source: Caselaw Access Project

author: Justice COATS

license: Public Domain

text:
    John ARDOLINO, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 01SC739.
    Supreme Court of Colorado, En Banc.
    May 12, 2003.

      Patrick J. Mulligan, Denver, Colorado, Attorney for Petitioner.
    Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.
   Justice COATS

delivered the Opinion of the Court.

John Ardolino petitioned for review of the unpublished court of appeals' decision upholding the denial of his motion for postcon-viction relief. The district court determined, without a hearing, that Ardolino's counsel had not been ineffective both because his representation did not fall outside the wide range of professionally competent assistance and because any errors made by his counsel did not result in prejudice to his case. Because we find that the motion, files, and record in the case were insufficient to establish either that the acts and omissions of counsel identified by the defendant were reasonable strategic choices or that they, in any event, did not prejudice his case, we remand for an evidentiary hearing on the allegations of the defendant's motion.

I.

The defendant, John Ardolino, was convict, ed of sexual assault on a child and contributing to the delinquency of a minor, for which he was sentenced to concurrent eleven-year terms in the custody of the department of corrections. The charges arose from an incident in July 1997, in which Ardolino was accused of providing aleohol to a ten-year-old girl and digitally penetrating her vagina. In the absence of physical evidence or other first-hand witnesses, the prosecution presented its case through the testimony of the child-victim; relatives, neighbors, and police officers to whom she or the defendant made statements; and the medical expert who examined her. The defense rested on a general denial, without presenting a case.

Prosecution witnesses testified to the effect that the defendant hired the victim to help with his landscaping business, as he had done with other children in the neighborhood. On the evening in question, after receiving permission to spend the night with the defendant's daughter, the victim drank beer offered to her by the defendant and became dizzy. When she responded in the negative to his question whether she had ever had cooking oil rubbed on her, the defendant retrieved a bottle of cooking oil from the kitchen and rubbed it on her stomach and then in her vagina. The victim told no one until a month or two later, when she was being told by an older friend about foreplay and exclaimed, "That's what John did to me!" When the victim resisted her friend's urging to tell her mother, the friend eventually told her own mother, who told the victim's mother, who in turn notified the police.

Although defense counsel did not present any witnesses on the defendant's behalf, he did cross-examine the prosecution witnesses and make argument. In particular, however, while questioning the medical expert who had examined the victim, defense counsel asked her about the veracity of child sexual assault victims and elicited from her an opinion that less than one percent of such allegations were false. Counsel repeated and emphasized this opinion both at the time and again in closing argument to the jury.

Following the jury verdicts, the defendant appealed his convictions to the court of appeals. During the pendency of his appeal, he was granted a limited remand to challenge, by motion for postconviction relief, the effectiveness of his counsel's assistance. His motion alleged that defense counsel was ineffective in his investigation of the alleged crime, voir dire of the jury, eross-examination of the victim and the prosecution's expert witness, and in failing to object during closing argument. The motion included the affidavit of an attorney, offered as a defense expert, asserting that trial counsel's representation had been ineffective in these areas.

The district court denied the motion without hearing evidence to support the defendant's allegations, finding that they involved no disputed questions of fact but only issues of law. -It further found the record sufficient to establish that defense counsel's alleged acts and omissions were reasonable strategic choices and that they did not prejudice the defendant, in part because the victim appeared highly believable.

The case was recertified to the court of appeals, which affirmed both the defendant's convictions and the district court's denial of his motion for postconviction relief, One member of the panel would have remanded for an evidentiary hearing on the allegations of the defendant's postconviction motion. We granted the defendant's petition for a writ of certiorari to review the denial of his claim of ineffective assistance of counsel.

IL

A criminal defendant is constitutionally entitled to effective assistance from his counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Davis v. People, 871 P.2d 769 (Colo.1994). Because the purpose of the requirement of effective assistance is to ensure a fair trial, however, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S at 687, 104 S.Ct. 2052. To be entitled to reversal of a conviction as the result of defective assistance, a defendant must therefore show not only that his counsel's performance was deficient but also that the deficient performance prejudiced the defense. Id.; People v. Cole, 775 P.2d 551, 554 (Colo.1989).

The proper standard for attorney performance is that of reasonably effective assistance, and therefore the defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Prevailing norms of practice can serve as guides to determine reasonableness, but no more than guides, because of the variety of cireumstances faced by defense counsel and the range of legitimate decisions regarding how best to represent a criminal defendant. Id. at 688-89, 104 S.Ct. 2052. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Id. at 690-91, 104 S.Ct. 2052; People v. Rodriguez, 914 P.2d 230, 298 (Colo.1996). Because a challenged action might be considered sound trial strategy under the cireum-stances of a particular case, judicial serutiny of counsel's performance must be highly deferential, evaluate particular acts and omissions from counsel's perspective at the time, and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 698, 104 S.Ct. 2052.

Conflicts of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id. at 698, 104 S.Ct. 2052; Rodriguez, 914 P.2d at 294. Unlike the high standard for a new trial based on newly discovered evidence, a defendant, however, need not show that counsel's defi-client conduct more likely than not altered the outcome in the case. Strickland, 466 U.S. at 6983-94, 104 S.Ct. 2052. Rather, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, see, eg., Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1986, 144 L.Ed.2d 286 (1999), and the materiality of testimony made unavailable by government deportation of a witness. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. This test requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. In this context, a reasonable probability means a probability sufficient to undermine confidence in the outcome. Id.

In light of the considerations potentially involved in determining ineffective assistance, defendants have regularly been discouraged from attempting to litigate their counsels' effectiveness on direct appeal. People v. Thomas, 867 P.2d 880, 886 (Colo.1994); Cummings v. People, 785 P.2d 920, 927-28 (Colo.1990) (Vollack, J., concurring in part and dissenting in part); cf. Massaro v. United States, - U.S. -, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (rejecting any requirement to show cause and prejudice for raising ineffective-assistance claims in the first instance by postconviction motion, on grounds that district court is forum best suited to develop facts necessary to determine adequacy of representation during an entire trial). Even if the trial record reflects a seemingly unusual or misguided action by counsel, it may not reflect whether counsel had a sound strategie motive or took the action because his alternatives were even worse. See Massaro, - U.S. -, 123 S.Ct. 1690, 155 L.Ed.2d 714. Counsel's reasons for omissions are even less likely to be reflected in the trial record. Id. Furthermore, without additional factual development, an appellate court may not be able to ascertain whether particular alleged errors were prejudicial. Id.

The statutes and rules of this jurisdiction provide a criminal defendant with an adequate opportunity to develop the required record to establish ineffective assistance. See § 18-1-410, 6 C.R.S. (2002); Crim. P. 85(c). A motion for postconviction relief pursuant to Crim. P. 35(c) may be denied without an evidentiary hearing only where the motion, files, and record in the case clearly establish that the allegations presented in the defendant's motion are without merit and do not warrant postconviction relief. Crim. P. 35(c)(3); see People v. Hutton, 183 Colo. 388, 517 P.2d 392 (1978); see also White v. Denver Dist. Court, 766 P.2d 632 (Colo.1988). Because relief for ineffective assistance of counsel requires a criminal defendant to prove both deficient representation and prejudice, denial of the motion without a hearing is justified if, but only if, the existing record establishes that the defendant's allegations, even if proven true, would fail to establish one or the other prong of the Strickland test.

