Sentencing Range

F-2018-975

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MICKEY JOE EDWARD RICHARDSON,** **Appellant,** **VS.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-975** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JAN 30 2020** --- **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Mickey Joe Edward Richardson, was convicted by a jury in Haskell County District Court, Case No. CF-2016-91, of several crimes, receiving the following sentences: - **Assault and Battery on a Police Officer**, After Conviction of a Felony (Count 1) - **5 years** - **Larceny of an Automobile**, After Conviction of a Felony (Count 2) - **20 years** - **Feloniously Pointing a Firearm**, After Conviction of a Felony (Count 4) - **30 years** - **Felon in Possession of a Firearm**, After Conviction of a Felony (Count 5) - **Life** - **Escape from Detention** (Count 8) - **1 year** On September 11, 2018, the trial court, presided by the Honorable Brian C. Henderson, Associate District Judge, imposed the jury-recommended sentences to be served consecutively. This appeal followed. Appellant raises six propositions of error: 1. **Misinstruction on Sentencing Range** for Possession of a Firearm After Conviction of a Felony. 2. **Violation of Fourteenth Amendment Due Process** regarding jury instructions. 3. **Improper Victim Impact Statements** affecting the fairness of the sentencing hearing. 4. **Abuse of Discretion** with respect to the policy of consecutive sentencing. 5. **Ineffective Assistance of Trial Counsel** violating constitutional rights. 6. **Cumulative Errors** affecting the fairness of the proceedings. After thorough consideration of the propositions, briefs, and the entire record, we affirm. Appellant was convicted after attacking a sheriff’s deputy, stealing a patrol car, and attempting to evade other officers. ### Analysis of Propositions: **Proposition I: Misinstruction on Sentencing Range** Appellant claims misinstruction regarding the sentencing range for Count 5, asserting it should be one to ten years under 21 O.S. 2011, § 1284. However, the jury was properly instructed on the sentencing range pursuant to 21 O.S.2011, §§ 51.1(A)(2) and 1284. **Proposition II: Jury Instruction on Statement Voluntariness** Appellant argues the trial court erred by not instructing the jury on the voluntariness of his statement to police. As Appellant testified and did not claim the statements were involuntary, this contention lacks merit. **Proposition III: Victim Impact Statements** Appellant objected to victim impact statements, claiming they were inadmissible since the crimes were not violent. However, one conviction (Pointing a Firearm) was classified as a violent crime, making the inclusion of the statements appropriate. **Proposition IV: Consecutive Sentencing Policy** Appellant alleges the trial court enforced a policy of consecutive sentencing for defendants who exercise their right to a jury trial. The record indicates the trial court exercised discretion properly, adhering to the statutory default for consecutive sentences. **Proposition V: Ineffective Assistance of Counsel** Appellant contends his trial counsel was ineffective for not objecting to previous claims. As we found those claims meritless, trial counsel cannot be faulted for failing to raise meritless objections. **Proposition VI: Cumulative Errors** No errors were identified in prior propositions, thus, there are no cumulative errors to evaluate. ### Decision The Judgment and Sentence of the District Court of Haskell County is **AFFIRMED**. Pursuant to Rule 3.15, the MANDATE is ordered issued upon the delivery and filing of this decision. --- **Appeal from the District Court of Haskell County** **The Honorable BRIAN C. HENDERSON, Associate District Judge** **Attorneys for Appellant: ROGER HILFIGER, SARAH MACNIVEN** **Attorneys for Appellee: CHRISTINA BURNS, MIKE HUNTER, ASHLEY L. WILLIS** **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-975_1734872271.pdf)

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F-2013-1073

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In OCCA case No. F-2013-1073, George H. Pinkney appealed his conviction for possession of a controlled substance (marijuana) in the presence of a minor, among other charges. In a published decision, the court decided to modify his sentence for the first count to five years but upheld other convictions. One judge dissented regarding the sentence modification.

