# Anderson v. State

> Court of Criminal Appeals of Oklahoma · February 22, 2006 · 130 P.3d 273

URL: https://www.frixlaw.com/law-library/cases/9795448

## Case

- **Full name:** Richard Lloyd ANDERSON, Appellant v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** February 22, 2006
- **Citations:** 130 P.3d 273; 2006 OK CR 6; 2006 Okla. Crim. App. LEXIS 6; 2006 WL 400079
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Chapel, Lumpkin, Johnson, Lewis
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9795448

## How later opinions describe it (automated extraction)

- holding that jurors should be instructed regarding the "85% Rule," contained within 21 O.S.2001, §§ 12.1 & 13.1, for crimes falling within this rule
- holding that jurors should be instructed regarding the "85% Rule," contained within 21 0.$.2001, §§ 12.1 & 13.1, for crimes falling within this rule
- stating that “[a] trial court’s failure to instruct on the 85% Rule in [prior] cases ... will not be grounds for reversal”

## Opinion text

LUMPKIN, V.P.J.:
Concurs in Part/Dissents in Part.
¶ 1 I agree some action needs to be taken with respect to the jury instructions applicable to the “85% rule,” 1 as set forth further below. However, that action would have no bearing on this particular case because the jury sentenced Appellant to life imprisonment without the possibility of parole. Obviously, then, jurors decided that whatever parole policies might apply to a regular life sentence, Appellant should be ineligible. 2
¶ 2 Be that as it may, I agree that the Oklahoma Legislature’s enactment of the 85% rule has “changed the rules,” relating to sentences imposed for a certain term of years. But the same cannot be said for life sentences, for the reasons set forth below.
*286 ¶ 3 This Court has previously addressed the application of the percentage of a sentence to be served in relation to a life sentence, when we interpreted 57 O.S.1987, § 353 (now 57 O.S.2001 353.1) in Underwood v. State, 1990 OK CR 1, ¶ 3 , 786 P.2d 707 , 708 and in White v. State, 1989 OK CR 20 , ¶ 4, 774 P.2d 1072 . There, we held that statute was inapplicable to a life sentence, because the term of a life sentence could not be determined in finite terms. Id.
¶ 4 It seems to me that the administrative policies of an executive branch panel, the Oklahoma’s Pardon and Parole Board, should not be used to dilute a life sentence imposed by an Oklahoma jury. Life, in Oldahoma, means life, and therefore 85% of a life sentence is not discernable with any mathematical certainty. It is a dangerous practice (and possible violation of the separation of powers doctrine) for the judicial branch to simply defer to the Pardon and Parole Board’s administrative and somewhat arbitrary decision to treat life sentences as a set number of years for all defendants, no matter their age or health of life expectancy. In effect, what the Court has done is take the Pardon and Parole Board administrative edict regarding when they will first “consider” an inmate for parole and modified a valid life sentence to that term. That is an arbitrary use of power. It would be more accurate on an individual basis to use the actuarial mortality tables used by insurance companies to say when an inmate can be considered for parole rather than the one size fits all approach here, and even that would tend to change over time.
¶ 5 I believe the legislative intent should be applied and would agree it is appropriate for a judge to advise a jury a defendant must serve 85% of any term of years imposed, regardless of the number of years. However, what constitutes service of 85% of a life sentence is anybody’s guess. We should not play games with the sentence given here, for to do so would disregard legislative intent. Indeed, the language the Court uses today, if it had been given as a jury instruction, would have informed jurors that a person sentenced to life imprisonment without the possibility of parole is eligible for parole after 85% of 45 years is served. For these reasons, I dissent to the methodology adopted to apply the provisions of 21 O.S.2001, § 12.1, to life sentences.
¶ 6 Due to the complexity of this issue, the best process for this Court to follow is to follow precedent in this case and affirm the judgment and sentence, while at the same time referring the issue to the OUJI-CR Committee to review and submit a recommendation to the Court regarding the form and scope of an appropriate instruction, giving full force and effect to legislative intent.
LEWIS, Judge, Specially Concurring.
¶ 1 I concur with the Court’s opinion that the Legislature’s enactment of 21 O.S.2001 § 12.1, the 85% Rule, changed the traditional understanding of parole. The Court is unanimous in the opinion that in all eases that carry a determinate number of years, jurors should be instructed about a defendant’s parole ineligibility when the 85% Rule applies. I also concur in the holding that in cases involving a possible life sentence, the jury will be instructed that a defendant sentenced to life imprisonment must serve at least 85% of 45 years before he is eligible for parole. This case squarely presents the question of what a sentence of life imprisonment means when the 85% rule applies, and the Court discharges its duty to interpret the nature of that sentence drawing on the longstanding parole eligibility policy of the Pardon and Parole Board.
¶ 2 I share the concern expressed by Judge Lumpkin about the appropriateness of this Court accepting the administrative decision of the Pardon and Parole Board governing parole eligibility for a life sentence. Because I do not conclude that the Court’s requirement of an instruction informing the jury of the current 45-year policy (and any successor policy, as the majority points out), read in conjunction with the statutory requirement that a defendant serve at least 85% of that 45 years, frustrates the sentencing authority of the Legislature as conferred on judges and juries or impairs any prerogative of the executive branch to alter its current policy, I join in the holding of the Court. Defendants sentenced to life imprisonment in this way remain under that sentence all of *287 their days, and obtain their liberty only after a recommendation from the Pardon and Parole Board, and then only conditionally, under terms dictated by the Governor, if ever. The instruction required by the Court’s opinion only illuminates for a jury the actual execution of a life sentence, without altering the substantive nature of the sentence imposed.
¶ 3 I also distinguish the situation here from one where a jury, properly instructed on the application of the 85% requirement to the charged offense, is called upon to assess punishment for a term of years within the statutory range. I do not read the majority opinion to require the trial court to include language in its 85% instruction about the Pardon and Parole Board’s 45-year policy when the sentencing range is any term of years and does not include the possibility of life imprisonment. Indeed, the trial court should not include such language. In such cases the jury, now fully informed of the sentencing consequences for the defendant, can assess punishment within the range authorized by the Oklahoma Statutes.
. 21 O.S.2001, § 12.1, the so-called 85% rule, mandates that a defendant who is convicted of certain crimes must serve "not less than eighty-five percent (85%) of the sentence of imprisonment imposed” before becoming eligible for parole consideration.
. Fishback v. Commonwealth, 260 Va. 104 , 532 S.E.2d 629 (2000), the case that supposedly presents an "almost exactly parallel situation” to the one faced here, is in actuality completely distinguishable, presenting an altogether different issue than determining what 85% of life means in Oklahoma.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795448. Public record. Not legal advice.