Undoubtedly it will sometimes be the case that the trial record reveals evidence of guilt so strong and so unlikely to have been adversely affected: by counsel's alleged deficiencies that denial of an ineffective-assistance claim would be justified without an evidentiary hearing. Unless the issue was expressly litigated, however, it is far less likely that & trial record will demonstrate that potentially prejudicial acts or omissions of counsel were not only strategie choices but were ones that were reasonable in light of the law and facts of which counsel was, or reasonably should have been, aware. If a criminal defendant has alleged acts or omissions by counsel that, if true, could undermine confidence in the defendant's conviction or sentence, and the motion, files, and record in the case do not clearly establish that those acts or omissions were reasonable strategic choices or otherwise within the range of reasonably effective assistance, the defendant must be given an opportunity to prove they were not.

IIL.

Rather than resting on a single ground for denial, both the district and appellate courts concluded that the record established the inadequacy of the defendant's allegations regarding both prongs of the Strickland test. The trial court denied a hearing on the grounds that there were no disputed questions of fact and that the defendant's motion raised only issues of law. It found that defense counsel's actions were strategic choices, even if poor ones, and that the evidence of the defendant's guilt was strong. The court of appeals found merely that the record supported the trial court's finding of tactical decisions and that, in any event, the evidence at trial would have been sufficient to overcome any doubts raised by the allegations.

With regard to the defendant's required showing of prejudice, the trial record reveals that this was not a case in which the evidence of guilt was, and would likely remain, so strong as to preclude any reasonable probability that the result would have been different but for the identified acts and omissions of defense counsel. While perhaps not unexpected in a prosecution for child sexual assault, it is nevertheless the case that there was neither physically corroborating evidence of the sexual assault nor any firsthand witness of the crime other than the child-victim herself. The prosecution's case included no confessions or direct admissions by the defendant, and the outery by the victim was both delayed and arguably relue-tant. Although the prosecution presented some additional evidence of the defendant's opportunity to commit the assault, arguably conflicting statements by him about his relationship with the victim, and behavioral changes of the victim, the case against the defendant rested almost entirely upon the credibility of the victim.

While the trial court found that the victim appeared highly believable, the more significant question was whether she would have appeared believable but for the identified acts and omissions of defense counsel. The defendant's motion and its accompanying affidavit alleged that defense counsel failed to confront the victim with prior inconsistent statements about the act itself or to investigate further or present any of several other witnesses who had made statements about the victim's substance abuse and character for truthfulness. Significantly, the evidence elicited by defense counsel included an expert opinion, of at least questionable accuracy and admissibility, that was, on its face, strongly supportive of the child-victim's veracity in making her allegation of sexual assault.

Whether or not defense counsel's conduct was ultimately found to be prejudicial, this is not a case in which the trial record clearly established that it could not have been prejfu-dicial. In this context, the defendant was not obliged to credibly allege that his counsel's shortcomings caused the conviction, in the sense that without them the defendant probably would not have been convicted. The defendant was entitled to an evidentiary hearing as long as the allegations of his motion, in light of the existing record, were not clearly insufficient to undermine confidence in the outcome of the trial, by demonstrating a reasonable probability that but for counsel's challenged conduct, the defendant would not have been convicted.

With regard to defense counsel's performance, neither lower court suggested that counsel's acts and omissions were strategic choices made after complete investigation of the relevant facts and law, or that reasonable professional judgments supported the limitations counsel placed on his investigation. See Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Nor would the existing record, by itself, have been sufficient to justify such a finding. While counsel's repetition of the expert's opinion about the veracity of child sexual assault allegations suggested a deliberate attempt to disparage it as fantastic, nothing in the record revealed the considerations or investigation leading him to elicit, and fail to contradict, such an opinion. Similarly, while it may be reasonable to view counsel's failure to cross-examine the child-victim about her prior inconsistent statements, or to introduce extrinsic evidence challenging her trustworthiness, as a deliberate attempt to avoid evoking sympathy for her, nothing in the record suggested that even if this were counsel's conscious choice, it was a reasonable choice, in light of the extent of his factual and legal investigation and his other "plausible options," see id. at 690, 104 S.Ct. 2052, for defending his client.

To establish ineffective assistance, the defendant was required to overcome the presumption that, under the cireumstances, the challenged conduct of his counsel might be considered sound trial strategy. Id. at 689, 104 S.Ct. 2052. While strategic choices made after thorough investigation of the relevant law and facts are virtually unchallengeable, id. at 690, 104 S.Ct. 2052, the extent of counsel's understanding of the relevant law and facts and his reasons for not investigating further are matters peculiarly within his personal knowledge. With regard to strategic choices, the credibility of defense counsel can be particularly important and is a matter to be resolved by the postconviction court. At least where the defendant was able to identify "seemingly unusual or misguided action" by his counsel, Massaro, - U.S. --, 1283 S.Ct. 1690, 155 L.Ed.2d 714, and "plausible options," Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052, for the defense of his client that counsel did not pursue, the defendant could not be deprived of an opportunity to prove those choices lacked any sound strategic motive, unless the existing record clearly established otherwise or those choices could not have been prejudicial in any event. The record in this case failed to clearly establish either.

Because the motion, files, and record in this case were insufficient to establish either that the identified acts and omissions of counsel were all reasonable strategic choices or that they, in any event, did not prejudice the defendant, we reverse the judgment of the court of appeals and remand with directions to remand the matter to the district court for an evidentiary hearing on the defendant's motion for postconviction relief.

      . Language from the rulings of both the district and appellate courts suggested some confusion about the appropriate standard of prejudice in the effective assistance context. In denying the defendant's motion without a hearing, the district court found that the "[dJefendant has come no where near establishing that [trial counsel's] mistakes or possible mistakes caused the verdict adverse to the defendant," and in affirming that judgment, the majority of the court of appeals found that "[the record does not reveal that the testimony of these witnesses would probably have changed the outcome of the trial."


author: Justice RICE

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Christopher J. SIMPSON, Respondent.
    No. 01SC790.
    Supreme Court of Colorado, En Banc.
    May 12, 2003.
    Ken Salazar, Colorado Attorney General, John D. Seidel, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner.

      Kurt A. Metsger, Denver, Colorado, Attorney for Respondent.
   Justice RICE

delivered the Opinion of the Court.

This case is before us on certiorari review of the court of appeals decision vacating Respondent's guilty plea on the grounds that it was constitutionally ineffective. We reverse. We hold that the court of appeals erred in vacating the guilty plea based solely on allegations contained in Respondent's motion for postconviction relief. We remand the case to the district court to hold an evidentiary hearing as required by Crim. P. 85(c).

FACTS AND PROCEDURAL HISTORY

In July of 1999, Respondent, Christopher Simpson, was in the Jefferson County detention facility awaiting resentencing on another offense. He became involved in a scuffle with another inmate and during the course of the fight, he allegedly committed an assault on a deputy sheriff. Respondent was charged with second degree assault on a peace officer in violation of section 18-3-203(1)(P®, 6 C.R.S. (2002). Although Respondent was only seventeen years old at the time of the assault, the charge was filed directly in district court, pursuant to section 19-2-517(1)(a)(IV), 6 C.R.S. (2002) (permitting direct filing on a juvenile who has been subject to a direct filing in another case).

