Marcus Laquine Petty v The State Of Oklahoma

F-2008-438

Filed: Jun. 26, 2009

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Marcus Laquine Petty appealed his conviction for Assault and Battery with a Dangerous Weapon and Domestic Assault and Battery. His conviction led to a sentence of three years for the first charge and six months for the second, to be served one after the other. Judge Chapel disagreed, stating that the second conviction violated rules against double punishment.

Decision

The Judgment and Sentence of the District Court is AFFIRMED. Petty's $5,000 Victim's Compensation Assessment is vacated and the matter is remanded to the District Court for a hearing in which all of the required factors will be considered in assessing a Victim's Compensation Assessment in this matter. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there a violation of the statutory and constitutional prohibition against double punishment and double jeopardy for Counts 1 and 2?
• did the trial court abuse its discretion and violate Petty's constitutional right to due process by imposing a $5,000 victim's compensation assessment?
• is Petty's sentence excessive?

Findings

• the court did not err, Petty's convictions for both Assault and Battery with a Dangerous Weapon and Domestic Assault and Battery do not violate the statutory and constitutional prohibition on multiple punishments
• the trial court abused its discretion by not considering the statutory factors before imposing a $5,000 Victim's Compensation Assessment
• Petty's sentence of three and a half years imprisonment does not shock the conscience

F-2008-438

Jun. 26, 2009

Marcus Laquine Petty

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, VICE PRESIDING JUDGE:

Appellant Marcus Laquine Petty was tried by jury in the District Court of Oklahoma County, Case No. CF-2007-4081, and found guilty of Assault and Battery with a Dangerous Weapon (Count 1) in violation of 21 O.S.Supp.2006, § 645, and Domestic Assault and Battery (Count 2) in violation of 21 O.S.Supp.2006, § 644(C). The jury fixed punishment at three years imprisonment on Count 1 and six months imprisonment on Count 2. The Honorable Twyla Mason Gray, who presided at trial, sentenced Petty accordingly and ordered the sentences to be served consecutively to each other. From this judgment and sentence, Petty appeals raising the following issues: (1) whether his convictions for Counts 1 and 2 violate the statutory and constitutional prohibition against double punishment and double jeopardy; (2) whether the trial court abused its discretion and violated Petty’s constitutional right to due process by imposing a $5,000 victim’s compensation assessment against him; and (3) whether his sentence is excessive.

We affirm the Judgment and Sentence of the District Court, but find remand necessary for a hearing on an appropriate Victim’s Compensation Assessment in this case for the reasons discussed below.

1. Petty’s convictions for both Assault and Battery with a Dangerous Weapon and Assault and Battery (Domestic Abuse) do not violate the statutory and constitutional prohibition on multiple punishments because Petty’s assault and battery using a knife against the victim was a separate and distinct act from his domestic assault and battery using his fists. See 21 O.S.Supp.2006, §§ 644(C), 645. While these acts occurred close in time and during the same criminal transaction, they were separate and distinct crimes. See Ball v. State, 2007 OK CR 42, ¶ 43, 173 P.3d 81, 92 (holding that conviction for an act of rape and sodomy that occurred in quick succession does not violate § 11); McDaniel v. State, 1973 OK CR 222, ¶ 14, 509 P.2d 675, 681 (same). Nor does conviction of both acts here violate Petty’s state or federal constitutional rights under the Double Jeopardy Clause because each crime requires proof of an element not required by the other. See McElmurry v. State, 2002 OK CR 40, ¶ 80, 60 P.3d 4, 24.

2. There is merit to Petty’s claim that the trial court abused its discretion by not considering the statutory factors before imposing a $5,000 Victim’s Compensation Assessment (hereinafter VCA) at sentencing. At formal sentencing, the trial court imposed the jury’s recommended sentence and then informed Petty of his jail costs. The court informed Petty that he would owe a variety of costs and stated, without any explanation, that the court was imposing a $5,000 VCA. On appeal, Petty does not challenge the trial court’s authority to impose a VCA; rather he argues the manner in which the cost was assessed resulted in an exorbitant amount of $5,000. He maintains that had the trial court considered the statutory factors to determine the amount of an appropriate VCA, the assessment would have been less. Accordingly, he asks this Court to favorably modify the assessment. Title 21 O.S.2001, § 142.18(A) mandates the imposition of a VCA between $50 and $10,000 after conviction for a felony involving criminally injurious conduct. In calculating the VCA the court shall consider factors such as the severity of the crime, the [defendant’s] prior criminal record, the expenses of the victim of the crime, and the ability of the defendant to pay, as well as the economic impact of the victim compensation assessment on the dependents of the defendant. 21 O.S.2001, § 142.18(A). In Walters v. State, 1993 OK CR 4, ¶ 17, 848 P.2d 20, 25, this Court held it was error for the trial court not to consider all the factors in setting the VCA, for it is the consideration of these four factors which satisfies the due process requirement that the assessment not be arbitrary. The Walters court refused to presume that the required factors were considered where no evidence in the record addressed them. The Court reversed Walters’s VCA and remanded the matter for a proper hearing in which each of the required factors was to be considered. Id.

As in Walters, ample evidence was presented at trial as to the severity of the crime. Evidence relating to the economic impact of the assessment on Petty’s dependents and his ability to pay were touched on during Petty’s testimony when he testified that he was working two jobs to make ends meet prior to going to jail and that he did not have any children. No evidence was presented at trial or sentencing, however, regarding the expenses of the victim or Petty’s current ability to pay. Following Walters, we find that Petty’s VCA must be vacated and the matter remanded for a hearing in which all of the required factors will be considered in assessing a VCA under 21 O.S.2001, § 142.18(A).

3. Petty’s sentence of three and a half years imprisonment does not shock our conscience. Head v. State, 2006 OK CR 44, ¶ 27, 146 P.3d 1141, 1148.

DECISION

The Judgment and Sentence of the District Court is AFFIRMED. Petty’s $5,000 Victim’s Compensation Assessment is vacated and the matter is remanded to the District Court for a hearing in which all of the required factors will be considered in assessing a Victim’s Compensation Assessment in this matter.

Footnotes:

1. 21 O.S.Supp.2006, § 645.
2. 21 O.S.Supp.2006, § 644(C).
3. 21 O.S.2001, § 142.18(A).
4. 21 O.S.2001, § 142.18(A).
5. 22 O.S.Supp.2002, § 982(A).
6. 22 O.S.Supp.2002, § 982(F).
7. 21 O.S. 2001, § 11.
8. 21 O.S. § 11(A).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 (2006) - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 644(C) (2006) - Domestic Assault and Battery
• Okla. Stat. tit. 21 § 142.18(A) (2001) - Victim's Compensation Assessment
• Okla. Stat. tit. 22 § 982(A), (F) (2002) - Presentence Investigation
• Okla. Stat. tit. 21 § 11 (2001) - Double Jeopardy Prohibition

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:

• Ball v. State, 2007 OK CR 42, ¶ 43, 173 P.3d 81, 92
• McDaniel v. State, 1973 OK CR 222, ¶ 14, 509 P.2d 675, 681
• McElmurry v. State, 2002 OK CR 40, ¶ 80, 60 P.3d 4, 24
• Walters v. State, 1993 OK CR 4, ¶ 17, 848 P.2d 20, 25
• Head v. State, 2006 OK CR 44, ¶ 27, 146 P.3d 1141, 1148