterations, our review is for plain error only. Runnels v. State, 2018 OK CR 27, ¶ 18, 426 P.3d 614, 619. Appellant must therefore show an actual or obvious error affecting his substantial rights. Even then, we 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. Id. Appellant fails to show actual or obvious error.
¶21 Instruction No. 16, which set forth the elements of first degree misdemeanor manslaughter, was taken verbatim from OUJI-CR (2d) 4-94. The definitions contained in Instruction No. 17 were likewise taken directly from the uniform instructions, specifically OUJI-CR (2d) 4-108. Reviewing the total instructions, particularly the OUJI-CR (2d) 4-60 causation instruction provided to the jury in Instruction No. 15, there is nothing confusing let alone overbroad or inaccurate about the language used in defining first degree misdemeanor manslaughter and in detailing what was required to prove causation. The instructions fairly and accurately stated the governing law. There is no reasonable likelihood the jury could have convicted Appellant based on a mere finding that the deaths were caused by the common element of driving as alleged by Appellant. There was thus no error, let alone plain error, from the instructions. See Runnels, 2018 OK CR 27, ¶ 19, 426 P.3d at 619 ("Instructions are sufficient where they accurately state the applicable law."); Mitchell v. State, 2018 OK CR 24, ¶ 22, 424 P.3d 677, 684 ("This Court will deny relief on a claim of jury instruction error when the jury instructions, as a whole, accurately state the applicable law."); Harris v. State, 2007 OK CR 28, ¶ 6, 164 P.3d 1103, 1108 ("Trial courts should use both mandatory and recommended uniform instructions which accurately state the applicable law."). Proposition III is denied.
¶22 Proposition IV. There was no abuse of discretion from the trial court's definition in Instruction No. 16 of the underlying misdemeanor crime of driving under the influence. The elements of the crime contained therein accurately stated the governing law. See Barnes v. State, 2017 OK CR 26, ¶ 22, 408 P.3d 209, 217; Sanders v. State, 2002 OK CR 42, ¶ 13, 60 P.3d 1048, 1051, overruled on other grounds, Stewart v. State, 2019 OK CR 6, ¶ 8, 442 P.3d 158, 161; 47 O.S.2011, § 10-104(B); 47 O.S.Supp.2013, § 11-902(A)(3). Proposition IV is denied.
¶23 Proposition V. Instruction No. 15 was taken directly from the OUJI instructions and accurately stated the law concerning causation. There is nothing confusing let alone overbroad or inaccurate about the language used. The phrase "substantial factor" as used in this instruction is self-explanatory and does not require additional explanation. Indeed, no further definition or explanation was required for any portion of the instruction. There was no error, plain or otherwise. See OUJI-CR (2d) 4-60; 12 O.S.2011, § 577.2; Williams v. State, 2021 OK CR 19, ¶ 4, 496 P.3d 621, 623; A.O. v. State, 2019 OK CR 18, ¶ 7 n.4, 447 P.3d 1179, 1181 n.4; Ceasar, 2010 OK CR 15, ¶¶ 10-11, 237 P.3d at 794-95. Proposition V is denied.
¶24 Proposition VI. No Jackson v. Denno, 378 U.S. 368 (1964) hearing was held because Appellant never objected to the admissibility of the interview. "Failure to interpose a Motion to Suppress with a timely objection constitutes a waiver and preserves nothing for review on appeal." Jones v. State, 1987 OK CR 183, ¶ 7, 742 P.2d 1152, 1154. "Because Appellant did not object to the voluntariness of his custodial statements, the trial court properly admitted the statements without a Jackson v. Denno hearing and no error occurred." Washington v. State, 1999 OK CR 22, ¶ 34, 989 P.2d 960, 972.
¶25 Review of the audio recording of Appellant's interview at the hospital, along with Trooper Raines's testimony, shows Appellant's noncustodial statements were not the product of coercion and were knowingly and voluntarily made. Trooper Raines specifically denied threatening Appellant or making any promises in exchange for the statement. Nothing on the audio recording suggests coercion or involuntariness based upon the withholding of medical care or any other factor. Under these circumstances, there was no error, plain or otherwise, from the admission of State's Exhibit 22. Proposition VI is denied.
