Rea v. State
Rea v. State
Concurring in Part
concurring in part, dissenting in part:
11 I concur in the majority's decision affirming Rea's conviction. I believe Rea's sentence is disproportionate and would modify. I disagree with the majority's refusal to adopt a proportionality standard of review for excessive sentence claims. I have previously indicated I believe a proportionality standard is both fair and appropriate.
12 The Oklahoma legislature has specifically granted to this Court the authority to modify sentences.
13 A review of our case law shows this Court has consistently used "shock the conscience" review in determining excessive sentence claims only since the mid-1960s
15 A proportionality review also better meets the intent of the legislature in giving this Court the power to modify sentences. The legislative role is to set sentences for classifications of crimes, such as drug offenses, robbery or murder. In doing so, the legislature recognizes the principle of proportionality and determines some crimes are more serious than others: murder may be punished by a longer prison term than assault, and possession of even large amounts of marijuana may receive far less time than trafficking in cocaine. The legislature does not set sentences for individual crimes; that is the responsibility of the jury or trial court. The legislature has given this Court authority to review and modify sentences in individual cases. A proportionality review would not infringe on the legislature's right to set sentences for categories of crimes. By contrast, our standardless "shock the conscience" review for excessive sentences leaves open the real possibility that a defendant convicted of a "less serious" crime (as determined by the legislature) may receive more prison time than a defendant convicted of a "more serious" crime. This result cannot comport with the legislature's action in making some crimes punishable by more years in prison than others.
T6 I recognize that we determined we need not conduct a proportionality review in Maxwell v. State.
There is no basis for the State's assertion that the general principle of proportionality does not apply to felony prison sentences.... There is no historical support for such an exception. The common-law principle incorporated into the Eighth Amendment clearly applied to prison terms. And our prior cases have recognized explicitly that prison sentences are subject to proportionality analysis.... [Wle hold as a matter of principle that a criminal sentence must be proportionate to*153 the crime for which the defendant has been convicted.25
T7 The only way to determine whether a sentence is disproportionate is to conduct a proportionality review. Heim identified three factors in that review: (1) the gravity of the offense and the harshness of the penalty; (2) comparison of the sentences imposed to that of other criminals in the same jurisdiction; and (8) comparison with sentences imposed for commission of the same crime in other jurisdictions.
1 8 Whether under Heim or Harmelin, the objective criteria of proportionality review provide a simple, understandable standard which may be evenly applied. Several other states use some form of proportionality review, often citing either to Helm or Harme-lin, in connection with an inquiry as to whether a sentence is so excessive as to shock the conscience.
. See White v. State, No. F-98-792 (Okl.Cr. Jan. 11, 2000) (not for publication).
. 461 NW.2d 1, 2 (Mich. 1990).
. ''The appellate court may reverse, affirm or modify the judgment or sentence appealed from, and may, if necessary or proper, order a new trial or resentencing. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time, and in the manner, to be prescribed by rule of the court." 22 0.$.1991, § 1066.
. See, eg., Bartell v. State, 881 P.2d 92, 101 (Okl..Cr. 1994).
. See, eg., Bradley v. State, 715 P.2d 78 (Okl.Cr. 1985) (100 year sentence for second degree burglary, after former conviction, modified); Futerll v. State, 501 P.2d 901 (Okl.Cr. 1972) (300 year sentence for kidnapping); Williams v. State, 321 P.2d 990 (Okl.Cr. 1957) (death penalty for kidnapping where sentencing court considered evidence of accompanying murder, a crime for which defendant was already convicted and received life in prison).
. Compare Reupert v. State, 947 P.2d 198 (Okl.Cr. 1997) (30 years for first degree rape) and Spencer v. State, 795 P.2d 1075 (Okl.Cr. 1990) (200 years for first degree rape). Compare Lalli v. State, 870 P.2d 175 (Okl.Cr. 1994) (20 years, maximum sentence, for delivery of 4 ounces of marijuana, modified for prosecutorial misconduct) and Burkhart v. State, 727 P.2d 971 (Okl.Cr. 1986) (5 years, delivery of 2 baggies of marijuana).