In September of 1999, Respondent, less than one month shy of his eighteenth birthday, agreed to plead guilty to second degree assault, a class four felony in violation of section 18-3-208(1)(c), 6 C.R.S. (2002). He appeared at the providency hearing without counsel. The trial court advised Respondent of his right to counsel as required by People v. Arguello, 772 P.2d 87 (Colo.1989), and found that Respondent knowingly and voluntarily waived his right to be represented by counsel. Respondent was further advised, in compliance with Crim. P. 11, of the nature of the charge, possible penalties, and his other constitutional rights, including his right to trial by jury. The court found that Respondent knowingly and voluntarily entered a plea of guilty. Respondent was sentenced to twelve years in the Department of Corree-tions, to run consecutively to a sentence he was already serving.

In February of 2000, Respondent, represented by counsel, filed a Crim. P. 35(c) motion for postconviction relief, in which he argued that his guilty plea was not voluntary. To support this argument, Respondent claimed: (1) he did not have an adult, guardian, or guardian ad litem (GAL) present to assist him and therefore he was not competent to proceed without counsel; (2) he only possessed a sixth grade education, not a tenth grade education as he told the court; and (8) he was afflicted with a bipolar personality disorder. One of more of these factors, he argued, rendered his guilty plea involuntary. The trial court denied the motion without a hearing.

The court of appeals reversed. It vacated Respondent's conviction, holding that he did not knowingly and voluntarily waive his constitutional rights when he entered the plea. People v. Simpson, 51 P.3d 1022, 1028 (Colo.App.2001).

ANALYSIS

We hold that the court of appeals erred in vacating Respondent's guilty plea based upon allegations contained in his Crim. P. 35(c) motion. However, since the allegations, if true, may entitle Respondent to relief, we remand the case to the district court to conduct an evidentiary hearing as required by Crim. P. 35(c).

A presumption of validity attaches to every judgment of conviction. Patton v. People, 35 P.3d 124, 131 (Colo.2001). Thus, it is Respondent's burden to show, by a preponderance of the evidence, that his conviction was constitutionally infirm. Id. at 132; Kailey v. Colorado State Dept. of Corrections, 807 P.2d 563, 567 (Colo.1991) ("In a Crim. P. 35 proceeding the legality of the judgment and the regularity of the proceedings leading up to the judgment are presumed, and the burden is upon the applicant to establish by a preponderance of the evidence the allegations of his motion.").

In his Rule 35(c) motion, Respondent raised three arguments to support his claim that his guilty plea was not knowing and voluntary: (1) he did not have an adult, guardian, or guardian ad litem present to assist him; (2) he only possessed a sixth grade education; and (8) he was suffering from a bipolar personality disorder.

We conclude that one or more of these allegations, if true, may be sufficient to provide a basis for relief under Crim. P. 35(c). However, because the trial court did not conduct a hearing, the veracity of these claims was never ascertained. We cannot determine, in the absence of a hearing, whether Respondent does, in fact, possess only a sixth grade education or suffer from a bipolar personality disorder. In addition, while the record is clear that Respondent did not have a parent, guardian, or GAL present at the providency hearing, we cannot determine without an evidentiary hearing whether such absence caused his plea to not be knowing and voluntary. Since an appellate court is not in as good a position as the trial court to make factual findings, see People v. Al-Yousif, 49 P.3d 1165, 1169 (Colo.2002), the court of appeals erred in vacating Respondent's conviction.

Upon receipt of a motion for posteon-viction relief under Rule 35(c), a trial court must hold an evidentiary hearing "[uJnless the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief...." Crim. P. 35(c)@). To warrant a hearing, a defendant need only assert facts that, if true, would provide a basis for relief. See White v. Denver Dist. Court, 766 P.2d 632, 636 (Colo.1988) (postconviction motion to review parole revocation proceedings set forth sufficient allegations to require hearing where defendant alleged that he was denied right to counsel and right to eross-examination of witnesses); People v. Trujillo, 190 Colo. 497, 549 P.2d 1312 (1976) (no evidentiary hearing required where defendant's motion for postconviction relief only presented question of law); Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965) (evidentiary hearing was not required where the defendant did not introduce any new fact but merely argued that the trial court erred in failing to investigate and ascertain that defendant was indigent). Since Respondent alleged facts which, if true, may have been sufficient to provide a basis for relief, the trial court should have conducted a hearing as required by Rule 85(c).

CONCLUSION

The decision of the court of appeals is reversed and the case is remanded to the district court for an evidentiary hearing concerning the allegations raised in Respondent's Rule 35(c) motion.


author: Judge ROTHENBERG. Judge NIETO

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael H. CLIFTON, a/k/a Michael Jermaine Clifton, Defendant-Appellant.
    No. 00CA0977.
    Colorado Court of Appeals, Div. III.
    Dec. 20, 2001.
    Certiorari Granted April 21, 2003.

      Ken Salazar, Attorney General, Barbara S. Askenazi, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    The Law Firm of Douglas S. Joffe, Douglas S. Joffe, Theodore B. Peak, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge ROTHENBERG.

Defendant, Michael H. Clifton, a/k/a Michael Jermaine Clifton, appeals the judgment entered on jury verdicts finding him guilty of three counts of kidnapping, two counts of burglary, and three counts of aggravated robbery. He also appeals his sentences. We vacate the judgment and sentence as to one count of aggravated robbery, remand for correction of the mittimus, and otherwise affirm.

On September 13, 1998, two different video rental stores in Aurora were robbed at gunpoint several hours apart. During the see-ond incident, defendant and his accomplice foreed two employees of a video store into a back office and held them at gunpoint. Defendant and his companion foreed one employee to remain on the floor, while the other employee was ordered to open a safe and turn over the store's money to the robbers.

The People charged defendant with, and he was convicted of, two separate counts of aggravated robbery arising from the second incident. The information named each of the employees as the victim of a separate offense. The trial court rejected defendant's contention that only one robbery had been committed, and instead accepted the People's position that two separate offenses had been committed because the store's money was taken from the presence of the two employees.

I.

Defendant first contends his constitutional rights under the Fifth and Fourteenth Amendments were violated because he was charged with and convicted of two counts of aggravated robbery arising from the second incident. Defendant maintains that the two charges arose from the same episode and that only one aggravated robbery could have occurred because there was only one taking. We agree.

A multiplicitous information charges a single offense in several counts. It violates the Fifth and Fourteenth Amendments' prohibition against double jeopardy because it creates the possibility that a defendant will receive more than one sentence for that single offense. See People v. Borghesi, 40 P.3d 15, (Colo.App.2001).

In People v. Borghesi, supra, a panel of this court addressed the same issue on facts very similar to those presented here. The majority of the panel concluded two charges of aggravated robbery were multiplicitous and ordered that one count be vacated.

We view Borghesi as dispositive and similarly remand this case to the trial court with directions to vacate one of the aggravated robbery convictions entered for the second incident.

IL.

Defendant next contends the trial court abused its discretion in denying his motions for mistrial and for a new trial based on prosecutorial misconduct. According to defendant, reversal is required because the People unfairly introduced evidence suggesting defendant had committed other bad acts. We disagree.

Before trial, the court granted defendant's motion to suppress a photograph showing defendant and another man wearing large amounts of gold jewelry and kneeling next to a couch containing money and two erossed rifles. The trial court stated: "I agree that the picture with the money and jewelry is inappropriate. But the fact that the two defendants are present with rifles in the background [may bel probative. We'll see."

