Charles Clifton Fomby, Jr. v The State Of Oklahoma

F-2005-855

Filed: Aug. 14, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Charles Clifton Fomby, Jr. appealed his conviction for multiple crimes, including second-degree burglary and possession of methamphetamine. His conviction and sentence were originally set at a total of 72 years in prison, but the court modified the sentences to 30 years. Judge Lumpkin dissented, arguing that Fomby's serious criminal history warranted the original, longer sentence.

Decision

The Judgments of the District Court are AFFIRMED and the Sentences for Counts II and V are AFFIRMED. The Sentences for Counts I and IV are MODIFIED to thirty (30) years' imprisonment for each Count and all Counts are ordered to be served concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the trial court's modification of a uniform instruction by adding the sentence imposed on each prior conviction an error?
• Did the prosecutor's statement to the jury that the Appellant was no longer presumed innocent deprive Appellant of a fair trial?
• Did the trial court err in admitting evidence of other crimes?
• Was the trial court's decision to run Appellant's convictions consecutively an abuse of discretion resulting in an excessive sentence?
• Did the trial court err in denying Appellant's request to remand for a preliminary hearing on new charges added to the information?
• Was there insufficient evidence to prove that Mr. Fomby knew the knife had been stolen?
• Was the evidence insufficient to prove that Mr. Fomby knew the plastic bags still contained trace amounts of methamphetamine?
• Did ineffective assistance of counsel deprive Appellant of a fair trial?
• Was Mr. Fomby subjected to double jeopardy when the trial court declared a mistrial without a showing of manifest necessity?

Findings

• the trial court erred in modifying the jury instruction to include prior conviction sentences
• the prosecutor improperly commented on Fomby's presumption of innocence
• there was no error in admitting the "other crimes" evidence
• Proposition IV is moot due to the relief recommended in Proposition I
• Fomby waived preliminary hearing on the new charges by entering his plea at arraignment
• the evidence was sufficient to establish that Fomby knowingly possessed stolen property
• the evidence was sufficient to establish that Fomby knowingly possessed methamphetamine
• trial counsel was not ineffective
• there was no double jeopardy violation as Fomby consented to the mistrial

F-2005-855

Aug. 14, 2006

Charles Clifton Fomby, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE CHAPEL, PRESIDNG JUDGE:

Charles C. Fomby Jr. was tried by jury and convicted in Comanche County District Court Case No. CF-2004-595 of Count I: Second Degree Burglary in violation of 21 O.S. 2001, § 1435, After Former Conviction of Two or More Felonies; Count II: Possession of a Controlled Substance (methamphetamine) in violation of 63 O.S.Supp. 2004, § 2-402; Count IV: Second Degree Burglary in violation of 21 O.S. 2001, § 1435, After Former Conviction of Two or More Felonies; and Count V: Knowingly Concealing Stolen Property in violation of 21 O.S.2001, § 1435.1 In accordance with the jury’s recommendation, the Honorable Mark R. Smith sentenced Fomby to sixty (60) years’ imprisonment on Counts I and IV, two (2) years’ imprisonment on Count II, and ten (10) years’ imprisonment on Count V. Judge Smith ordered the sentences to be served consecutively. Fomby perfected his appeal to this Court.

Fomby raises the following propositions of error:

I. The trial court erred when it modified a uniform instruction by adding the sentence imposed on each prior conviction, thus emphasizing the issue of pardon and parole, and by admitting the pen pack into evidence.

II. The prosecutor’s statement to the jury during first stage closing arguments, before the jury deliberated the issue of guilt, that Appellant was no longer presumed innocent, deprived Appellant of a fair trial on the issue of guilt; the prosecutor’s appeal to the jury’s sympathy for the victims, and his statement that Appellant’s actions adversely affected the jury as well, deprived Appellant of a fair trial.

