David Michael Graham v The State Of Oklahoma
F-2006-429
Filed: Apr. 23, 2007
Not for publication
Prevailing Party: The State of Oklahoma
Summary
David Michael Graham appealed his conviction for lewd molestation. Conviction and sentence were upheld but modified to run concurrently instead of consecutively. Judge Lumpkin dissented.
Decision
The Judgments are AFFIRMED and the Sentences are MODIFIED to be served concurrently and the order of restitution is DISMISSED. 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 prosecutorial misconduct that deprived Appellant of a fair trial?
- Did the trial court err by not responding to the jury's question regarding sentencing with information about serving 85% of the sentences imposed?
- Did the trial court err by imposing restitution of $10,000 per count without a factual basis?
- Should the imposition of three twenty-year sentences shock the conscience of the court?
Findings
- the court found that although there was some prosecutorial misconduct, none affected Graham's conviction
- the trial court erred by not instructing the jury that Graham must serve 85% of his sentence before becoming eligible for parole
- the restitution orders were not supported by any evidence and must be dismissed
- any argument that Graham's sentences were excessive is mooted by the relief recommended regarding parole eligibility
F-2006-429
Apr. 23, 2007
David Michael Graham
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
CHAPEL, JUDGE: After a jury trial in Delaware County District Court Case No. CF-2005-198, David Graham was convicted of three Counts of Lewd Molestation in violation of 21 O.S. Supp. 2002, § 1123. Following the jury’s recommendation, the Honorable Barry V. Denny sentenced Graham to serve consecutive sentences of twenty (20) years’ imprisonment for each count but suspended the final ten (10) years subject to the rules and conditions of probation. The trial court also ordered Graham to pay each of three victims $10,000.00 in restitution. Graham has perfected his appeal to this Court.
Graham raises the following propositions of error:
I. Prosecutorial misconduct deprived Appellant of a fair trial.
II. The trial court erred by not responding to the jury’s question regarding sentencing with information that Appellant would have to serve 85% of any sentences imposed.
III. The trial court erred by imposing restitution of $10,000 per count when there was no factual basis supporting it.
IV. Under the facts and circumstances of this case, the imposition of three twenty-year sentences should shock the conscience of this court.
After thoroughly considering 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, modification of Graham’s sentence, including the trial court’s order of restitution, is required under the law and evidence.
We find in Proposition I that although there was some prosecutorial misconduct, none affected Graham’s conviction and any misconduct that may have affected Graham’s sentence is remedied by the relief granted in Proposition II. We find in Proposition II that Graham’s jury should have been instructed that, based upon the crime for which he was charged and convicted, he must serve 85% of his sentence before he is eligible for parole. This error requires this Court to modify Graham’s sentences to be served concurrently.
We find in Proposition III that, as the State properly conceded, the trial court’s restitution orders were not supported by any evidence and must be dismissed. We find in Proposition IV that any argument that Graham’s sentences were excessive is mooted by the relief recommended in Proposition II.
Decision:
The Judgments are AFFIRMED and the Sentences are MODIFIED to be served concurrently and the order of restitution is DISMISSED. 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
J. KEN GALLON
101 A STREET S.E.
P.O. BOX 926
MIAMI, OKLAHOMA 74354
ATTORNEYS ON APPEAL
MARK P. HOOVER
NORMAN, OKLAHOMA 73070
ATTORNEY FOR THE DEFENDANT
BEN LORING
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
102 E. CENTRAL
HEATH ROBINSON
SUITE 301
MIAMI, OKLAHOMA 74354
ASSISTANT ATTORNEY GENERAL
313 NE 21ST STREET
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE
OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
C. JOHNSON, V.P.J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR IN RESULTS
Anderson v. State, 2006 OK CR 6, 130 P.3d 273, 282. Graham receives the benefit of Anderson as his case was pending at trial or on appeal after Anderson was decided. Carter v. State, 2006 OK CR 42, 147 P.3d 243, 244.
LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART
I concur in the Court’s decision to affirm the convictions in this case, however, I must dissent to the modification of the sentences to run concurrent. There is no error upon which to modify the sentences entered by the jury and imposed by the trial judge.
The jury asking the question Are there any guidelines on how to sentence, other than min or max? and the trial judge advising them to use the ranges provided in the instructions in no way implicates the provisions of 21 O.S. 2001, §§ 12.1, 13.1. The Appellant did not request an instruction on the 85% rule and the jurors had no question about parole. The trial court ordered the sentences to run consecutively, but that is the way sentences are to be served by operation of the law. See 21 O.S. 2001, § 61.1. I find no basis in fact for the Court’s largess by modifying the sentences to run concurrently. Therefore, I dissent to the modification of sentence in this case.
Footnotes:
- 21 O.S. Supp. 2002, § 1123.
- 21 O.S.2001, §§ 12.1, 13.1.
- 21 O.S. 2001, §§ 12.1, 13.1.
- 21 O.S. 2001, § 61.1.
- Anderson v. State, 2006 OK CR 6, 130 P.3d 273, 282.
- Carter v. State, 2006 OK CR 42, 147 P.3d 243, 244.
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 1123.1 - Lewd Molestation
- Okla. Stat. tit. 21 § 12.1 - Restitution
- Okla. Stat. tit. 21 § 13.1 - Restitution
- Okla. Stat. tit. 21 § 61.1 - Sentencing
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:
- Nickell v. State, 885 P.2d 670, 673 (Okl.Cr.1994)
- Lawrence U. State, 796 P.2d 1176, 1177 (Okl.Cr.1990)
- Anderson v. State, 2006 OK CR 6, 130 P.3d 273, 282.
- Carter v. State, 2006 OK CR 42, 147 P.3d 243, 244.