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| Excessive Sentence |
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Ganis v. State,
No. F-2004-293 (Okl.Cr., July 14, 2005) (Unpublished): Sentence modification winner!!! Ganis convicted of nine counts of child neglect and smacked hard with a 25 on six of them and a 40 on the other three--consecutive(!) This was too much even for Judge Lumpkin, who authored the opinion, and the Court denied the legal claims, but held that the sentence was excessive and ordered the sentences to run concurrently. Just result.
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Holbrook v. State,
No. F-2004-433 (Okl.Cr., July 15, 2005) (Unpublished): Rare winner from the Court on the sole issue of excessive sentence. Seventeen year old charged with several crimes, given deferreds, and apparently commits some other crimes and gets 20 years. The Court modified the 20 year sentence to 10 years, with all but the first 5 years suspended(!) Very interesting case since Holbrook did not deny that he violated the terms and conditions of probation and the sentence he actually received was within the statutory punishment range for the offenses charged. The Court stated: "His claim is that in light of the Appellant's age [17] and the circumstances of these particular offenses, the sentences imposed are too harsh." The Court agreed. Solid win on an issue that rarely wins.
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Payne v. State,
No. RE-2004-614 (Okl.Cr., July 22, 2005) (Unpublished): Modification winner!!! Interesting case forwarded to me from Mark Hoover at OIDS. Payne was on probation for a sex offense and the State filed an application to revoke the nine and half years left when "Appellant and his girlfriend performed a live sex show before a Web cam and transmitted it via Internet connection to an under-cover police detective." The detective purchased the rights to the live sex show after receiving an anonymous tip (appears someone really had it in for poor Payne). Judge Lucas in Norman revoked in full on the basis that Payne had used pornography or erotica in violation of his probation. COCA modified the sentence to time served(!) in light of the fact that Payne was twenty-seven, had no priors, completed a drug treatment program, actively participated in a sex offender treatment program, was gainfully employed, and other than the live sex show had complied with all the rules and conditions of probation. NOTE: Judge Lumpkin hand-wrote a pithy concurrence/dissent, stating, "I concur in affirming the revocation of Appellant's sentence but dissent to the modification. Appellant has thumbed his nose at the Court's order and he should be held accountable. The District Judge did the right thing."
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Estes v. State,
No. F-2004-939 (Okl.Cr., September 27, 2005) (Unpublished): Sentence modified in a manufacturing case because of improper instruction on the range of punishment. This case gives us a refresher course on several legal rules we should all remember: 1) the appropriate criminal penalty is the one in effect at the time the crime was committed; 2) improper instruction on the range of punishment is plain error that can be corrected even without objection preserving the error; 3) the failure to file a motion to quash waives any alleged defects in the preliminary hearing.
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Bonomelli v. State,
No. F-2004-161 (Okl.Cr., November 15, 2005) (Unpublished): Jury trial resulted in convictions for possession of child porn, felonious possession of a firearm, and felonious possession of marijuana, all AFCF, which netted poor Bonomelli a 40, a 20, and a 40, which the trial court uncharitably ran consecutively. COCA modified the sentence to run all counts concurrently. The Court described the 100 years stacked as "effectively a life term for this 38-year-old Appellant."
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Taylor v. State,
No. F-2004-825 (Okl.Cr., November 28, 2005) (Unpublished): Modification winner! Not just some sissy modification either, this one got reduced from life to twenty years(!) The reason? The jury heard about an arrest on another charge and sent a note to the judge saying they knew about the unrelated arrest and that it would affect their sentencing verdict. The trial judge told them to disregard it. :(( Lucky break for Taylor that the jury made a good record in the note.
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Tanner v. State,
No. F-2004-410 (Okl.Cr., January 4, 2006) (unpublished): Modification winner where poor Twyla Tanner was given 45 years for the hideous crime of Embezzlement by Bailee. Of course, Tanner had several priors which accounted for the sentence. The Court modified the 45 to a 20, which is very significant to the future freedom of Ms. Tanner.
