Donald Gean Miller v The State Of Oklahoma

F-2000-692

Filed: May 10, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Donald Gean Miller appealed his conviction for Escape from the County Jail and Injury to a Public Building. His conviction and sentence were two hundred years for Escape and fifty years for Injury to a Public Building, to be served one after the other. Judge Chapel disagreed with the decision about the Injury to a Public Building charge.

Decision

The judgment and sentence in Count I is AFFIRMED. The judgment in Count II is AFFIRMED, however, the sentence is MODIFIED to run concurrently with Count I.

Issues

• Was there an error in refusing to grant a mistrial after the appellant was seen in shackles by jury members?
• Did the simultaneous convictions for escape and injuring a public building violate the statutory prohibition on double punishment?
• Were the sentences imposed excessive?

Findings

• the court did not err in denying the motion for a new trial
• there was no double jeopardy violation
• there was no violation of Oklahoma's double punishment statute
• the sentence was excessive and modified to run concurrently

F-2000-692

May 10, 2001

Donald Gean Miller

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, JUDGE: Appellant, Donald Gean Miller, was convicted at a jury trial of Count I – Escape from the County Jail (21 O.S.Supp. 1999, § 443(A)) and Count II – Injury to a Public Building (21 O.S.Supp.1999, § 349) in Case No. CRF-99-184 in the District Court of Okmulgee County. Appellant was charged with having two previous felony convictions. The Honorable Charles W. Humphrey, District Judge, sentenced Appellant, in accordance with the jury verdict, to two hundred (200) years imprisonment on Count I and fifty (50) years imprisonment on Count II. The sentences were ordered to be served consecutively. Appellant has perfected this appeal.

Appellant raises the following propositions of error in support of his appeal:

I. The trial judge erred by refusing to grant a mistrial after Mr. Miller was seen in shackles by jury members. 1

II. The simultaneous convictions for escape and injuring a public building violated the statutory prohibition on double punishment.

III. The sentences were excessive.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts and briefs of the parties, we have determined that modification is required under the facts and the law. With regard to Proposition I, we find that there was no abuse of discretion in denying the motion for a new trial. Knighton v. State, 1996 OK CR 2, 164, 912 P.2d 878, 894. Concerning Proposition II, we find no double jeopardy violation. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306, 309 (1932). Also, we find no violation of Oklahoma’s double punishment statute. 21 O.S.Supp.1999, § 11; Davis v. State, 1999 OK CR 48, 993 P.2d 124. We agree under Proposition III that the sentence is excessive because it shocks the conscience of the court. The sentence herein is modified to provide that the sentences on both counts shall run concurrently.

DECISION

The judgment and sentence in Count I is AFFIRMED. The judgment in Count II is AFFIRMED, however, the sentence is MODIFIED to run concurrently with Count I. 2

ATTORNEYS AT TRIAL

ATTORNEYS ON APPEAL

LAWRENCE ROBERSON
LISBETH MCCARTY
5553 S. PEORIA, STE 107
OIDS
TULSA, OK 74103
1623 CROSS CENTER DRIVE
ATTORNEY FOR DEFENDANT
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

O. R. BARRIS
W. A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL
OKMULGEE COUNTY
KELLYE BATES
OKMULGEE, OK 74447
ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR STATE
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: LILE, J.

LUMPKIN, P.J.: CONCURS

JOHNSON, V.P.J.: CONCURS

CHAPEL, J.: CONCURS IN PART/DISSENTS IN PART

STRUBHAR, J.: CONCURS

CHAPEL, J., CONCURRING IN PART AND DISSENTING IN PART:
I concur in affirming the escape conviction (Count I). I would, however, modify the sentence from 200 years to 45 years. I dissent to affirming the Injury to a Public Building conviction (Count II) as it violates 21 O.S.Supp. 1999, § 11.

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Footnotes:

1. 21 O.S.Supp. 1999, § 443(A)
2. 21 O.S.Supp. 1999, § 349
3. Knighton v. State, 1996 OK CR 2, 164, 912 P.2d 878, 894.
4. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306, 309 (1932).
5. 21 O.S.Supp. 1999, § 11
6. Davis v. State, 1999 OK CR 48, 993 P.2d 124.
7. 21 O.S.Supp. 1999, § 11.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 443 (1999) - Escape from jail
• Okla. Stat. tit. 21 § 349 (1999) - Injury to a public building
• Okla. Stat. tit. 21 § 11 (1999) - Double punishment

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:

• Knighton v. State, 1996 OK CR 2, 164, 912 P.2d 878, 894
• Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306, 309 (1932)
• Davis v. State, 1999 OK CR 48, 993 P.2d 124