William Forrest Mondier v The State of Oklahoma

F 2001-434

Filed: Mar. 21, 2001

Not for publication

Prevailing Party: William Forrest Mondier

Summary

William Forrest Mondier appealed his conviction for several drug-related charges. His conviction included attempting to make a controlled drug, unlawful possession of a controlled drug, and maintaining a place where drugs are used. He received long sentences and hefty fines. After reviewing the case, the court agreed to reverse two of his convictions because the jury did not have the chance to decide if he acted "knowingly" or "intentionally." The court decided he should have a new trial on one of the charges but upheld his other convictions. Judge Lumpkin disagreed with dismissing one of the charges entirely and suggested it should go back for a new trial instead.

Decision

The Judgment and Sentence imposed for Count 3, in Creek County District Court, Case No. CF 2000-149, is hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The Judgment and Sentence imposed for Count 1, in Creek County District Court, Case No. CM 2000-291, is hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The Judgment and Sentences imposed in Creek County District Court, Case No. CF 2000-149 for Counts 1 and 2 are AFFIRMED; the Judgment and Sentence imposed in Creek County District Court, Case No. CM 2000-291 is AFFIRMED.

Issues

• Was the sentence for Maintaining a Place Resorted to by Users of Controlled Substances excessive and beyond the maximum allowed by law?
• Did the paraphernalia statute as applied unfairly shift the burden of proof to the Appellant?
• Was there a violation of Double Jeopardy?
• Was the evidence insufficient to support the charges against the Appellant?
• Was there no evidence to support a conviction for Count II, charged as a violation of 63 O.S. 2-401(B-1)?
• Did prosecutorial misconduct deny the Appellant a fair trial?
• Did the trial judge err by failing to instruct the jury on Possession of Precursor Substances?
• Did lack of preparation time lead to ineffective assistance of counsel?
• Were the sentences imposed excessive?
• Did the imposition of incarceration fees violate the Appellant's Fourteenth Amendment rights?
• Was there error when the essential element of "knowingly" or "intentionally" was omitted from the jury instruction on Maintaining a House Resorted to by Drug Users?
• Did cumulative error deny the Appellant a fair trial?

Findings

• The sentence for Maintaining a Place Resorted to by Users of Controlled Substances exceeds the maximum allowed by law - reversed and remanded with instructions to dismiss.
• The paraphernalia statute as used unfairly shifted the burden of proof to Appellant - denied.

F 2001-434

Mar. 21, 2001

William Forrest Mondier

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, William Forrest Mondier, was convicted by a jury of Endeavoring to Manufacture Controlled Drug, in violation of 63 O.S.Supp. 1999, §§ 2-401(F) and 2-408 (Count 1); Unlawful Possession of Controlled Drug, in violation of 63 O.S.1991, § 2-401(B-2) (Count 2); and Maintaining a Place Resorted to by Users of Controlled Drugs, in violation of 63 D.S.Supp. 2000, § 2-404(A)(6) (Count 3) in Creek County District Court, Case No. CF 2000-149. In Creek County District Court, Case No. CM 2000-291, Appellant was convicted of Unlawful Possession of Marijuana, in violation of 63 O.S.1991, § 2-402(B)(2) (Count 1) and of Unlawful Possession of Paraphernalia, in violation of 63 O.S.1991, § 2-405(B) (Count 2). Jury trial was held before the Honorable Joe Sam Vassar on January 24th – 26th, 2001. The jury returned guilty verdicts on all counts and recommended Appellant serve the following sentences and pay the following fines: In CF 2000-149, Count 1, forty (40) years and a Fifty Thousand Dollar ($50,000.00) fine; Count 2, six (6) years and a Ten Thousand Dollar ($10,000.00) fine, and Count 3, ten (10) years and a Ten Thousand Dollar ($10,000.00) fine; in Case No. CM 2000-291, Count 1, six (6) months and a One Thousand Dollar fine, and Count 2, six (6) months and a One Thousand Dollar fine. Formal sentencing was held March 21, 2001, and Appellant was sentenced in accordance with the jury’s verdicts. From the Judgment and Sentences imposed, Appellant filed this appeal. Appellant raises twelve propositions of error: 1. The sentence for Maintaining a Place Resorted to by Users of Controlled Substances exceeds the maximum allowed by law; 2. The paraphernalia statute as used unfairly shifted the burden of proof to Appellant; 3. Double Jeopardy was violated; 4. The evidence was insufficient to support the charges; 5. There was no evidence to support a conviction for Count II, which was charged as a violation of 63 O.S. 2-401(B-1); 6. Prosecutorial misconduct denied Appellant a fair trial; 7. The trial judge erred by failing to instruct on Possession of Precursor Substances; 8. Lack of preparation time caused ineffective assistance of counsel; 9. The sentences were excessive; 10. The imposition of incarceration fees pursuant to Okla. Stat. Title 22, § 979(A) violated Appellant’s Fourteenth Amendment rights; 11. Error occurred when the essential element of knowingly or intentionally was omitted from the jury instruction on Maintaining a House Resorted to by Drug Users; and, 12. Cumulative Error denied Appellant a fair trial.

