Sweeping down the plain: a modern rule for direct review in Oklahoma criminal appeals.

• Author: Dupler, Bryan Lester

The overriding purposes of the Oklahoma Court of Criminal Appeals on direct review are like those of most appellate courts: (1) affording proper relief for harmful violations of the rules of the game (1) and (2) minimizing future errors through precedents. (2) This paper proposes a rule for modernizing direct review (3) of errors in Oklahoma criminal appeals in order to further those purposes. The new rule would better define the errors cognizable by the Court on direct review; abolish plain-error review of unpreserved errors in favor of Strickland analysis; and codify a uniform legal standard of harmful effect (i.e., prejudice) warranting appellate relief.

Direct review is simply the first stage of appellate review after a criminal conviction. The Court at this stage weighs the merits of two general classes of alleged errors: errors "preserved" by timely objection on specific grounds in the court below; and "plain" (a.k.a. fundamental) (4) errors, waived (or forfeited), (5) and thus insulated from ordinary review by defense counsel's failure to timely object. (6) The Court has developed over time a fairly specific description of error and its harmful, reversible subclasses. Preserved or not, error is a deviation from law, a breach of the underlying rules of the game. (7) Plain error (1) is unpreserved--that is, forfeited or waived--error that (2) is obvious from the record and (3) affects the outcome of the proceeding. (8) The harmless-error statute and longstanding case law dictate that only harmful (which is to say prejudicial) errors, those affecting the outcome of the relevant proceedings, warrant reversal, modification of judgment or sentence, or remand for re-sentencing. (9)

Preserved error is generally reversible when it "has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." (10) In plain-error doctrine, the Court has sought to avoid a "draconian" rule of total forfeiture of serious error, on the one hand, and the misguided approach of reversing "every time an error might prejudice a case," on the other. The prejudice standard for plain error is therefore "prejudice/injury plus," (12) effectively meaning that a remedy for harmful plain error remains discretionary with the appellate court, not mandatory. (13) Only "very" injurious plain errors that compromise important judicial values--errors that '"seriously affect the fairness, integrity or public reputation of judicial proceedings"--warrant relief. (14)

Effective defense lawyers strive to formulate timely motions and interpose contemporaneous objections seeking compliance with the rules of the game, resulting either in the desired relief or the preservation of trial-court error. (15) The tactical penalty for failure to object is a finding of waiver, and in ethical as well as constitutional terms, it is possibly ineffective representation as well. (16) So competent trial counsel raise formal challenges to the investigations, the charges, the procedures, the evidence, and the trial tactics of the opposition, theoretically offering a robust opportunity for the trial court's discovery, and timely correction, of its (or the State's) errors. (17)

Trial and appellate counsel these days are rarely one and the same; and the latter are rarely content to assert a handful of errors preserved by the former. Appellate lawyers typically raise the errors preserved below and their own allegations that someone violated the rules of the game, the latter both as freestanding assignments of plain error and as corresponding allegations of ineffective assistance of counsel. (18) Indeed, appellate counsel sometimes assert plain error without raising ineffectiveness at all, (19) though the approach is at best contradictory, and perhaps its own kind of ineffective assistance. (20) Coupled with their sixth amendment cousins or not, allegations of plain error today comprise perhaps the greatest number of claims presented for review.

Broadly speaking, on direct review of preserved claims, the Court applies the rules of the game and the deviation-injury archetype. (21) Review of plain error, supposedly a distinct analytical exercise, is strikingly similar: judging the alleged error according to rules of the game (obvious deviation or not?); (22) assessing its probable impact on the proceeding (affected or not?); (23) and when necessary, asking if the gravity of an error warrants an exception to forfeiture ("serious" effect on fairness, integrity, public reputation, or not?). (24) Unless the claims are mooted by a dispositive remedy for one or more preserved or plain errors, (25) the Court also addresses corresponding criticisms of trial representation in Strickland parlance, asking whether trial counsel harmed the client's position by forfeiting one or more serious violations of the rules of the game (committing errors "so serious" that the lawyer ceased to function as effective counsel, creating a reasonable probability that, but for the lawyer's error, the outcome would have been different). (26)

Despite these distinct analytical exercises, in the Court's direct review of typical claims, functional equivalencies pervade both its rule-deviation assessments and its determinations of resulting harm. Respecting the standards of harm (our real focus here), the essential notion involved in the injury, substantial-right, and miscarriage-of-justice standards of harm is that the error or errors affected the result. Preserved or not, errors that affected the result almost invariably appear serious to the Court in their adverse impact on the judicial values of fairness, integrity, and public reputation of proceedings, though it sometimes dispenses with saying so. (27) And counsel's failure to preserve any serious error would ordinarily warrant constitutional relief under Strickland, except that plain-error review usually beats Strickland analysis to the punch. (28)

The reasons for the conceptual overlap are humane and historic. Plain-error doctrine developed decades before the Supreme Court's decision in Strickland (or even Gideon (29)), and counterbalanced a harsh rule of waiver, protecting defendants from counsel's failure to object to really harmful errors. Today's post -Gideon, post-Strickland sixth amendment compels appellate courts to discharge the same protective function through application of the Strickland framework to alleged errors in counsel's representation. And regardless of the analytical jargon used, the judicial conscience recoils from the specter of a wrongful conviction or illegal punishment resulting from erroneous trial-court proceedings. (30) That's just bad, under any standard.

The proposed new rule retains the sound policy of plenary direct review, while rationalizing its approach to preserved and unpreserved errors. It affords

* review of preserved non-constitutional errors according to the substantial-right/affected-the-outcome standard drawn from the Oklahoma harmless-error statute, Simpson, and earlier cases;

* review of sufficiency of the evidence to support the judgment or order appealed;

* review of legality of the sentence; (32) and

* review of preserved federal constitutional errors according to the "harmless beyond a reasonable doubt" standard. (33)

The rule abolishes plain-error review of forfeited claims as a matter of course, leaving in its place a review of ineffective-assistance claims according to clearly established federal law. As a final and appropriate failsafe, the rule provides the option for the Court to notice and remedy plain errors on its own motion. (34)

These changes eliminate the cumbersome process of categorizing and reviewing claims of preserved error, plain error, and ineffective counsel according to rhetorically distinct, but fundamentally equivalent, standards of harm. A unitary standard of harm--or prejudice, if you like--requiring a showing that any error "affected the result" ensures adequate relief for preserved, harmful errors. For serious errors forfeited by counsel's failure to object, Strickland's equivalent standard of prejudice ensures a proper remedy, drawing all harmful, forfeited errors within its protective sweep. The remaining errors are technical, harmless, and warrant no relief under either standard.

The Court's historic and settled policy, to award relief where errors (preserved or plain, alone or in combination) affect the outcome, is a good one. (35) Yet the Court needlessly sifts factually identical, forfeited claims through both plain-error review and the Strickland test, rarely, if ever, arriving at conflicting results. (36) Plain-error review occasionally short-circuits (which is to say moots) what would otherwise be a Strickland-based finding that counsel was ineffective for failing to object; but the Court's continued plain-error review of forfeited claims probably detracts from a proper constitutional focus on trial counsel's performance. Strickland and the Sixth Amendment should be the modern ramparts against counsel's unreasonable forfeiture of harmful errors at trial.

However forcefully preserved, trial errors generally warrant no relief without...