Rollie Mack Francis v The State Of Oklahoma

F-2005-1176

Filed: Aug. 28, 2006

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Rollie Mack Francis appealed his conviction for multiple crimes, including running from the police and assault. His conviction and sentence included a total of thirty years in prison plus life imprisonment. Judge C. Johnson dissented on some of the issues raised. In this case, Francis was found guilty of many serious offenses, leading to significant imprisonment time. He argued that the trial was unfair because a juror was removed and claimed the punishments were too harsh. The court agreed there was a mistake regarding one punishment and modified it to a fine instead of additional jail time, but they denied his other arguments about unfairness and excessive punishment. Ultimately, they confirmed most of his sentences but made some changes to correct paperwork errors.

Decision

The Judgment and Sentence of the District Court of Okmulgee County is MODIFED to a fine of $500.00 in Count 8, and otherwise AFFIRMED. This case is REMANDED to the District Court with the directions to enter a new Judgment and Sentence nunc pro tunc: Correcting the typographical error concerning Counts 1, 2, 6, 7, and 8 on page 2 of the December 16, 2005, Amended Judgment and Sentence and thereby conforming the Judgment and Sentence to the terms pronounced in open court and reflected in the November 16, 2005, court minute; Deleting the terms "Supervised probation for two (2) years" on page 2 of the December 16, 2005, Amended Judgment and Sentence; Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of Appellant's right to an impartial jury due to the use of a peremptory challenge against a minority venireman without a race-neutral reason?
• Did the trial court err in its instruction regarding the punishment for Count 8, necessitating a modification of the sentence?
• Did the trial court err by not including the punishment option of a fine in the jury instructions for Counts 1 and 2?
• Is the punishment of life imprisonment excessive under the circumstances of this case?

Findings

• The court did not err in allowing the State to use a peremptory challenge to excuse a minority venireman.
• The punishment for Count 8 was modified to a $500.00 fine.
• The trial court did not err by failing to include the punishment option of a fine only in Counts 1 and 2.
• The sentences were not excessive and were within the authorized statutory range.

F-2005-1176

Aug. 28, 2006

Rollie Mack Francis

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE:

Rollie Mack Francis, Appellant, was tried by jury in the District Court of Okmulgee County, Case No. CF-2005-3, and found guilty of the following crimes: Count 1, eluding or attempting to elude a police officer, 21 O.S.2001, § 540A (A); Count 2, running a roadblock, 21 O.S.2001, § 540B; Counts 3, 4, and 5, assault and battery with a dangerous weapon, 21 O.S.2001, § 645; Count 6, possession of a controlled substance (methamphetamine), 63 O.S.Supp.2004, § 2-402; Count 7, driving under the influence of alcohol or drugs, 47 O.S.Supp.2004, § 11-902 (A)(4); Count 8; driving while license is canceled, suspended, or revoked, 47 O.S.Supp.2004, § 6-303;

The jury found Appellant guilty after one (1) prior felony conviction and sentenced Appellant as follows: Count 1, ten (10) years imprisonment; Count 2, ten (10) years imprisonment; Count 3, fifty (50) years imprisonment; Count 4, life imprisonment; Count 5, life imprisonment; Count 6, thirty (30) years imprisonment; Count 7, one (1) year imprisonment and a fine of $500.00; Count 8, one (1) year imprisonment and a fine of $500.00.

The Honorable John Maley, District Judge, imposed judgment and sentence as follows: Counts 1, 2, 6, 7, 8, to run concurrently; Counts 3, 4, and 5 concurrent with each other and consecutive to Counts 1, 2, 6, 7, and 8, effectively sentencing Appellant to thirty (30) years imprisonment, with a consecutive term of life imprisonment.

Mr. Francis appeals in the following propositions of error:

1. By Allowing The State To Use A Peremptory Challenge To Excuse A Minority Venireman Without First Establishing A Race-Neutral Reason, The Trial Court Denied Appellant An Impartial Jury Composed Of A Cross-Section Of His Community In Violation Of The Fifth, Sixth, And Fourteenth Amendments To The United States Constitution And Article II Sections 7 And 20 Of The Oklahoma Constitution.

2. Because The Jury Was Misinstructed On The Punishment For Count 8, The Court Must Modify The Sentence.

3. The Trial Court Erred By Denying Defense Counsel’s Objection To Jury Instruction Nos. 23 And 24, Which Failed To Completely Inform The Jury Of The Punishment Options.

4. Under All The Facts And Circumstances Of This Case, Punishment Of Life Imprisonment Is So Excessive That This Court’s Conscience Should Be Shocked.