. Most people agree something is wrong where, for example, a career burglar receives 55 years in prison for breaking into a car (Scott v. State, 763 P.2d 141 (Okl.Cr. 1988)), while a rapist receives only seven years for a violent act of rape and five years for sodomy (Casey v. State, 732 P.2d 885 (Okl.Cr. 1987)).
. Several earlier cases refer to the Court's "conscience" in a variety of contexts other than sentencing. See Ellis v. State, 54 Okl.Cr. 295, 19 P.2d 972, 974 (1933) (punishment is cruel and unusual when so disproportionate to the character of the offense as to shock the conscience and moral senses of the people); Williams v. State, 21 Okl.Cr. 161, 205 P. 772, 773 (1922) (Court will disturb verdict where evidence so insufficient as to shock the conscience); Turner v. State, 8 Okl.Cr. 11, 126 P. 452, 464 (1912) (determining sufficiency of Information for murder, analogizes
. See, eg., Jones v. State 10 Okl.Cr. 216, 137 P. 121, 125 (1913) (on rehearing).
. See, eg., Johnson v. State, 453 P.2d 390, 392 (Okl.Cr. 1969); Epperson v. State, 406 P.2d 1017, 1022 (Okl.Cr. 1965); Cowling v. State, 327 P.2d 500, 505 (Okl.Cr. 1958); Driskell v. State, 293 P.2d 638, 639 (Okl.Cr. 1956); Brown v. State, 274 P.2d 779, 786 (Okl.Cr. 1954); Jones v. State, 84 Okl.Cr. 81, 179 P.2d 484, 490 (1947); White v. State, 76 Okl.Cr. 147, 134 P.2d 1039, 1041 (1943); Barnett v. State, 25 Okl.Cr. 230, 219 P. 726, 727 (1923) (syllabus).
. See, eg., Henderson v. State, 695 P.2d 879, 883 (Okl.Cr. 1985) [Henderson is later cited in support of the "shocks the conscience" standard, although it does not contain that language]; Freeman v. State, 681 P.2d 84, 86 (Okl.Cr. 1984); Bunn v. State, 85 Okl.Cr. 367, 190 P.2d 464, 467 (1947); Harvell v. State, 97 Okl.Cr. 97, 258 P.2d 702, 704 (1953) (modification as an award of justice); Parish v. State, 77 Okl.Cr. 436, 142 P.2d 642, 646 (1943) (modification as an award of justice).
. Collins v. State, 96 Okl.Cr. 335, 255 P.2d 292, 295 (Ok1.Cr. 1953); Kelso v. State, 96 Okl.Cr. 367, 255 P.2d 284, 289 (Okl.Cr. 1953); Hixon v. State, 96 Okl.Cr. 311, 254 P.2d 387 (Okl.Cr. 1953) (syllabus); Berkihiser v. State, 92 Okl.Cr. 31, 219 P.2d 1020, 1023 (1950).
. Palmer v. State, 327 P.2d 722, 728 (Okl.Cr. 1958) (Court compelled to affirm penalty "in all conscience"); Leasure v. State, 275 P.2d 344, 347 (Ok1.Cr. 1954) (syllabus); Story v. State, 97 Okl.Cr. 116, 258 P.2d 706, 709 (1953) (error required Court "in all good conscience" to modify sentence); Brumley v. State, 96 Okl.Cr. 97, 249 P.2d 471, 474 (1952) (Court's "conscience dictates and compels us" to modify sentence).
. 372 P.2d 623 (Okl.Cr. 1962).
. Id. at 634.
. Austin v. State, 278 P.2d 240, 242 (Okl.Cr. 1954) (Court exercises power to modify sentence only for compelling reasons based on facts and circumstances in record); Jones, 179 P.2d at 490 (sentence is excessive where Court concludes it was rendered under passion or prejudice).
