Dоnald Ray MAXWELL, Appellant, v. STATE of Oklahoma, Appellee.
No. F-86-321
Court of Criminal Appeals of Oklahoma
May 24, 1989
775 P.2d 818
Floyd also stipulated that he would pay all costs associated with his petition for reinstatement. The Bar filed a motion to assess costs in the amount of $749.53. The motion is granted.
Conclusion
Upon consideration of the factors listed in In the Matter of Kamins, supra, we find that the record shows that Floyd possesses the moral character required of a member of the Bar as well as the competence to engage in the practice of law without examination. We also find that the evidence shows thаt Floyd did not engage in the unauthorized practice of law.
Therefore, IT IS ORDERED that Applicant, Henry W. Floyd, is reinstated to membership in the Oklahoma Bar Association and to the Roll of Attorneys, effective upon the payment of costs in the amount of $749.53.
All Justices concur.
Michael C. Turpen, Atty. Gen., P. Kay Floyd, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
LANE, Judge:
Donald Ray Maxwell, Appellant, was tried by jury for the crime of Attempted Kidnapping After Former Conviction of Two or More Felonies in violation of
On the evening of February 13, 1985, Sherry Frye walked a few blocks from her home to use the pay phone outside the Muskogee telephone company. She sаw Donald Ray Maxwell, Appellant, standing beside her as she completed her call. When she started to walk home, Appellant grabbed her by the collar and began to force hеr to go behind the telephone company office building with him. When Frye screamed, Appellant slapped her and took a handgun out of his coat pocket. Frye then broke frеe and Appellant fled.
At the time he committed this offense, Appellant had six (6) prior felony convictions. He had been convicted of First Degree Rape in 1984 and Larceny of Merchandise From a Retailer in 1981. In 1978, Appellant was convicted of Knowingly Concealing Stolen Property, Second Degree Burglary, Burglary of an Automobile and Burglary of a Motor Vehicle.
Appellant asserts the trial court should have declared a mistrial when the state‘s witness, Detective Norman Grayson, testified Frye had identified Appellant at the police station on the night of the crime. Appellant did not object to this testimony at trial. By failing to object, Appellant has waived review by this Court for all but fundamental error. See Aycox v. State, 702 P.2d 1057 (Okl.Cr.1985).
Testimony that an extra-judiсial identification was made may be admissible, but it is limited to the identifier. Such testimony by third persons present at the time of the identification constitutes error, but not necessarily reversible errоr. See, e.g., Maple v. State, 662 P.2d 315 (Okl.Cr.1983). Appellant relies on Aycox in asserting that the admission of Grayson‘s testimony constitutes reversible error. We disagree.
In Aycox, the victim failed to identify Aycox at trial. The only identification testimony linking Aycox to the crimе was a police officer‘s statement that the victim had made an extrajudicial identification. 702 P.2d at 1058. In the instant case Frye and an eyewitness identified Appellant in Court prior to Graysоn‘s testimony. Frye also testified to the extra-judicial identification she had made on the night of the crime. While Grayson‘s testimony should
Appellant next claims he was denied effective assistance of counsel. As evidence he cites defense counsel‘s failure to object to Grayson‘s testimony. Appellate review of an ineffective assistance of counsel claim begins with a presumption of competence. Appellant then must carry the burden of demonstrating both a deficient performance and resulting prejudice. State v. Johnson, 765 P.2d 1226 (Okl.Cr.1988). Having found the admission of Grayson‘s testimony to be harmless error, we find defense counsel‘s failure to object to it does not constitute ineffective assistance of counsel.
Aрpellant argues that his sentence of life imprisonment is excessive and disproportionate to his crime in violation of the eighth amendment‘s prohibition against cruel and unusual punishmеnt. In support of this argument, Appellant asserts the United States Supreme Court decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) requires us to perform an extensive proportionality review of his sentence.
