Alfred Junior Mills v The State Of Oklahoma

F-2004-935

Filed: Aug. 27, 2007

Not for publication

Prevailing Party: Alfred Junior Mills

Summary

Alfred Junior Mills appealed his conviction for burglary. The court modified his sentence from thirty years to twenty years. Judge Charles A. Johnson dissented.

Decision

Under these circumstances and pursuant to this record, we see no possibility that jurors would have chosen to acquit Appellant of the greater offense of burglary and then convict Appellant of a lesser included misdemeanor. Appellant's cited authority does not change our decision regarding this issue. It is SO ORDERED.

Issues

• Was there an oversight regarding the application of the 85% sentencing statute during the trial?
• Did the jury have sufficient information to make an informed decision on the sentencing related to the appellant's potential parole eligibility?
• Did the trial court err in its treatment of the lesser included offense of illegal entry in light of the jury's rejection of the appellant's defense theory?
• Was the modification of the appellant's sentence appropriate in accordance with the decision in Anderson U. State?

Findings

• the Court erred by not applying the Anderson decision to modify the sentence
• evidence was not sufficient to support a conviction for the lesser included offense of illegal entry

F-2004-935

Aug. 27, 2007

Alfred Junior Mills

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Alfred Junior Mills, through counsel, filed a Petition for Rehearing in the above-styled appeal, claiming this Court’s Summary Opinion of April 6, 2007 overlooked the 85% issue, as the case was pending on appeal when *Anderson v. State,* 2006 OK CR 6, 130 P.3d 273 was decided. Appellant further claims our decision regarding the lesser included offense of illegal entry was in conflict with existing case law to which the Court’s attention was not called in the briefs.

As to the first issue, it must be noted Proposition VIII was a claim based solely on an excessive sentence argument. As a tangential part of that argument, the Appellant mentions that during trial the jury had a question about the percentage of time the Appellant would serve and the trial judge refused a request to instruct on the 85% statute addressed in *Anderson.* A petition for rehearing is governed by Rule 3.14, Rules of the Court of Criminal Appeals, 22 O.S.Supp.2003, Ch.18, App. Pursuant thereto, we find the Petition for Rehearing should be GRANTED based on the decision of a majority of the Court to apply *Anderson* to this type of case.

The Court has the power to review the cases pending on appeal when *Anderson* was decided to determine if sentence modification is appropriate. Here, we cannot say jurors would have sentenced Appellant to thirty years had they known Appellant would serve at least 85% of the sentence they gave. We thus MODIFY Appellant’s sentence to twenty (20), rather than thirty (30) years.

Regarding the second issue, the record indicates jurors were fully informed of Appellant’s theory of defense, but rejected it. At sentencing, they gave Appellant ten additional years than the statutory minimum, indicating an emphatic rejection of his story, which was rather farfetched. Under these circumstances and pursuant to this record, we see no possibility that jurors would have chosen to acquit Appellant of the greater offense of burglary and then convict Appellant of a lesser included misdemeanor. Appellant’s cited authority does not change our decision regarding this issue.

It is SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 27 day of August, 2007.

GARY L. LUMPKIN, Presiding Judge
CHARLES A. JOHNSON, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
ARLENE JOHNSON, Judge
DAVID B. LEWIS, Judge

ATTEST: Clerk

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Footnotes:

1. Anderson U. State, 2006 OK CR 6, 130 P.3d 273
2. Rule 3.14, Rules of the Court of Criminal Appeals, 22 O.S.Supp.2003, Ch.18, App.
3. Okla. Stat. tit. 21 § 1431

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Sentences for felony offenses
• Okla. Stat. tit. 22 § 900 - Rules for Court of Criminal Appeals
• Okla. Stat. tit. 22 § 18 - Rehearing procedures

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:

• Anderson v. State, 2006 OK CR 6, 130 P.3d 273