At trial, there was evidence showing a rifle was used in the two aggravated robberies and that the two rifles shown in the photograph were seized from defendant's apartment. Both rifles were admitted into evidence.

Defendant testified and stated that the rifles were "just laying around" the apartment. During his eross-examination, and also during the testimony of a rebuttal witness, the photograph was described and references were made to defendant and the rifles. However, the prosecutor did not refer to the money or the jewelry shown in the photograph and did not offer the photograph | into evidence, explaining: "I will not offer [the photograph] in light of the prior rulings."

We conclude defendant opened the door to this evidence during his direct testimony when he attempted to distance himself from the rifles. Therefore, we perceive no misconduct by the prosecution in attempting to rebut defendant's testimony. See People v. Brailey, 879 P.2d 410 (Colo.App.1993)(after defendant opens the door to an arguably inadmissible subject, further testimony and clarification are not improper).

Because we conclude there was no prose-cutorial misconduct, it follows that the trial court did not abuse its discretion in denying defendant's motions for mistrial and for a new trial.

IIL.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant next contends his constitutional rights were violated by the trial court's imposition of consecutive sentences pursuant to § 16-11-809(1)(a), C.R.8.2001, because the trial court, rather than the jury, determined that the crimes of violence arose out of the same incident, and that factual determination mandated the consecutive sentences. We conclude the mandatory consecutive sentencing provision contained in § 16-11-309(1)(a) does not alter the penalty prescribed for each individual offense, and therefore does not violate Apprendi.

A defendant has no constitutional right to concurrent rather than consecutive sentences, United States v. White, 240 F.3d 127 (2d Cir.2001), and when a defendant is convicted of multiple offenses, the sentencing court generally has discretion to impose sentences concurrently or consecutively. Qureshi v. District Court, 727 P.2d 45 (Colo.1986). But see § 18-1-408(3), C.R.S.2001 (requiring concurrent sentences if more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried, as required by § 18-1-408(2), and those verdicts are based on the same acts and the evidence supporting them is identical).

However, § 16-11-309(1)(2) limits the trial court's discretion in sentencing by requiring consecutive sentences under certain cireum-stances. As relevant here, it provides: "A person convicted of two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently."

In this case, each of the eight counts filed against defendant was charged as a crime of violence pursuant to § 16-11-309(2)(a)(I)(A), C.R.S$.2001, and alleged that defendant used, or possessed and threatened the use of, a deadly weapon during the commission of each crime. The jury found the crime of aggravated robbery in each count was committed by the use of a deadly weapon, but it was not asked to determine whether both events were part of an ongoing transaction.

That determination was made at the sentencing hearing when the trial court found, based on the trial evidence, that both events were part of an ongoing transaction. After making that finding, the court concluded it was required to sentence defendant consecutively, and it sentenced him to the minimum crime-of-violence sentence on each count, to be served consecutively. Hence, each sentence was within the range of penalties provided by statute for that offense.

In Apprendi v. New Jersey, supra, 530 U.S. at 468, 120 S.Ct. at 2351, 147 L.Ed.2d at 442, the United States Supreme Court struck down a New Jersey "hate crime" law that provided for an "extended term" of imprisonment if the trial court found by a preponderance of the evidence that "the defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity."

After reviewing the historical significance of trial by jury and the requirement of proof beyond a reasonable doubt, the Supreme Court articulated this constitutional principle: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

A few years before Apprendi, the Supreme Court, in McMillon v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), upheld a Pennsylvania statute that required a mandatory minimum sentence of five years for certain specified erimes if the sentencing judge found by a preponderance of the evidence that the defendant "visibly possessed a firearm" during the commission of the offense. The five-year minimum did not exceed the maximum sentence authorized for the specified erimes.

The Court concluded the Pennsylvania statute did not violate due process requirements because the statute

neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.

McMillan v. Pennsylvania, supra, 477 U.S. at 87-88, 106 S.Ct. at 2417, 91 L.Ed.2d at 77.

The majority in Apprendi clarified that it was not overruling McMillan v. Pennsylvania, supra, but was limiting McMillan "to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict." Apprendi v. New Jersey, supra, 530 U.S. at 487 n. 18, 120 S.Ct. at 2361, 147 L.Ed.2d at 453.

Thus, Apprendi does not prohibit all fact, finding by the trial court. It only prosecribes factfinding by the trial court that increases the penalty for a erime beyond the pre-seribed statutory maximum. As was explained in United States v. White, supra, 240 F.3d at 136, where factual determinations are "used to sentence the defendant to a sentence within the maximum allowed by statute, Apprendi is not controlling, and such determinations can be made by the court without violating the defendant's right to due process." See also People v. Cleveland, 87 Cal.App.4th 263, 271, 104 Cal.Rptr.2d 641, 646 (2001)("Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime or crimes.").

Other than in the context of merger issues, no Colorado appellate decision has addressed whether factfinding by the trial court that results in consecutive sentences for the defendant violates the holding in Apprendi. See People v. Martinez, 32 P.3d 520 (Colo.App.2001)(rejecting the defendant's argument that sentence enhancers became elements of the underlying offense for purpose of merger, and therefore that imposition of consecutive sentences relating to the same victim violated Apprendi ).

However, the consecutive sentences issue raised here has been addressed in other jurisdictions. In People v. Carney, 196 Ill.2d 518, 256 Ill.Dec. 895, 752 N.E.2d 1137 (2001), the court concluded Apprendi was not violated by a state statute that mandated consecutive sentences if the sentencing court found the defendant had inflicted severe bodily injury. See 730 Ill. Comp. Stat. 5/5-8-4(a) (2001). The Tllinois Supreme Court reasoned that a consecutive sentence only specifies the manner in which individual sentences will be served, and that consecutive sentences do not constitute a single sentence but are discrete sentences for each individual offense.

The court in Carney concluded that the maximum penalties for each offense are those prescribed in the statute defining the offense or in the associated sentencing statute, and that consecutive sentences, taken together, do not constitute the maximum penalty to which Apprendi refers. The court stated: "Nowhere in Apprendi did the Supreme Court state or imply that the determination of a fact that does not result in a defendant's being sentenced in excess of the statutory maximum must be decided by a jury." People v. Carney, supra, 196 Ill.2d at 529, 256 Ill.Dec. 895, 752 N.E.2d at 1143.

The court summarized its conclusion as follows: "[Wle hold that consecutive sentences imposed under [the applicable Illinois statute] do not violate the due process rights of defendants and that the Supreme Court's Apprendi decision does not apply to such sentences." People v. Carney, supra, 196 Ill.2d at 536, 256 Ill.Dec. 895, 752 N.E.2d at 1147.

Apprendi's application to a mandatory consecutive sentencing provision has also been addressed in the context of the federal sentencing guidelines. Those guidelines provide that if the guideline sentence is greater than the highest statutory maximum for any of the offenses of which a defendant was convicted, consecutive sentences must be imposed to the extent necessary to reach the guideline sentence. U.S. Sentencing Guidelines Manual § 5G1.2(d) (2001).

