Cameron Lee Schemmer v The State Of Oklahoma
F-2018-1023
Filed: Jan. 23, 2020
Not for publication
Prevailing Party: Cameron Lee Schemmer
Summary
Cameron Lee Schemmer appealed his conviction for Forcible Sodomy and Lewd Molestation. The court convicted him on multiple counts and sentenced him to a total of fifty years in prison, with the possibility of parole after serving 85%. Schemmer argued that he did not properly waive his right to a jury trial and claimed his sentence was too severe because he believed he should not have received such a long sentence for his crimes. However, the court found that Schemmer did waive his right to a jury trial knowingly and that he received the correct sentence according to the law. The judgment and sentence were upheld, and it was determined there was no error in the trial process. Judge Kuehn dissented regarding the review standard for the waiver issue.
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. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was there sufficient evidence in the record to support a finding that Appellant knowingly and voluntarily waived his right to a jury trial?
- Did the trial court improperly apply the wrong sentencing statute resulting in an excessive sentence for Appellant?
Findings
- the court did not err in finding Appellant knowingly and voluntarily waived his right to a jury trial.
- the court did not err in sentencing Appellant to twenty-five years for each count of lewd molestation as the evidence sufficiently established the victim's age.
F-2018-1023
Jan. 23, 2020
Cameron Lee Schemmer
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, JUDGE: Appellant, Cameron Lee Schemmer, was tried by the court and convicted of Count 1, Forcible Sodomy, in violation of 21 O.S.2011, § 888 and Counts 2-4, Lewd Molestation, in violation of 21 O.S.2011, § 1123, in Kingfisher County District Court, Case No. CF-2017-96. The trial court sentenced Appellant to twenty years imprisonment with all but the last five years suspended on Count 1. On Counts 2-4, the court sentenced Appellant to twenty-five years imprisonment on each count. The court ordered the sentences for Counts 2-4 to run concurrently to one another, but consecutively to the sentence in Count 1. From this judgment and sentence Appellant appeals.
Appellant raises the following propositions of error in this appeal:
I. The record in this case does not sufficiently demonstrate that Appellant knowingly and voluntarily waived his right to a jury trial.
II. Mr. Schemmer received an excessive sentence when the trial court followed the wrong sentencing statute.
After thorough consideration of this proposition 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.
Appellant contends in his first proposition that the record herein is insufficient to support a finding that he knowingly and voluntarily waived his right to a jury trial. As Appellant failed to object prior to the non-jury trial, review of this claim is for plain error as set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Under the Simpson test, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. Id., 1994 OK CR 40, ¶ 3, ¶ 23, ¶ 30, 876 P.2d at 694-95, 698-701. 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., 1994 OK CR 40, ¶ 30, 876 P.2d at 701.
A defendant may waive his right to jury trial. There must be a clear showing that the waiver was competent, knowing and intelligent. Hinsley v. State, 2012 OK CR 11, ¶ 5, 280 P.3d 354, 355. A record showing an intelligent, competent and knowing waiver of a fundamental right is mandatory. Anything less is not a waiver. It is incumbent upon the trial court to make a record of a waiver of a fundamental right, and all doubts concerning waiver must be resolved in the accused’s favor. Id. The better practice is for a defendant to make the waiver personally, in open court, orally or in writing, and the trial court must inquire to be sure the waiver is expressly and intelligently made. Id.
The record shows that prior to the commencement of the non-jury trial, a colloquy between Appellant and the court occurred regarding his waiver of jury trial. The court inquired if Appellant was satisfied with his attorney’s representation and Appellant answered that he was. The court referenced that Appellant had previously waived a jury trial and explained what that meant and then asked Appellant if he still wanted to waive his jury trial right. Appellant responded in the affirmative. As this record shows, Appellant personally appeared before the court and unequivocally informed the court that he wished to waive his right to a jury trial. The trial court’s finding of a knowing and intelligent waiver was consistent with the law and the record. Because there is no error, this proposition is denied.
