James Ricky Ezell, III v State Of Oklahoma

F-2001-637

Filed: Jun. 13, 2002

Not for publication

Prevailing Party: State Of Oklahoma

Summary

James Ricky Ezell, III, appealed his conviction for First Degree Robbery and False Impersonation among other charges. His conviction and sentence included a total of over 100 years. Judge Lumpkin dissented, saying the trial court acted correctly in not allowing concurrent sentences due to Ezell's past crimes.

Decision

The Judgment of the trial court is AFFIRMED and the case is REMANDED for RESENTENCING.

Issues

• Was there a denial of Appellant's right to a fair trial due to the prosecutor's exclusion of an African-American juror using a peremptory challenge?
• Did the trial court abuse its discretion by having a sentencing policy that prevented consideration of concurrent sentences?
• Is Appellant's sentence excessive and should it be modified?

Findings

• There was no violation of Batson v. Kentucky regarding the exclusion of an African-American juror.
• The trial court abused its discretion by having a fixed policy that precluded consideration of concurrent sentencing options.
• The issue of excessive sentencing need not be addressed due to remand for resentencing.

F-2001-637

Jun. 13, 2002

James Ricky Ezell, III

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Appellant, James Ricky Ezell, III, was convicted by a jury of First Degree Robbery (Counts I and II) and False Impersonation (Count III), each after Two or More Felony Convictions, and Eluding a Police Officer (Count IV), in the District Court of Tulsa County, Case No. CF-2000-2768. The case was tried before the Honorable Linda G. Morrissey. The jury assessed punishment at forty-five years on Count I, sixty years on Count II, twenty years on Count III and one year on Count IV. The trial court sentenced Appellant accordingly, ordering the sentences to run consecutively.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Appellant’s judgment and remand for resentencing.

In reaching our decision, we considered the following propositions of error and determined this result to be required under the law and the evidence:

I. Appellant’s right to a fair trial before his peers was denied because of the prosecutor’s use of peremptory challenge to exclude an African-American from the jury.

II. The trial court’s sentencing policy was an abuse of discretion because it punished Appellant for exercising his right to jury trial by refusing consideration of a concurrent sentence.

III. Appellant’s sentence is excessive and should be modified.

As to Appellant’s first proposition, we find that the prosecutor gave a race-neutral explanation for his use of a peremptory challenge to dismiss the African-American juror. There was no violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

With regard to Proposition II, we find that the record indicates the trial judge declined to consider all possible sentencing options based upon a policy of running sentences consecutively. This can be deemed an abuse of discretion as it is incumbent upon the trial court to consider all sentencing options available. See Allen v. City of Oklahoma City, 965 P.2d 387, 389 (Okl.Cr.1998). Accordingly, this Court remands this case to the district court for resentencing, not because the trial court failed to run Appellant’s sentences concurrently, but rather because the court’s policy precluded it from considering this sentencing option. Id. See also Riley v. State, 947 P.2d 530 (Okl.Cr.1997). Finally, Proposition III need not be addressed as relief is granted in Proposition II.

DECISION

The Judgment of the trial court is AFFIRMED and the case is REMANDED for RESENTENCING.

APPEARANCES AT TRIAL

ALLEN AUTREY
P.O. BOX 570993
OKLAHOMA INDIGENT DEFENSE SYSTEM
TULSA, OKLAHOMA 74157
ATTORNEY FOR APPELLANT

BILL MUSSEMAN
1623 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019
ATTORNEY FOR APPELLANT

DANNY G. LOHMANN
500 SOUTH DENVER
TULSA, OKLAHOMA 74103
ATTORNEY FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KEELEY L. HARRIS
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR
LILE, J.: CONCUR

LUMPKIN, P.J.: CONCUR IN PART, DISSENT IN PART

I agree it is error for a trial judge to have a fixed policy that prevents him or her from looking at all sentencing options, including the option of whether or not to run sentences concurrently. No judge should decide as a matter of course that a defendant’s sentences will run consecutively simply because he or she exercised their Constitutional right to a jury trial.

The record here, however, is not exactly clear on what the trial judge meant by my policy. We have only one brief statement from the judge, consisting of a few words, without explanation. The Summary Opinion has placed one possible meaning on those words, but other interpretations are also supported by the record. The judge may simply have a policy of running sentences consecutively when a defendant has prior gun-related felony convictions and the record shows nothing other than a continuing or escalating course of violent crime.

I presume here, as I believe I should, that the judge acted in compliance with the law. Be that as it may, I find that any possible error committed by the trial judge here was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Appellant had four previous felony convictions involving the use of guns. The jury found him guilty of robbing a convenience store by using a gun that was pointed at an innocent store clerk’s head. The clerk was personally robbed, threatened, bound with tape, and locked in a bathroom. When police arrived, a high-speed car chase occurred through the streets of Tulsa, followed by a chase on foot through private neighborhoods. When finally apprehended, Appellant gave a false name.

I find nothing in the record to remotely suggest concurrent sentences were warranted. 22 O.S.Supp. 1999, § 976. Sentences run consecutively by operation of law. The act of running sentences concurrently is an act of grace by the trial judge when facts relating to a particular defendant justify it. The record in Appellant’s case reflects no basis in law or fact to grant him an act of grace to order the sentences to be served concurrently. I dissent to the remand for resentencing in this case.

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Footnotes:

1. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
2. Allen v. City of Oklahoma City, 965 P.2d 387, 389 (Okl.Cr.1998).
3. Riley v. State, 947 P.2d 530 (Okl.Cr.1997).
4. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
5. 22 O.S.Supp. 1999, § 976.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing
• Okla. Stat. tit. 22 § 976 (1999) - Sentences

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 42 U.S.C. § 1981 - Equal Rights Under the Law
• 42 U.S.C. § 1983 - Civil Action for Deprivation of Rights
• 42 U.S.C. § 2000d - Prohibition Against Exclusion from Participation in, Denial of Benefits of, and Discrimination Under Federal Programs on Ground of Race, Color, or National Origin
• 18 U.S.C. § 241 - Conspiracy Against Rights
• 18 U.S.C. § 245 - Federally Protected Activities

Other citations:

No other rule citations found.

Case citations:

• Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
• Allen v. City of Oklahoma City, 965 P.2d 387, 389 (Okl.Cr.1998)
• Riley v. State, 947 P.2d 530 (Okl.Cr.1997)
• Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)