John Dale Holbrook v State Of Oklahoma

F-2004-433

Filed: Jul. 15, 2005

For publication

Prevailing Party: State Of Oklahoma

Summary

John Dale Holbrook appealed his conviction for Conjoint Robbery. His conviction and sentence were modified to ten years, with the first five years suspended. Judge Arlene Johnson dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT THAT the sentence imposed in Appellant's Case No. CF-2001-215, in the District Court of Okmulgee County is MODIFIED to ten (10) years, with all but the first five (5) years suspended. The judgment and sentence imposed in Case No. CF-2001-206 is AFFIRMED. The Clerk of this Court is directed to mail a copy of this opinion to the District Court of Okmulgee County, the Court Clerk of Okmulgee County, counsel of record, and Appellant. IT IS SO ORDERED.

Issues

• Was there an excessive sentencing for the Conjoint Robbery charge in Case No. CF-2001-215?
• Did the court appropriately consider the circumstances and the age of the Appellant when deciding on the sentence?
• Is the judgment and sentence for the Stolen Vehicle and Leaving the Scene of an Accident charges in Case No. CF-2001-206 affirmed?
• Did the Appellant violate the terms and conditions of his deferred sentences?
• Was the modification of the sentence for Conjoint Robbery justified under the facts and circumstances of the case?

Findings

• the sentence imposed in Appellant's Case No. CF-2001-215 is modified to ten (10) years, with all but the first five (5) years suspended.
• the judgment and sentence imposed in Case No. CF-2001-206 is affirmed.

F-2004-433

Jul. 15, 2005

John Dale Holbrook

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

On August 24, 2001, Appellant was charged with Possession of a Stolen Vehicle and Leaving the Scene of an Accident, both in Case No. CF-2001-206 in the District Court of Okmulgee County. On September 5, 2001, Appellant was charged with Conjoint Robbery in Case No. CF-2001-216, also in the District Court of Okmulgee County. On September 7, 2001, Appellant, represented by counsel, entered a no contest plea to the charges in Case No. CF-2001-206. Appellant was ordered to complete the RID (Regimented Inmate Discipline) program, whereupon sentencing would be delayed for five (5) years. He was ordered to re-appear before the District Court in January 2002 for final disposition of his case. However, Appellant was not allowed to attend the RID program because of the pending charge for Conjoint Robbery filed in Case No. CF-2001-215. On January 7, 2002, Appellant, again represented by counsel, entered a no contest plea to the Conjoint Robbery charge. At that time, Appellant was sentenced in both Case Nos. CF-2001-206 and CF-2001-215, and was given five (5) year, concurrent, deferred sentences.

On February 12, 2004, the State filed an Application to Accelerate alleging that Appellant committed the new offense of Feloniously Pointing a Firearm as charged in Case No. CF-2004-18, filed in the District Court of Okmulgee County. Appellant stipulated to the violations of the terms and conditions of his deferred sentences. Appellant’s sentencing was delayed pending his sentencing in Case No. CF-2004-18. On April 16, 2004, Appellant was sentenced to five (5) years for the Stolen Vehicle charge and one (1) year for Leaving the Scene of an Accident, in Case No. CF-2001-206. He was also sentenced to twenty (20) years in Case No. CF-2001-215 (Conjoint Robbery). The sentences were ordered to run concurrently. From this judgment and sentence, Appellant appeals.

On appeal, Appellant raised one proposition of error:

1. The sentences imposed are excessive.

We find merit in Appellant’s argument with respect to his sentence in Case No. CF-2001-215. The record contains minimal information as to the circumstances of the Conjoint Robbery charge. However, both Appellant and the State admit that Appellant, along with two (2) other defendants, robbed James Hester of a gold class ring and a diamond earring. The articles were taken from the victim by means of force and fear. There was no weapon involved, there was no physical assault and apparently no personal injury to the victim. The defendants told the victim they would do him bodily harm if he did not give up his possessions. Appellant was seventeen (17) years old at the time.

With regard to Appellant’s charge of Feloniously Pointing A Firearm (Case No. CF-2004-18, upon which the Acceleration Application was based), the Offer of Proof filed by the State alleged that Appellant was at Wal-Mart in Okmulgee where he was observed punching a female companion. The two (2) got into a car with each other and left the parking lot. The three (3) victims in this case observed Appellant’s actions and followed him and the female in order to get a license number to report the incident to the police. Some distance from Wal-Mart, Appellant stopped his vehicle, got out and pointed a firearm at the victims’ vehicle. The victims backed away and left the area. Appellant was arrested and charged with Feloniously Pointing a Firearm. Appellant received a five (5) year sentence for that offense.

Appellant does not deny that he violated the terms and conditions of his probation, nor does he argue that the sentences imposed are outside the statutory limitations for the offenses charged. Rather, his claim is that in light of Appellant’s age and the circumstances of these particular offenses, the sentences imposed are too harsh.

Title 22 O.S. § 1066 confers upon this Court this power to review the entire record to determine the appropriateness of the judgment and sentence. See, 22 O.S. § 1066; Livingston V. State, 1990 OK CR 40, IT 11, 795 P.2d. 1055. This Court has consistently held that where a sentence is within statutory limits, the sentence imposed will not be modified unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Penyman V. State, 1999 OK CR 39, II 11, 990 P.2d 900; Freeman V. State, 1994 OK CR 37, I 38, 876 P.2d 283, 291.

In this instance, we find that the sentences imposed in Appellant’s Case No. CF-2001-206 do not require modification. However, the sentence imposed in Case No. CF-2001-215, under the facts and circumstances of this particular case, seems excessive.

IT IS THEREFORE THE ORDER OF THIS COURT THAT the sentence imposed in Appellant’s Case No. CF-2001-215, in the District Court of Okmulgee County is MODIFIED to ten (10) years, with all but the first five (5) years suspended. The judgment and sentence imposed in Case No. CF-2001-206 is AFFIRMED. The Clerk of this Court is directed to mail a copy of this opinion to the District Court of Okmulgee County, the Court Clerk of Okmulgee County, counsel of record, and Appellant. IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT 15th day of July, 2005.

Click Here To Download PDF

Footnotes:

1. Okla. Stat. tit. 22 § 1066
2. Livingston v. State, 1990 OK CR 40, 795 P.2d. 1055
3. Penyman v. State, 1999 OK CR 39, 990 P.2d 900
4. Freeman v. State, 1994 OK CR 37, 876 P.2d 283, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994)

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 1066 - Power to Review Judgment and Sentence
• Okla. Stat. tit. 21 § 701.8 - Sentencing Considerations
• Okla. Stat. tit. 21 § 791 - Conjoint Robbery
• Okla. Stat. tit. 47 § 11-801(B)(1) - Leaving the Scene of an Accident
• Okla. Stat. tit. 21 § 1277 - Feloniously Pointing a Firearm

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:

• Livingston v. State, 1990 OK CR 40, I 11, 795 P.2d 1055
• Penyman v. State, 1999 OK CR 39, II 11, 990 P.2d 900
• Freeman v. State, 1994 OK CR 37, I 38, 876 P.2d 283, 291, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994)