Walter Roundtree v The State Of Oklahoma

F-2007-767

Filed: Sep. 3, 2008

Not for publication

Prevailing Party: Walter Roundtree

Summary

Walter Roundtree appealed his conviction for robbery with a firearm, kidnapping, first-degree rape, and forcible sodomy. The conviction and sentence were affirmed by the court, but his sentences were changed to run concurrently instead of consecutively. Judge Lumpkin dissented, arguing that the trial judge did not abuse discretion in making the sentences run consecutively.

Decision

Mr. Roundtree's convictions in Tulsa County District Court, Case No. CF-2006-3858, are hereby AFFIRMED, but his sentences are MODIFIED to run concurrently. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion for the district court to refuse to consider concurrent sentences?
• Was it error for the court to deny credit for time served?
• Was it improper for the district court to assess a fine when the jury did not?
• Was the failure to instruct as to the definition of sexual intercourse require the reversal of Appellant's rape conviction?
• Was it error to refuse defense counsel's request to instruct the jury on sex offender registration as a consequence of the rape and forcible sodomy convictions?

Findings

• the trial court abused its discretion, and Appellant's consecutive sentences should be modified to concurrent terms.
• the court erred, and the notation "no credit for time served" should be removed from the judgment and sentences.
• the trial court erred by imposing a fine, and the $500 fine assessed in Count I must be vacated.
• there was no plain error, and Appellant's proposition regarding the definition of sexual intercourse is denied.
• there was no error in refusing to instruct the jury on sex offender registration, and Appellant's proposition is denied.

F-2007-767

Sep. 3, 2008

Walter Roundtree

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE:

Walter Roundtree, Appellant, was charged by information in Tulsa County District Court, Case No. CF-2006-3858, with Count I, Robbery with a Firearm in violation of 21 O.S.2001, § 801; Count II, Kidnapping in violation of 21 O.S.Supp.2003, § 741; Count III, First Degree Rape in violation of 21 O.S.2001, § 1114; and Count IV, Forcible Sodomy in violation of 21 O.S.Supp.2006, § 888. A jury trial was held before the Honorable Dana L. Kuehn, District Judge. The jury found Appellant guilty as charged and recommended five (5) years Count I; one (1) year Count II; ten (10) years Count III; and one (1) year Count IV. The trial court sentenced Appellant in accordance with the jury’s verdict and ran all sentences consecutive. The trial judge also added a $500 fine to Count I. Appellant timely appeals.

I. IT WAS AN ABUSE OF DISCRETION FOR THE DISTRICT COURT TO REFUSE TO CONSIDER CONCURRENT SENTENCES. APPELLANT’S CONSECUTIVE SENTENCES SHOULD BE MODIFIED TO CONCURRENT TERMS.

Title 22 O.S. 2001, § 976 gives trial courts the discretion to order sentences to run either concurrently or consecutively. Therefore, before this court can modify a punishment imposed by the trial court it must be clearly shown that the trial court abused its discretion in assessing punishment. Powell v. State, 1951 OK CR 34, 229 P.2d 230, 234. The record reflects the trial court’s absolute refusal to even consider concurrent prison terms in the event of any conviction by a jury.

The trial judge refused to consider Appellant’s sentences run concurrent based upon his decision to demand a jury trial. As such, the judge denied any consideration of concurrent sentences based on the sole reason Appellant tried his case before a jury and lost. The trial judge’s articulated policy not to consider concurrent terms if a defendant elects a jury trial discourages the Fifth Amendment right not to plead guilty and deters the Sixth Amendment right to demand a jury trial. United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138, 147 (1968). The judge’s testimony effectively chills the assertion of those rights. Id. This Court’s jurisprudence has established that an unwritten policy designed to frustrate a defendant’s constitutional right to jury trial, solely because he demands his right to jury trial, is contrary to law.

In response to defense counsel’s statement, I have discussed with [Appellant] that if a jury convicts him there is a possibility that [the sentences] will run consecutive and not concurrent, the trial judge stated, That’s not a possibility. That is a yes, it will. Further, the trial judge stated in no uncertain terms, [If a jury hears your case It’s going to run consecutive, I don’t run jury trials concurrent. I won’t do it. That is a for sure guarantee. Tr. Vol. I, pgs. 6-8 (emphasis added).

Accordingly, we modify Appellant’s sentences to run concurrently.

II. IT WAS ERROR FOR THE COURT TO DENY CREDIT FOR TIME SERVED. APPELLANT ASKS THAT THE NOTATION NO CREDIT FOR TIME SERVED BE REMOVED FROM THE JUDGMENT AND SENTENCES HEREIN.