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Cheadle v. State,
No. F-2004-1271 (Okl.Cr., January 11, 2006) (unpublished): Run-of-the-mill convictions for Robbery w/Firearm (two counts), Felon in Possession of Firearm, and Aggravated Attempting to Elude, all AFCF, right? Yes, except that poor Cheadle was sentenced to terms of 2,000 years, 2,000 years, 1,000 years, and 1,000 years, all ordered to run consecutively(!) I think this is an Oklahoma County phenomenon. All that time, six thousand years, must be served at 85by the way. The Court did modify these sentences to straight life (but with Counts I and II still consecutive) which does allow some daylight for Cheadle (he could parole the first life in fifteen and then the next in another fifteen). I included this case because Cheadle's perceptive appellate attorneys, Presson and Jackson, urged the Court to adopt a proportionality analysis rather than the "shock the conscience" standard that the Court uses. This suggestion was rejected, but I think urging such a change in other cases may get the Court to reconsider at some point.
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Kessee v. State,
No. F-2004-989 (Okl.Cr., February 2, 2006) (unpublished): Kessee was convicted of First Degree Robbery after a ton of priors and whacked for 99 years. The Court affirmed the convictions, but modified the sentence to 45 years based upon the statements of the prosecutor during second stage proceedings outlining the priors and providing a time line which signaled to the jurors that Kessee was not serving all the time to which he had been sentenced which, in turn, prompted a slew of questions (five of them) from the jury asking about parole and length of sentence issues. NOTE: there was no objection so the Court reviewed for plain error and found it here. NOTE ALSO: the Court cited Wooldridge v. State, 1983 OK CR 21, para. 17, 659 P.2d 943 ("This Court has held that such references to the parole system are grossly prejudicial to an accused and can serve no useful purpose beyond that of educating the jury as to the often disproportionate ratio between the sentence rendered and the time actually served.") While that is true, the advent of the 85aw causes the problems in reverse---we want the jury to know about the parole system in those cases (or the lack thereof).
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Pat Lee Richardson v. State,
No. F-2005-362 (Okl.Cr., June 16, 2006) (unpublished): Excessive Sentence: Richardson was convicted at a non-jury trial of First Degree Manslaughter and sentenced to 35 years. The Court held that under the facts of the case, the sentence shocked the conscience of the Court and modified the sentence to 20 years. The facts are set forth in more detail in Judge Lumpkin's dissent, which was joined by Judge A. Johnson, and appears that Richardson just stabbed a guy to whom he owed money after the guy demanded payment. I cannot help but wonder that there is something more in the record of this case that would justify this result.
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United States v. Gillespie,
No. 05-6292 (10th Cir., June 30, 2006) (Published): 1. Commerce Clause; 2. Excessive Sentence: This is the case involving the Molotov cocktail attack on the synagogue in Oklahoma City. No one was injured and Gillespie videotaped himself doing the deed. He went to jury trial and was convicted. He was sentenced on three counts which shook out to an aggregate sentence of 468 months (39 years). Gillespie appealed on several grounds but all were denied. This case contains an interesting analysis of the Commerce Clause concerning whether churches "affect" interstate commerce. The synagogue in this case did so because it also had a pre-school and a gift shop in addition to being a house of worship. The panel also produced a letter from Gillespie to the synagogue officials which was filled with racial hate. The panel recognized a "narrow" proportionality principle in the Eighth Amendment that governs non-capital cases but as other cases have held, this principle is "narrow" indeed and the 39-years sentence was upheld.
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Ronald Lavel Hubbard v. State,
No. F-2005-392 (Okl.Cr., July 7, 2006) (unpublished): Excessive Sentence: Hubbard was convicted by jury of two counts of Delivery of CDS (Cocaine Base) and sentenced to 20 years on each count, to be served consecutively. The Court found that the consecutive nature of the sentences "shocked" its conscience and modified the terms of the sentences to run concurrently. This is a somewhat unusual result because the standard whether sentences should run concurrently/consecutively is an abuse of discretion. Trial Judge: Janice P. Dreiling (Nowata County).
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Charles Anthony Willingham v. State,
No. F-2005-281 (Okl.Cr., September 15, 2006) (Unpublished): Excessive Sentence: Willingham was convicted in Grady County of four counts of lewd molestation and sentenced by Judge Richard G. Van Dyck 60-years total per the jury's recommendation (all counts running consecutively). Willingham raised several claims, but gets relief on only one: the sentences shocked the conscience of the Court and were thus modified to run concurrently (resulting in a 20 year sentence rather than a 60 year sentence).
