Menifee v. Page

• Citation: 423 P.2d 478
• Decision Date: 25 January 1967
• Docket Number: No. A--13820,A--13820
• Parties: Floyd MENIFEE, #72071, Petitioner, v. Ray PAGE, Warden, Oklahoma State Penitentiary, and the District Court of Coal County, State of Oklahoma, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 478

423 P.2d 478

Floyd MENIFEE, #72071, Petitioner, v. Ray PAGE, Warden, Oklahoma State Penitentiary, and the District Court of Coal County, State of Oklahoma Respondents.

No. A--13820.

Court of Criminal Appeals of Oklahoma.

Jan. 25, 1967.

Floyd Menifee, #72071, pro se.

MEMORANDUM OPINION

NIX, Presiding Judge.

This is an Original Proceeding, filed by one Floyd Menifee, in habeas corpus, whereby he seeks his release from the Oklahoma State Penitentiary. He contends that his Constitutional rights were denied him and that the trial judge exceeded his jurisdiction in assessing a sentence in excess of the punishment provided by statute. This Court ordered the District Court of Coal County to conduct an evidentiary hearing as to whether petitioner was denied any Constitutional rights in connection with his appeal. That was done and a review of the transcript by this Court does not reveal any denial of petitioners Constitutional rights, therefore, the only subject of discussion will be petitioners second contention, to-wit: 'That the trial judge exceeded his jurisdiction in passing sentence'.

It is reflected by the record that defendant was charged by information in two separate cases. The charging part of each information reads as follows:

'--did wilfully, unlawfully, and feloniously assault one Shirley Adell Houchen, a female person of the age of fourteen (14) years, and not the wife of the said defendant, by taking hold of said female with his hands, displacing her clothing, putting his hands on the private parts of her body and struggling and contending with her, and threatening to use physical force and violence by striking her with a rock then and there held in his hand, with the unlawful and felonious intent upon the part of said defendant to then and there rape, ravish, carnally know and have sexual intercourse with said female,--.'

The forepart of said information described the crime committed as 'Assault with Intent to Rape, First Degree'.

Petitioner argues that the wording of said information brings the accusation under Title 21, O.S.A. § 681, which reads as follows:

'Every person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not otherwise prescribed in this code, is punishable by imprisonment in the State penitentiary not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.'

Petitioner entered a plea of guilty to said informations and was sentenced to two Fifteen (15) year sentences to run concurrently. It was the contention of the state that the information in both cases comes under Title 21, O.S.A. § 42, which reads as follows:

'Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpretration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows:

1. If the offense so attempted be punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted. * * *'

A glimpse of the record, and upon first impression, your writer was inclined to think petitioner was prejudiced by the sentence and that the trial court had exceeded its jurisdiction. But, a thorough review of the proceeding reveals that petitioner was represented by an able attorney appointed by the court; and thoroughly apprised petitioner as to what he might except upon a plea of guilty. A transcript of the proceedings surrounding the arraignment is before us, and shows the following took place:

'TRANSCRIPT

On this 11th day of March, 1965, this cause came on for the purpose of arraignment. The Honorable Lavern Fishel, District Judge, presiding.

The Honorable Dennis H. Petty, Acting County Attorney, appeared in behalf of the State of Oklahoma. The Defendant appeared in person and with his Court Appointed Counsel, Mr. James L. Clark, Attorney at Law, Coalgate, Oklahoma.

WHEREUPON, Case No. 2591, State of Oklahoma vs. Floyd Menifee, and Case No. 2592, State of Oklahoma vs. Floyd Menifee, is called for arraignment. The Defendant, Floyd Menifee, and His Court appointed Counsel, Mr. James L. Clark, Appear before the Court.

Information is read by the Court in cause No. 2591.

Information is read by the Court in cause No. 2592.

BY THE COURT: Mr. Menifee, since the charges in both cases, in which the Information has just been read to you, are the same, what I have to say to you as far as your constitutional rights are concerned, will apply in both cases.

First you are advised by the Court that you have a right to enter a plea of Not Guilty. You have a right to have a trial by a jury. If you enter a plea of Not Guilty, it becomes the duty of the Court to determine an appearance bond in an amount sufficient to guarantee your appearance at the next regular jury term of Court when ordered by the Court. You have the further right, in cases such as this, to have an additional twenty-four hours within which to determine the nature of your plea. This is a safeguard afforded by the Constitution of the State of Oklahoma, and the Statutory Law, in that a defendant may meditate upon the consequences of his plea, after being advised of his constitutional rights.

You may enter a plea of Guilty if you desire. In the event you enter a plea of guilty, you waive your right to a jury trial and it then becomes the duty of the Court to assess your punishment in keeping with that which is provided by the Statutes of the State of Oklahoma for the commission of an offense of this nature. The Statutes of the State of Oklahoma provide for Assault with Intent to Rape First Degree, not less than four years or not to exceed half of the maximum sentence which you could receive under a charge such as this attempted. The maximum penalty you could receive in being charged with First Degree Rape in the State of Oklahoma is a life sentence, so in this instance, Assault with Intent to Commit Rape First Degree, you could receive half of a life sentence a maximum of which the Courts have determined to be thirty-seven and a half years, so your penalty would be not less than four years, on conviction, nor more than thirty-seven and a half years.

Do you desire to enter a plea at this time?

BY MR. CLARK: Your Honor, may I consult with my client for about five minutes in your office please?

BY THE COURT: Yes sir, you may.

(Defendant and his attorney go into Courts Office for consultation, then return into Open Court.)

BY MR. CLARK: Your Honor, Mr. Menifee is charged with Assault with Intent to Commit Rape in both of these cases. Under Title 21--681, it says, 'every person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, the punishment for which assault is not otherwise prescribed in this code, is punishable by imprisonment in the State Penitentiary not exceeding five years, or in a County Jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment'--I just now looked it up.

BY THE COURT: Yes, but thats not the Statute involved here. Title 21--42 is, and I have checked the cases this morning.

BY MR. CLARK: He is not charged with attempted rape--its assault with attempt to rape, so coming under this other crime, I would ask the Court to instruct the defendant that his maximum penalty is five years.

BY THE COURT: Do you have anything to say Mr. Petty?

BY MR. PETTY: Nothing Your Honor except that before filing this I checked the Statutes, and the Statute Mr. Clark just read there is an exception, theres an exception in it. I elected filing under this statute Your Honor has just read and I am willing to stand on the information, as filed.

BY MR. CLARK: Do you say he is charged with Assault with Intent to Rape?

BY MR. PETTY: Mr. Clark, it is as charged in the Information before you.

MR. CLARK: Then that general attempt Statute would come under attempted rape, but where charged with assault with intent to rape, I feel he comes under that other Statute Your Honor.

BY MR. PETTY: In addition, there is the wording 'first degree'; I'm satisfied with it as is Your Honor.

THE COURT: Mr. Clark, you may make your objection if you desire; I have checked three cases this morning and they were all charged with Assault with Intent to Rape, First Degree, and the latest one I believe I checked was in 1957, and it provided that under Title 21--42, it was an appropriate penalty, and upheld a penalty of thirty-seven years, given by the Court where a jury was waived.

BY MR. CLARK: But this is not an attempted crime Your Honor, this is an assault on this woman.

BY THE COURT: I don't follow your reasoning, the Court has instructed him in keeping with what the Court feels the law to be in this case, you may have an objection if you desire.

BY MR. CLARK: I would like an exception to the general instructions of the Court.

THE COURT: You may have one; do you desire at this time to enter a plea?

BY MR. CLARK: Not Guilty.

BY THE...