Ellison v State

Ellison v State
1942 OK CR 167
132 P.2d 178
75 Okl.Cr. 387
Decided: 12/09/1942
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error--In Appeal by Transcript in Felony Case Moderate Sentence Upon Plea of Guilty Would not Be Set Aside as Excessive.

Page 388

Where an appeal is by transcript and from a judgment and sentence entered on a plea of guilty, and no evidence appears in the record, revealing the facts upon which the plea of guilty was entered, this court will not set aside a judgment and sentence of four years in the penitentiary as excessive, when the maximum punishment could be 15 years in the penitentiary.

Appeal from District Court, Logan County; Henry W. Hoel, Judge.

James Ellison was convicted of the crime of rape in the second degree, and he appeals. Affirmed.

Bruce & Rowan, of Oklahoma City, and Amos T. Hall, of Tulsa, for plaintiff in error.

Mac Q. Williamson Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Hugh Adams, Co. Atty. of Logan County, of Guthrie, for defendant in error.

BAREFOOT, P. J. Defendant, James Ellison, was charged in the district court of Logan county with the crime of rape in the second degree and, upon a plea of guilty, was sentenced to serve a term of four years in the State Penitentiary, and from this judgment an appeal has been taken to this court.

The record is in the form of a transcript, and no evidence appears in the record. A motion has been filed by the Attorney General to strike the purported case-made and dismiss the appeal. The only contention made by the defendant in his brief is that the punishment is excessive and that the judgment and sentence should, therefore, be modified, and affirmed. We have carefully considered this contention and find that a plea of guilty was entered by defendant on the second day of December, 1940, and that sentence was deferred until December 30, 1940, at which time the following proceedings were had:

"By the Court: * * * You appeared in open court and entered your plea of guilty to the crime of rape in the second degree, on what date was that? By Mr. Adams:

Page 389

December 2. By the Court: And the court, at your request passed sentence day to this date, December 30th. Have you any legal reason to offer why judgment and sentence of the court should not be pronounced against you on your plea of guilty? By the Defendant: No, sir. By the Court: Are there any recommendations you have to make, Mr. County Attorney? By Mr. Adams: My recommendation, your Honor, would be that he get at least four years. It carries one to 15, and I agreed with counsel for the defendant, that that would be my recommendation, and I think it was with that understanding, possibly that he pled guilty, that it would not exceed four years. By the Court: Have you anything to say, Mr. Bruce? By Mr. Bruce: I have said about all I have to say, the other time. I think under the circumstances, it should not be more than four years, probably three years would be enough punishment. By the Court: Mr. County Attorney, your recommendation, you discussed with the father of the complaining witness and it was satisfactory with him? By Mr. Adams: Yes, sir. I didn't talk to Mr. Ellison, personally, but I understand both Mr. Bruce and the attorney from Tulsa-- By the Court: Mr. Hall? By Mr. Adams: Yes, Amos Hall, both discussed it with him. By the Court: Did you understand it that way, too, Ellison? By the Defendant: Yes, sir. By the Court: Anything further? By Mr. Bruce: No, sir."

Judgment and sentence was then pronounced by the court assessing punishment at four years in the State Penitentiary.

Counsel for defendant in their brief attempt to point out certain facts as to why the judgment and sentence should be modified. There is nothing in the record that reveals these facts. They may be presented to the Governor of the state, who is vested with the power of pardon and parole under the Constitution.

Finding no error in the record, the judgment of the district court of Logan county is affirmed.