Appellant raises several constitutional issues and alternatively claims a violation of Title 57 O.S.Supp.2004, § 138(G) requiring any jail term after judgment and sentence be deducted from the term of imprisonment. All claims are addressed in the order Appellant raises them in his brief. Firstly, Appellant asserts the State denied his right to a speedy trial. Appellant fails to cite any authority establishing that ten (10) months awaiting trial, without more, constitutes a per se violation of the right to speedy trial, or where a period less than one year necessitates further inquiry. Based on this record, the claim is without merit.

Next, Appellant alleges a violation of his Fourteenth Amendment rights. Mr. Roundtree claims the denial of credit for time served at the sentencing phase caused him to spend a longer time in custody than a wealthier person who could obtain pretrial release on bail. It is well established that a sentencing judge has discretion in deciding whether or not to allow a defendant credit for time served in jail before sentencing. Shepard v. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602.

Appellant attempts to extend to the sentencing phase his claim of denial of liberty based upon his indigence. However, the class of individuals Mr. Roundtree belongs to is that subject to pretrial confinement because of inability to post bail, not just indigents. Additionally, even if Mr. Roundtree could establish that he was discriminated against at his bail proceeding because of his impecunious state, he still fails to establish he was denied any fundamental right at sentencing because of his indigent status. Moreover, Appellant’s sentence, even without credit, is within the statutory limits. This Court has repeatedly held that a sentence within statutory guidelines will not be disturbed unless, given the facts and circumstances of the case, it is so excessive as to shock the conscience of the court.

As a result, Mr. Roundtree has failed to show, and the record does not establish a violation of any equal protection rights. Finally, Appellant contends 57 O.S.Supp.2004, § 138(G) mandates that the length of any jail term served prior to trial should be applied to a defendant’s sentence. The Appellant’s interpretation fails the full reading of the statute. When read in context, it is apparent that, The length of any jail term pursuant to a judgment and sentence shall be deducted from the term of imprisonment. 57 O.S.Supp.2004, § 138(G) (emphasis added). Appellant’s proposition is denied.

III. IT WAS IMPROPER FOR THE DISTRICT COURT TO ASSESS A FINE WHEN THE JURY DID NOT. THE $500 FINE ASSESSED IN COUNT I MUST BE VACATED.

Appellant contends the trial court erred by imposing a fine. Title 21 O.S.2001, § 801 (Count I) does not prescribe a fine. Therefore, the general statute governing fines, 21 O.S.2001, § 64, is applicable. Section 64 authorizes the court to impose a fine even when the jury sentences the defendant to a term imprisonment. Therefore, allowing credit for time served is, in effect, a reduction of the sentence recommended by the jury, an exercise employing the same judicial powers used to defer or suspend a sentence. The trial judge here chose not to exercise those powers, an action within the discretion of the court.

The plain reading of the statute establishes that the period after judgment and sentence but before transport to a more permanent facility, essentially the holding period, shall be applied to the term of imprisonment.

In pertinent part, Section 64 reads: Upon a conviction for any felony punishable by imprisonment in any jail or prison, in relation to which no fine is prescribed by law, the court or a jury may impose a fine on the offender not exceeding Ten Thousand Dollars ($10,000.00) in addition to the imprisonment prescribed. The fine is within statutory limits. Appellant’s proposition is denied.

IV. THE FAILURE TO INSTRUCT AS TO THE DEFINITION OF SEXUAL INTERCOURSE REQUIRES THE REVERSAL OF APPELLANT’S RAPE CONVICTION IN COUNT III.

Trial counsel did not request an instruction defining sexual intercourse. Failure to object to the instructions administered and request specific instructions waives the error on appeal unless this Court finds plain error. Further, if the instructions given accurately and fairly state the law, this Court will not disturb the jury’s verdict. The absence of a sexual intercourse definition in rape cases does not necessarily constitute reversible error. The term sexual intercourse is commonly understood and its definition was not absolutely necessary.

The jury was properly instructed on the applicable law of the case. There is no plain error, Appellant’s proposition is denied.

V. IT WAS ERROR TO REFUSE DEFENSE COUNSEL’S REQUEST TO INSTRUCT THE JURY ON SEX OFFENDER REGISTRATION AS A CONSEQUENCE OF THE RAPE AND FORCIBLE SODOMY CONVICTIONS IN COUNTS III AND IV.

