Christopher M. Turner v State Of Oklahoma

F-2014-580

Filed: Jul. 28, 2015

Not for publication

Prevailing Party: State of Oklahoma

Summary

Christopher M. Turner appealed his conviction for Indecent or Lewd Acts with a Child under Sixteen. The conviction and sentence were for five years imprisonment on Counts I and II and four years on Counts III and IV, making a total of 18 years, which he must serve consecutively. The court agreed with most of the trial court's decisions but said the victim compensation assessment was too high and needed to be reviewed again. Judge Hudson dissented.

Decision

The Judgments and Sentences are AFFIRMED, except for the imposition of the Crime Victims Compensation assessment which is VACATED AND REMANDED to the trial court with instructions to conduct a full hearing pursuant to 21 O.S.2011, § 142.18(A). Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of the Sixth and Fourteenth Amendments due to the trial court's policy of running sentences consecutively for defendants who elected to go to jury trial?
• Did the trial court err in imposing a victim compensation assessment that exceeded the statutory maximum?
• Did the trial court violate Appellant's due process rights by arbitrarily ordering a victim compensation assessment without considering the mandatory statutory factors?

Findings

• The court did not err in imposing consecutive sentences.
• The merits of the victim compensation assessment were not addressed due to remand for a new hearing.
• The court abused its discretion in imposing the victim compensation assessment, which is vacated and remanded for a proper hearing.

F-2014-580

Jul. 28, 2015

Christopher M. Turner

Appellant

v

State Of Oklahoma

Appellee

LUMPKIN, VICE-PRESIDING JUDGE:

Appellant Christopher M. Turner was tried by jury and convicted of Indecent or Lewd Acts with a Child under Sixteen (Counts I-IV) (21 O.S.2011, § 1123) in the District Court of Stephens County Case, No. CF-2012-157. The jury recommended punishment of five (5) years imprisonment on Counts I and II and four (4) years imprisonment in Counts III and IV. The trial court sentenced accordingly, ordering the sentences to run consecutively. From this judgment and sentence Appellant has perfected this appeal.

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

I. The trial court’s policy of running sentences consecutively if a defendant elected to go to jury trial violated the Sixth and Fourteenth amendments to the United States Constitution, Article two, section twenty of the Oklahoma Constitution and 22 O.S.2011, § 976.

II. The victim compensation assessment must be modified as it exceeds the statutory maximum. 1 Appellant must serve 85% of his sentence before becoming eligible for consideration for parole. 21 O.S. 2011, § 13.1. 1

III. The district court violated Appellant’s due process rights by arbitrarily ordering him to pay a $2,500 victim compensation assessment on each count without first considering the mandatory statutory factors prerequisite to the assessment.

After 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 that the convictions and sentences should be affirmed but the Victims Compensation Assessment shall be vacated and the case remanded for a full hearing under 21 O.S.2011, § 142.18(A).

In Proposition I, 21 O.S.2011, § 61.1 directs sentences to be served consecutively unless ordered by the trial court otherwise. Whether sentences are to be served consecutively or concurrently is a decision resting in the sound discretion of the trial court. Kamees v. State, 1991 OK CR 91, I 21, 815 P.2d 1204, 1208-09. See also 22 O.S.2011, § 976. The trial court did not abuse its discretion in imposing consecutive sentences in this case.

In Proposition II, in light of our remand for a new hearing on the Victims Compensation Assessment, it is not necessary to address the merits of this proposition of error.

In Proposition III, we find the trial court abused its discretion in imposing the Victims Compensation Assessment. Title 21 O.S.2011, § 142.18(A) sets forth factors to be considered by the trial court in setting the amount of a crime victim’s compensation. See also Walters v. State, 1993 OK CR 4, I 15, 848 P.2d 20, 25. Consideration of those listed factors by the trial court in this case is absent from the record. Therefore, the Victims Compensation Assessment is vacated and the case is remanded to the District Court for a proper hearing in which each of the factors listed in 21 O.S.2011, § 142.18(A) is considered.

DECISION

The Judgments and Sentences are AFFIRMED, except for the imposition of the Crime Victims Compensation assessment which is VACATED AND REMANDED to the trial court with instructions to conduct a full hearing pursuant to 21 O.S.2011, § 142.18(A). Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY
THE HONORABLE G. BRENT RUSSELL, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL
FRANCIS COURBOIS
105 N. HUDSON, STE. 530
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL
THOMAS PURCELL
P.O. BOX 926
NORMAN, OK 73070

BEAU WILLIAMS
4901 RICHMOND SQUARE, STE. 104
OKLAHOMA CITY, OK 73118
COUNSEL FOR DEFENDANT

JASON M. HICKS
DISTRICT ATTORNEY

E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA

JAMIE PHIPPS
CORTNIE SIESS
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST ST.
OKLAHOMA CITY, OK 73105

JAY SCHNIEDERJAN
ASSISTANT DISTRICT ATTORNEYS
STEPHENS COUNTY COURTHOUSE
101 S. 11TH ST.
DUNCAN, OK 73533
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, V.P.J.
SMITH, P.J.: CONCUR
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
HUDSON, J.: CONCUR

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Footnotes:

1. 21 O.S.2011, § 1123
2. 22 O.S.2011, § 976
3. 21 O.S. 2011, § 13.1
4. 21 O.S.2011, § 142.18(A)
5. 22 O.S.2011, § 976
6. 21 O.S.2011, § 142.18(A)
7. Walters v. State, 1993 OK CR 4, 15, 848 P.2d 20, 25
8. 21 O.S.2011, § 142.18(A)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2011) - Indecent or Lewd Acts with a Child under Sixteen
• Okla. Stat. tit. 22 § 976 (2011) - Sentencing
• Okla. Stat. tit. 21 § 13.1 (2011) - Parole Eligibility
• Okla. Stat. tit. 21 § 142.18(A) (2011) - Crime Victim's Compensation Factors
• Okla. Stat. tit. 21 § 61.1 (2011) - Sentences to be Served Consecutively

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:

• Kamees v. State, 1991 OK CR 91, I 21, 815 P.2d 1204, 1208-09
• Walters v. State, 1993 OK CR 4, I 15, 848 P.2d 20, 25