James Robert Bonomelli v The State Of Oklahoma

F 2004-161

Filed: Nov. 15, 2005

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

James Robert Bonomelli appealed his conviction for several crimes. He was found guilty of three counts: possession of child pornography, felonious possession of a firearm, and felonious possession of marijuana. His original sentence was very long, totaling 100 years in prison. Bonomelli argued that he did not have enough time to prepare his defense and that his sentence was too harsh. The Court of Criminal Appeals agreed that he did have a fair chance in court but also thought the 100-year sentence was too much, given the situation. They decided to change the sentences so that he would serve a total of 40 years in prison instead of 100. Overall, the judgment was kept but the sentence was modified to be less severe. Judge Chapel agreed with the decision, while the other judges also supported the outcome.

Decision

The judgment of the District Court is AFFIRMED and the sentence is MODIFIED to run concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18 App. (2004), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there inadequate time for the Appellant to prepare a defense due to the denial of a motion for continuance resulting in state-induced ineffective assistance of counsel at trial?
• Did the trial court impose excessive sentences on the Appellant that should be favorably modified?

Findings

• the trial court did not abuse its discretion in failing to grant a continuance
• Bonomelli has failed to show that the denial of a continuance deprived him of effective assistance of counsel
• the sentence imposed is modified to run concurrently, totaling forty years' imprisonment

F 2004-161

Nov. 15, 2005

James Robert Bonomelli

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: Appellant, James Robert Bonomelli, was convicted after a jury trial of three counts of a five count Information before the Honorable C. William Stratton, Associate District Judge, in Comanche County Case No. CF-2002-413.¹ Bonomelli was convicted of, count two, possession of child pornography in violation of 21 O.S.2001, § 1024.2, count three, felonious possession of a firearm in violation of 21 O.S.2001, § 1283, and count five, felonious possession of marijuana in violation of 63 O.S.2001, § 2-402, all after former conviction of two or more felonies.² The jury set punishment at forty (40) years imprisonment and a $5,000 fine, twenty (20) years imprisonment and a $10,000 fine, and forty (40) years imprisonment and a $10,000 fine, respectively. The trial court sentenced accordingly and ordered that the sentences be served consecutively. Bonomelli has perfected his appeal to this Court.

Bonomelli raises the following propositions of error in support of his appeal:
1. The trial court denied adequate time to prepare a defense by denying Appellant’s motion for continuance, resulting in state-induced ineffective assistance of counsel at trial.
2. The sentences imposed against Mr. Bonomelli are excessive and should be favorably modified.

After thorough consideration of Bonomelli’s propositions of error and the entire record before us on appeal, including the original record, transcripts, and briefs, we have determined that the judgment of the trial court should be affirmed and the sentence imposed should be modified.

In reaching our decision, we find in proposition one that the trial court did not abuse its discretion in failing to grant a continuance. Ochoa v. State, 1998 OK CR 41, ¹28, 963 P.2d 583, 595. We further find that Bonomelli has failed to show that this failure to grant a continuance deprived him of effective assistance of counsel. Bonomelli has not shown that he was prejudiced by the trial court’s actions.

In proposition two, Bonomelli argues that the sentence imposed below is excessive and should be modified. We agree. By ordering the sentence imposed in each of the counts to run consecutively, the trial judge sentenced² Bonomelli to 100 years’ imprisonment, effectively a life term for this 38-year-old Appellant. We find that sentence, under the facts of this case, to be excessive and order the sentence imposed in each count to run concurrently, each with the others, for a total sentence of forty years’ imprisonment. Rea v. State, 2001 OK CR 28, ¹5, 34 P.3d 148, 149 n. 3.

DECISION
The judgment of the District Court is AFFIRMED and the sentence is MODIFIED to run concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18 App. (2004), the MANDATE is ORDERED issued upon delivery and filing of this decision.

APPEARANCES AT TRIAL
KATHLEEN FLANAGAN
310 N. 5TH
P.O. BOX 36
WALTERS, OK 73572
DEFENSE COUNSEL

APPEARANCES ON APPEAL
ANDREAS T. PITSIRI
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

ROY CALVERT
W. A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
OKLAHOMA ATTORNEY GENERAL
COMANCHE COUNTY COURTHOUSE
315 SOUTHWEST 5TH STREET
LAWTON, OK 73501
ATTORNEY FOR THE STATE

JENNIFER B. MILLER
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73104
ASSISTANT ATTORNEY GENERAL
ATTORNEYS FOR APPELLEE

OPINION BY: A. JOHNSON, J.
CHAPEL, P.J.: Concurs
LUMPKIN, V.P.J.: Concurs in Results
C. JOHNSON, J.: Concurs
LEWIS, J.: Concurs

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Footnotes:

1. Possession of child pornography in violation of 21 O.S.2001, § 1024.2.
2. Felonious possession of a firearm in violation of 21 O.S.2001, § 1283.
3. Felonious possession of marijuana in violation of 63 O.S.2001, § 2-402.
4. Ochoa v. State, 1998 OK CR 41, 1 28, 963 P.2d 583, 595.
5. Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149 n. 3.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1024.2 (2001) - Possession of Child Pornography
• Okla. Stat. tit. 21 § 1283 (2001) - Felonious Possession of a Firearm
• Okla. Stat. tit. 63 § 2-402 (2001) - Felonious Possession of Marijuana

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:

• Ochoa v. State, 1998 OK CR 41, I 28, 963 P.2d 583, 595.
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149 n. 3.