Jeffrey L. Jinks v The State Of Oklahoma

C-2007-829

Filed: Mar. 13, 2008

Not for publication

Prevailing Party: Jeffrey L. Jinks

Summary

Jeffery L. Jinks appealed his conviction for Child Sexual Abuse. Conviction and sentence modified to 20 years of imprisonment with 5 years to serve. Judges Lumpkin and Lewis dissented on the sentence modification.

Decision

The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED as MODIFIED. We remand this matter to the district court to modify Jinks's sentence to twenty years imprisonment with all but the first five years suspended. Pursuant to Rule 3.15, Rules of the Oklahoma 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 Jinks aware of the nature and consequences of entering a blind plea?
• was Jinks's plea voluntary given the statute applied to the alleged offense?
• is Jinks's sentence excessive under the circumstances of the case?

Findings

• The trial court did not abuse its discretion in denying Jinks's motion to withdraw plea.
• Jinks's claim regarding being charged under a general statute when a more specific statute controlled is denied.
• Jinks's sentence is modified due to being excessive, reducing it to twenty years imprisonment with all but the first five years suspended.

C-2007-829

Mar. 13, 2008

Jeffrey L. Jinks

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: Petitioner Jeffery L. Jinks pled guilty in the District Court of Stephens County, Case No. CF-2006-137, to one count of Child Sexual Abuse, in violation of 10 O.S.Supp.2002, § 7115 (E). The Honorable Joe H. Enos accepted Jinks’s plea and ordered a Presentence Investigation Report. Jinks filed a motion to withdraw his plea prior to his sentencing hearing, which was denied. The district court held a sentencing hearing and sentenced Jinks to 35 years imprisonment with all but the first 20 years suspended. Jinks thereafter filed a motion to reconsider his application to withdraw plea. After an evidentiary hearing, the district court denied Jinks’s motion. Jinks appeals the district court’s order denying reconsideration of his application to withdraw plea.

This case raises the following issues: (1) whether Jinks understood the nature and consequences of entering a blind plea; (2) whether Jinks’s plea was voluntary because the statute under which he was charged was not the statute which applied to the offense alleged; and (3) whether Jinks’s sentence is excessive. We find reversal is not required and affirm the Judgment. We do, however, find that sentence modification is warranted in this case and hereby modify Jinks’s sentence for the reasons discussed below.

1. The trial court did not abuse its discretion in denying Jinks’s motion to withdraw plea. See Cox v. State, 2006 OK CR 51, 1 18, 152 P.3d 244, 251. The record shows that Jinks understood that he could be sentenced within the range provided by law and that serving his sentence in a group home was a possibility, but was not guaranteed.

2. Nor do we find merit in Jinks’s claim that he was charged under a general statute when a more specific statute controlled. Prosecutors have broad discretion in deciding what charges to bring. See Franks v. State, 2006 OK CR 31, 1 6, 140 P.3d 557, 558. That discretion is limited by the common law rule that provides that specific statutes control over general ones. Id. Charging the accused under a more general statute thwarts the legislative intent in enacting the more specific one and is error. See Id., 140 P.3d at 559. Both 10 O.S.Supp.2002, § 7115 (E) and 21 O.S.Supp.2003 § 1123 criminalize lewd molestation and overlap in that respect. Child sexual abuse, however, is applicable to persons responsible for the child’s health, safety or welfare, who commit lewd molestation. 10 O.S.Supp.2002, § 7115; 10 O.S.Supp.2005, § 7102 (5). The legislature enacted a special lewd molestation provision for those whose relationship is to protect children that allows for harsher punishment for those who violate their duty. Narrowing the class of offenders to which the crime applies in § 7115 (E) makes it the more specific statute. This claim is denied.

3. We find merit in Jinks’s claim that his sentence is excessive. See Head v. State, 2006 OK CR 44, 1 27, 146 P.3d 1141, 1148 (A sentence within the statutory range will be affirmed unless, considering all the facts and circumstances, it shocks the conscience of this Court.) Jinks entered a blind plea and the district court sentenced him within the range of punishment provided by law. The impetus for the court’s lengthy sentence is the protection of the public rather than the offense committed. Jinks has no prior criminal history. He has been treated in behavioral facilities throughout his childhood and adolescence. He has been diagnosed with Attention Deficit Hyperactivity disorder and bi-polar disorder. He is borderline in intellectual functioning. His thirty-five year sentence shocks our conscience under the facts and circumstances of this case. This Court has the power to modify Jinks’s sentence. 22 O.S.2001, § 1066. We modify his sentence to twenty years imprisonment with all but the first five years suspended.

DECISION

The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED as MODIFIED. We remand this matter to the district court to modify Jinks’s sentence to twenty years imprisonment with all but the first five years suspended.

Pursuant to Rule 3.15, Rules of the Oklahoma 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. 10 O.S.Supp.2002, § 7115 (E)
2. 21 O.S.Supp.2003 § 1123
3. 10 O.S.Supp.2002, § 7115
4. 10 O.S.Supp.2005, § 7102 (5)
5. 22 O.S.2001, § 1066

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 (2002) - Child Sexual Abuse
• Okla. Stat. tit. 10 § 7102 (5) (2005) - Definitions
• Okla. Stat. tit. 21 § 1123 (2003) - Lewd Molestation
• Okla. Stat. tit. 22 § 1066 (2001) - Modification of Sentences

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:

• Cox v. State, 2006 OK CR 51, 1 18, 152 P.3d 244, 251
• Franks v. State, 2006 OK CR 31, 1 6, 140 P.3d 557, 558
• Head v. State, 2006 OK CR 44, 1 27, 146 P.3d 1141, 1148