. 389 P.2d 1002, 1006 (Okl.Cr. 1964).
. Fox v. City of Tulsa, 806 P.2d 79, 80 (Okl.Cr. 1991); accord Rackley v. State, 814 P.2d 1048, 1050 (Okl.Cr. 1991). These cases cite Virgin v. State, 792 P.2d 1186, 1188 (Okl.Cr. 1990), although Virgin does not use the word "disproportionate". In neither case does the Court conduct a proportionality review.
. See Fields v. State, 501 P.2d 1390, 1393 (Okl.Cr. 1972). Other lengthy sentences which have not shocked the Court's conscience include: Rackley, 814 P.2d at 1050 (250 years for Robbery with Firearms and 40 years for Possession of a Controlled Dangerous Substance after former conviction of two or more felonies); Scott v. State, 668 P.2d 339, 343 (Okl.Cr. 1983) (200 year sentence for rape, 75 years for burglary and 300 years for Assault and Battery with Intent to Kill after former conviction of two or more felonies);
. 775 P.2d 818, 820-21 (Okl.Cr. 1989).
. 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
. 445 U.S. at 280-81, 100 S.Ct. at 1142-43.
. 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) overruled in part by Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).
. Maxwell, 775 P.2d at 820; but see id. at 821 (Parks, V.P.J., concurring in result).
. Helm, 463 U.S. at 289-90, 103 S.Ct. at 3009 (footnotes omitted) (citations omitted). The Supreme Court later noted Rummel "stood for the proposition that ... successful challenges to the proportionality of particular sentences should be exceedingly rare." Hutto v. Davis, 454 U.S. 370, 374, 102 S.Ct. 703, 705, 70 LEd.2d 556 (1982).
. Helm, 463 U.S. at 290-91, 103 S.Ct. at 3010.
. 501 U.S. 957, 111 S.Ct. 2680, 115 LEd.2d 836 (1991) (plurality opinion).
. Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707.
. See, eg., California: People v. Martinez, 71 Cal App.4th 1502, 84 Cal.Rptr.2d 638, 643 (1999); In Re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, 930 (1972); Idaho: State v. Rogerson, 132 Idaho 53, 966 P.2d 53, 58 (Ct.App. 1998); State v. Brown, 121 Idaho 385, 825 P.2d 482, 491 (1992); Indiana: Brewer v. State, 646 N.E.2d 1382, 1386 (Ind. 1995); Kansas: State v. Freeman, 223 Kan. 362, 574 P.2d 950, 956 (1978); Louisiana: State v. Lobato, 603 So.2d 739, 751 (La. 1992); Massachusetts: Commonwealth v. Dunn, 43 Mass.App.Ct. 58, 680 NE.2d 1178, 1182 (1997); Commonwealth v. Alvarez, 413 Mass. 224, 596 NE.2d 325, 331 (1992); Missouri: State v. Carlton, 733 SW.2d 23, 27 (Mo.Ct.App. 1987); New Jersey: State v. Burton, 309 N.J.Super. 280, 706 A.2d 1181, 1185 (1998); State v. Roth, 95 N.J. 334, 471 A.2d 370, 373 (1984); New York: People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 NE.2d 338, 342 (1975); Tennessee: State v. Harris, 844 S.W.2d 601, 602-03 (Tenn. 1992); Texas: Puga v. State, 916 S.W.2d 547, 549 (Tex.App. 1996); Vermont: State v. Saari, 152 Vt. 510, 568 A.2d 344, 348 (1989); West Virginia: State v. Goff, 203 W.Va. 516, 509 S.E.2d 557, 564 (1998); Wyoming: Smith v. State, 922 P.2d 846, 848 (Wyo. 1996).
