Robert Mark Stephens v State Of Oklahoma

F-2002-201

Filed: Mar. 5, 2003

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Robert Mark Stephens appealed his conviction for First Degree Robbery and Attempted Kidnapping. Conviction and sentence were affirmed, but the sentences were modified to run concurrently. Judge Lumpkin dissented from part of the opinion, wanting the case remanded for resentencing to allow evidence of mental illness.

Decision

The Judgment and Sentences imposed in Tulsa County District Court Case No. CF-2000-3194 are hereby AFFIRMED and MODIFIED to run concurrently each with the other.

Issues

• Was Appellant's right of due process of law violated by the trial court's failure to order a professional examination to determine whether he was competent to stand trial?
• Did the trial court abuse its discretion by denying Appellant the defense of mental illness?
• Was Appellant denied a fair trial when the trial court refused to instruct the jury on the issue of his mental capacity, as relevant to the issue of intent?
• Did Appellant receive ineffective assistance of counsel, thus depriving him of effectively presenting his defense of mental instability?
• Was the trial court's sentencing policy an abuse of discretion because it punished Appellant for exercising his right to a jury trial by refusing consideration of a concurrent sentence?

Findings

• The trial court did not err in denying Appellant's request for a competency evaluation.
• The trial court did not err in denying Appellant the defense of mental illness.
• The trial court did not deny Appellant a fair trial by refusing to instruct the jury on mental capacity.
• Appellant has failed to establish that he received ineffective assistance of counsel.
• The trial court abused its discretion in sentencing by not considering all possible sentencing options.

F-2002-201

Mar. 5, 2003

Robert Mark Stephens

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Robert Mark Stephens, Appellant, was tried by jury and convicted of Count I – First Degree Robbery and Count II – Attempted Kidnapping, in the District Court of Tulsa County, Case No. CF-2000-3194. In accordance with the jury’s verdict, District Judge Linda G. Morrissey, who presided at trial, sentenced Appellant to fifteen (15) years imprisonment on Count I and one-year imprisonment on Count II. Judge Morrissey ordered the sentences to run consecutively. From this judgment and sentence, he appeals.

The following propositions of error were raised for review:

I. Appellant’s right of due process of law was violated by the trial court’s failure to order a professional examination to determine whether Appellant was competent to stand trial;

II. The trial court abused its discretion by denying Mr. Stephens the defense of mental illness;

III. Appellant was denied a fair trial when the trial court refused to instruct the jury on the issue of Appellant’s mental capacity, as relevant to the issue of intent;

IV. Mr. Stephens received ineffective assistance of counsel, thus depriving him of effectively presenting his defense of mental instability; and

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

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 convictions, but modify his sentences to run concurrently.

As to Propositions I and II, we find the trial court did not abuse its discretion in denying Appellant’s request for a competency evaluation or for an expert to investigate his mental illness at the time of the crime as Appellant failed to present facts sufficient to raise a doubt in the court’s mind concerning Appellant’s competency to stand trial and his sanity at the time of the crime. See 22 O.S.2001, §§ 1175.3 & 1176 (A); Cargle U. State, 909 P.2d 806, 816 (Okl.Cr.1995) cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996).

As to Proposition III, we find the trial court did not deny Appellant a fair trial by refusing to allow evidence and give instructions on his defense of mental illness/capacity or by prohibiting the defense from presenting Appellant’s mental capacity as mitigation. See Malone v. State, 58 P.3d 208, 210 (Okl.Cr.2002)(holding there is no provision for the presentation of mitigating evidence in a non-capital jury trial.); Frederick v. State, 37 P.3d 908, 931 (Okl.Cr.2001)(stating Oklahoma law does not provide for a diminished capacity defense except for the insanity defense and the intoxication defense).

As to Proposition IV, we find Appellant has failed to meet his burden and establish that defense counsel was ineffective. Matthews v. State, 45 P.3d 907, 918 (Okl.Cr.), cert. denied, U.S. , 123 S.Ct. 665, L.Ed.2d (2002).

As to his final proposition, 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 constitutes an abuse of discretion as it is incumbent upon a trial court to consider all sentencing options available. See Allen U. City of Oklahoma City, 965 P.2d 387, 389 (Okl.Cr.1998); Riley v. State, 947 P.2d 530, 534-535 (Okl.Cr.1997). Accordingly, under the facts presented here, we hereby MODIFY the sentences in Counts 1 and 2 to run concurrently. 22 O.S.2001, § 1066.

DECISION

The Judgment and Sentences imposed in Tulsa County District Court Case No. CF-2000-3194 are hereby AFFIRMED and MODIFIED to run concurrently each with the other.

APPEARANCES AT TRIAL

RICHARD COUCH
ATTORNEY AT LAW
P.O. BOX 2647
BROKEN ARROW, OK 74013
ATTORNEY FOR APPELLANT

BILL MUSSEMAN
ASSISTANT DISTRICT ATTORNEY
406 TULSA COUNTY COURTHOUSE
TULSA, OK 74103

APPEARANCES ON APPEAL

DANNY G. LOHMANN
OKLAHOMA INDIGENT DEFENSE SYSTEM
1623 CROSS CENTER DR.
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

KEELEY L. HARRIS
ASSISTANT ATTORNEY GENERAL
2300 N.LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.

JOHNSON, P.J.: CONCUR

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

LUMPKIN, J.: CONCUR IN RESULT

CHAPEL, J.: CONCUR IN PART/DISSENT IN PART

RA CHAPEL, JUDGE, CONCURS IN PART/DISSENTS IN PART: I concur in affirming the convictions in this case. I would, however, remand the matter for resentencing with instructions to allow Appellant to present evidence of mental illness as mitigation.

Click Here To Download PDF

Footnotes:

1. 22 O.S.2001, §§ 1175.3 & 1176 (A); Cargle U. State, 909 P.2d 806, 816 (Okl.Cr.1995) cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996).
2. Malone v. State, 58 P.3d 208, 210 (Okl.Cr.2002)(holding there is no provision for the presentation of mitigating evidence in a non-capital jury trial.); Frederick v. State, 37 P.3d 908, 931 (Okl.Cr.2001)(stating Oklahoma law does not provide for a diminished capacity defense except for the insanity defense and the intoxication defense).
3. Matthews v. State, 45 P.3d 907, 918 (Okl.Cr.), cert. denied, U.S. , 123 S.Ct. 665, L.Ed.2d (2002).
4. Allen U. City of Oklahoma City, 965 P.2d 387, 389 (Okl.Cr.1998); Riley v. State, 947 P.2d 530, 534-535 (Okl.Cr.1997).
5. 22 O.S.2001, § 1066.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 1175.3 (2001) - Competency evaluation
• Okla. Stat. tit. 22 § 1176 (2001) - Competency to stand trial
• Okla. Stat. tit. 22 § 1066 (2001) - Sentencing options

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:

• Cargle v. State, 909 P.2d 806, 816 (Okl.Cr.1995)
• Malone v. State, 58 P.3d 208, 210 (Okl.Cr.2002)
• Frederick v. State, 37 P.3d 908, 931 (Okl.Cr.2001)
• Matthews v. State, 45 P.3d 907, 918 (Okl.Cr.2002)
• Allen v. City of Oklahoma City, 965 P.2d 387, 389 (Okl.Cr.1998)
• Riley v. State, 947 P.2d 530, 534-535 (Okl.Cr.1997)