In United States v. White, supra, the defendant contended the trial court violated his constitutional rights by using the sentencing guidelines to impose consecutive sentences based on facts determined by the sentencing court. There, as here, the defendant maintained that such facts had to be determined by a jury. The court rejected the defendant's contention, stating:

[Iln Apprendi itself, the Supreme Court stated that the issue of consecutive sentences in the context of the case at hand was irrelevant to the Court's determination whether the sentencing court had imper-missibly exceeded the statutory maximum for the particular count in question. That is, the Supreme Court's concern in Ap-prendi was whether the sentencing court had, on the basis of facts found by the court and not the jury, exceeded the sentence for a particular count. Here, the district court did not exceed the maximum for any individual count. It cannot therefore be said that, as to any individual count, the court's findings resulted in the imposition of a greater punishment than was authorized by the jury's verdict.

United States v. White, supra, 240 F.3d at 135 (citation omitted).

In Colorado, consecutive sentences are not considered to be a single sentence. Each sentence is to be served separately. In re Packer, 18 Colo. 525, 33 P. 578 (1893). See People v. Broga, 750 P2d 59, 64 (Colo.1988)(consecutive sentence "by its very nature is separate and distinct from any previously imposed sentence"); see also People v. Cabral, 878 P.2d 1 (Colo.App.1993)(consecutive sentences are viewed separately for proportionality review).

When defendant's sentence on each count is viewed separately, each sentence he received was less than the statutory maximum prescribed for the offense. Thus, while we fully acknowledge the practical impact of the consecutive sentences upon defendant, we nevertheless conclude the imposition of consecutive sentences did not increase his sentence for each offense. See People v. Carney, supra.

In summary, we conclude the imposition of consecutive sentences under § 16-11-309(1)(a) did not have the effect of increasing the penalty for the underlying crimes beyond the maximum provided for each offense, and therefore the statute does not violate the Supreme Court's holding in Apprendi. Accordingly, we reject defendant's contention that his constitutional rights were violated by the trial court's factfinding and its imposition of consecutive sentences pursuant to § 16-11-309(1)(a).

IV.

Defendant next contends he was prejudiced by the manner in which the prosecution engaged in plea bargaining. He asserts that the district attorney improperly delegated the authority to make plea bargain offers to a committee composed of nonattorneys. Although defendant's case was tried before a jury and he did not enter a plea, defendant nonetheless claims he was prejudiced by the district attorney's alleged conduct.

Defendant acknowledges that he did not raise this issue until sentencing, and that "(ilt may well be that the sentencing hearing was not the best forum to raise [this issue]." Defendant further asserts that, "to the extent that defense counsel failed to object ... in a timely fashion, or failed to lay a sufficient record ... then defense counsel was clearly ineffective, and his ineffectiveness prejudiced his client." Defendant asks us to remand the case to the trial court for a complete hearing on this issue.

In our view, defendant's contention is best addressed in postconviction proceedings "where an evidentiary hearing is available if necessary to ascertain facts not present in the original trial record." People v. Blehm, 983 P.2d 779, 792 (Colo.1999). We express no opinion regarding the merits of defendant's claim.

v.

We agree with the People that the mitti-mus should be corrected to reflect that defendant's sentences are to be served consecutively.

The judgment and sentence as to one count of aggravated robbery are vacated and the case is remanded to the trial court for correction of the mittimus to so reflect and to reflect defendant's consecutive sentences. In all other respects, the judgment and sentences are affirmed.

Judge JONES concurs.

Judge NIETO concurs in part and dissents in part.

Judge NIETO

concurring in part and dissenting in part.

For all the reasons stated in my dissenting opinion in People v. Borghesi, 40 P.3d 15, (Colo.App. 2001), I respectfully dissent from part I of the majority opinion.

In all other respects I concur with the opinion of the majority. Accordingly, I would affirm the judgment of conviction on all charges.


author: KAUGER, J.

text:
    2003 OK 38
    James A. BOGART, individually and on behalf of all others similarly situated, Plaintiff/Appellant, v. CAPROCK COMMUNICATIONS CORP.; Defendant and Third Party, Plaintiff/Appellee, and Southbend Corporation; United Fire & Casualty Company; and, John Doe(s) I through X, Defendants/Appellees, v. Power Engineers, Inc., Third Party, Defendant.
    No. 97,349.
    Supreme Court of Oklahoma.
    April 8, 2003.
    Appeal from the District Court of Sequo-yah County; Honorable John C. Garrett, Trial Judge.

      Harry Seoufos, Thomas W. Condit, Salli-saw, OK, for Plaintiff/Appellant.
    Don G. Holladay, Timothy D. DeGiusti, Oklahoma City, OK, for Defendant/Appellee, CapRock Communications Corp.
    James K. Secrest, II, Edward J. Main, Tulsa, OK, for Defendants/Appellants, South-bend Corp. & United Fire & Casualty Co.
   KAUGER, J.

1 The only issue presented is whether a landowner is entitled to additional compensation when fiber optic cables are installed within the confines of a public right of way or easement on which public highways or roads are established. We hold that under the facts presented, no additional compensation is warranted.

FACTS

12 This cause concerns a class action lawsuit brought by the appellant, James A. Bogart (Bogart/landowner), the owner of real property in Sequoyah County, Oklahoma, against the appellee, CapRock (Ca-pRoek/telecommunications company), a Texas telecommunications corporation. Bogart's property is located on the southeast side of a Sequoyah County road known as the McCoy Ford Road (the road). The landowner seeks compensation from CapRock for installing fiber optic cables in the public road easement without obtaining the landowner's permission and/or providing compensation.

13 Bogart purchased the property, "less and except public road rights of way" and subject to "any easements of record," in January of 1992. The property is burdened by two perpetual easements for the construction of an "Improved Highway." The easements were conveyed to Sequoyah County by Bogart's predecessors in title and filed in 1982 and 1937. Both easements provide in pertinent part:

"... [the owner/owners] so long as this easement is in full force and effect defend the same unto Sequoyah County, Okla homa, against all and every person whomever claiming the same.
This easement is granted for the sole purpose of enabling Sequyoh County, Oklahoma, its officers, agents, contractors, and employees to go upon, construct, build and at all times maintain a public road through, along and over the property herein described and enable Sequoyah County, its officers agents, contractors and employees to always keep said road open for the use of the public. ..."

T4 CapRock is a leading provider of telecommunications services in the south and southwestern United States. Its business involves installing underground fiber optic lines for long distance telephone service and providing local telephone exchange, long distance services, internet and data services. CapRock applied for and obtained Certificates of Public Convenience and Necessity from the Oklahoma Corporation Commission in 1997, and 1999, in order to qualify as a telephone services provider in Oklahoma.

15 The telecommunications company began installing fiber optic cables in various counties in Oklahoma, as part of its development of a 7,500 mile underground fiber optic cable network which would connect points in Oklahoma, Texas, Arkansas, New Mexico, Louisiana, and Arizona. Installation occurred along public highways and county roads and, when necessary, on private property. According to CapRock, when installation was required on private property, it obtained easements from the private property owners.

16 On January 18, 2000, CapRock, through its subcontractor, obtained approval from the Sequoyah County Commissioners to install fiber optic cables in Sequoyah County CapRock secured utility permits on February 17, 2000, issued by the State through the Oklahoma Department of Transportation, to install cables along public highways in Sequoyah County, Oklahoma. On April 15, 2000, Bogart, while inspecting his property, discovered some cables coming out from underneath the road and sticking up out of the ground. The landowner learned from a neighbor that the crew installing the cables was still in the vicinity.