III. The trial court erred in admitting evidence of other crimes.

IV. The trial court’s decision to run Appellant’s convictions consecutively was an abuse of discretion which resulted in Appellant receiving an excessive sentence.

V. The trial court’s denial of Appellant’s request to remand for preliminary hearing on new charges which the State had added to the information was error.

VI. There was insufficient evidence to prove Mr. Fomby knew the knife had been stolen; therefore the conviction for knowingly concealing stolen property must be reversed.

VII. The evidence was insufficient to prove that Mr. Fomby knew the plastic bags still contained trace amounts of methamphetamine.

VIII. Ineffective assistance of counsel deprived Appellant of a fair trial.

IX. Mr. Fomby was subjected to double jeopardy when the trial court declared a mistrial without a showing of manifest necessity; therefore Mr. Fomby’s convictions should be vacated.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and parties’ exhibits, we affirm Fomby’s conviction but find that his sentence must be modified. We find in Proposition I that the trial court erred in modifying OUJI-CR 10-21 to include the amount of time Fomby served on his prior convictions. We find in Proposition II that the prosecutor improperly commented on Fomby’s presumption of innocence. We also find that the combination of the errors in Propositions I and II compel our modification of Fomby’s sentences on Counts I and IV from sixty (60) years’ imprisonment on each count, to be served consecutively, to thirty (30) years’ imprisonment on each Count, to be served concurrently. We find in Proposition III that there was no error in admitting the other crimes evidence.

We find that Proposition IV is moot due to the relief recommended in Proposition I. We find in Proposition V that Fomby waived preliminary hearing on the new charges in the Information by entering his plea at arraignment. We find in Proposition VI that the evidence was sufficient to establish that Fomby knowingly possessed stolen property. We find in Proposition VII that the evidence was sufficient to establish that Fomby knowingly possessed methamphetamine.

We find in Proposition VIII that trial counsel was not ineffective. We find Proposition IX that there was no double jeopardy violation as Fomby consented to the mistrial.

Decision

The Judgments of the District Court are AFFIRMED and the Sentences for Counts II and V are AFFIRMED. The Sentences for Counts I and IV are MODIFIED to thirty (30) years’ imprisonment for each Count and all Counts are ordered to be served concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 Okla. Stat. tit. 21 § 1435
2. 2 Okla. Stat. tit. 63 § 2-402
3. 3 Okla. Stat. tit. 21 § 1435
4. 4 Okla. Stat. tit. 21 § 1435
5. 5 Okla. Stat. tit. 21 § 1435
6. 6 Okla. Stat. tit. 21 § 1435
7. 7 Okla. Stat. tit. 21 § 1435
8. 8 Selsor v. State, 2 P.3d 344, 354 (Okl.Cr.2000)
9. 9 Harris v. State, 777 P.2d 1359, 1365 (Okl.Cr. 1989)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 (2001) - Second Degree Burglary
• Okla. Stat. tit. 63 § 2-402 (Supp. 2004) - Possession of a Controlled Substance
• Okla. Stat. tit. 21 § 1435 (2001) - Second Degree Burglary
• Okla. Stat. tit. 21 § 1435.1 (2001) - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 22 § 3.15 (2006) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing
• Okla. Stat. tit. 22 § 1084 (2011) - Jury Instructions
• Okla. Stat. tit. 21 § 511 (2011) - Plea on the Merits
• Okla. Stat. tit. 22 § 30 (2011) - Double Jeopardy

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:

• Palmer v. State, 788 P.2d 404, 408 (Okl.Cr.1990)
• Williams v. State, 658 P.2d 499, 500 (Okl.Cr.1983)
• Bryson v. State, 711 P.2d 932, 935 (Okl.Cr.1985)
• Hambrick v. State, 535 P.2d 703, 705 (Okl.Cr.1975)
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)
• Selsor v. State, 2 P.3d 344, 354 (Okl.Cr.2000)
• Harris v. State, 777 P.2d 1359, 1365 (Okl.Cr.1989)