Appellant did not submit written alternate instructions to the court. Failure to submit instructions waives any error on appeal unless Appellant has been deprived of a substantial right. Further, the determination of which instructions shall be given to the jury is a matter within the discretion of the trial court [a]bsent an abuse of that discretion, this Court will not interfere with the trial court’s judgment if the instructions as a whole, accurately state the applicable law. Appellant attempts to stretch the requirement of the jury to be instructed on the 85% rule to sex offender registration. Sex offender registration effectively constitutes post-confinement supervision, an automatic consequence of the verdict. Therefore, consideration of post-confinement supervision is beyond the purview of the jury.

Here, the instructions accurately state the law. The proposition is denied.

DECISION

Mr. Roundtree’s convictions in Tulsa County District Court, Case No. CF-2006-3858, are hereby AFFIRMED, but his sentences are MODIFIED to run concurrently. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Powell v. State, 1951 OK CR 34, 229 P.2d 230, 234.
2. United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138, 147 (1968).
3. Gillespie v. State, 1960 OK CR 67, 9 16, 355 P.2d 451, 456.
4. Lott v. State, 2004 OK CR 27, I 7, 98 P.3d 318, 327-28.
5. Ellis v. State, 2003 OK CR 18, I 30, 76 P.3d 1131, 1136.
6. Swart v. State, 1986 OK CR 92, IT 9, 720 P.2d 1265, 1268.
7. Shepard v. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602.
8. Bartell v. State, 1994 OK CR 59 "I 33, 881 P.2d 92, 101; Roberts v. State, 1970 OK CR 102 I 16, 473 P.2d 264, 268; Sanders v. State, 2002 OK CR 42 I 19, 60 P.3d 1048, 1051.
9. Crawford v. State, 1994 OK CR 58, I 7 n.4, 881 P.2d 88.
10. In re Tidwell, 1957 OK CR 33, 9 4, 309 873 P.2d 293, 295.
11. Anderson v. State, 2006 OK CR 6, 130 P.3d 273.
12. Johnson v. State, 1971 OK CR 459, "I 2, 490 P.2d 1130.
13. Cooper v. State, 1978 OK CR 96, "I 13m 584 P.2d 234, 238.
14. Fite v. State, 1993 OK CR 58, I 9-11, P.2d 302, 304.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Firearm
• Okla. Stat. tit. 21 § 741 (Supp. 2003) - Kidnapping
• Okla. Stat. tit. 21 § 1114 (2001) - First Degree Rape
• Okla. Stat. tit. 21 § 888 (Supp. 2006) - Forcible Sodomy
• Okla. Stat. tit. 22 § 976 (2001) - Discretion to Order Concurrent or Consecutive Sentences
• Okla. Stat. tit. 57 § 138(G) (Supp. 2004) - Credit for Time Served
• Okla. Stat. tit. 21 § 64 (2001) - Fines Imposed by Court
• Okla. Stat. tit. 22 § 991a (Supp. 2006) - Judicial Powers Related to Sentencing
• Okla. Stat. tit. 22 § 583(C) (Supp. 2006) - Post-Confinement Supervision
• Okla. Stat. tit. 21 § 61.1 (2001) - Presumption of Consecutive 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:

• Powell v. State, 1951 OK CR 34, 229 P.2d 230, 234.
• United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138, 147 (1968).
• Gillespie v. State, 1960 OK CR 67, 9 16, 355 P.2d 451, 456.
• Lott v. State, 2004 OK CR 27, I 7, 98 P.3d 318, 327-28.
• Ellis v. State, 2003 OK CR 18, I 30, 76 P.3d 1131, 1136.
• Swart v. State, 1986 OK CR 92, IT 9, 720 P.2d 1265, 1268.
• Shepard v. State, 1988 OK CR 97, I 21, 756 P.2d 597, 602.
• Bartell v. State, 1994 OK CR 59 "I 33, 881 P.2d 92, 101.
• Roberts v. State, 1970 OK CR 102 I 16, 473 P.2d 264, 268.
• Sanders v. State, 2002 OK CR 42 I 19, 60 P.3d 1048, 1051.
• Crawford v. State, 1994 OK CR 58, I 7 n.4, 881 P.2d 88.
• In re Tidwell, 1957 OK CR 33, 9 4, 309.
• Fite v. State, 1993 OK CR 58, I 9-11, P.2d 302, 304.
• Douglas v. State, 1997 OK CR 79, I 49, 951 P.2d 651, 668.
• Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 692.
• Norton v. State, 2002 OK CR 10, 9 17, 43 P.3d 404, 409.
• Johnston v. State, 1983 OK CR 172, I 21, 673 P.2d 844, 850.
• Fields v. State, 1947 OK CR 126, 188 P.2d 231, 235.
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273.
• Johnson v. State, 1971 OK CR 459, "I 2, 490 P.2d 1130.
• Cooper v. State, 1978 OK CR 96, "I 13m 584 P.2d 234, 238.