REA v. STATE

REA v. STATE
2001 OK CR 28
34 P.3d 148
72 OBJ 2959
Case Number: F-2000-1452
Decided: 10/03/2001
ELMER ALLEN REA, Appellant -vs- STATE OF OKLAHOMA, Appellee

S U M M A R Y O P I N I O N

JOHNSON, VICE-PRESIDING JUDGE

¶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

¶2 Appellant raises the following proposition:

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.

¶3 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.

¶4 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.

¶5 Appellant further suggests that we abandon our "shock the conscience" standard of sentence review in favor of a "proportionality" standard, citing People v. Milbourn, 461 N.W.2d 1 (Mich. 1990), as support.

DECISION

¶6 The Judgment and Sentence of the district court is hereby AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF PAWNEE COUNTY
THE HONORABLE JEFFERSON D. SELLERS, DISTRICT JUDGE

APPEARANCES AT TRIAL

BILLY JOE ELLINGTON, ESQ.
P. O. BOX 491
PAWNEE, OK 74058
ATTORNEY FOR DEFENDANT

ALAN B. FOSTER
ASST. DISTRICT ATTORNEY
PAWNEE COUNTY COURTHOUSE
PAWNEE, OK 74058
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

DANNY G. LOHMANN
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

SANDRA D. HOWARD
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73104
ATTORNEY FOR THE STATE

OPINION BY: JOHNSON, V.P.J.

ra

FOOTNOTES

CHAPEL, J., CONCURRING IN PART, DISSENTING IN PART:

¶1 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.

¶2 The Oklahoma legislature has specifically granted to this Court the authority to modify sentences.

¶3 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.

¶4 I once again propose that this Court abandon its subjective, standardless "shock the conscience" review and adopt a proportionality review. Taking into account the particular facts of each case and circumstances of each defendant, we should review a sentence to determine whether it is proportional to the seriousness of the crime and the sentences received by similar offenders. This review will provide a measure of objectivity, reassuring citizens that this Court's sentencing review is based on more than whim or personal belief.

¶5 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.

¶6 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. . . . [W]e hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.

¶7 The only way to determine whether a sentence is disproportionate is to conduct a proportionality review. Helm 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 (3) comparison with sentences imposed for commission of the same crime in other jurisdictions.

¶8 Whether under Helm 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 Harmelin, in connection with an inquiry as to whether a sentence is so excessive as to shock the conscience.

FOOTNOTES