Paul Nathan Johnson v The State Of Oklahoma

F-2001-1517

Filed: Oct. 24, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Paul Nathan Johnson appealed his conviction for trying to make methamphetamine and other drug-related charges. Conviction and sentence included twenty years for attempted meth manufacture, four years for possession near a school, two years for firearm possession, and one year for drug paraphernalia, all running at the same time. Judge Robert G. Haney sentenced him. A judge disagreed with some parts of the ruling.

Decision

The Judgment and Sentence of the district court is AFFIRMED with the exception that the $10,000 fine imposed in Count 2 is VACATED.

Issues

• Was there double jeopardy or double punishment due to Appellant's simultaneous convictions for Attempt to Manufacture Methamphetamine and Possession of Methamphetamine Within 1000 Feet of a School?
• Did the evidence support a conviction for Possession of a Firearm in the Commission of a Felony?
• Was the evidence sufficient to convict Appellant of Attempt to Manufacture Methamphetamine?
• Were Appellant's sentences excessive?

Findings

• No double jeopardy or double punishment found for simultaneous convictions.
• Evidence was sufficient to convict Appellant of Possession of a Firearm in the Commission of a Felony.
• Evidence was sufficient to convict Appellant of Attempt to Manufacture Methamphetamine.
• The trial court did not abuse its discretion regarding Appellant's sentences.
• The $10,000 fine imposed in Count 2 was vacated as it was not authorized by law.

F-2001-1517

Oct. 24, 2002

Paul Nathan Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, Paul Nathan Johnson, was convicted by a jury in Ottawa County District Court Case No. CF-2000-197 of Count 1: Attempt to Manufacture Methamphetamine (63 O.S.Supp.1999, § 2-401(G)); Count 2: Possession of Methamphetamine Within 1000 Feet of a School (63 O.S.Supp. 1999, § 2-402(C)); Count 3: Possession of a Firearm in the Commission of a Felony (21 O.S.Supp. 1999, § 1287); and Count 4: Possession of Drug Paraphernalia (63 O.S.Supp.1999 § 2-405). On December 11, 2001, the Honorable Robert G. Haney, District Judge, imposed sentence in accordance with the jury’s recommendation: Count 1, twenty years and a $50,000 fine; Count 2, four years and a $10,000 fine; Count 3, two years; and Count 4, one year. The trial court ordered all sentences to run concurrently with one another. This appeal followed.

Appellant raises the following propositions of error:
1. Appellant’s simultaneous convictions for Attempt to Manufacture Methamphetamine and Possession of Methamphetamine Within 1000 Feet of a School constitute double jeopardy or double punishment.
2. The evidence was insufficient to convict Appellant of Possession of a Firearm in the Commission of a Felony.
3. The evidence was insufficient to convict Appellant of Attempt to Manufacture Methamphetamine.
4. Appellant’s sentences are excessive.

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 VACATE the fine imposed in Count 2, but otherwise AFFIRM Appellant’s convictions and sentences.

In Proposition 1, regarding Appellant’s simultaneous convictions for Attempt to Manufacture Methamphetamine and Possession of Methamphetamine Within 1000 Feet of a School, we find no double jeopardy, as each offense requires proof of a fact that the other does not, and no double punishment under the facts presented. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Davis v. State, 1999 OK CR 48, 11 4-7, 993 P.2d 124, 125-26; Warthen v. State, 1977 OK CR 23, I 9, 559 P.2d 483, 485-86.

In Proposition 2, we find sufficient evidence to support a finding that Appellant had strategically placed a firearm for easy access and possible use while attempting to manufacture drugs. Pebworth v. State, 1993 OK CR 28, 1 12, 855 P.2d 605, 607.

In Proposition 3, we find the evidence more than sufficient to show that Appellant had gone beyond mere preparation and was, in fact, in the process of manufacturing methamphetamine. Weimar v. State, 1976 OK CR 285, I 19, 556 P.2d 1020, 1025.

In Proposition 4, the trial court did not abuse its discretion in refusing to suspend a portion of Appellant’s sentences. Riley U. State, 1997 OK CR 51, IF 21, 947 P.2d 530, 535. However, we find that the fine imposed was not authorized by law and should be vacated. 21 O.S.1991, § 11(A); cf. Gaines v. State, 1977 OK CR 259, II 16, 568 P.2d 1290, 1294.

DECISION
The Judgment and Sentence of the district court is AFFIRMED with the exception that the $10,000 fine imposed in Count 2 is VACATED.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-401(G)
2. Okla. Stat. tit. 63 § 2-402(C)
3. Okla. Stat. tit. 21 § 1287
4. Okla. Stat. tit. 63 § 2-405
5. Okla. Stat. tit. 21 § 11(A)
6. Okla. Stat. tit. 63 § 2-402(C); cf. Gaines v. State, 1977 OK CR 259, II 16, 568 P.2d 1290, 1294

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1999) - Attempt to Manufacture Methamphetamine
• Okla. Stat. tit. 63 § 2-402 (1999) - Possession of Methamphetamine Within 1000 Feet of a School
• Okla. Stat. tit. 21 § 1287 (1999) - Possession of a Firearm in the Commission of a Felony
• Okla. Stat. tit. 63 § 2-405 (1999) - Possession of Drug Paraphernalia
• Okla. Stat. tit. 21 § 11(A) (1991) - Fine Authorization

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:

• Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)
• Davis v. State, 1999 OK CR 48, I 4-7, 993 P.2d 124, 125-26
• Warthen v. State, 1977 OK CR 23, I 9, 559 P.2d 483, 485-86
• Pebworth v. State, 1993 OK CR 28, I 12, 855 P.2d 605, 607
• Weimar v. State, 1976 OK CR 285, "I 19, 556 P.2d 1020, 1025
• Riley v. State, 1997 OK CR 51, IF 21, 947 P.2d 530, 535
• Gaines v. State, 1977 OK CR 259, II 16, 568 P.2d 1290, 1294