David Roland Boschee v The State Of Oklahoma

F-2008-1041

Filed: Feb. 22, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

David Roland Boschee appealed his conviction for robbery with a firearm. His conviction and sentence were for a total of 25 years in prison for two robbery counts and 5 years for three other counts, totaling 25 years. Judge Chapel dissented.

Decision

The Judgment and Sentence of the district court is AFFIRMED as to Counts I-IV. Judgment and Sentence on Count V is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of Oklahoma statutory law and Due Process provisions by forcing Appellant to defend against two separate charges of robbery with a firearm?
• Did Appellant's convictions for robbery with a firearm and committing a felony while in possession of a firearm with a defaced serial number violate constitutional prohibitions against double punishment?
• Did Appellant's two convictions for possession of a firearm after former conviction of a felony violate multiple punishment provisions of Oklahoma law and the United States Constitution?
• Did Appellant's convictions for robbery with a firearm and possession of a firearm after former conviction of a felony violate constitutional and statutory prohibitions against double punishment?
• Did Appellant receive ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution?

Findings

• the court did not err in joining the robbery charges for trial
• Appellant's convictions for robbery with a firearm and committing a felony while in possession of a firearm with a defaced serial number do not violate double jeopardy
• the evidence was insufficient to support one of Appellant's convictions for possession of a firearm after former conviction of a felony, requiring its reversal and dismissal
• no double punishment occurred between robbery with a firearm and possession of a firearm after former conviction of a felony
• Appellant was not denied effective assistance of counsel

F-2008-1041

Feb. 22, 2010

David Roland Boschee

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE C. JOHNSON, PRESIDING JUDGE:

Appellant, David Roland Boschee, was convicted after jury trial in Tulsa County District Court, Case No. CF-2008-2320, of Robbery with a Firearm (Counts I and IV), Committing a Felony with Firearm with Defaced Serial Number (Count II), and Possession of a Firearm AFCF (Counts III and V). The jury assessed punishment at twenty-five years imprisonment on each of Counts I and IV, and five years imprisonment on each of Counts II, III and V. The trial court sentenced Appellant accordingly, ordering the sentences on Counts I and IV to run consecutive to each other and the sentences on Counts II, III and V to run concurrently with the sentence imposed on Count I. It is from this Judgment and Sentence that Appellant appeals to this Court.

Appellant raises the following propositions of error:

1. Under the facts of this case, forcing Appellant to defend against two separate charges of robbery with firearm violated provisions of Oklahoma statutory law as well as the Due Process provisions of both the Oklahoma and United States Constitutions.

2. Under the facts of this case, Appellant’s convictions for robbery with firearms in Count I and committing a felony while in possession of a firearm with a defaced serial or ID number as alleged in Count II violates constitutional prohibitions against double punishment. Appellant’s conviction in either Count I or Count II must be reversed.

3. Appellant’s two convictions for possession of a firearm after former conviction of a felony in Counts III and V violate the multiple punishment provisions of Oklahoma law as well as the United States Constitution. The evidence was insufficient to support two convictions for possession of a firearm after former conviction of a felony, and Count V must be reversed with instructions to dismiss.

4. Under the facts of the case, Appellant’s convictions for robbery with firearm and for possession of a firearm after former conviction of a felony violate constitutional and statutory prohibitions against double punishment. Appellant’s convictions for possession of a firearm after former conviction of a felony must be reversed with instructions to dismiss.

5. Appellant received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Appellant’s Judgment and Sentence in part and reverse in part.

With regard to error raised in Proposition I, we find that the trial court cannot be found to have abused its discretion in ruling that these robberies should be joined and tried together in a single trial. Smith v. State, 2007 OK CR 16, ¶ 21, 157 P.3d 1155, 1164.

We find in Proposition II that Appellant’s convictions for both robbery with a firearm and committing a felony while in possession of a firearm with a defaced serial number do not violate Oklahoma’s statutory prohibition against double punishment or the Double Jeopardy Clause of the United States Constitution. Wright v. State, Case No. F-2005-557 (December 5, 2006); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

In Proposition III, we find that the evidence presented at trial was insufficient to support Appellant’s conviction for two counts of possession of a firearm after former conviction of a felony. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. The evidence supports the conclusion that the firearm found in Appellant’s bedroom was the same one he used in both robberies as it matched the description of the gun given by the victims of both robberies. Continuous possession can be inferred since the State presented no evidence of disrupted possession of the firearm. Accordingly, one of Appellant’s counts of felonious possession must be reversed with instructions to dismiss. Hancock v. State, 2007 OK CR 9, 155 P.2d 796.

Appellant’s argument in Proposition IV must fail as the possession of a firearm after former conviction of a felony conviction did not punish Petitioner for robbery with a firearm at all, but rather for possessing the firearm after having a former felony conviction. These were two very separate and distinct acts. As these crimes were based upon separate and distinct acts, with dissimilar elements, there was no double punishment in violation of Section 11. Davis v. State, 1999 OK CR 48, ¶ 7-14, 993 P.2d 124, 126-27; Hale v. State, 1995 OK CR 7, ¶ 3-5, 888 P.2d 1027, 1029-30. We also find that Appellant’s convictions do not violate the constitutional protection against double jeopardy. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Thomas v. State, 1984 OK CR 19, ¶ 16, 675 P.2d 1016, 1021.

Finally, Appellant was not denied his constitutional right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).

DECISION

The Judgment and Sentence of the district court is AFFIRMED as to Counts I-IV. Judgment and Sentence on Count V is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 22 § 11
2. Okla. Stat. tit. 21 § 51
3. Okla. Stat. tit. 21 § 142
4. Okla. Stat. tit. 21 § 1289.18
5. Okla. Stat. tit. 21 § 1289.16
6. Okla. Stat. tit. 21 § 1289.15
7. Okla. Stat. tit. 21 § 51
8. Okla. Stat. tit. 21 § 1287
9. Okla. Stat. tit. 21 § 701.13
10. Okla. Stat. tit. 22 § 2602

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Sentencing for robbery
• Okla. Stat. tit. 21 § 1444 - Possession of firearms after felony conviction
• Okla. Stat. tit. 22 § 111 - Protection against double punishment
• Okla. Stat. tit. 22 § 1073 - Ineffective assistance of counsel

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Smith v. State, 2007 OK CR 16, I 21, 157 P.3d 1155, 1164
• Wright v. State, Case No. F-2005-557 (December 5, 2006)
• Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)
• Spuehler v. State, 1985 OK CR 132, T 7, 709 P.2d 202, 203-04
• Hancock v. State, 2007 OK CR 9, 155 P.2d 796
• Davis v State, 1999 OK CR 48, 11 7-14, 993 P.2d 124, 126-27
• Hale v. State, 1995 OK CR 7, 11 3-5, 888 P.2d 1027, 1029-30
• Thomas v. State, 1984 OK CR 19, 1 16, 675 P.2d 1016, 1021
• Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)
• Johnson v. State, Case No. F-2008-1171 (unpublished opinion, filed Jan.6, 2010)