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Tamara Marine Davis v. State,
No. F-2005-1193 (Okl.Cr., March 27, 2007) (unpublished): Excessive Sentence: Davis was convicted by jury in Logan County of Accessory (After the Fact) to Felony Murder in the First Degree before the Hon. Donald L. Worthington. She was sentenced to 40 years. Davis assisted her husband in disposing of the victim's car and belongings, lied about his movements to law enforcement, and assisted him in fleeing the state. The conviction is affirmed but the sentence is modified from 40 years to 25 years under the "shock the conscience" standard. The Court noted that Davis had no prior convictions, tried to discourage her husband from going with the victim and had no part in the robbery/murder and, although she did assist her husband in disposing of the victim's car and belongings, she later assisted the police by providing information and allowing them to search the trailer prior to the arrest.
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Gordon Fife Franklin v. State,
No. F-2005-228 (Okl.Cr., April 5, 2007) (unpublished): Cruelty to Animals; Excessive Sentence: Franklin had amassed several prior felony convictions and when the jury found him guilty of Kidnapping, Assault and Battery with a Dangerous Weapon, and Cruelty to Animals, they were not kind and recommended 250 years on each count which Judge Virgil C. Black imposed. Although the Court found the sentences excessive and modified them to 55 years, the key discussion involved the Cruelty to Animals count. The evidence showed that Franklin hit a pit bull and caused scratches on its head. The Court held that this alone is not enough. The record must demonstrate that the defendant "cruelly" injured the animal. In this case, the injuries to the dog were minimal and insufficient to support a finding of suffering or the infliction of a high degree of pain, the dog was not incapacitated in any way and was active when the police arrived, and there was no evidence the three minor scratches required medical attention or that the dog was even momentarily disabled. The victim testified that Franklin hit the dog and pushed it off of the sofa when it threatened him. This count is REVERSED with instructions to DISMISS.
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Jeffrey L. Jinks v. State
No. C-2007-829 (Okl.Cr., March 13, 2008) (unpublished): Excessive Sentence: Jinks entered a guilty plea (blind) in Stephens County to one count of Child Sexual Abuse. Prior to sentencing, Jinks filed a motion to withdraw his plea. This was denied and Judge Joe H. Enos sentenced Jinks to 20 in and 15 suspended (35 total). The Court denied the motion to withdraw the plea (5-0), but modified the sentence to 5 in and 15 out (20 total), by a vote of 3-2 (Judges Lewis and Lumpkin dissenting). The reasons given why the 35 year sentence "shocked the conscience" of the Court were that the impetus of the court's sentence was protection of the public rather than the offense committed, Jinks had no priors, had mental problems, and had borderline intellectual functioning.
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United States v. Farley,
No. 07-CR-196-BBM (N.D. Ga., September 2, 2008): Excessive Sentence: Farley entered a plea to crossing a state line with intent to engage in a sexual act with a person who has not attained the age of 12 years. He was caught in an internet sting and there was not in fact any minor involved at all, but rather a police officer posing as a minor. For this, Farley faced a sentence range of 30 years to life (the prior law had a range of any term of years of life; the Adam Walsh Child Protection and Safety Act of 2006 increased the sentence to include the mandatory minimum of 30 years. In this opinion, the Court recognized that, unless such a sentence was constitutionally infirm, the only way to sentence Farley below the minimum would be upon the Government's motion for departure for substantial assistance or via the safety valve rule, neither of which applied in this case. HELD: The 30-year mandatory minimum sentence under the specific facts of his case "is so grossly disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution." The Court described the case as one that involved no actual harm, no actual child, no prior instances of impropriety, and a low risk of recidivism. NOTE: This is a brave opinion and makes sense, but if you use it, be sure to make sure it is still good. The precedent from the Supreme Court in this area is very deferential to the congressional decision regarding sentences and I suspect this one will be reversed. Also, the Court pointed out that the crime of murder of a child in the course of raping the child carries death, life, or any term of years with no mandatory minimum. Odd.
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