T7 Bogart approached the crew and discovered that CapRock, through a subcontractor, had installed the fiber optic cables. On August 17, 2000, Bogart filed a class action lawsuit against the telecommunications company in the district court of Sequoyah County, Oklahoma. He sought a declaratory judgment and damages for trespass and unjust enrichment. The landowner alleged that without providing compensation and obtaining any title, interest, right of way, easement or permission, the telecommunications company illegally installed fiber optic cable on his real property and the property of other similarly situated landowners. The landowner sought damages only for cables which were installed within the confines of public rights of ways and easements. It is undisputed that this cause relates solely to Ca-pRock's use of the public easement, rather than any claims for personal trespass beyond the confines of the easement or personal property damage.

T8 The cause was removed to the United States District Court for the Eastern District of Oklahoma. On May 11, 2001, CapRock filed a motion for summary judgment in the federal court. It argued that, under Oklahoma law, a right of way or easement which was properly granted for the establishment of a public road, permits the use and occu-pancey of telephone, telegraph, electric and pipelines within the confines of the right of way or easement. On August 15, 2001, the federal court remanded the case to the district court of Sequoyah County, Oklahoma.

T9 On August 28, 2001, the telecommunications company re-filed the summary judgment motion in state court. The landowner filed a motion for partial summary judgment on September 13, 2001. The trial court granted summary judgment to CapRock on January 14, 2002. The landowner appealed, and on February 27, 2002, CapRock filed a motion to retain the cause in this Court. We granted the motion to retain on March 22, 2002, and the cause was assigned on February 13, 2008.

110 UNDER THE FACTS PRESENTED, THE INSTALLATION OF FIBER OPTIC CABLES WITHIN THE CONFINES OF A PUBLIC RIGHT OF WAY OR EASEMENT ON WHICH PUBLIC HIGHWAYS OR ROADS ARE ESTABLISHED DOES NOT IMPOSE ANY INCREASED SERVITUDE ON THE LAND WHICH WOULD ENTITLE THE LANDOWNER TO ADDITIONAL COMPENSATION.

111 The landowner does not dispute the State's power to take private property for a public purpose. Rather, he argues that: 1) the easement granted to Sequoyah County was for the sole purpose of contracting, building and maintaining a public road; 2) the installation of fiber optic cables within the easement burdens the property with an additional servitude which was not granted by the easement; and 3) the installation of the fiber optic cable in the public roadway easement, even if authorized by the State, constitutes a taking without just compensation and violates the Okla. Const. art. 2, § 24. In support of his argument, Bogart cites Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

T12 The telecommunications company agrees that real property owners must be compensated for private property taken for public use. However, it asserts that: 1) pursuant to the Okla. Const. art. 9, § 2, it has a right as a public utility to construct and operate lines "between any points in this State;" 2) once the Oklahoma Corporation Commission authorizes it to furnish telecommunications services within the State, it has a legal right under 18 O.S.2001 § 601 and 69 0.8.2001 § 1401 to install cable lines within public highways or road rights of way or easements; and 3) because the scope of such right of way or easement includes the occupancy of its lines, it is not required to seek the property owner's permission or provide compensation beyond the compensation provided when the right of way or easement was first acquired. It contends that Nazworthy v. Illinois Oil Co., 1936 OK 150, 54 P.2d 642 and subsequent Oklahoma decisions are controlling.

118 We note at the outset that by virtue of the Supremacy Clause, we are bound by the decisions of the United States Supreme Court with respect to the federal constitution and federal law, and we must pronounce rules of law that conform to extant Supreme Court jurisprudence. We also recognize that nothing in the concept of supremacy or in any other principle of law requires subordination of state courts to the inferior federal courts. Subject to decisions of the United States Supreme Court, state courts are free to promulgate judicial decisions grounded in their own interpretation of federal law. However, in the present cause, the landowner only asserts state constitutional claims and only relies on federal law as persuasive authority.

¶ 14 The landowner's reliance on Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), is misplaced. Loretto involved a lawsuit brought by a New York City landlord against a cable television company seeking compensation after the cable company installed about 30 feet of cable on the landlord's building pursuant to a state statute. The United States Supreme Court determined that, although the state had the authority to authorize the installation of the cable, the intrusion constituted a taking requiring compensation. After stating that its' ruling was very narrow, the Court noted that constitutional protection for the rights of private property does not depend on the size of the area permanently occupied.

T 15 Loretto dealt with a requirement that private landlords allow cable television companies to attach facilities to the landlord's property. Here, unlike the landowner in Loretto, there was an initial compensation for the taking when the public highway/road easement was established. At issue here is whether the installation of fiber optic cables falls within the purpose for which the easement was initially granted or whether it imposes an increased servitude or burden for which additional compensation is required.

1 16 We agree with the telecommunications company that the Okla. Const. art. 9, § 2, 18 0.8.2001 § 601, and 69 0.8.2001 § 1401, operate collectively to authorize the laying of telecommunications lines within highway or road easements in Oklahoma. The question remaining is to what extent, if any, the landowner must be compensated. We have not previously addressed this issue. However, in Nagsworthy v. Illinois Oil Co., 1986 OK 150, 54 P.2d 642, the Court did consider the question of whether an abutting landowner is entitled to additional compensation for a new and increased servitude or burden, when lines of an oil pipeline are laid along and under the highway on land formerly conveyed by the landowner or condemned for highway purposes.

T 17 In Nazworthy, the state highway commission instituted condemnation proceedings to widen an existing highway right of way. As a result of the eminent domain proceedings, the property owner was compensated for the addition to the right of way. Thereafter, the highway commission requested that the oil company which owned an oil pipeline buried along the public highway easement, move its pipeline onto the widened strip of land. The property owner sued the oil company, asserting that additional compensation should be paid for placing the pipeline within the confines of the widened public highway right of way.

{18 The Nagworthy Court determined that the property owner was not entitled to additional compensation. The Court recognized that the purpose of a highway includes a passage for transmission and communication. It also noted that oil pipeline companies were, by statute: 1) given the right of eminent domain and the use of highways for purposes of transporting petroleum products; 2) allowed the right to construct pipelines over, under and across highways in this state; and 3) were required to seek approval and supervision from the Corporation Commission.

19 The Nazworthy court said:

"... [The new or different use of the highway, or new or different method of transmission or transportation, is but a further proper use of the highways; that general purpose of highways being that subject to proper supervision, they may be used by the public and by common carriers for such form of travel, transportation, and transmission as may be in keeping with the declared policy of the state; a chief restriction being that each such use of the highway shall not improperly interfere with the rights of others in the use of the same highways. The proper use of the highWays by oil pipelines, located, laid and maintained under proper supervision does not interfere with the various other uses of the highways.
... After a highway is constructed it is used generally for travel, transportation, and transmission. As new methods of transportation develop they are used upon the highway whether that use is by bus, truck, or oil pipeline. When the landowner has been compensated for the taking of the highway, it is too difficult to follow a contention that he is additionally damaged by each different, new, or additional use of the highway for travel, transportation, or transmission. We conclude that the use of the highway here under consideration, authorized by specific state statute, enjoyed under specific supervision of the state, is wholly within the primary law of the use of the highway and must be held to be no such additional burden or servitude as would entitle the abutting landowner to additional compensation for such use...."