In his final proposition, Appellant argues his sentence is illegal. Specifically, he maintains that the Information alleged R.N. was a child under the age of sixteen and not that she was under the age of twelve. Thus, he continues, the range of punishment was from one or three years to twenty years, rather than a minimum of twenty-five years for conviction where the child is under the age of twelve. As a result, he contends his twenty-five year sentences on Counts 2-4 are illegal. He made no objection at the time of sentencing, so we review this claim for plain error pursuant to Simpson, as set forth above.
The Information in this case states that R.N. was under the age of sixteen and Appellant was more than three years older than R.N. at the time he committed the crimes alleged therein. The Information further states that punishment of the crime of lewd molestation as alleged therein is a minimum of twenty-five years imprisonment. The record shows that R.N. was ten years old when Appellant’s abuse of her began and she was eleven years old when it ceased. It further shows that Appellant was nineteen years old when he abused R.N. The State charged Appellant in Counts 2-4 pursuant to 21 O.S.2011, § 1123(A), which provides pertinently regarding punishment: when the child is under twelve (12) years of age at the time the offense is committed, and in such case the person shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections for not less than twenty-five (25) years. The provisions of this subsection shall not apply unless the accused is at least three (3) years older than the victim.
Because Appellant had a non-jury trial, the court acted as the fact-finder. The court is presumed to know the law and correctly apply it to the facts of the case. Magnan v. State, 2009 OK CR 16, ¶ 51, 207 P.3d 397, 412. Although the Information did not specify that R.N. was under the age of twelve at the time the crimes allegedly occurred, Appellant does not claim insufficient notice of the crimes charged. The Information shows the correct statutory section comprising the crimes. Thus, Appellant was not convicted of an uncharged crime. Cf. Chadwell v. State, 2019 OK CR 14, ¶ 5, 446 P.3d 1244, 1246 (finding Section 1123 encompasses crimes to children under the age of sixteen as well as to children under the age of twelve and constitutes a single crime). The punishment range when the child is under twelve years of age is clearly shown on the Information and reflects the wording of the statute. Had Appellant’s trial been before a jury, an instruction on the child’s age as an element would have been required for sentencing purposes. Chadwell, 2019 OK CR 14, ¶ 6, 446 P.3d at 1246-47. However, in a non-jury trial, the court acts as the fact-finder and is presumed to know the law. Magnan, 2009 OK CR 16, ¶ 51, 207 P.3d at 412. Because the evidence presented at trial clearly established R.N.’s age and Appellant’s age at the time the crimes were committed and was uncontested, the trial court properly found beyond a reasonable doubt R.N. was under the age of twelve and Appellant was nineteen when he abused her in violation of Section 1123. There was no plain error. Proposition Two 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. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Footnotes:
- 21 O.S.Supp.2015, § 13.1.
- Simpson U. State, 1994 OK CR 40, 876 P.2d 690.
- Hinsley U. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355.
- Magnan U. State, 2009 OK CR 16, I 51, 207 P.3d 397, 412.
- Chadwell U. State, 2019 OK CR 14, I 5, 446 P.3d 1244, 1246.
- Chadwell, 2019 OK CR 14, I 6, 446 P.3d at 1246-47.
- White U. State, 2019 OK CR 2, I 17, 437 P.3d 1061, 1068.
- Chapman U. California, 386 U.S. 18, 24 (1967).
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 888 - Forcible Sodomy
- Okla. Stat. tit. 21 § 1123 - Lewd Molestation
- Okla. Stat. tit. 21 § 1123(A) - Punishment for Lewd Molestation
- Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
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:
- Simpson v. State, 1994 OK CR 40, 876 P.2d 690
- Hinsley v. State, 2012 OK CR 11, 280 P.3d 354
- Magnan v. State, 2009 OK CR 16, 207 P.3d 397
- Chadwell v. State, 2019 OK CR 14, 446 P.3d 1244
- White v. State, 2019 OK CR 2, 437 P.3d 1061