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F-2013-36

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In OCCA case No. F-2013-36, Jasper appealed his conviction for Conspiracy, Kidnapping, Attempted First Degree Rape, and First Degree Robbery. In an unpublished decision, the court decided to affirm Jasper's convictions but modify the sentence for First Degree Robbery. One judge dissented. Jasper was found guilty by a jury of four serious crimes. For Conspiracy, he was sentenced to ten years and fined $5,000. For Kidnapping, he received a 20-year sentence. Attempted Rape meant he was sentenced to 22.5 years, and for First Degree Robbery, he was given ten years. The sentences were supposed to be served one after the other, which made his total time in prison very long. Jasper raised several arguments on why he thought his convictions should be changed. He argued that the evidence didn't prove he was part of a conspiracy to commit rape, meaning there wasn't enough proof of an agreement to commit a crime. He also claimed that he shouldn't have been punished for both Kidnapping and Attempted Rape because they were connected to the same act. He believed this meant he faced double punishment for the same offense, which should not happen. Regarding his robbery conviction, Jasper contended that he shouldn't be punished for it because of double jeopardy, a rule that stops someone from being tried for the same crime twice. He also claimed the judge made a mistake when telling the jury about the sentence they could give him for robbery, which he believed went against his rights. Another argument was that some evidence presented during the trial wasn't fair and made him look bad but was not relevant to the case. He asserted that a lot of hearsay evidence was introduced that made his trial unfair and that his lawyer didn’t help him properly. After review, the court found that Jasper's conviction for Conspiracy was supported enough by evidence for the jury to make its decision. They ruled that the convictions for Kidnapping and Attempted Rape were also valid because they were considered separate crimes, meaning he could be punished for both. The claim of double jeopardy concerning his robbery conviction was rejected because the crimes he committed had different elements, making each punishment lawful. When it came to the sentencing instructions for First Degree Robbery, the court recognized a clear error since the jury was told wrong information about the possible sentence. They found that the minimum prison term should have been five years instead of ten. Because of this mistake, Jasper’s sentence for First Degree Robbery was modified. Other claims by Jasper about unfair evidence and the effectiveness of his lawyer did not convince the court to overturn his other convictions. The court believed that, aside from the sentencing issue, his trial was fair overall. At the end, the court kept Jasper’s convictions for Conspiracy, Kidnapping, and Attempted First Degree Rape as they were but changed his sentence for First Degree Robbery to five years. Thus, the court’s decision was mostly in favor of maintaining the original verdict and just correcting the sentencing issue.

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F-2011-1019

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In OCCA case No. F-2011-1019, Timmy Howard Dickey appealed his conviction for Child Sexual Abuse. In an unpublished decision, the court decided to modify his conviction to Incest instead. Two judges dissented. Timmy Howard Dickey was tried by a jury and found guilty of Child Sexual Abuse. The trial occurred in the District Court of Caddo County, and the judge sentenced him to 5 years in prison. Dickey was charged with having sex with his 17-year-old niece, B.D. The charges came to light when B.D. reported to the police that Dickey had raped her. Dickey's main argument on appeal was about the definition of a person responsible for the health, safety, or welfare of a child. He claimed that the court didn't have enough evidence to show that he was in a position of responsibility for B.D. at the time of the incident, which was necessary for a conviction of Child Sexual Abuse according to the law. The court agreed with Dickey’s argument, stating that there wasn't enough proof that he was a custodian as defined by the law. The law categorized those responsible for a child’s welfare, and the court found that Dickey did not fit into these categories like parents or legal guardians do. Since the legal definition of custodian requires formal authority granted by a court, and Dickey did not have such authority, the court found his conviction for Child Sexual Abuse could not stand. Even though they found insufficient evidence for that specific charge, the court acknowledged that Dickey did commit a serious crime against B.D. They indicated that it would be more fitting to change his conviction to Incest, recognizing that Dickey admitted to having consensual sex with B.D. during an interview after the incident. Ultimately, the court decided to change Dickey's conviction from Child Sexual Abuse to Incest but kept the sentence at 5 years of imprisonment. The decision was made to send a strong message about the seriousness of the crime. In conclusion, Dickey's charge was modified to recognize the seriousness of his actions, but technically, he was incorrectly charged at first. The judges had different opinions on the case, with two of them disagreeing with the court's decision to alter the conviction.

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C-2012-714

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In OCCA case No. C-2012-714, the petitioner appealed his conviction for larceny of merchandise from a retailer and resisting an officer. In a published decision, the court decided to affirm the conviction for larceny but to reverse and remand the conviction for resisting an officer. One member of the court dissented. The case began when Darrell Odell Golden was charged with stealing merchandise from a department store and for resisting arrest after being approached by law enforcement. Golden stole items valued over $1,000, and when police tried to arrest him, he ran away. Golden pled guilty to both charges but later wanted to withdraw his plea, arguing that he was confused about his possible sentence and that he did not understand the charges properly. The court found that while Golden’s plea for larceny was valid, his plea for resisting an officer lacked evidence of the required force or violence, which is necessary to support that charge. Therefore, the court allowed him to withdraw his guilty plea for that particular count but upheld his conviction for larceny. Ultimately, the decision meant that Golden will keep his larceny conviction and its associated penalties, but the charge of resisting an officer was overturned, allowing for further legal proceedings on that matter.

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F-2009-998

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In OCCA case No. F-2009-998, Frye appealed his conviction for Sexual Abuse of a Child, Procurement of Child for Pornography, and Possession of Child Pornography. In an unpublished decision, the court decided to affirm Frye's convictions and sentences but ordered the removal of a $1,000 fine that was imposed without jury authorization. One judge dissented regarding the trial court's handling of voir dire questioning.

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C-2003-136

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In OCCA case No. C-2003-136, Justin Lyle Thomas appealed his conviction for Unlawful Possession of Marijuana with Intent to Distribute, Unlawful Possession of a Controlled Drug, and Operating a Motor Vehicle Under Suspension. In a published decision, the court decided to reverse the district court's decision regarding his ability to withdraw certain guilty pleas. One judge dissented. Thomas had pleaded guilty to several charges and was supposed to complete a drug court program to avoid sentencing. However, after not doing well in the program, the state wanted to sentence him. He asked to withdraw his guilty pleas for some of the counts, and the court agreed to let him withdraw his pleas for two of the charges but denied his request for the other two. Thomas argued that he had not been properly informed about the possible sentences for the charges. The court found that there was a mistake about the punishment ranges, specifically for the drug charges. They ruled that this mistake affected his decision to plead guilty, and because of this, he should have been allowed to withdraw his pleas for all counts. The court decided in favor of Thomas and said the lower court had made a mistake when it denied his request. However, one judge disagreed and believed that the incorrect information did not really influence Thomas’s decision to plead guilty to the other charges.

