Donnell E. Williams v The State Of Oklahoma

F-2002-493

Filed: Mar. 4, 2003

Not for publication

Prevailing Party: Donnell E. Williams

Summary

Donnell E. Williams appealed his conviction for second-degree burglary and knowingly concealing stolen property. Conviction and sentence were modified to allow the 25-year sentences to be served concurrently instead of consecutively. Judge Lile dissented concerning the sentencing decision.

Decision

The Judgments are AFFIRMED. The Sentences are MODIFIED to be served concurrently.

Issues

• Was there a failure to instruct the jury on the defense of consent?
• Did the trial court err in not instructing the jury on illegal entry as a lesser included offense of burglary?
• Did prosecutorial misconduct deny the appellant a fair trial?
• Is Mr. Williams' sentence excessive and should it be modified?
• Did the cumulative effect of all trial errors deprive the appellant of a fair trial?

Findings

• There was no plain error in failing to instruct the jury on the defense of consent.
• There was no plain error in failing to instruct the jury on the lesser-included offense of illegal entry.
• None of the prosecutor's comments constituted plain error.
• The trial court abused its discretion in running the sentences consecutively.
• There was no cumulative error.

F-2002-493

Mar. 4, 2003

Donnell E. Williams

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Donnell E. Williams was tried by jury and convicted of Count I: Second Degree Burglary in violation of 21 O.S.2001, § 1435 and Counts II and III: Knowingly Concealing Stolen Property in violation of 21 O.S.2001, § 1713, in Okmulgee County District Court Case No. CF-2001-207. In accordance with the jury’s recommendation, the Honorable H. Michael Claver sentenced Williams to twenty-five (25) years’ imprisonment on each count. The sentences were ordered to be served consecutively. Williams appeals these convictions and sentences.

Williams raises the following propositions of error:

I. Mr. Williams’ conviction for burglary must be reversed because the trial court failed to instruct the jury on the defense of consent.

II. The trial court erred in not instructing the jury on illegal entry, a lesser included offense of burglary.

III. Prosecutorial misconduct denied appellant a fair trial.

IV. Mr. Williams’ sentence is excessive and should be modified.¹

V. The cumulative effect of all trial errors deprived appellant of a fair trial.

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 while reversal is not required, Williams’s sentences should be modified to be served concurrently.

We find in Propositions I and II that there was no plain error in failing to instruct the jury on the defense of consent or the lesser-included offense of illegal entry.² We find in Proposition III that none of the prosecutor’s comments were plain error.³ We find in Proposition IV that the trial court abused its discretion in running the sentences consecutively.⁴ We find in Proposition V that there was no cumulative error.⁵

Decision

The Judgments are AFFIRMED. The Sentences are MODIFIED to be served concurrently.

² See Roberts v. State, 29 P.3d 583 (Okl.Cr.2001). Williams did not request instructions on the defense of consent or lesser-included offense of illegal entry waiving all but plain error. There was no plain error because there was no evidence, beyond Williams’s unbelievable testimony, that he had received permission to enter the house from anyone with actual or apparent authority to allow entry.

³ Le v. State, 947 P.2d 535, 554 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998) (failing to object to prosecutorial misconduct waives all but plain error). Although some of the prosecutor’s comments were arguably improper, none affected a substantial right or went to the foundation of the case. Moreover, Williams was not prejudiced by any of the comments given the overwhelming evidence of guilt.

⁴ Riley v. State, 947 P.2d 530, 534 (Okl.Cr.1997) (trial court’s decision to run sentences consecutively or concurrently reviewed for abuse of discretion). Williams’s three convictions were for nonviolent property crimes and he was sentenced to twenty-five years imprisonment for each count. This sentence standing alone is entirely reasonable for the offenses, but running these sentences consecutively is excessive. It appears from the record that Williams was a homeless man with a substance abuse problem, living in vacant rental house to avoid the elements. Williams also sold some of the items in the house for food and possibly drugs. Considering these factors, twenty-five years in prison is adequate punishment. Any punishment, rehabilitation or treatment that Williams may need as thirty-seven (37) year old man will be accomplished in that time frame.

⁵ Humphreys v. State, 947 P.2d 565, 578 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). Sentencing relief was granted in Proposition IV. There was no other error. Without individual error there can be no accumulation of error.

ATTORNEYS AT TRIAL

ALBERT L. WHEELER
4200 PERIMETER CENTER
SUITE 245
OKLAHOMA CITY, OKLAHOMA 73112
ATTORNEY FOR THE DEFENDANT

NORMAN THYGESEN
314 WEST 7TH STREET
OKMULGEE, OKLAHOMA 74447
ATTORNEY FOR THE STATE

ATTORNEYS ON APPEAL

BILLY J. BAZE
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019
ATTORNEY FOR APPELLANT

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

OPINION BY: CHAPEL, J.

JOHNSON, P.J.: CONCUR

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

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

STRUBHAR, J.: CONCUR IN RESULTS

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

With at least six (6) prior felony convictions, it is difficult to find that the trial court abused its discretion in running these sentences consecutively. The Court’s decision today, effectively, gives Appellant a free ride on his eighth and ninth felony convictions. If 25 years really meant 25 years in prison, then I would join in the Court’s decision today. In the current reality of our criminal justice system, the trial court’s sentence was appropriate. I am authorized to state that Judge Lumpkin joins in this writing.

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Footnotes:

1. Okla. Stat. tit. 21 § 1435
2. Okla. Stat. tit. 21 § 1713
3. Roberts v. State, 29 P.3d 583 (Okl.Cr.2001)
4. Le v. State, 947 P.2d 535, 554 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)
5. Riley v. State, 947 P.2d 530, 534 (Okl.Cr.1997)
6. Humphreys U. State, 947 P.2d 565, 578 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 (2001) - Second Degree Burglary
• Okla. Stat. tit. 21 § 1713 (2001) - Knowingly Concealing Stolen Property

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, 29 P.3d 583 (Okl.Cr.2001)
• Le v. State, 947 P.2d 535, 554 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)
• Riley v. State, 947 P.2d 530, 534 (Okl.Cr.1997)
• Humphreys v. State, 947 P.2d 565, 578 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)