¶26 Proposition VII. Based on the total record, Appellant fails to show he was in custody during his interview with Trooper Raines either due to formal arrest or restraint on freedom. This despite the labels on the form affidavit used by Trooper Jackson to facilitate the warrantless blood draw. Miranda5 warnings were not required because this was a non-custodial interview. Appellant also fails to show any coercion whatsoever during the interview. Under the total circumstances, there was no error, plain or otherwise. See Mason v. State, 2018 OK CR 37, ¶¶ 18-20, 433 P.3d 1264, 1270-71 (and cases cited and discussed therein). Proposition VII is denied.
¶27 Proposition VIII. Appellant failed to make a contemporaneous objection to the admission of the blood-draw evidence at trial, thus waiving review on appeal for all but plain error. Cochlin v. State, 2020 OK CR 23, ¶ 9, 479 P.3d 534, 537. Appellant fails to show actual or obvious error from the trial court's admission of this evidence. "Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Missouri v. McNeely, 569 U.S. 141, 156 (2013). "This pronouncement means that in addition to having probable cause to support the search, police must also obtain a warrant unless there is some exigent circumstance where the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Stewart v. State, 2019 OK CR 6, ¶ 5, 442 P.3d 158, 161 (internal quotation omitted).
¶28 The record shows that Trooper Jackson had probable cause to believe evidence showing a DUI crime would be found in Appellant's blood. Further, Trooper Jackson "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence[.]'" Stewart, 2019 OK CR 6, ¶ 4, 442 P.3d at 161 (quoting Schmerber v. California, 384 U.S. 757, 770-71 (1966)). The record further shows this was a serious crime involving a fatality accident and that the medical treatment Appellant was receiving had the potential to alter the results of any blood draw depending upon the medications given to him. The State has a vested interest in accurate results from its testing of the blood sample under these circumstances. "Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant." Schmerber, 384 U.S. at 771.
¶29 Appellant fails to show plain error because exigent circumstances existed to make the warrantless blood draw in this case objectively reasonable for Fourth Amendment purposes. Trooper Jackson also complied with 47 O.S.2011, § 10-104(B) because the record shows Appellant could be cited for a traffic offense, the accident resulted in the immediate death or great bodily injury of two people and the blood draw commenced as soon as practicable after the accident occurred. The record does not support Appellant's claim that the trooper had sufficient time to obtain a search warrant without risking the destruction of relevant evidence that would be obtained from a contemporaneous blood test. Based on the exigent circumstances that informed Trooper Jackson's decision to proceed with the warrantless blood draw, there was no error plain or otherwise arising from the trial court's admission of this evidence. Proposition VIII is denied.
¶30 Proposition X. Appellant fails to show that he was denied a fundamentally fair trial in violation of due process by prosecutorial misconduct. There was no plain error. Darden v. Wainwright, 477 U.S. 168, 181 (1986); Shaw v. State, 2021 OK CR 33, ¶¶ 10-11, 500 P.3d 641, 644-45; Mahdavi, 2020 OK CR 12, ¶ 42, 478 P.3d at 460; Lenard v. State, 1990 OK CR 55, ¶ 11, 796 P.2d 636, 638; Thomason v. State, 1988 OK CR 249, ¶¶ 4-6, 763 P.2d 1182, 1183. Proposition X is denied.
¶31 Proposition XI. To prevail on an ineffective assistance of counsel claim, the defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). See Harrington v. Richter, 562 U.S. 86, 104 (2011) (discussing Strickland two-part standard). Appellant fails to show deficient performance or prejudice with any of his claims. We rejected in this appeal his instructional and evidentiary challenges as well as his prosecutorial misconduct claims. See Propositions III, IV, V, VI, VII, VIII & X.6 Counsel was not ineffective for failing to raise meritless claims. Mahdavi, 2020 OK CR 12, ¶ 48, 478 P.3d at 460-61; Logan v. State, 2013 OK CR 2, ¶ 11, 293 P.3d 969, 975.
¶32 Appellant is also not entitled to an evidentiary hearing on his ineffective assistance of counsel claim which is based on non-record evidence. Appellant fails to show by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2022); Lamar v. State, 2018 OK CR 8, ¶ 58, 419 P.3d 283, 298. Proposition XI is denied.
Outcome: ¶33 The Judgment and Sentence of the district court is AFFIRMED except the $600.00 fine imposed for each count is STRICKEN. Appellant's application to supplement the record or, in the alternative, for evidentiary hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2022), the MANDATE is ORDERED issued upon delivery and filing of this decision.
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