Aislyn Jonelle Miller v State Of Oklahoma
F-2017-1248
Filed: May 9, 2019
Not for publication
Prevailing Party: State Of Oklahoma
Summary
#Aislyn Jonelle Miller appealed her conviction for Child Neglect. Conviction and sentence: thirty (30) years for Counts I-IV and ten (10) years for Count V, served consecutively. No justices dissented in the case.
Decision
The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was there a violation of constitutional prohibitions against double jeopardy and double punishment regarding two convictions for child neglect involving B.J.F.?
- Was there a violation of constitutional prohibitions against double jeopardy and double punishment regarding two convictions for child neglect involving L.F.?
- Did Appellant receive effective assistance of counsel as guaranteed under the 6th and 14th Amendments to the United States Constitution and Art. 2, §§ 7 and 20 of the Oklahoma Constitution?
- Did the trial court abuse its discretion in ordering Appellant to serve her sentences consecutively, resulting in a constitutionally excessive sentence?
Findings
- the court did not err regarding double jeopardy claims for Counts I and III
- the court did not err regarding double jeopardy claims for Counts II and IV
- the court found no ineffective assistance of counsel
- the trial court did not abuse its discretion in ordering consecutive sentences
F-2017-1248
May 9, 2019
Aislyn Jonelle Miller
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, JUDGE: Appellant Aislyn Jonelle Miller was tried by jury and found guilty of five (5) counts of Child Neglect (Counts I-V) (21 O.S.Supp.2014, § 843.5(C)), in the District Court of Tulsa County, Case No. CF-2016-6855. The jury recommended as punishment imprisonment for thirty (30) years in each of Counts I – IV, and ten (10) years imprisonment in Count V. The trial court sentenced accordingly, ordering the sentences to run consecutively.
It is from this judgment and sentence that Appellant appeals. Appellant must serve 85% of her sentences before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1.
Appellant raises the following propositions of error in support of her appeal:
I. Under the facts of this case, two convictions for child neglect involving B.J.F. violate the constitutional prohibitions against double jeopardy and the double punishment provisions of Title 21, Section 11.
II. Under the facts of this case, two convictions for child neglect involving L.F. violate the constitutional prohibitions against double jeopardy and the double punishment provisions of Title 21, Section 11.
III. Appellant was denied effective assistance of counsel to which she was entitled under the 6th and 14th Amendments to the United States Constitution and Art. 2, §§ 7 and 20 of the Oklahoma Constitution.
IV. The trial court abused its discretion in ordering Appellant to serve her sentences consecutively, therefore resulting in a constitutionally excessive sentence.
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 under the law and the evidence no relief is warranted.
In Proposition I, Appellant asserts that her convictions in Counts I and III for the neglect of B.J.F. violate the prohibitions against double jeopardy and double punishment. We review this claim for plain error as no constitutional claim of double jeopardy nor statutory claim of double punishment was raised before the trial court.
Under the plain error test, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice.
In Count I, Appellant was charged and convicted of the crime of Child Neglect for failing to provide adequate nurturance and food to nine (9) month old B.J.F. In Count III, she was charged and convicted of the crime of Child Neglect for the failure to provide medical care for nine (9) month B.J.F.
When reviewing claims of double jeopardy/double punishment, we begin with a statutory double punishment analysis. The proper analysis focuses on the relationship between the crimes. If the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent. If the offenses at issue are separate and distinct, requiring dissimilar proof, Oklahoma’s statutory ban on double punishment is not violated.
The evidence shows that Appellant’s failure to provide nurturance and food to her baby was a separate and distinct act from her failure to provide medical care. While the failure to properly feed the baby was in part a reason why the baby needed medical attention, other medical issues were present necessitating immediate medical care. The failure to provide adequate nutrition and the failure to provide medical care were separate and distinct criminal actions for which Appellant could be prosecuted and convicted. Her convictions in Counts I and III do not violate the statutory ban on double punishment. Finding no violation of Section 11, we conduct a traditional double jeopardy analysis. The elements test is easily met as Appellant’s conviction for child neglect for failure to feed B.J.F. requires elements different from the crime of child neglect by failing to seek medical care. Accordingly, any double jeopardy claim fails. We find no error and thus no plain error. This proposition is denied.
