Lawrence Lugineus Mayes v The State Of Oklahoma

F-2005-737

Filed: Sep. 26, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Lawrence Lugineus Mayes appealed his conviction for robbery with firearms. His conviction and sentence was modified to 35 years imprisonment. Judge Tammy Bass-Jones originally sentenced him to 45 years, but the Court of Criminal Appeals decided that the jury wasn't given enough information about how long Mr. Mayes would actually serve. Judge Lewis wrote the opinion, and the other judges all agreed with the result.

Decision

The Judgment and Sentence of the District Court of Oklahoma County is MODIFIED to thirty-five (35) years imprisonment, and otherwise AFFIRMED. 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 requirement for the trial court to inform the jury that robbery with firearms is an 85% crime under Okla. Stat. 21 § 13.1, violating Mr. Mayes' right to due process?
• Did a forty-five year sentence constitute excessive punishment under the Federal and State Constitutions in this case?

Findings

• the trial court erred by not informing the jury about parole eligibility, resulting in a modification of the sentence to thirty-five years imprisonment
• the forty-five year sentence was excessive and modified to thirty-five years

F-2005-737

Sep. 26, 2006

Lawrence Lugineus Mayes

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LEWIS, JUDGE:

Lawrence Lugineus Mayes, Appellant, was tried by jury and found guilty of robbery with firearms, in violation of 21 O.S.2001, § 801, after former conviction of five (5) felonies, in the District Court of Oklahoma County, Case No. CF-2003-3169. The jury sentenced Appellant to forty-five (45) years imprisonment. The Honorable Tammy Bass-Jones, District Judge, imposed judgment and sentence accordingly.

Mr. Mayes raises the following assignments of error on appeal:
1. The Trial Court Should Have Informed The Jury, After A Question Arose During The Second Stage Deliberations, That Robbery With Firearms Is An 85% Crime Under Okla. Stat. 21 § 13.1, Violating Mr. Mayes Right To Due Process Under The Federal And State Constitutions.
2. Under The Circumstances Of This Case A Forty-Five Year Sentence Is Excessive Under The Federal And State Constitutions.

In Anderson v. State, 2006 OK CR 6, 130 P.3d 273, this Court concluded that the 85% Rule, 21 O.S.Supp.2002, § 13.1, is a specific and readily understood concept of which the jury should be informed when sentencing defendants for qualifying offenses. Id. at ¶ 25, 130 P.3d at 283. Anderson was decided after Appellant’s trial. Although Anderson stated that the failure to give such an instruction was not grounds for reversal in trials conducted before the opinion, id. at ¶ 25, 130 P.3d at 283, this Court has applied Anderson in cases pending on direct review at the time Anderson was decided to determine whether relief in the form of modification or re-sentencing was warranted. See Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987) (finding that failure to apply a new rule of criminal procedure to cases pending on direct review when the rule is announced violates a basic norm of adjudication; the nature of judicial review precludes us from fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new [procedural] standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule), quoting United States v. Johnson, 457 U.S. 537, 546-547, 555, 102 S.Ct. 2579, 2585, 2590, 73 L.Ed.2d 202 (1982). We do not automatically reverse a case for instructional error under Anderson, but rather determine whether the error resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. 20 O.S.2001, § 3001.1; Ashinsky v. State, 1989 OK CR 59, ¶ 20, 780 P.2d 201, 207.

During its sentencing deliberations, the jury asked the District Court, With a 20 year sentence, how many years must be served before being eligible for parole? The District Court answered: That is not an issue for you to consider. This Court was particularly concerned in Anderson that jurors are likely to assume that defendants would become parole eligible at a much earlier point in time, resulting in unnecessary and unfair prejudice to the defendant – due to juries ’rounding up’ their sentences, in an attempt to account for their uninformed guesses about the impact of parole. Anderson, at ¶ 23, 130 P.3d at 282. The same concern is present here, where the jury imposed its forty-five year sentence after the District Court’s answer did not convey accurate information about the issue of parole eligibility.

After carefully reviewing the facts of the case, the Court concludes that the proper remedy here is modification of the sentence to thirty-five (35) years imprisonment. Scott v. State, 1991 OK CR 31, ¶¶ 14, 17, 808 P.2d 73, 77-78. Appellant’s second proposition requires no relief.

DECISION

The Judgment and Sentence of the District Court of Oklahoma County is MODIFIED to thirty-five (35) years imprisonment, and otherwise AFFIRMED. 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. 21 O.S.2001, § 801
2. Okla. Stat. 21 § 13.1
3. 21 O.S.Supp.2002, § 13.1
4. 20 O.S.2001, § 3001.1
5. Scott v. State, 1991 OK CR 31, 11 14, 17, 808 P.2d 73, 77-78
6. Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987)
7. Anderson U. State, 2006 OK CR 6, 130 P.3d 273
8. Ashinsky v. State, 1989 OK CR 59, I 20, 780 P.2d 201, 207
9. United States v. Johnson, 457 U.S. 537, 546-547, 555, 102 S.Ct. 2579, 2585, 2590, 73 L.Ed.2d 202 (1982)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with Firearms
• Okla. Stat. tit. 21 § 13.1 (Supp. 2002) - 85% Rule
• Okla. Stat. tit. 20 § 3001.1 (2001) - Miscarriage of Justice

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
• Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649
• United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202
• Ashinsky v. State, 1989 OK CR 59, 780 P.2d 201
• Scott v. State, 1991 OK CR 31, 808 P.2d 73