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ORIGINAL *1043786859 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA DANIEL JEREMIAH MCKAY, ) ) Appellant, ) NOT FOR PUBLICATION ) V. Case No. F-2018-541 FILED THE STATE OF OKLAHOMA, IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. JUN – 6 2019 JOHN D. HADDEN CLERK SUMMARY OPINION ROWLAND, JUDGE: Appellant Daniel Jeremiah McKay was charged in the District Court of Tulsa County, in Case No. CF-2015-4650, with Sexual Abuse of a Child Under 12, in violation of 21 O.S.Supp.2014, § 843.5(F) (Count 1) and Failure to Register as a Sex Offender, in violation of 57 O.S.Supp.2014, § 583 (Count 2), both After Former Conviction of Two or More felonies. He was acquitted on Count 1 and convicted on Count 2. The jury assessed punishment at seven years imprisonment. The Honorable Kelly Greenough, District Judge, presided over McKay’s jury trial and sentenced him in accordance with the jury’s verdict. The trial court ordered that the sentence imposed in this case be served concurrently with the sentence imposed in Case No. CF- 2017-2140. McKay appeals raising the following issue: (1) whether his sentence is excessive. We find relief is not required and affirm the Judgment and Sentence of the district court. 1. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is SO excessive as to shock the conscience of the Court. Baird v. State, 2017 OK CR 16, T 40, 400 P.3d 875, 886. The range of punishment for failing to register as a sex offender after former conviction of two or more felonies is from four years to life imprisonment. Mckay argues that the four year minimum punishment was appropriate and the jury only deviated from the minimum sentence because of evidence that pertained solely to the count for which he was acquitted. He argues that this was improper and urges this Court to consider the “retroactive misjoinder” doctrine. 2 See Williams v. State, 37 So.3d 717 (Miss. Ct. App. 2010). 1 We do not find McKay’s argument persuasive and decline to adopt the doctrine. Additionally, McKay argues that testimony describing judicial sentence review, split sentences, and probation contributed to the imposition of a lengthier sentence than would otherwise have been assessed. In Terrell v. State, 2018 OK CR 22, I 6, 425 P.3d 399, 401 (internal citations omitted), this Court held: Jurors are free to consider the relevant proof of a prior conviction including any evidence that a defendant previously received probation, suspension, or deferral of a sentence and any acceleration or revocation of such a sentence. The receipt of a probationary term may be viewed 1 In Williams, the court adopted the doctrine of retroactive misjoinder concluding that: [I]t occurs when a trial or appellate court determines that while joinder of two or more counts against a defendant was initially proper, one or more of those counts should be vacated. Furthermore, if the defendant can show that he suffered clear and compelling prejudice as a result of the evidence introduced to support the vacated count, he is entitled to a new trial on the remaining count(s). Williams, 37 So.3d at 720. 2 Even if we were persuaded to adopt the retroactive misjoinder doctrine it would not require relief in the present case. See Reynolds U. State, 227 So. .3d 428, 434 (Miss. Ct. App. 2017)(“[S]o far as we are aware, no case has held that a defendant was entitled, on the ground of retroactive misjoinder, to a new trial on the counts of conviction simply because the jury found the government’s proof on other counts unpersuasive.” (quoting United States v. Hamilton, 334 F.3d 170, 183 (2d Cir. 2003) (emphasis added)). The Mississippi court clarified, “[t]he doctrine of retroactive misjoinder applies when the defendant was prejudiced by evidence admissible only on a charge that failed or was invalid as a matter of law.”). 3 as supporting both greater and lesser punishment depending on the facts of the case. The evidence presented at trial was admissible and properly considered by the jury. McKay’s sentence of seven years imprisonment was only three above the minimum and far less than the maximum. It does not shock the conscience. McKay’s claim of excessive sentence is without merit and is denied. DECISION The Judgment and Sentence of the district court 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 delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE KELLY GREENOUGH, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL BRIAN MARTIN CHAD JOHNSON ATTORNEY AT LAW APPELLATE DEFENSE 1331 S. DENVER AVENUE COUNSEL TULSA, OK 74119 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT 4 ANDREA BROWN MIKE HUNTER ASSISTANT DISTRICT ATTORNEY GENERAL ATTORNEY OF OKLAHOMA 500 S. DENVER, SUITE 900 JAY SCHNIEDERJAN TULSA, OK 74013 ASSISTANT ATTORNEY COUNSEL FOR STATE GENERAL 313 N.E. 21 ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: ROWLAND, J. LEWIS, P.J.: Concur in Results KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur in Results HUDSON, J.: Concur 5

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