After thorough consideration of the propositions raised and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that Appellant’s convictions for Count 3, Maintaining a Place Resorted to by Users of Controlled Drugs, in Case No. CF 2000-149 and Count 1, Unlawful Possession of Marijuana, in Case No. CM 2000-291, must be reversed and remanded with instructions to dismiss for the reasons set forth below. Appellant’s remaining convictions and sentences are affirmed. Appellant’s felony conviction for Maintaining a Place Resorted to by Users of Controlled Drugs, Count 3 in Case No. CF 2000-149, must be reversed and remanded with instructions to dismiss because nothing in the record shows the trier of fact specifically found Appellant knowingly or intentionally committed this offense. See 63 O.S.Supp.2000, § 2-404(B). The jury instruction on this offense omitted knowingly or intentionally as an element of the crime charged, and such a finding by the trier of fact is essential to a felony conviction for this crime. Our decision on Proposition Eleven renders the issue in Proposition One moot. We find Proposition Three warrants relief. Under the same evidence test, possession of both methamphetamine and marijuana was a single offense and only one of the convictions can be sustained. See Watkins v. State, 1991 OK CR 119, 829 P.2d 42, modified, 1992 OK CR 34, 9 6, 855 P.2d 141, 142. Accordingly, we find Appellant’s conviction for Unlawful Possession of Marijuana, in Case No. CM 2000-291, must be reversed and remanded with instructions to dismiss.

As to the remaining propositions, we find no additional relief is warranted. The burden of proof for Unlawful Possession of Paraphernalia was not improperly shifted to Appellant by the State’s charging instrument. 63 O.S.Supp.1998, § 2-405 allows a person to be convicted of possession of paraphernalia only if the State proves the person had the knowing intent to use the item(s) for the purpose of administering controlled substance(s) into the body. Accordingly, the language of the statute comports with the fundamental principle of due process that a criminal act requires a criminal intent on the part of the person charged. Lady Ann’s Odities, Inc. v. Macy, 519 F.Supp. 1140, 1146 (W.D. Okla. 1981) Proposition Two is denied. We find the State presented sufficient evidence to sustain the remaining convictions for Endeavoring or Attempting to Manufacture and Unlawful Possession of Methamphetamine and Paraphernalia. Spuehler v. State, 1985 OK CR 132, 1 7, 709 P.2d 202, 203-204. We need not address the sufficiency claim as it relates to Count 3 in CF 2000-149, as we have reversed that conviction for reasons stated above. Proposition Four warrants no further relief. Although Appellant was charged under the wrong statute for Count 2 in CF 2000-149, it is clear from the record that Appellant knew he was charged with possession of methamphetamine, the Information adequately stated the same, and the mistake in the citation to the appropriate statute was not an irregularity that requires reversal or relief. Phillips v. State, 1954 OK CR 22, 11 6-7, 267 P.2d 167, 170. Proposition Five is denied. None of the allegations of prosecutorial misconduct in Proposition Six warrant reversal or relief. Duckett v. State, 1995 OK CR 61, I 47, 919 P.2d 7, 19. Proposition Seven is also denied, as no plain error occurred when the trial court did not instruct the jury on Possession of Precursor Substances. Anderson U. State, 1999 OK CR 44, I 23, 992 P.2d 409, 418, cert. denied, — U.S. — , 121 S.Ct. 124, — L.Ed.2d — (2000). We also find trial counsel was not ineffective. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The sentences imposed for Counts 1 and 2 in CF 2000-149 and Count 2 in CM 2000-291 were not excessive. See Rea U. State, 2001 OK CR 28, — P.3d – . The imposition of incarceration fees complied with 22 O.S.Supp.1998, § 979(a); Hubbard v. State, 2002 OK CR 8, I 6, P.3d ; and accumulation of error did not deprive Appellant of a fair trial. Conover v. State, 1997 OK CR 6, I 82, 933 P.2d 904, 923. Propositions Eight, Nine, Ten and Twelve do not warrant relief.