Three other opinions issued after Nazworthy v. Illinois Oil Co., 1986 OK 150, 54 P.2d 642 reached the same conclusion: Anderson v. Illinois Oil Co., 1936 OK 142, 54 P.2d 646; Stanolind Pipe Line Co. v. Winford, 1936 OK 152, 54 P.2d 646; Okmulgee Producers & Mfrs. Gas Co. v. Franks, 1936 OK 515, 60 P.2d 771. The teachings of Nazsworthy and its progeny are decisive. It makes no difference whether the transmission is an oil pipeline or whether it is a fiber optic cable either use is included within the purpose of a public highway or road easement and, accordingly, neither use imposes an increased servitude or burden for which additional compensation is required.

CONCLUSION

120 Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary material establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Pursuant to Nazworthy v. Illinois Oil Co., 1936 OK 150, 54 P.2d 642, and the decisions flowing therefrom, we determine that the installation of fiber optic cables within the confines of a public right of way or easement on which public highways or roads are established does not impose any increased servitude on the land which would entitle the landowner to additional compensation under the facts presented. Accordingly, the trial court properly entered summary judgment.

TRIAL COURT AFFIRMED.

ALL JUSTICES CONCUR.

      . The appellant asserts three issues in his petition in error. However, we succinctly treat them as one.

      . The landowner brought this suit on behalf of all other similarly situated property owners. For the requirements of a class action lawsuit see, 12 ©.S.2001 § 2023. We note that the record indicates that the trial court has yet to make an initial determination as to whether this cause could be maintained as a class action as required by statute.

      . Title 17 O.S. Supp.2002 § 139.102 provides in pertinent part:
      "... 26. 'Telecommunications' means the transmission, between or among points specified by the user, of voice or data information of the user's choosing, without change in the form or content of the information as sent and received;
      27. 'Telecommunications carrier' means a, person that provides telecommunications service in this state;
      28. 'Telecommunications service' means the offering of telecommunications for a fee ..."

      . The warranty deed has two dates on it, 1991 and 1992. Deposition testimony suggests that 1992 is the correct date. The deed provides in pertinent part:
      "... A part of the NE1/4 NW 1/4 of Section 24, Township 12 North, Range 23 East, Sequoyah County, Oklahoma as follows: Commencing at the NE corner of said NE1/4 NW1/4; thence West 323.95 feet to the point of beginning; thence South 7 degrees 12 minutes 43 seconds West 354.47 feet; thence South 11 degrees 45 minutes 18 seconds West 40.64 feet; thence South 112.79 feet; thence West 504.95 feet to the Easterly right of way of the Kansas City Southern Railroad; thence along said right of way North 21 degrees 07 minutes 00 seconds West 540.55 feet; thence East 752.47 feet to the point of beginning containing 7.22 acres more or less, less and except public road rights of way and being subject to any easements of record.
      ROAD EASEMENT: A part of the E1/2 NW1/4 Section 24, Township 12 North, Range 23 East, Sequoyah County, Oklahoma being more particularly described as follows: Commencing at the Southeast corner of the N1/2 SE1/4 NW1i/4 of said Section 24; thence North 1507.00 feet; thence West 851.66 feet to the point of beginning; thence continuing West 17.68 feet to the Easterly right of way of the Kansas City Southern Railroad; thence along said right of way North 21 degrees 07 minutes 00 seconds West 381.69 feet; thence North 47 degrees 06 minutes 00 seconds East 207.51 feet to the Southerly right of way line of a county road; thence along said right of way East 24.24 feet; thence South 47 degree 06 minutes 00 second together with all the improvements thereon and the appurtenances thereunto belonging, and warrant the title to the same. West 214.10 feet; thence South 21 degrees 07 minutes East 376.88 feet to the P.O.B...."

      . The property description of the 1932 easement provides in pertinent part:
      "... The North ten feet (10) of the Northeast quarter, (1/4) of the northeast quarter (1/4) of the northwest quarter (1/4) of section 24, TWP. 12 N. Range...."
      The property description of the 1937 easement provides in pertinent part:
      "... N 10 ft of the NW 1/4 of the NE 1/4 of the NW 1/4 of Section 24-12-23. ..."

      . Title 17 O.S. Supp.2002 § 139.102 provides in pertinent part:
      "... 11. "Interexchange telecommunications carrier' or 'TXC' means any person, firm, partnership, corporation or other entity, except an. incumbent local exchange telecommunications service provider, engaged in furnishing regulated interexchange telecommunications services under the jurisdiction of the Commission;
      12. 'Internet' means the international research-oriented network comprised of business, government, academic and other networks;
      13. 'Local exchange telecommunications service' means a regulated switched or dedicated telecommunications service which originates and terminates within an exchange or an exchange service territory. Local exchange telecommunications service may be terminated by a telecommunications service provider other than the telecommunications service provider on whose network the call originated. The local exchange service territory defined in the originating provider's tariff shall determine whether the call is local exchange service;
      14. 'Local exchange telecommunications service provider means a company holding a certificate of convenience and necessity from the Commission to provide local exchange telecommunications service...."

      . Title 17 0.$.2001 § 131provides in pertinent part:
      "A. No person, firm association, corporation or cooperative shall provide telecommunications services, as defined by the rules of the Corporation Commission, to any end-user in this state without having first obtained from the Corporation Commission a Certificate of Convenience and Necessity. ..."
      See, 17 0.S.2001 § 131 et seq. After applications were filed in the Oklahoma Corporation Commission, hearings were held and final orders were issued without objection. In April of 1997, the Corporation Commission of Oklahoma approved CapRock for a certificate of public convenience and necessity to provide intrastate toll service within the State of Oklahoma. In November of 1997, the Corporation Commission approved CapRock for a certificate of public convenience and necessity to furnish local exchange telecommunications services in Oklahoma. CapRock was approved in September of 1999, to provide competitive local exchange and interexchange telecommunications services in Oklahoma. Accordingly, Bogart's argument that CapRock is not a telephone and telegraph corporation because its Articles of Incorporation describe its purpose "to buy, sell, lease and deal in services, personal property and real property of every nature and description" is without merit.

      . The telecommunications company did not seek an easement from the landowner because it installed the cable within the public road easement. If the company had installed cable across private property that did not contain a public road easement or right of way, it would have sought an easement from the property owner.

      . The minutes of the January 18, 2000, Sequoyah County Commissioners' meeting provide in pertinent part:
      "... Mr. Gordon Furbush with Power Engineering was advised by board they give permission, without signing any type of agreement as instructions by Assistant District Attorney, Jerry Moore, to install Fiber Optic lines, with motion by Mr. Tabor, Seconded to Mr. McEver, Vote Tabor, aye, McEver, aye, Harrell, aye....
      Bogart also insists that CapRock did not have the approval of the Sequoyah County Commissioners to install the cable along public roads. He includes an affidavit from the chairman of the Board of County Commissions which states that the Board gave its permission only after being assured that the property owners across whose property the line would run would be compensated. The landowner's argument is unconvincing because the affidavit does not dispute the fact that the minutes reflect that permission was given and it is consistent with CapRock's statements regarding that, when necessary, it seeks an easement from a property owner when its line crosses private property.