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C-2003-403

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In OCCA case No. C-2003-403, David Lee Maywald appealed his conviction for Failure to Register as a Sex Offender and Registered Sex Offender Working with or Providing Services to Children. In a published decision, the court decided to modify the sentence in Count II to a fine only, while affirming the denial of the motion to withdraw his guilty plea. One judge dissented. David Lee Maywald, also known as David Lee Graham, was charged with two crimes related to being a registered sex offender. He entered a guilty plea to both charges and was sentenced to prison time and fines. After he changed his mind, he asked to withdraw his guilty plea, feeling he was misinformed about the potential sentences he might face. The court looked closely at Maywald's reasons for wanting to change his plea. First, he argued that he misunderstood the sentencing range for Count II, believing he faced more than just a fine. The court agreed that he shouldn't have received jail time for that count, as the law only allowed for a fine. So, they decided to change his sentence for Count II to just the fine amount. In his second argument, he felt he was misinformed about the maximum fine for Count I. However, the court found that the fine he received was less than what could have been, and since it matched what was agreed upon in the plea deal, it wasn’t a reason to withdraw his plea. For his third point, Maywald argued that he didn’t fully understand the implications of his guilty plea. The court said he didn’t provide enough evidence to show that he entered the plea without understanding its consequences. The court noted that he had been clearly informed multiple times about how he wouldn’t get credit for time served leading up to his sentencing. Overall, while Maywald's request to withdraw his plea was denied, the court acknowledged the error regarding the jail sentence for Count II and modified that sentence to comply with the law. The rest of the decisions from the lower court were kept the same. The judges agreed on most points, but one had a differing opinion on the case.

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F-2001-991

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In OCCA case No. F-2001-991, Clayton Armstead appealed his conviction for Possession of a Controlled Drug (Cocaine Base) with Intent to Distribute, Second or Subsequent Offense. In an unpublished decision, the court decided to affirm his conviction, but modify his sentence. One judge dissented on the modification of the sentence. Armstead faced serious charges after a jury found him guilty, and the trial court sentenced him to 30 years in prison and a hefty fine. He raised several issues in his appeal, arguing that the jury was given wrong information about his sentence, that he should have been allowed to argue for a lesser charge, that he faced double punishment for the same act, and that his lawyer didn’t provide adequate defense. He also claimed his punishment was too harsh. The court carefully reviewed everything from the trial and found that there was indeed a mistake in how the jury was instructed about the possible punishments for his crime. The law stated he could have faced a different range of punishment, and since this legal error was recognized, the court decided to change his sentence to 10 years in prison and a lower fine. While one part of the court agreed with this decision, another judge noted that the jury should have considered a different minimum sentence, and believed that a 24-year sentence would have been more appropriate instead of changing it to 10 years. In conclusion, Armstead kept his conviction, but his sentence was changed to be less severe than what the jury initially decided.

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RE-2001-1375

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In OCCA case No. RE-2001-1375, the individual appealed his conviction for multiple crimes including Theft of a Debit Card, Grand Larceny, Unauthorized Use of a Vehicle, and others. In a published decision, the court decided to affirm the revocation of his suspended sentences but modified the sentence for Grand Larceny in one count due to an error. One member of the court dissented. The case began when the individual pled guilty to several offenses on December 5, 2000. He was given sentences that were mostly suspended, meaning he would not have to serve time unless he broke the rules of his probation. However, on September 25, 2001, the State of Oklahoma said he violated those rules by not reporting to his probation officer and committing another crime, which led to a hearing. During the hearing, the judge decided to revoke his suspended sentences. The appellant argued that his punishment for Grand Larceny was too harsh since it violated the rules for sentencing that say he should not have gotten more than a year in jail for that specific crime. The court agreed that the original sentence was incorrect but also ruled that it did not harm the individual too much since his other sentences were still valid. The individual also claimed that he was unfairly required to pay for restitution he believed he should not have been responsible for, but the court found he did not follow the proper steps to challenge that. Lastly, he argued that his overall sentences were excessive, but the court determined that since the sentences were within a reasonable range and he had indeed violated his probation, there was no unfairness in the judge's decisions. So, the court affirmed most of his sentences and ordered a correction for the incorrect Grand Larceny sentence, which should only require one year of confinement.

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F-2000-282

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In OCCA case No. F-2000-282, Sidney Wayne Clark appealed his conviction for Larceny of Merchandise from a Retailer and Placing Bodily Fluids on a Government Employee. In a published decision, the court decided to modify Clark's sentence for Count I to one year in the County Jail and for Count II to one year imprisonment, with both sentences to run consecutively. One judge dissented.

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