In Solem, defendant Hеlm was sentenced under the South Dakota recidivist statute to life imprisonment without the possibility of parole for uttering a “no-account” $100.00 check after six prior felony convictions. Each of Helm‘s prior felony convictions were for property crimes which the Court characterized as relatively minor. 463 U.S. at 297, 103 S.Ct. at 3013. In declaring Helm‘s sentence of life imprisonment without possibility of parole unconstitutional, the Solem court held for the first time that a noncapital sentence was disproportionate. The Court analyzed Helm‘s sentence using three “objеctive factors“: (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the same crime in other jurisdictions. 463 U.S. at 292, 103 S.Ct. at 3010-3011. Appellant urges this Court to adopt the Solem test as our standard of review in determining whether a sentence is excessive. We find, however, that Solem is not controlling in the instant case.
Of particular significance to the instant appeal, the Solem court expressly stated it was not overturning its earlier deсision in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) which upheld a mandatory life sentence with possibility of parole imposed under the Texas recidivist statute against Rummel whose third felony conviction was for obtaining $120.75 by false pretenses. The Solem court distinguished at great length the Texas system which provided Rummel the probability of parole and the South Dakota system which provided Helm only the remote possibility of exеcutive clemency. 463 U.S. at 297 and 300-03, 103 S.Ct. at 3013 and 3014-3016.
Therefore, as Solem does not overrule Rummel, we find Solem requires an extensive proportionality analysis only in those cases involving life sentences without the possibility of parole. The Fourth Circuit Court of Appeаls reached a similar conclusion in United States v. Rhodes, 779 F.2d 1019 (4th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986).
Our review of the constitutionality of Appellant‘s sentence is guided by well established principles. We must grant substantial deference to the legislaturе‘s determination of sentencing limits, and we must not substitute our judgment for that of the sentencing court as to the appropriateness of a particular sentence. Solem v. Helm, 463 U.S. at 277 and 290 n. 16, 103 S.Ct. at 3003 and 3009-3010 n. 16. We have consistеntly expressed these principles by stating that when a sentence is within statutory limits, it will not be modified unless, after a review of all the facts and circumstances, the sentence is so excеssive that it shocks the conscience of this Court. See, e.g., Whittmore v. State, 742 P.2d 1154 (Okl.Cr.1987); Berkihiser v. State, 219 P.2d 1020, 92 Okl.Cr. 31 (1950).
In light of the fact that attempted kidnapping is a violent crime, and Appellant‘s criminal record of six (6) prior felony convictions includes the commission of violent crime, we cannot say Appellant‘s sentence shocks the conscienсe of the Court. We conclude Appellant‘s sentence, which is within statutory limits, and which does not shock the conscience of this Court, is constitutional and should be affirmed.
Finding no error to rеquire reversal or to justify a modification, the judgment and sentence is AFFIRMED.
BRETT, P.J., and BUSSEY and LUMPKIN, JJ., concur.
PARKS, V.P.J., concurring in result.
PARKS, Vice Presiding Judge, concurring in result:
While I agree that appellant‘s life sentence for attempted kidnapping after former conviction of two or more felonies is not disproportionate under the current eighth amendment analysis set forth in Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3010, 77 L.Ed.2d 637 (1983), I cannot agree with the majority that ”Solem requires an extensive proportionality analysis only in those cases involving life sеntences without the possibility of parole.” Majority, at 820. Such a position is clearly at odds with the following language in Solem:
There is no basis for the State‘s assertion that the general princiрle of proportionality does not apply to felony prison sentences... It would be anomalous indeed if the lesser punishment of a fine and the greater punishment of death wеre both subject to proportionality analysis, but the intermediate punishment of imprisonment were not... The common-law principle incorporated into the Eighth Amendment clearly applied to prison terms... [O]ur prior cases have recognized explicitly that prison sentences are subject to proportionality analysis....
* * * * * *
[W]e hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted... [N]o penalty is per se constitutional. As the Court noted in Robinson v. California, 370 U.S. [660] at 667, 82 S.Ct., [1417] at 1420, [8 L.Ed.2d 758 (1962)] a single day in prison may be uncоnstitutional in some circumstances.
Solem, 463 U.S. at 288-290, 103 S.Ct. 3009-3010 (footnotes omitted) (citations omitted) (emphasis in original). Finally, I would point out that we recently recognized the continued validity of Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), in Johnson v. State, 764 P.2d 197, 201 (Okla.Crim.App.1988), where we held thаt a punishment of forty (40) years imprisonment for conviction of possession of a controlled dangerous substance, after former conviction of eight felonies, was not disproportionate under the Eighth Amendment.