# Rea v. State > Court of Criminal Appeals of Oklahoma · October 3, 2001 · 72 O.B.A.J. 2959 URL: https://www.frixlaw.com/law-library/cases/9796549 ## Case - **Full name:** Elmer Allen REA, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** October 3, 2001 - **Citations:** 72 O.B.A.J. 2959; 34 P.3d 148; 2001 OK CR 28; 2001 Okla. Crim. App. LEXIS 28; 2001 WL 1164123 - **Precedential status:** Published - **Opinion:** Opinion of the court by Johnson - **Judges:** Johnson, Viee-Presiding, Lumpkin, Strubhar, Lile - **Cited by:** 28 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/9796549 ## How later opinions describe it (automated extraction) - reaffirming the Court’s use of the "shock the conscience” standard and noting that, as with a proportionality review, such a standard requires consideration of all the facts and circumstances of the case and the defendant’s background - rejecting proportionality review on the basis that "[l]egislatures, not courts, define punishment" - rejecting proportionality review on the basis that “[ljegislatures, not courts, define punishment” - rejecting the proportionality standard of review and maintaining the "shock the conscience" standard of review for claims of excessive sentence ## Opinion text SUMMARY OPINION JOHNSON, Viee-Presiding Judge: € 1 On February 4, 2000, Appellant, Elmer Allen Rea, was tried in a non-jury trial in Pawnee County District Court, Case No. CF-99-32 for Assault and Battery with a Dangerous Weapon, in violation of 21 O.S. 1991 , § 645. The Honorable Jefferson D. Sellers, District Judge, found Appellant guilty. Formal sentencing was held March 17, 2000, and Judge Sellers sentenced Appellant to ten years imprisonment and a $500.00 fine. From the Judgment and Sentence imposed, Appellant filed this appeal. *149 12 Appellant raises the following proposition: The sentence imposed was excessive and should be modified. After thorough consideration of the proposition, and the entire record before us on appeal, including the original record, transcripts and briefs of the parties, we affirm the sentence for the reasons set forth below. T8 Appellant contends that his sentence is excessive because he suffers from diminished mental capacity. Appellant's mental health history shows that he has been treated at various facilities, for various psychiatric and substance-abuse problems, since the age of twelve. Appellant was twenty-one years old at the time of sentencing. 14 Appellant opted for a trial to the district court, without a jury. He presented evidence concerning his mental health history. The Presentence Report, submitted to the district court before imposition of sentence, further detailed Appellant's mental health history. Thus, the sentencing body (in this case, the court) had a wealth of information about Appellant at its disposal before imposing sentence. The record affirmatively shows that the district court considered Appellant's mental health history in assessing the sentence, and we find no abuse of its broad discretion on that point. 1 Cf. Bowers v. State, 1982 OK CR 108, 15 , 648 P.2d 885 , 888 (jury's punishment assessment would not be disturbed on appeal, where jury considered evidence of defendant's diminished mental capacity in arriving at sentence). The court imposed the maximum sentence for the offense, but contrary to Appellant's argument, the sentence was imposed after full consideration of Appellant's personal cireum-stances and the circumstances of the case. 2 We find no merit to this portion of Appellant's proposition. 15 Appellant further suggests that we abandon our "shock the conscience" standard of sentence review in favor of a "proportionality" standard, citing People v. Milbourn, 485 Mich. 630 , 461 N.W.2d 1 (1990), as support. 3 We decline to do so. As the Milb-ourn court noted, id. at 2 , the "preeminent requirement" in fashioning proper appellate review of sentences is to respect and give purpose to the sentencing scheme promulgated by the legislature. Legislatures, not courts, define punishment. State v. Young, 1999 OK CR 14, 126 , 989 P.2d 949 . Oklahoma law permits the sentencing body (judge or jury) to impose a sentence anywhere within a specified statutory range. Given that our state legislature has afforded such broad discretion to the sentencer, our "shock the conscience" standard provides an appropriate scope of review. DECISION T6 The Judgment and Sentence of the district court is hereby AFFIRMED. LUMPKIN, P.J., and STRUBHAR and LILE, JJ., concurs. CHAPEL, J., concurs in part/dissents in part. . The district court concluded that given hié history, Appellant would constitute a greater threat to society if allowed probation. . The evidence showed that Appellant told a friend that he was going to find the victim and stab him; Appellant located the victim at a residence, and impersonated a police officer when he knocked on the door to gain entry; Appellant then forced his way into the home, ripped the telephone cord out of the wall, and stabbed the victim twice. . A sentence within the statutory range will not be modified on appeal unless, considering all the facts and circumstances, it shocks the conscience. Maxwell v. State, 1989 OK CR 22, 112 , 775 P.2d 818, 820 . In Milbourn, the Supreme Court of Michigan abandoned its "shock the conscience" standard of appellate sentence review in favor of a "proportionality' review. Despite similar language, we note important differences between the standard rejected in Milbourn and the sentence-review standard used by this Court, as well as fundamental differences in sentencing schemes. We also note that the term "proportionality," as used in Milbourn, specifically refers to the relationship of a sentence to the seriousness of the circumstances surrounding the instant offense and the instant offender. Milbourn, 461 N.W.2d at 3 & n. 2. We discern no appreciable difference between this scope of review, and our current standard, which also considers all the facts and circumstances of the case at hand and the appellant's background. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796549. Public record. Not legal advice.