. Day v. State, 784 P.2d 79, 85 (Okl.Cr. 1989); Tyler v. State, 777 P.2d 1352, 1354 (Okl.Cr. 1989); Jones v. State, 764 P.2d 914, 918 (Okl.Cr. 1988); Lamb v. State, 756 P.2d 1236, 1238 (Okl.Cr. 1988); Palmer v. State, 719 P.2d 1285, 1289 (Okl.Cr. 1986); Blankenship v. State 719 P.2d 829, 832 (Okl.Cr. 1986); Young v. State, 701 P.2d 415, 418 (Ok1.Cr. 1985); Martin v. State, 674 P.2d 37, 42 (Okl.Cr. 1983); Underwood v. State, 484 P.2d 889, 890 (Okl.Cr. 1971).
. People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990).
. State v. Bonner, 577 NW.2d 575, 579-80 (S.D. 1998). This was reaffirmed in State v. Jensen, 1998 SD 52, 579 N.W.2d 613, 623-24. Louisiana reviews excessive sentence claims for abuse of discretion using a three-prong test com
Opinion of the Court
SUMMARY OPINION
€ 1 On February 4, 2000, Appellant, Elmer Allen Rea, was tried in a non-jury trial in Pawnee County District Court, Case No. CF-99-32 for Assault and Battery with a Dangerous Weapon, in violation of 21 O.S. 1991, § 645. The Honorable Jefferson D. Sellers, District Judge, found Appellant guilty. Formal sentencing was held March 17, 2000, and Judge Sellers sentenced Appellant to ten years imprisonment and a $500.00 fine. From the Judgment and Sentence imposed, Appellant filed this appeal.
The sentence imposed was excessive and should be modified.
After thorough consideration of the proposition, and the entire record before us on appeal, including the original record, transcripts and briefs of the parties, we affirm the sentence for the reasons set forth below.
T8 Appellant contends that his sentence is excessive because he suffers from diminished mental capacity. Appellant's mental health history shows that he has been treated at various facilities, for various psychiatric and substance-abuse problems, since the age of twelve. Appellant was twenty-one years old at the time of sentencing.
14 Appellant opted for a trial to the district court, without a jury. He presented evidence concerning his mental health history. The Presentence Report, submitted to the district court before imposition of sentence, further detailed Appellant's mental health history. Thus, the sentencing body (in this case, the court) had a wealth of information about Appellant at its disposal before imposing sentence. The record affirmatively shows that the district court considered Appellant's mental health history in assessing the sentence, and we find no abuse of its broad discretion on that point.
15 Appellant further suggests that we abandon our "shock the conscience" standard of sentence review in favor of a "proportionality" standard, citing People v. Milbourn, 485 Mich. 630, 461 N.W.2d 1 (1990), as support.
DECISION
T6 The Judgment and Sentence of the district court is hereby AFFIRMED.
CHAPEL, J., concurs in part/dissents in part.
. The district court concluded that given hié history, Appellant would constitute a greater threat to society if allowed probation.
. The evidence showed that Appellant told a friend that he was going to find the victim and stab him; Appellant located the victim at a residence, and impersonated a police officer when he knocked on the door to gain entry; Appellant then forced his way into the home, ripped the telephone cord out of the wall, and stabbed the victim twice.
. A sentence within the statutory range will not be modified on appeal unless, considering all the facts and circumstances, it shocks the conscience. Maxwell v. State, 1989 OK CR 22, 112, 775 P.2d 818, 820. In Milbourn, the Supreme Court of Michigan abandoned its "shock the conscience" standard of appellate sentence review in favor of a "proportionality' review. Despite similar language, we note important differences between the standard rejected in Milbourn and the sentence-review standard used by this Court, as well as fundamental differences in sentencing schemes. We also note that the term "proportionality," as used in Milbourn, specifically refers to the relationship of a sentence to the seriousness of the circumstances surrounding the instant offense and the instant offender. Milbourn, 461 N.W.2d at 3 & n. 2. We discern no appreciable difference between this scope of review, and our current standard, which also considers all the facts and circumstances of the case at hand and the appellant's background.
Reference
- Full Case Name
- Elmer Allen REA, Appellant, v. STATE of Oklahoma, Appellee
- Cited By
- 44 cases
- Status
- Published