DECISION

The Judgment and Sentence imposed for Count 3, in Creek County District Court, Case No. CF 2000-149, is hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The Judgment and Sentence imposed for Count 1, in Creek County District Court, Case No. CM 2000-291, is hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The Judgment and Sentences imposed in Creek County District Court, Case No. CF 2000-149 for Counts 1 and 2 are AFFIRMED; the Judgment and Sentence imposed in Creek County District Court, Case No. CM 2000-291 is AFFIRMED.

Click Here To Download PDF

Footnotes:

1. 63 O.S.Supp. 1999, §§ 2-401(F) and 2-408
2. 63 O.S.1991, § 2-401(B-2)
3. 63 O.S.Supp. 2000, § 2-404(A)(6)
4. 63 O.S.1991, § 2-402(B)(2)
5. 63 O.S.1991, § 2-405(B)
6. 63 O.S.Supp.2000, § 2-404(B)
7. 22 O.S.Supp.1998, § 979(A)
8. 20 O.S.1991, § 3001.1
9. 63 O.S.Supp.1999 § 2-404(B)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 - Endeavoring to Manufacture Controlled Drug
• Okla. Stat. tit. 63 § 2-408 - Endeavoring to Manufacture Controlled Drug
• Okla. Stat. tit. 63 § 2-401 - Unlawful Possession of Controlled Drug
• Okla. Stat. tit. 63 § 2-404 - Maintaining a Place Resorted to by Users of Controlled Drugs
• Okla. Stat. tit. 63 § 2-402 - Unlawful Possession of Marijuana
• Okla. Stat. tit. 63 § 2-405 - Unlawful Possession of Paraphernalia
• Okla. Stat. tit. 22 § 979(a) - Incarceration Fees
• Okla. Stat. tit. 63 § 2-404 - Maintaining a Place Resorted to by Users of Controlled Drugs
• Okla. Stat. tit. 20 § 3001.1 - Juror Instructions

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:

• Watkins v. State, 1991 OK CR 119, 829 P.2d 42, modified, 1992 OK CR 34, 96, 855 P.2d 141, 142.
• Lady Ann's Odities, Inc. v. Macy, 519 F.Supp. 1140, 1146 (W.D. Okla. 1981).
• Spuehler v. State, 1985 OK CR 132, 17, 709 P.2d 202, 203-204.
• Phillips v. State, 1954 OK CR 22, 116-7, 267 P.2d 167, 170.
• Duckett v. State, 1995 OK CR 61, 47, 919 P.2d 7, 19.
• Anderson v. State, 1999 OK CR 44, 23, 992 P.2d 409, 418, cert. denied, -- U.S. -- , 121 S.Ct. 124, -- L.Ed.2d -- (2000).
• Rea v. State, 2001 OK CR 28, -- P.3d - .
• Hubbard v. State, 2002 OK CR 8, 6, P.3d ;
• Conover v. State, 1997 OK CR 6, 82, 933 P.2d 904, 923.
• Ellis v. Ward, 13 P.2d 985, 986 (Okl.Cr.2000).