Seibert v. State

• Decision Date: 02 July 1969
• Docket Number: No. A--14853,A--14853
• Citation: 1969 OK CR 205,457 P.2d 790
• Parties: Joseph SEIBERT, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 790

457 P.2d 790

Joseph SEIBERT, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14853.

Court of Criminal Appeals of Oklahoma.

July 2, 1969.

Syllabus by the Court

1. Under the provisions of 22 O.S.Supp. § 973, where punishment is left to court on plea of guilty, it is proper for court to make inquiry, at either party's suggestion, into all circumstances which may be properly considered in aggravation or mitigation of punishment.

2. It is not improper to allege both a capital offense and the after former conviction of a felony charge, when defendant is being tried by a jury in a two-stage proceeding when there is a possibility that the defendant might be found guilty of a lesser included offense. However, if the jury returns a verdict finding the defendant guilty of the capital offense, punishable only by death or life imprisonment, the trial court should summarily dismiss the second stage of the proceeding as being unnecessary to enhance the maximum punishment of death, or life imprisonment.

3. Defendant who freely and voluntarily enters a plea of guilty with full knowledge of the nature and consequences thereof, and who does not thereafter seek to withdraw such plea, he preserves nothing for review on appeal.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Plaintiff in Error, Joseph Seibert, was convicted on a plea of guilty to the charge of armed robbery, after former conviction of a felony, and was sentenced to serve one hundred and fifty years imprisonment and appeals. Judgment and sentence affirmed.

Jay D. Dalton, Public Defender Tulsa County, for plaintiff in error.

G. T. Blankenship, Atty. Gen., S. M. Fallis, Dist. Atty., Ted Flanagan, Asst. Dist. Atty., Tulsa, for defendant in error.

BRETT, Presiding Judge.

The plaintiff in error, Joseph Seibert, hereinafter referred to as the defendant, was charged by Information filed in the District Court of Tulsa County on November 17, 1967, with the crime of robbery with firearms after former conviction of a felony.

Prior to the filing of the Information following his preliminary hearing, the defendant was committed to the Eastern State Hospital for a period not exceeding ninety days for observation. He was returned to Tulsa County, having been found not to be insane and that he was presently able to assist his counsel in his defense.

He appeared with his counsel Public Defender Dyer, was duly arraigned, entered a plea of not guilty and his case was set for trial on the February 1968 docket. Thereafter the defendant filed in longhand the following:

(1) A petition for a writ of habeas corpus.

(2) A motion for a mental examination by an independent psychiatrist.

(3) A petition to proceed forma pauperis.

(4) A motion to suppress the evidence.

(5) A motion for a change of counsel.

(6) A motion for a change of venue.

(7) A motion for a second preliminary hearing.

(8) A motion to strike the allegations of former convictions.

The court sustained motion No. 5, and My. Dyer, was permitted to withdraw as counsel, and Mr. William W. Hood, Jr., was appointed to represent the defendant. His petition for a writ of habeas corpus was heard and denied on January 17th, and the other motions were set for hearing for January 24th. On the latter date, the defendant being present with counsel, a hearing was had on the remaining motions, at the conclusions of the hearing the defendant waived and withdrew all of his motions save the one to strike the allegations of former convictions. Ruling was reserved on this motion, and his case was set for trial for February 5, 1968.

On February 5th, the defendant with his counsel appeared before the court, his motion to strike the allegations of former convictions was overruled. The defendant then withdrew his former plea of not guilty, waived trial by jury, and entered a plea of guilty to the Information including the allegations of fomrer convictions of felony.

Prior to accepting the defendant's plea of guilty, the court advised the defendant of the statutory penalty, and ascertained that his plea was voluntary. The defendant stated:

'Your Honor, Mr. Hood informed me that you could give me the death penalty on a plea of guilty, and he also told me that the prosecuting attorney would, in his opinion, recommend--would not recommend the death penalty. And at this time I am pleading guilty because I am guilty in front of you for leniency because I am afraid that if I take this case to a jury with an after former conviction I would get the death penalty or get a longer sentence, which I do not think I deserve.'

Prior to asking for a recommendation from the State as to the proper penalty, the court asked for a statement of the facts in the case and an outline of the past record of the defendant. The statement was given by the assistant district attorney With the consent of the defendant.

The statement revealed that in the course of the robbery at the Sipes Food Market, that the defendant shot the manager twice, that he held up several cashiers at the check-out stands and required them to surrender their money to him. That the robbery was witnessed by a number of patrons as well as employees of the store. The defendant was apprehended within a few minutes of the robbery.

The record of his prior convictions showed that he had previously been convicted of (1) burglary in 1955, sentence 10 years; burglary 1956, sentenced 5 to 10 years; forgery 1958, sentence 7 years, murder 1965, sentenced life imprisonment.

That on October 13, 1967, just thirteen days prior to the robbery of the Sipes Food Market, the defendant was in a courtroom in Kansas City, Missouri, on an application for a writ of habeas corpus, and that he escaped from the custody of a deputy sheriff and fled to Oklahoma. That after the hearing in the Tulsa County District Court on January 17, 1968, the defendant again escaped custody of a deputy sheriff and was captured in the halls of the courthouse before he could make good his escape.

The State recommended a sentence of 150 years, and thereafter both the defendant personally and his counsel Mr. Hood were permitted to make statements and arguments in mitigation.

The Court, the Honorable Raymond W. Graham, on consideration of the statements and argument of counsel and the defendant, and on due reflection thereof, found:

'* * * the record of the defendant is replete with antagonism toward society and a sneering contempt for law, that he has dedicated his life in the pursuit of crime from the time that he reached adulthood until the present time, that incarceration in the penitentiary for the longest possible period of time is mandatory and necessary for the protection of society, to serve as a warning to other evildoers, that the rehabilitative effect of incarceration has not had any good effect in the past, and the Court is abandoning the lip service that many people would place insofar as Mr. Seibert is concerned concerning rehabilitation, the callous planned act, the defiance of the laws of the State of Oklahoma and the other states in the Union, that the Court considers the recommendation made by the District Attorney to be applicable and appropriate in this case, and it is the judgment and sentence of the Court that Joseph Seibert, age 28, be sentenced to a term of 150 years in the State Penitentiary.'

Defendant's court appointed counsel filed a brief in defendant's behalf in which he raised one proposition, that being: 'The assessment of punishment for a term of years beyond the span of life presently allotted to a human being is cruel and unusual.' In support of this proposition he cites from 24 B C.J.S. Criminal Law § 1978b and the cases of Ex parte Meyers, 55 Okl.Cr. 75, 24 P.2d 1011, 1012, and a Nebraska case styled McMahon v. State, 70 Neb. 722, 97 N.W. 1035. The substance of these citations is that punishment set forth for a particular crime is not excessive, unless it is so excessive as to shock the sense of mankind. In this respect however, such analysis becomes subject to the facts and circumstances of the particular case under consideration. Consequently, applying such analysis to the facs of the case under consideration, the punishment is not so excessive as to shock the sense of mankind.

Nor do we accept counsel's contention that the sentence of the trial court--on defendant's plea of...