Robert Leroy Martin v State Of Oklahoma

F-2001-655

Filed: Jun. 6, 2002

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Robert Leroy Martin appealed his conviction for First Degree Rape, Robbery with a Dangerous Weapon, and First Degree Burglary. Conviction and sentence were modified to run concurrently instead of consecutively. Judge Lumpkin dissented.

Decision

The Judgment of the trial court is AFFIRMED. The sentences imposed are hereby MODIFIED to run concurrently.

Issues

• Was there an improper modification of the uniform jury instruction on burglary in the first degree that directed a verdict of guilt by negating Mr. Martin's theory of defense?
• Did the jurors receive adequate instruction on the range of punishment for each offense, and was this claim waived due to lack of objection?
• Are Mr. Martin's sentences excessive and should they be modified on appeal?

Findings

• no plain error in jury instruction on burglary
• claim regarding jury instruction on sentencing range is waived
• sentences modified to run concurrently

F-2001-655

Jun. 6, 2002

Robert Leroy Martin

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Robert Leroy Martin, Appellant, was tried by jury in the District Court of Delaware County, Case Nos. CF-2000-455, 456, and 457, and convicted of First Degree Rape, Robbery with a Dangerous Weapon and First Degree Burglary. In accordance with the jury’s recommendation, District Judge Robert G. Haney sentenced Appellant to life imprisonment for rape, fifty years imprisonment for robbery and twenty years imprisonment for burglary. The trial court ordered the sentences to be served consecutively. From this judgment and sentence, he appeals.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm the Judgment, but modify the sentence imposed for the reasons discussed below. The following propositions of error were considered:

I. The trial court’s improper modification of the uniform jury instruction on burglary in the first degree effectively directed a verdict of guilt by negating Mr. Martin’s theory of defense;

II. Mr. Martin’s sentences should be modified, or the case remanded for re-sentencing, because the jurors were not fully instructed on the range of punishment for each offense; and

III. Mr. Martin’s sentences are excessive and should be modified on appeal.

As to Proposition I, we find this case is distinguishable from Roberts v. State, 2001 OK CR 14, I 17, 29 P.3d 583, 589, in which this Court found a similar burglary instruction constituted plain error because it negated Roberts’ defense theory that there was no breaking since the owner/occupant consented to his opening of the door and entry. Here, Appellant claimed the door was opened for him. He told police he knocked on the victim’s door to ask for a drink of water and the victim invited him in. Unlike in Roberts, Appellant did not claim he opened the door and entered the victim’s home with the consent of the owner. Rather, he claimed there was no breaking because the victim opened the door and invited him in. According to Appellant he did not use any force to remove a barrier to entry. This distinction is decisive. If the jury believed him, the element of breaking would not be proved, not because he opened the door with the consent of the owner, but because he never committed a breaking. As such, the addition of the seventh element [by opening a door] in this case did not negate Appellant’s theory of defense and was harmless error. The question was whether there was a breaking or whether the victim let Appellant in. The jury was properly instructed on the definition of breaking. Accordingly, we find no plain error.

As to Proposition II, we find the claim is waived by Appellant’s failure to object to the trial court’s instructions or request an instruction on the mandatory sentencing provision in 21 O.S.Supp.1999, § 13.1. Douglas v. State, 951 P.2d 651, 668 (Okl.Cr.1997), cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998).

As to Proposition III, we find under the specific facts of this case that the consecutive sentences imposed on three crimes that fall within the mandatory sentence provision in 21 O.S.Supp.1999, 13.1 shocks our conscience. Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001). Accordingly, we find the sentences should be modified to run concurrently.

DECISION

The Judgment of the trial court is AFFIRMED. The sentences imposed are hereby MODIFIED to run concurrently.

APPEARANCES AT TRIAL

KENNETH E. WRIGHT, III
ATTORNEY AT LAW
P.O.BOX 960
JAY, OK 74346

KATHY BAKER
ASST. DISTRICT ATTORNEY
P. O. BOX 528
JAY, OK 74346

APPEARANCES ON APPEAL

S. GAIL GUNNING
OKLAHOMA INDIGENT DEFENSE SYSTEM
1623 CROSS CENTER DR.
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

WENDIE M. COOPER
ASSISTANT ATTORNEY GENERAL
2300 N.LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73105
ATTORNEY FOR THE STATE

OPINION BY: STRUBHAR, J.

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

JOHNSON, V.P.J.: CONCUR

CHAPEL, J.: CONCUR IN RESULT

LILE, J.: CONCUR IN RESULT

RA LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the Court’s decision to affirm the convictions in this case. However, I must dissent to the modification of the sentences to run concurrently. The trial judge heard all the evidence, had the benefit of observing the Appellant, and found no basis to go against the statutory mandate which requires, by operation of law, the sentences to be served consecutively. I find no abuse of discretion on the part of the judge.

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Footnotes:

1. 21 O.S.Supp.1999, § 13.1.
2. Douglas v. State, 951 P.2d 651, 668 (Okl.Cr.1997), cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998).
3. 21 O.S.Supp.1999, § 13.1.
4. Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001).
5. Roberts v. State, 2001 OK CR 14, I 17, 29 P.3d 583, 589.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentence for certain crimes
• Okla. Stat. tit. 21 § 13.1 (2010) - Mandatory sentencing provision

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:

• Roberts v. State, 2001 OK CR 14, I 17, 29 P.3d 583, 589
• Douglas v. State, 951 P.2d 651, 668 (Okl.Cr.1997), cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998)
• Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001)