      . Bogart also named Southbend Corporation, a Mississippi Corporation, and United Fire & Casualty Company, an Iowa corporation as defendants. He alleged that Southbend and United Fire were joint sureties on a performance and payment bond. On September 11, 2000, Ca-pRock filed a cross-claim against Southbend for indemnity. Although the paperwork is not included in the record on appeal, it appears from the trial court's order that CapRock, at some point, also asserted a claim against its subcontractor, Power Engineers.

      . The summary judgment also resolved claims against Southbend Corporation.

      . The Okla. Const. art 2, § 24 provides in pertinent part:
      'Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken.... The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question."

      . Id.

      . The Okla. Const. art. 9, § 2 provides:
      "'Every railroad, oil pipe, car, express, telephone or telegraph corporation or association organized or authorized to do a transportation or transmission business under the laws of this State for such purpose, shall, each respectively, have the right to construct and operate its line between any points in this State, and as such to connect at the State line with the lines; and every such company shall have the right with its road or line, to intersect, connect with, or cross any railroad or such line."

      . Title 18 0.8.2001 § 601 provides in pertinent part:
      "(a) There is hereby granted to the owners of any telegraph or telephone lines operated in this state the right-of-way of over lands and real property in this state, and the right to use public grounds, streets, alleys and highways in this state, subject to control of the proper municipal authorities as to what grounds, streets, alleys or highways said lines shall run over or across, and place the poles to support the wires are located; also the right to condemn and cross over or under, or build their lines along any railroad property or right-of-way, subject to the necessary use of such property or right-of-way by the railroad; the right-of-way over real property granted in this section may be acquired in the same manner and by like proceedings as provided for railroad corporations...."
      Because this statute has remained unaltered since 1961, references are to its current version.

      . Title 69 0.$.2001 § 1401 provides in pertinent part:
      "(a) Any public utilities or cable television system, not otherwise authorized to do so, lawfully operating or doing business in the State of Oklahoma shall have the right to use the public roads and highways of this state including the right-of-way and all easements pertaining thereto, as hereinafter provided.
      (b) The use of the public roads and highways by such public utilities or cable television system shall be for the purpose of erecting poles and posts, attaching equipment, wires and fixtures thereto and lying pipes and conduits under the surface thereof. Such poles, wires, fixtures, pipes and conduits shall be erected, placed, adjusted or laid and maintained only after obtaining the consent of, and under such rules and regulations as shall be construed to grant the right to use the streets or other places of any municipality of this state without the consent of such municipality. Provided further that the boards of county commissioners may grant to any citizen the right to lay pipes and conduits under the surface of any road or highway under their jurisdiction, subject to such rules, regulations and conditions as shall be prescribed by the board of county commissioners...."
      Because this statute has remained unaltered since 1985, references are to its current version.

      . Anderson v. Illinois Oil Co., 1936 OK 142, 54 P.2d 646; Stanolind Pipe Line Co. v. Winford, 1936 OK 152, 54 P.2d 646; Okmulgee Producers & Mfrs. Gas Co. v. Franks, 1936 OK 515, 60 P.2d 771

      . Akin v. Missouri Pacific Railroad Co., 1998 OK 102, 130, 977 P.2d 1040; United States v. Home Fed. S. & L. Ass'n of Tulsa, 1966 OK. 135, ¶18, 418 P.2d 319.

      . Akin v. Missouri Pacific Railroad Co., see note 18, supra.

      . Id.

      . The landowners petition provides in pertinent part:
      "... and the claims set forth in this Petition do not arise out of federal law. The Plaintiff seeks no relief under any federal laws, asserts no federal claims, and withdraws any asserted state claim that is preempted by federal law...."
      The landowner's motion for summary judgment provides in pertinent part:
      "... Courts in Oklahoma frequently rely on federal 'taking' cases in interpreting the state taking provision...."
      Accordingly, our holding is based on Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision. Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201, 1214 (1983).

      . See, United States v. Oklahoma Gas & Electric Co., 318 U.S. 206, 208, 63 S.Ct. 534, 87 L.Ed. 716 (1943) [In the absence of any governing administrative ruling, statute, or dominating consideration of congressional policy, the scope of the use to which a highway can be put is determined by state law.].

      . The Oka. Const. art. 9, § 2, see note 14, supra.

      . Title 18 0.$.2001 § 601, see note 15, supra.

      . Title 69 0.$.2001 § 1401, see note 16, supra.

      . We note that some states have reached the same conclusion. See, e.g., Broadbent Land Co. v. Town of Manila, 842 P.2d 907 (Utah 1992) [Sewer line under shoulder of road within easement did not require additional compensation.]; Pickett v. California Pacific Utilities, 619 P.2d 325, 327 (Utah 1980) [Public utility's use of highway easement did not entitle owner to compensation for additional servitude.]; Eyde Brothers Development v. Eaton County Drain Commissioner, 427 Mich. 271, 398 N.W.2d 297, 308 (1986) [Permission or compensation unnecessary for subsurface construction of sewer system within public easement.]; Bolinger v. City of Bozeman, 158 Mont. 507, 493 P.2d 1062, 1068 (1972) [Public easement for county highway is not restricted to vehicular movement, but includes sewer lines.]; Mountain States Telephone & Telegraph Co. v. Kelly, 93 Idaho 226, 459 P.2d 349 (1969), cert. denied 397 U.S. 42, 90 S.Ct. 816, 25 L.Ed.2d 44 (1970) [Telephone facilities imposed no additional burden for which additional compensation was required.]; Ziegler v. Ohio Water Service Co., 18 Ohio St.2d 101, 247 N.E.2d 728, 728 (1969) [Construction of water pipes in highway easement was not an added burden on land which required compensation.]; Fox v. Ohio Valley Gas Corp., 250 Ind. 111, 235 N.E.2d 168, 172 (1968) [Public utility may lay pipeline for public use in public highway without consent of abutting landowners.]; Hall v. Lea County Electric Coop., 78 N.M. 792, 438 P.2d 632, 635 (1968) [Construction of electric transmission lines within the boundaries of highway did not create additional burden or servitude.]; Herold v. Hughes, 141 W.Va. 182, 90 S.E.2d 451, 457 (1955) [Construction of pipeline constitutes no additional burden.]; Johnson v. City of Chattanooga, 183 Tenn. 123, 191 S.W.2d 175, 176 (1945) [Use of street for poles and wires was not additional burden.]; McCann v. Johnson County Telephone Co., 69 Kan. 210, 76 P. 870, 872 (1904) [Construction and maintenance of a telephone line upon a rural highway is not an additional servitude for which compensation must be paid.]; Cater v. Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N.W. 111, 113 (1895) [Construction of telephone line imposed no additional servitude.]. Other states have reached the opposite conclusion. See e.g., Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W.2d 624, 625-26 (1936) Keokuk Junction Railway Co., v. IES Industries, Inc., 618 N.W.2d 352, 362 (2000); Louisiana Power & Light Co. v. Dileo, 79 So.2d 150, 154 (La.App.1955); Berry v. Southern Pine Electric Power Association, 222 Miss. 260, 76 So.2d 212, 219 (1954).

      . Prichard v. City of Oklahoma City, 1999 OK 5, ¶ 19, 975 P.2d 914; Krokowski v. Henderson Nat'l Corp., 1996 OK 57, ¶ 8, 917 P.2d 8; Carris v. John R. Thomas & Assoc., 1995 OK 33, ¶ 16, 896 P.2d 522.