Kevin Eddy Bumgarner v The State Of Oklahoma

F-2002-484

Filed: Mar. 3, 2003

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Kevin Eddy Bumgarner appealed his conviction for First-Degree Arson and Attempting to Elude a Police Officer. His conviction and sentence were set at 275 years in prison for arson and 1 year in county jail for the misdemeanor. The court looked at Bumgarner's appeal and agreed that although his actions were serious, the long sentence was excessive, especially since no one was hurt. The court modified his sentence to 45 years in prison instead. Judge Lile disagreed with the modification, believing the original lengthy sentence should stay to reflect the jury's view of Bumgarner's crime.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence is MODIFIED to forty-five (45) years imprisonment.

Issues

• Was the sentence imposed excessive under the circumstances of this case?
• Did the evidence support the conviction for First-Degree Arson and Attempting to Elude a Police Officer?
• Should the sentence be modified due to the shock-the-conscience standard?
• Was the lack of injury or loss of life a factor in determining the excessiveness of the sentence?

Findings

• The court modified Bumgarner's sentence from 275 years to 45 years imprisonment.
• The judgment of the District Court was affirmed.

F-2002-484

Mar. 3, 2003

Kevin Eddy Bumgarner

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE:

Kevin Eddy Bumgarner was tried by jury and convicted of Count I, First-Degree Arson in violation of 21 O.S.1991, § 1401; and Count II, Attempting to Elude a Police Officer (misdemeanor) in violation of 21 O.S.1991, § 540(A), after former conviction of two or more felonies, in the District Court of Muskogee County, Case No. CF-2001-4. In accordance with the jury’s recommendation the Honorable Mike Norman sentenced Bumgarner to two hundred seventy-five (275) years imprisonment (Count I), and one (1) year imprisonment in the county jail (Count II). Bumgarner appeals from these convictions and sentences.

Bumgarner raises one proposition of error in support of his appeal:
1. The sentence imposed was excessive under the circumstances of this case.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find that the law and evidence do not require reversal. However, we find that Bumgarner’s 275-year sentence should be modified. This Court will modify a sentence where, taken as a whole, the sentence shocks the Court’s conscience.

When determining whether a sentence shocks the conscience, this Court will review the entire record and look at the particular defendant and circumstances of the crime. Of Bumgarner’s three nonviolent prior offenses, the most recent was over six years old. He certainly intended to set fire to Hinds’s trailer, and the evidence suggests he knew Hinds, and probably Noe, were inside at the time. Hinds and Noe woke up and began putting the fire out, and the fire department arrived within a few minutes and extinguished the blaze. The record shows both Hinds and Noe stayed in the trailer while firefighters were still putting the fire out. Bumgarner initially tried to escape, but confessed when caught and expressed remorse to police officers.

Two hundred and seventy-five years is a heavy sentence in any case, and excessive where there was neither loss of life nor injury. Bumgarner’s 275-year sentence is excessive considering the facts and circumstances of the case. We MODIFY Bumgarner’s sentence to 45 years imprisonment.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence is MODIFIED to forty-five(45) years imprisonment.

ATTORNEYS AT TRIAL

ORVIL LOGE
DANNY G. LOHMAN
624 W. OKMULGEE
MUSKOGEE, OKLAHOMA 74401
ATTORNEY FOR DEFENDANT

DEAN BURRIS
ASSISTANT DISTRICT ATTORNEY
W.A. DREW EDMONDSON
220 STATE STREET
MUSKOGEE, OKLAHOMA 74401
ATTORNEY FOR THE STATE

ATTORNEYS ON APPEAL

NORMAN, OKLAHOMA
P.O. BOX 926
ATTORNEY FOR APPELLANT

KELLYE BATES
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA
ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, J.

JOHNSON, P.J.: CONCUR IN RESULTS

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

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

STRUBHAR, J.: CONCUR

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

The Appellant does not appeal his conviction but challenges the sentence as excessive. It is not surprising that a jury would be unhappy with Appellant when his fourth felony conviction arose out of his intentionally setting a trailer house on fire while the occupants slept. The 275 year sentence is merely the jury’s assessment of this particular defendant and the circumstances of this crime. Since any sentence in excess of 45 years is treated by the Department of Corrections as a 45 year sentence, there seems to be no practical reason to modify the sentence in this case. Leaving the sentence intact assures that future parole consideration will have the benefit of the jury’s assessment. I am authorized to state that Judge Lumpkin joins in this special vote.

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Footnotes:

1. 21 O.S.1991, § 1401
2. 21 O.S.1991, § 540(A)
3. See, e.g., Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149
4. Kamees U. State, 1991 OK CR, 815 P.2d 1204
5. Livingston v. State, 1990 OK CR 40, 795 P.2d 1055, 1058
6. Schultz v. State, 1986 OK CR 34, 715 P.2d 485, 488
7. Graham U. State, 1976 OK CR 96, 549 P.2d 360, 361-62

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1401 (1991) - First-Degree Arson
• Okla. Stat. tit. 21 § 540 (1991) - Attempting to Elude a Police Officer

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:

• Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149
• Kamees v. State, 1991 OK CR 1, 815 P.2d 1204
• Livingston v. State, 1990 OK CR 40, 795 P.2d 1055, 1058, cert. denied, 498 U.S. 1031, 111 S.Ct. 688, 112 L.Ed.2d 679 (1991)
• Schultz v. State, 1986 OK CR 34, 715 P.2d 485, 488
• Graham v. State, 1976 OK CR 96, 549 P.2d 360, 361-62