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ORIGINAL *1042998982* IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA AISLYN JONELLE MILLER, ) ) NOT FOR PUBLICATION ) Appellant, ) Case No. F-2017-1248 V. ) ) FILED STATE OF OKLAHOMA ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA ) Appellee. MAY – 9 2019 JOHN D. HADDEN SUMMARY OPINION CLERK 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. 1 It is from this judgment and sentence that Appellant appeals.2 1 Appellant must serve 85% of her sentences before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. 2 Appellant was charged jointly with her common-in-law husband, Kevin Fowler, and Mr. Fowler’s mother, Rita Darlene Fowler. Appellant and Mr. Fowler were tried in a joint trial and Ms. Fowler was tried separately. Mr. Fowler was found 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. guilty of five (5) counts of Child Neglect and sentenced to thirty (30) years imprisonment in each of Counts I-IV and ten (10) years imprisonment in Count V. He has appealed separately. See Fowler v. State, Case No. F-2017-1240. 2 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. Irwin v. State, 2018 OK CR 21, I 4, 424 P.3d 675, 676. Under the plain error test set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 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. Id. See also Jackson U. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121; Levering U. 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. In Count I, Appellant was charged and convicted of the crime of Child Neglect under 21 O.S.Supp.2014, 843.5(C) 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 under 21 O.S.Supp.2014, § 843.5(C) for the failure to provide medical care 3 for nine (9) month B.J.F. In reviewing claims of double jeopardy/double punishment, we begin with a statutory double punishment analysis under 21 O.S.2011, § 11(A). Sanders v. State, 2015 OK CR 11, III 5-6, 358 P.3d 280, 283. The proper analysis of a Section 11 claim focuses on the relationship between the crimes. Id. If the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent. Id. If the offenses at issue are separate and distinct, requiring dissimilar proof, Oklahoma’s statutory ban on “double punishment” is not violated. Id. A traditional double jeopardy analysis is conducted only if Section 11 does not apply. Irwin, 2018 OK CR 21, “I 5, 424 P.3d at 676. Here, the evidence shows 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. That these separate crimes of failing to feed B.J.F. and failing to provide medical care were part of a “continuing course of conduct” as they seemed to have occurred during the same time period provides no basis for relief under § 11. See Ball U. State, 2007 OK CR 42, “I 44, 173 4 P.3d 81, 93. 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 § 11, we conduct a traditional double jeopardy analysis. See Logsdon v. State, 2010 OK CR 7, IT 19, 231 P.3d 1156, 1165; Head U. 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. The elements test set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932) is easily met in this case 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. Appellant’s convictions are based upon crimes that are separate and distinct requiring dissimilar proof. 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 5 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. As in Proposition I, our review is for plain error under the standard set forth above. Irwin, 2018 OK CR 21, I 4, 424 P.3d at 676. Applying the Section 11 analysis used in Proposition I, 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. Her convictions in Counts II and IV do not violate the statutory ban on double punishment. Under the analysis set forth in Proposition I, we also find no double jeopardy violation as Appellant’s convictions are based upon crimes that are separate and distinct requiring dissimilar proof. Accordingly, any double jeopardy claim regarding Counts II and IV fails. We find no error and thus no plain error. This proposition is denied. 6 In Proposition III we review Appellant’s claims of ineffective assistance of counsel under the standard set forth in Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Goode v. State, 2010 OK CR 10, I 81, 236 P.3d 671, 686 citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. See also Marshall V. State, 2010 OK CR 8, I 61, 232 P.3d 467, 481. In Strickland, the Supreme Court said there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound trial strategy. Goode, 2010 OK CR 10, IT 81, 236 P.3d at 686. 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.” Id., at I 82, 236 P.3d at 686. See also Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 791-792, 178 L.Ed.2d 624 (2011). 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 7 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 or request to dismiss counts on those grounds would have been overruled. We will not find trial counsel ineffective for failing to raise objections which would have been overruled. Eizember U. 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. 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. 22 O.S.2011, § 976. In fact, sentences are to run consecutively unless the trial judge, in his or her discretion, rules otherwise. Id. See also Neloms U. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Id. 8 The record in this case shows the trial judge fully considered all the facts and circumstances of the case, including the evidence of guilt as well as the total number of years if the sentences were run consecutively. 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. See State U. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194. 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. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE WILLIAM J. MUSSEMAN, JR., DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL STEVEN VINCENT NANCY WALKER-JOHNSON 403 SOUTH CHEYENNE, OKLA. INDIGENT DEFENSE STE. 401 P.O. BOX 926 TULSA, OK 74103 NORMAN, OK 73070 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT 9 STEVE KUNZWEILER MIKE HUNTER DISTRICT ATTORNEY ATTORNEY GENERAL OF SARAH McAMIS OKLAHOMA KALI STRAIN JULIE PITTMAN ASST. DISTRICT ATTORNEYS ASST. ATTORNEY GENERAL 500 S. DENVER 313 N.E. 21ST ST. TULSA, OK 74103 OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE COUNSEL FOR THE STATE OPINION BY: LUMPKIN, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur RA 10

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