Wendell Hamilton v The State Of Oklahoma

F 2002-1259

Filed: Nov. 7, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Wendell Hamilton appealed his conviction for robbery and drug possession. Conviction and sentence were affirmed but modified. Judge Lile dissented, stating that eleven life sentences were excessive.

Decision

The Judgments and Sentences imposed in Oklahoma County District Court, Case No. CF 2001-943, are hereby AFFIRMED, but MODIFIED to run concurrently as set forth above.

Issues

• Was there error in permitting joinder of separate cases for trial to the prejudice of Appellant Wendell Hamilton?
• Did the sentences imposed on Appellant constitute excessive and grossly disproportionate punishment in violation of the Eighth Amendment and the Oklahoma Constitution?

Findings

• The court did not err in permitting joinder of the separate cases for trial.
• The life sentences imposed were within the statutory limits, but the court found eleven consecutive life sentences excessive.
• The court modified the sentences to run concurrently.

F 2002-1259

Nov. 7, 2003

Wendell Hamilton

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, PRESIDING JUDGE: Appellant, Wendell Hamilton, was convicted by a jury in Oklahoma County District Court, Case No. CF 2001-943, of Robbery in the First Degree, after former conviction of two or more felonies (Counts 1 – 9, 12), in violation of 21 O.S.2001, § 791; Robbery with Imitation Firearm, after former conviction of two or more felonies (Count 10), in violation of 21 O.S.2001, § 801, and Possession of Drug Paraphernalia (Count 11), in violation of 63 O.S.2001, § 2- 405. Jury trial was held on September 23-25, 2002, before the Honorable Susan Caswell, District Judge. The jury set punishment at life imprisonment on Counts 1-10 and 12, and one year imprisonment on Count 11. Judge Caswell ordered Counts 1-10 and 12 to be served consecutively, and Count 11 to be served concurrently with Counts 1-10 and 12. From the Judgment and Sentence imposed, Appellant filed this appeal.

Appellant raises two propositions of error:
1. The trial court erred in permitting joinder of the separate cases for trial, to the prejudice of Appellant Wendell Hamilton, and
2. Given the circumstances of the crimes, Appellant’s sentences are excessive and grossly disproportionate, in violation of the Eighth Amendment to the United States Constitution and Art.II, § 9 of the Oklahoma Constitution.

After thorough consideration of the propositions raised, and the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we have determined Appellant’s convictions should be affirmed, but the sentences modified for the reasons set forth below.

The decision to allow joinder of offenses is within the discretion of the trial court, and we find the trial court did not abuse its discretion by allowing joinder of offenses over Appellant’s objection. Brewer v. City of Tulsa, 1991 OK CR 59, 9 13, 811 P.2d 604, 607 (decision to grant severance within discretion of trial court); Glass v. State, 1985 OK CR 65, 1 9, 701 P.2d 765, 768; Middaugh v. State, 1988 OK CR 295, I 10, 767 P.2d 432, 435; 22 O.S.2001, §§ 436, 438, 439. Proposition One therefore does not warrant relief.

The life sentences imposed by the jury for Counts 1-10 and 12 were within the statutory limits. The decision whether to run sentences concurrently or consecutively is within the discretion of the trial court. Sherrick v. State, 1986 OK CR 142, I 16, 725 P.2d 1278, 1284. However, modification is an appropriate remedy when the sentence shocks the conscience of the court. Baker v. State, 1998 OK CR 46, I 8, 966 P.2d 797, 798; 22 O.S.2001, § 1066. The trial court’s decision to run eleven life sentences consecutively resulted in an excessive sentence which shocks the conscience of the Court. Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149; Maxwell v. State, 1989 OK CR 2, CR 22, 12, 775 P.2d 818, 820. We are of the opinion that the interests of justice will be better served if the sentences are run concurrently.

DECISION

The Judgments and Sentences imposed in Oklahoma County District Court, Case No. CF 2001-943, are hereby AFFIRMED, but MODIFIED to run concurrently as set forth above.

APPEARANCES AT TRIAL

CYNTHIA TEDDER
ASST. PUBLIC DEFENDER
OKLA. COUNTY OFFICE BLDG.
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102

ATTORNEY FOR DEFENDANT

CAROLYN MERRITT
ASST. PUBLIC DEFENDER
OKLA. COUNTY OFFICE BLDG.
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102

ATTORNEY FOR APPELLANT

JAMES SIDERIAS
KATHRYN SCHMIDT
ATTORNEY GENERAL OF OKLAHOMA
ASST. DISTRICT ATTORNEYS
JENNIFER J. DICKSON
320 ROBERT S. KERR,
OKLAHOMA CITY, OK 73102

ATTORNEYS FOR THE STATE

W.A. DREW EDMONDSON
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105

OPINION BY: JOHNSON, P.J.
LILE, V.P.J.: Concurs in Part/Dissents in Part
LUMPKIN, J.: Concurs in Results
CHAPEL, J.: Concurs
STRUBHAR, J.: Concurs

LILE, VICE PRESIDING JUDGE: CONCURS IN PART/DISSENTS IN PART

Eleven life sentences shock the Court’s conscience. Eight life sentences don’t shock the Court’s conscience. I would just affirm the case.

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Footnotes:

1. Okla. Stat. tit. 21 § 791
2. Okla. Stat. tit. 21 § 801
3. Okla. Stat. tit. 63 § 2-405
4. 22 O.S.2001, §§ 436
5. 22 O.S.2001, §§ 438
6. 22 O.S.2001, §§ 439
7. Okla. Stat. tit. 22 § 1066
8. Okla. Stat. tit. 21 § 801
9. O.S. § 9

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 791 (2001) - Robbery in the First Degree
• Okla. Stat. tit. 21 § 801 (2001) - Robbery with Imitation Firearm
• Okla. Stat. tit. 63 § 2-405 (2001) - Possession of Drug Paraphernalia
• Okla. Stat. tit. 22 § 436 (2001) - Joinder of Offenses
• Okla. Stat. tit. 22 § 438 (2001) - Severance
• Okla. Stat. tit. 22 § 439 (2001) - Severance
• Okla. Stat. tit. 22 § 1066 (2001) - Modification of Sentence

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:

• Brewer v. City of Tulsa, 1991 OK CR 59, I 13, 811 P.2d 604, 607
• Glass U. State, 1985 OK CR 65, I 9, 701 P.2d 765, 768
• Middaugh v. State, 1988 OK CR 295, I 10, 767 P.2d 432, 435
• Sherrick v. State, 1986 OK CR 142, I 16, 725 P.2d 1278, 1284
• Baker v. State, 1998 OK CR 46, I 8, 966 P.2d 797, 798
• Rea U. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149
• Maxwell U. State, 1989 OK 2 CR 22, I 12, 775 P.2d 818, 820