Roy Carl Bales, Jr. v The State Of Oklahoma

F-2006-780

Filed: May 23, 2007

Not for Publication

Prevailing Party: The State Of Oklahoma

Summary

Roy Carl Bales, Jr. appealed his conviction for robbery with a firearm and unauthorized use of a motor vehicle. His conviction and sentence were upheld, but his sentence for unauthorized use was reduced. Judge Lumpkin agreed, and Judges C. Johnson, A. Johnson, and Lewis also supported the decision.

Decision

The Judgments of the District Court are hereby AFFIRMED. The Sentence of the District Court for Robbery with a Firearm After Former Conviction of Two or More Felonies is AFFIRMED. The Sentence of the District Court for Unauthorized Use of a Motor Vehicle After Two or More Felony Convictions is MODIFIED to three (3) years' imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error by the trial court in failing to correctly instruct the jury on the minimum sentence for Unauthorized Use of a Motor Vehicle After Former Conviction of Two or More Felonies?
• Did the trial court abuse its discretion in refusing to order the appellant's sentences to run concurrently?

Findings

• the trial court erred by failing to correctly instruct the jury on the minimum sentence to be imposed for Unauthorized Use of a Motor Vehicle After Former Conviction of Two or More Felonies
• the trial court did not abuse its discretion in refusing to order Appellant's sentences to run concurrently
• the sentence for Unauthorized Use of a Motor Vehicle After Two or More Felony Convictions is modified to three (3) years' imprisonment
• the Judgments of the District Court are affirmed
• the Sentence of the District Court for Robbery with a Firearm After Former Conviction of Two or More Felonies is affirmed

F-2006-780

May 23, 2007

Roy Carl Bales, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Roy Carl Bales, Jr. was tried by jury and convicted of Count II: Robbery with a Firearm After Former Conviction of Two or More Felonies, in violation of 21 O.S.2001 § 801; and Count III: Unauthorized Use of a Motor Vehicle After Former Conviction of Two or More Felonies, in violation of 47 O.S.2001 § 4-102 in the District Court of Pawnee County, Case No. CF-04-89. In accordance with the jury’s recommendation, the Honorable Jefferson D. Sellers sentenced Bales to serve the following sentences: Count II: imprisonment for twenty (20) years; and Count III: imprisonment for six (6) years, to run consecutively. Bales appeals from these convictions and sentences and raises two propositions of error in support of his appeal.

Bales raises two propositions of error in support of his appeal:
I. The trial court erred by failing to correctly instruct the jury on the minimum sentence to be imposed for Unauthorized Use of a Motor Vehicle After Former Conviction of Two or More Felonies.
II. The trial court abused its discretion in refusing to order Appellant’s sentences to run concurrently.

Because the jury clearly intended for Mr. Bales to serve the minimum term of imprisonment, Appellant’s consecutive sentences are excessive and should shock the conscience of this Court. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that modification is required by the law and evidence. In Proposition I, we find plain error in the trial court’s failure to instruct the jury on the proper range of punishment. We modify Bales’s sentence on Count III: Unauthorized Use of a Motor Vehicle After Two or More Felony Convictions to reflect imprisonment for three (3) years.

In Proposition II, we find that Bales’s sentence is not excessive.

Decision

The Judgments of the District Court are hereby AFFIRMED. The Sentence of the District Court for Robbery with a Firearm After Former Conviction of Two or More Felonies is AFFIRMED. The Sentence of the District Court for Unauthorized Use of a Motor Vehicle After Two or More Felony Convictions is MODIFIED to three (3) years’ imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001 § 801
2. 47 O.S.2001 § 4-102
3. Turner v. State, 1990 OK CR 79, 1 22, 803 P.2d 1152, 1159
4. 21 O.S.Supp.2002 § $1.1(C)
5. 47 O.S.2001 § 17-102
6. Rea v. State, 2001 OK CR 28, 15, 34 P.3d 148, 149
7. Riley v. State, 1997 OK CR 51, 1 20, 947 P.2d. 530, 534

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Firearm
• Okla. Stat. tit. 47 § 4-102 (2001) - Unauthorized Use of a Motor Vehicle
• Okla. Stat. tit. 21 § 701.8 (Supp. 2002) - Sentencing
• Okla. Stat. tit. 47 § 17-102 (2001) - Sentencing Guidelines

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:

• Turner v. State, 1990 OK CR 79, I 22, 803 P.2d 1152, 1159
• Rea v. State, 2001 OK CR 28, I 15, 34 P.3d 148, 149
• Riley v. State, 1997 OK CR 51, I 20, 947 P.2d. 530, 534