In Proposition II, Appellant makes the same double punishment/double jeopardy arguments raised in Proposition I but as to Counts II and IV, the counts alleging the neglect of B.J.F.’s twin sister, L.F. In Count II, Appellant was charged and convicted of failing to provide adequate nutrition to L.F., causing her to be malnourished and developmentally disabled. In Count IV, Appellant was charged and convicted of willfully failing to obtain appropriate and/or timely medical care for L.F.
Applying the Section 11 analysis, we find no double punishment in the convictions in Counts II and IV. The failure to provide adequate nutrition and the failure to provide medical care were separate and distinct criminal actions for which Appellant could be prosecuted and convicted.
In Proposition III, we review Appellant’s claims of ineffective assistance of counsel. In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. To establish prejudice, Appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
As addressed in Propositions I and II above, Appellant’s convictions in Counts I and III for the neglect of B.J.F. and Counts II and IV for the neglect of L.F. do not violate the Section 11 double punishment prohibition or the constitutional prohibition against double jeopardy. Therefore, any objection by counsel would have been overruled.
In Proposition IV, Appellant contends the trial court abused its discretion in running her sentences consecutively and that the trial court should have granted her request to serve her sentences concurrently. According to Appellant, the court’s failure to do so resulted in an excessive sentence. There is no absolute constitutional or statutory right to receive concurrent sentences.
The record in this case shows the trial judge fully considered all the facts and circumstances of the case, including the evidence of guilt. Each individual sentence imposed was well within the statutory range of punishment and the decision to run the sentences consecutively did not result in a sentence so excessive as to shock our conscious. We find the court did not abuse its discretion in running the sentences consecutively.
Accordingly, this appeal is denied.
DECISION
The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Footnotes:
- 21 O.S.Supp.2014, § 843.5(C)
- 21 O.S.2011, § 13.1
- 21 O.S.2011, § 11
- Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
- 22 O.S.2011, § 976
- Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
- State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
- Irwin v. State, 2018 OK CR 21, I 4, 424 P.3d 675, 676
- Logsdon v. State, 2010 OK CR 7, IT 19, 231 P.3d 1156, 1165
- Head v. State, 2006 OK CR 44, IT 15, 146 P.3d 1141, 1146
- Jones v. State, 2006 OK CR 5, IT 66, 128 P.3d 521, 543
- Ball v. State, 2007 OK CR 42, "I 44, 173 P.3d 81, 93
- Eizember v. State, 2007 OK CR 29, IT 155, 164 P.3d 208, 244
- Phillips v. State, 1999 OK CR 38, I 104, 989 P.2d 1017, 1044
- Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 791-792, 178 L.Ed.2d 624 (2011)
- Sanders v. State, 2015 OK CR 11, III 5-6, 358 P.3d 280, 283
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 843.5 (2014) - Child Neglect
- Okla. Stat. tit. 21 § 11 (2011) - Double Punishment
- Okla. Stat. tit. 21 § 13.1 (2011) - Parole Eligibility
- Okla. Stat. tit. 22 § 976 (2011) - Sentence Structure
Oklahoma Administrative Rules citations:
No Oklahoma administrative rules found.
U.S. Code citations:
- 6th Amendment - -
- 14th Amendment - -
- 22 U.S.C. § 976 - Consecutive sentences
- 18 U.S.C. § 242 - Deprivation of rights under color of law
Other citations:
No other rule citations found.
Case citations:
- Irwin v. State, 2018 OK CR 21, I 4, 424 P.3d 675, 676
- Simpson v. State, 1994 OK CR 40, 876 P.2d 690
- Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121
- Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395
- Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
- Sanders v. State, 2015 OK CR 11, III 5-6, 358 P.3d 280, 283
- Ball v. State, 2007 OK CR 42, I 44, 173 P.3d 81, 93
- Logsdon v. State, 2010 OK CR 7, IT 19, 231 P.3d 1156, 1165
- Head v. State, 2006 OK CR 44, IT 15, 146 P.3d 1141, 1146
- Jones v. State, 2006 OK CR 5, IT 66, 128 P.3d 521, 543
- Eizember v. State, 2007 OK CR 29, IT 155, 164 P.3d 208, 244
- Phillips v. State, 1999 OK CR 38, I 104, 989 P.2d 1017, 1044
- Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
- State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194