James Joseph Wymer v State Of Oklahoma

F-2005-814

Filed: May 23, 2006

Not for publication

Prevailing Party: State Of Oklahoma

Summary

James Joseph Wymer appealed his conviction for First Degree Burglary. His conviction and sentence were modified from forty-five years in prison to thirty-five years. Judge C. Johnson dissented.

Decision

The Judgment is AFFIRMED. The Sentence is MODIFIED to thirty-five (35) years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a denial of due process due to the jury not being instructed on the law regarding sentencing and the eighty-five percent rule?
• Did the trial court impose an excessive sentence in violation of constitutional protections against cruel and unusual punishment?
• Was the evidence presented by the State sufficient to prove the appellant's guilt beyond a reasonable doubt?

Findings

• the court erred in failing to instruct the jury on the "85%" Rule, warranting modification of the sentence
• the sentence was appropriate and not excessive under the circumstances
• the evidence was sufficient to support the conviction for first degree burglary

F-2005-814

May 23, 2006

James Joseph Wymer

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE: Appellant James Joseph Wymer was tried by jury and convicted of First Degree Burglary, (21 O.S. 2001, § 1431) After Former Conviction of Two or More Felonies, Case No. CF-2004-1931 in the District Court of Oklahoma County. The jury recommended as punishment forty-five (45) years in prison, and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. Appellant was denied due process under the Fourteenth Amendment to the United States Constitution and Article Two Section Seven of the Oklahoma Constitution because the jury was not fully instructed on the law regarding sentencing as the statutory requirement that the convicted person serve eighty-five (85) percent of his sentence was omitted.

II. Appellant received an excessive sentence in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article Two Section Nine of the Oklahoma Constitution.

III. Appellant’s conviction must be reversed because the evidence presented by the State was insufficient to prove his guilt beyond a reasonable doubt in violation of the Fourteenth Amendment to the United States Constitution and Article Two Section Seven of the Oklahoma Constitution.

After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined under the law and the evidence that reversal is not warranted but the sentence must be modified.

In Proposition I, the trial court’s failure to instruct the jury on the 85% Rule was error pursuant to Anderson v. State, 2006 OK CR 6, II 25, P.3d 1. While this error does not require reversal of the conviction it does warrant modification of the sentence. Therefore, Appellant’s forty-five (45) year sentence is modified to thirty-five (35) years.

In Proposition II, after a review of all the facts and circumstances of this case, we find Appellant’s sentence was well within statutory range for a habitual offender and appropriate based upon the evidence. Appellant’s sentence does not shock the conscience of the Court and his request for modification is denied. Rea v. State, 2001 OK CR 28, I 4, 34 P.3d 148, 149; Bartell v. State, 1994 OK CR 59, I 33, 881 P.2d 92, 101.

In Proposition III, after reviewing the evidence in the light most favorable to the State, we find any rational trier of fact could have found the essential elements of the crime of first degree burglary beyond a reasonable doubt. See Easlick v. State, 2004 OK CR 21, 9 15, 90 P.3d 556, 559. Sufficient evidence was presented to show Appellant was a principal and active participant in the burglary and not merely a bystander. See Conover v. State, 1997 OK CR 6, II 18, 933 P.2d 904, 910-911. See also 21 O.S.2001, § 172.

DECISION

The Judgment is AFFIRMED. The Sentence is MODIFIED to thirty-five (35) years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 1431
2. Anderson v. State, 2006 OK CR 6, II 25, P.3d 1
3. Rea v. State, 2001 OK CR 28, I 4, 34 P.3d 148, 149
4. Bartell v. State, 1994 OK CR 59, I 33, 881 P.2d 92, 101
5. Easlick v. State, 2004 OK CR 21, 9 15, 90 P.3d 556, 559
6. Conover v. State, 1997 OK CR 6, II 18, 933 P.2d 904, 910-911
7. Okla. Stat. tit. 21 § 172
8. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 - First Degree Burglary
• Okla. Stat. tit. 21 § 172 - General Principles of Criminal Liability
• Okla. Stat. tit. 22 § 3.15 - Mandate Issuance

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, I 25, P.3d 1
• Rea v. State, 2001 OK CR 28, I 4, 34 P.3d 148, 149
• Bartell v. State, 1994 OK CR 59, I 33, 881 P.2d 92, 101
• Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
• Conover v. State, 1997 OK CR 6, I 18, 933 P.2d 904, 910-911