Mark Kenneth Simmons v The State Of Oklahoma

F-2009-47

Filed: Feb. 25, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Kenneth Simmons appealed his conviction for Manslaughter in the First Degree. His conviction and sentence were set at fifteen (15) years imprisonment. The court found that the trial judge made a mistake by not informing the jury that Simmons had to serve 85% of his sentence before he could be considered for parole. This error was important because it affected how the jury decided on his punishment. The court decided that they could not be sure the jury's decision was fair without this information, so they sent the case back for a new sentencing where the jury can be properly instructed. Judge Johnson disagreed with some parts of the decision.

Decision

The Judgment is AFFIRMED. The sentence is VACATED and REMANDED for re-sentencing. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a failure to instruct the jury regarding the 85% minimum sentence rule?
• Did the trial court's failure to provide this instruction constitute plain error?
• Was the absence of the 85% minimum sentence instruction prejudicial to the Appellant's sentencing?
• Should the Appellant's sentence be modified based on mitigating factors surrounding the crime?
• Is the re-sentencing better suited for the trial court due to the absence of sufficient records on appeal?

Findings

• the court erred by refusing to give the jury instruction on the 85% minimum sentence rule
• the failure to provide the 85% minimum sentence jury instruction constitutes plain error
• the court cannot modify the sentence without sufficient record designation and thus remands for re-sentencing
• the judgment is affirmed
• the sentence is vacated and remanded for re-sentencing

F-2009-47

Feb. 25, 2010

Mark Kenneth Simmons

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Mark Kenneth Simmons, Appellant, was tried by jury for the crime of Murder in the First Degree in Case No. CF-2004-435 in the District Court of Comanche County before the Honorable Mark R. Smith, District Judge. The jury found the Appellant guilty of the lesser included charge of Manslaughter in the First Degree in violation of 21 O.S. 2001, § 711 and set punishment at fifteen (15) years imprisonment. The trial court imposed judgment and sentence in accordance with the jury’s verdict. From this judgment and sentence, the Appellant has perfected his appeal to this Court and raises as his sole proposition that:

APPELLANT’S CONVICTION MUST BE MODIFIED BECAUSE THE TRIAL COURT ERRED IN ITS FAILURE TO INSTRUCT THE JURY THAT THE APPELLANT’S CRIME REQUIRED HIM TO SERVE 85% OF THE SENTENCE BEFORE BECOMING ELIGIBLE FOR PAROLE.

The Appellant argues that his sentence should not stand because the trial court failed to instruct the jury concerning the 85% minimum sentence rule. The so-called 85% minimum sentence rule states, in pertinent part, persons convicted of First degree murder [or] Manslaughter in the first degree shall be required to serve not less than eighty-five percent (85%) of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole. 21 O.S. Supp. 2002, § 13.1. In Anderson v. State, 2006 OK CR 6, ¶ 24, 130 P.3d 273, 282, a case decided three months prior to Appellant’s trial, this Court held that jurors should be informed of the statutory limit on parole eligibility when they are sentencing defendants for qualified offenses. This Court reasoned that requiring such instructions allows Oklahoma’s sentencing juries to more accurately gauge their intended sentences, according to an informed perspective on parole eligibility. Id. ¶ 23. Clearly, the trial court erred by refusing this instruction.

The State argues that the trial court’s failure to instruct the jury that the Defendant’s crime was subject to the 85% minimum sentence rule was harmless. The State notes that the error at the trial was a type of instructional error. As such, the Court does not automatically reverse a case for instructional error; rather, the proper inquiry is whether the error resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. Carter v. State, 2006 OK CR 42, ¶ 5, 147 P.3d 243, 244; 20 O.S.2001, 3001.1; See Roy v. State, 2006 OK CR 47, ¶ 22, 152 P.3d 217, 224-25. Although the State cites the correct standard, the failure to give said instructions under the circumstances of this case constitutes plain error.¹

Here, the case at bar mirrors Anderson and Carter and is analogous to Roy. According to the record on appeal, the jury sent out a note asking, Under the sentencing guidelines do they serve 85% of the term before parole? The trial court answered, You have all the law and evidence necessary to arrive at a verdict. Continue your deliberations. Subsequently, the Appellant was convicted of the lesser included charge of Manslaughter First Degree and sentenced to fifteen (15) years imprisonment. Anderson is controlling under the circumstance of this case. Thus, when looking at this case as a whole, one cannot be confident in saying that the absence of instructions concerning the 85% minimum sentence rule did not result in a rounding up spoken of in Anderson, supra. As such, the jury sentenced Appellant without pertinent information about his parole ineligibility under the 85% minimum sentence rule and therefore the error of the trial court constitutes plain error.

Lastly, Appellant requests that the Court modify the previously imposed sentence of fifteen (15) years to five (5) years. Any mitigating facts and circumstances surrounding the crime in justifying the jury’s decision to find the defendant innocent of Murder in the first degree and guilty of Manslaughter in the first degree are unknowable to the Court, as the Defendant failed to make them part of the record on appeal. Rule 2.4(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). The Appellant supplied the materials necessary to aid the Court in making its determination on the overarching issue regarding the failure to give instructions on the 85% minimum sentence rule. However, the absence of the transcripts from the trial renders the Court unable to adequately consider the sub-issue concerning modification without remand. Therefore, insofar as the record on appeal is absent of sufficient designation supporting the Appellant’s argument for a modification from fifteen (15) years to five (5) years, the Court finds the re-sentencing better suited for the trial court. The circumstances of this case lead the Court to the conclusion that the lack of an instruction clarifying the statutory limit on parole eligibility had a prejudicial impact on the sentence. Because the jury sentenced Appellant without pertinent information about his parole ineligibility under the 85% minimum sentence rule, the proper remedy here is to vacate the sentence and remand for re-sentencing before a properly instructed jury or, if a jury is waived by Appellant, re-sentencing by the District Court.

DECISION

The Judgment is AFFIRMED. The sentence is VACATED and REMANDED for re-sentencing. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S. 2001, § 711
2. 21 O.S. Supp. 2002, § 13.1
3. Carter v. State, 2006 OK CR 42, IT 5, 147 P.3d 243, 244
4. 20 O.S.2001, 3001.1
5. Roy v. State, 2006 OK CR 47, I 22 152 P.3d 217, 224-25
6. Anderson U. State, 2006 OK CR 6, IT 24, 130 P.3d 273, 282
7. Rule 2.4(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2001)
8. Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2008)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711 (2001) - Manslaughter in the First Degree
• Okla. Stat. tit. 21 § 13.1 (Supp. 2002) - Parole Eligibility
• Okla. Stat. tit. 20 § 3001.1 (2001) - Harmless Error
• Okla. Stat. tit. 22 § 2.4 (2001) - Court of Criminal Appeals Rules

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Anderson v. State, 2006 OK CR 6, ¶ 24, 130 P.3d 273, 282
• Carter v. State, 2006 OK CR 42, ¶ 5, 147 P.3d 243, 244
• Roy v. State, 2006 OK CR 47, ¶ 22, 152 P.3d 217, 224-25