In Proposition 1, Appellant concedes the prosecutor’s reasons for excusing the prospective juror were race-neutral, but questions the District Court’s ultimate determination that no purposeful discrimination occurred. We accord this finding great deference on appeal. Appellant has shown no reason to reverse the finding of the District Court. This proposition is denied. Guy U. State, 1989 OK CR 35, 91 24-26, 778 P.2d 470, 476.

Proposition 2 asserts fundamental error in the District Court’s instruction on the range of punishment for Count 8. The State confesses the error. Punishment in Count 8 is modified to a $500.00 fine. 47 O.S.Supp.2004, § 6-303 (B).

In Proposition 3, Appellant argues the District Court erred when it failed to include the punishment option of a fine only in Count 1 (eluding an officer) and Count 2 (running a roadblock). Appellant was found guilty of these offenses after one (1) prior felony conviction and sentenced under the proper enhancement statute, 21 O.S.Supp.2001, § 51.1 (A)(3). The statute provides for a term of imprisonment not exceeding ten (10) years. It does not provide for the imposition of a fine. This proposition is denied. Cf. Mitchell U. State, 1987 OK CR 13, I 2, 733 P.2d 412, 416 (Opinion on Rehearing); Gaines v. State, 1977 OK CR 259, I 17, 568 P.2d 1290, 1294.

Appellant argues in Proposition 4 that his sentences are excessive. The sentences are severe, but within the authorized statutory range. The jury saw and heard Appellant’s crimes, Appellant’s explanation of the offenses, and his expressions of remorse. We cannot say the verdicts are without reason considering Appellant’s prior history, the gravity of his conduct, and the threat it represented to innocent life and officers in the line of duty. This proposition is denied. Rea v. State, 2001 OK CR 28, 34 P.3d 148.

We modify the sentence in Count 8 to a fine of $500.00 and remand this matter to the District Court with directions to enter a Judgment and Sentence nunc pro tunc conforming the Judgment and Sentence to the terms reflected in the November 16, 2005 court minute, and striking the reference to a term of supervised probation.

DECISION

The Judgment and Sentence of the District Court of Okmulgee County is MODIFIED to a fine of $500.00 in Count 8, and otherwise AFFIRMED. This case is REMANDED to the District Court with the directions to enter a new Judgment and Sentence nunc pro tunc: Correcting the typographical error concerning Counts 1, 2, 6, 7, and 8 on page 2 of the December 16, 2005, Amended Judgment and Sentence and thereby conforming the Judgment and Sentence to the terms pronounced in open court and reflected in the November 16, 2005, court minute; Deleting the terms Supervised probation for two (2) years on page 2 of the December 16, 2005, Amended Judgment and Sentence; Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Guy U. State, 1989 OK CR 35, 91 24-26, 778 P.2d 470, 476.
2. 47 O.S.Supp.2004, § 6-303 (B).
3. 21 O.S.Supp.2001, § 51.1 (A)(3).
4. Mitchell U. State, 1987 OK CR 13, I 2, 733 P.2d 412, 416 (Opinion on Rehearing).
5. Gaines v. State, 1977 OK CR 259, I 17, 568 P.2d 1290, 1294.
6. Rea v. State, 2001 OK CR 28, 34 P.3d 148.
7. Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 540A (2001) - Eluding or attempting to elude a police officer
• Okla. Stat. tit. 21 § 540B (2001) - Running a roadblock
• Okla. Stat. tit. 21 § 645 (2001) - Assault and battery with a dangerous weapon
• Okla. Stat. tit. 63 § 2-402 (Supp. 2004) - Possession of a controlled substance
• Okla. Stat. tit. 47 § 11-902 (Supp. 2004) - Driving under the influence of alcohol or drugs
• Okla. Stat. tit. 47 § 6-303 (Supp. 2004) - Driving while license is canceled, suspended, or revoked
• Okla. Stat. tit. 21 § 51.1 (Supp. 2001) - Enhancement statute for prior felony conviction
• Okla. Stat. tit. 47 § 6-303 (B) (Supp. 2004) - Punishment modification procedure

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:

• Guy U. State, 1989 OK CR 35, I 24-26, 778 P.2d 470, 476.
• Mitchell U. State, 1987 OK CR 13, I 2, 733 P.2d 412, 416 (Opinion on Rehearing).
• Gaines v. State, 1977 OK CR 259, I 17, 568 P.2d 1290, 1294.
• Rea v. State, 2001 OK CR 28, 34 P.3d 148.