Saul E. Mintz v The State Of Oklahoma

F-2005-1057

Filed: Jul. 1, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Saul Mintz appealed his conviction for two counts of Robbery with a Firearm. His conviction and sentence were originally for ten years' imprisonment and a $1,500 fine for Count I, and fifteen years' imprisonment and a $2,000 fine for Count II, with the sentences to be served one after the other. The court decided that Mintz's jury should have been told he would have to serve eighty-five percent of his sentence before being able to apply for parole. Because of this mistake, Mintz's sentence for Count II was changed to ten years. The court agreed with the decision but kept the conviction for Count I the same. No judges dissented with the final decision.

Decision

The Judgment and Sentence for Count I is AFFIRMED and the Judgment for Count II is AFFIRMED, but the Sentence is MODIFIED to ten years' imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in the trial court's failure to grant Mintz's request for the eighty-five (85%) jury instruction regarding parole eligibility?
• Did the Anderson v. State decision apply to Mintz's case given that his trial occurred during the pendency of that appeal?
• Is sentence modification warranted in Mintz's case based on the aforementioned jury instruction issue?

Findings

• the trial court erred by not granting Mintz's request for the eighty-five (85%) jury instruction
• the Judgment and Sentence for Count I is AFFIRMED
• the Judgment for Count II is AFFIRMED, but the Sentence is MODIFIED to ten years' imprisonment

F-2005-1057

Jul. 1, 2006

Saul E. Mintz

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Saul Mintz was tried by jury and convicted of two counts of Robbery with a Firearm in violation of 21 O.S.2001, § 801 in Tulsa County District Court Case No. CF-2005-780. In accordance with the jury’s recommendation, the honorable Clancy Smith sentenced Mintz to ten (10) years’ imprisonment and a $1,500.00 fine for Count I and fifteen (15) years’ imprisonment and a $2,000.00 fine for Count II. The trial court ordered the sentences to be served consecutively. Mintz has perfected his appeal to this Court.

Mintz raises the following proposition of error: The eighty-five (85%) jury instruction requirement of Anderson v. State, 2006 OK CR 6, P.3d , (Decided February 22, 2006), should be applied to Appellant Mintz’s case for the limited purpose of reducing the sentence imposed, where Appellant Mintz’s trial took place during the pendency of the Anderson appeal and where Appellant Mintz specifically requested the eighty-five (85%) jury instruction at 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 under the law and evidence, sentence modification is warranted. We find in Proposition I that the trial court erred by not granting Mintz’s request that his jury be instructed that he would have to serve eighty-five (85%) of his sentence before becoming eligible for parole. As a result of this error, we order the trial court to modify Mintz’s sentence for Count II to ten (10) years’ imprisonment.

Decision
The Judgment and Sentence for Count I is AFFIRMED and the Judgment for Count II is AFFIRMED, but the Sentence is MODIFIED to ten years’ imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

CORI GRAYSON
TULSA COUNTY PUBLIC DEFENDER’S OFFICE
423 SOUTH BOULDER, SUITE 300
TULSA, OKLAHOMA 74103
ATTORNEY FOR APPELLANT

GRANT FITZ
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
500 S. DENVER, ROOM 406
TULSA, OKLAHOMA 741013
ATTORNEY FOR THE STATE

ATTORNEYS ON APPEAL

STEPHEN J. GREUBEL
PAULA KECK
TULSA COUNTY PUBLIC DEFENDER’S OFFICE
423 SOUTH BOULDER, SUITE 300
TULSA, OKLAHOMA 74103

JENNIFER L. STRICKLAND
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

¹ Anderson v. State, 2006 OK CR 6, 130 P.3d 273. Mintz is entitled to relief on this issue as his appeal was pending in this Court when Anderson was decided. ² Griffin v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).

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Footnotes:

1. Anderson v. State, 2006 OK CR 6, 130 P.3d 273
2. 21 O.S.2001, §§ 12.1, 13.1
3. Griffin v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 - Robbery with a Firearm
• Okla. Stat. tit. 21 § 12.1 - Definitions
• Okla. Stat. tit. 21 § 13.1 - Attempt

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
• Griffin v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708, 716, 93 L.Ed.2d 649