John Vernon Dubiel v The State Of Oklahoma

F-2000-1427

Filed: Sep. 5, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

John Vernon Dubiel appealed his conviction for three counts of Possession of Forged Evidences of Debt. Conviction and sentence were upheld for Count I, but Counts II and III were vacated. Judge Lile dissented in part regarding the sentencing issue.

Decision

The Judgment and Sentence of the district court is VACATED with respect to Counts II and III; Count I is AFFIRMED.

Issues

• Was there a violation of double jeopardy in Appellant's convictions for possessing forged evidences of debt?
• Did the introduction of other-crimes evidence deprive Appellant of a fair trial?
• Were Appellant's sentences excessive and should they run concurrently instead of consecutively?

Findings

• Counts II and III are vacated due to double jeopardy.
• There was no error regarding the other-crimes evidence.
• No further analysis of the excessive sentence proposition is necessary due to the vacation of Counts II and III.

F-2000-1427

Sep. 5, 2001

John Vernon Dubiel

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, John Vernon Dubiel, was charged in Stephens County District Court, Case No. CF-1999-418, with three counts of Possession of Forged Evidences of Debt, After Conviction of Two or More Felonies (21 O.S.1991, §1578). Jury trial was held August 24, 2000, before the Honorable George W. Lindley, District Judge. The jury found Appellant guilty as charged on all three counts, after conviction of two or more felonies, and recommended a sentence of thirty years imprisonment and a $10,000 fine on each count. The trial court sentenced Appellant in accordance with the jury’s recommendation, running all three sentences consecutively. Appellant timely perfected this appeal.

Appellant raises the following propositions of error:

1. Appellant’s three convictions for Possessing Forged Evidences of Debt constitute double jeopardy.
2. Other-crimes evidence deprived Appellant of a fair trial.
3. Appellant’s sentences are excessive, and should be ordered to run concurrently.

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 find merit in Proposition 1, but affirm in all other respects. Appellant was charged and convicted, in separate counts, for each forged check found in his possession at the same time. The power to define crimes and determine punishments is vested with the legislature; whether the Double Jeopardy Clause prohibits cumulative punishments depends on whether the legislature explicitly intended that result. See Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). In the case of multiple counts of the same crime, the inquiry is what the legislature intended as the allowable unit of prosecution. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); United States v. Universal C.I.T. Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952). When legislative intent on this point cannot be clearly determined, any ambiguity must be resolved in favor of lenity. Bell, 349 U.S. at 83, 75 S.Ct. at 622. Absent a clear legislative expression to the contrary, see 21 O.S.1991, §1578, we find that the simultaneous possession of several false evidences of debt at one place and time is one offense. See Bell, id.; Hunnicutt v. State, 1988 OK CR 91, 11 12-14, 755 P.2d 105. Counts II and III are hereby VACATED.

With regard to Proposition 2, the prosecutor’s brief reference to Appellant’s drug use in opening statement was an inadvertent misstatement of the evidence. The inaccuracy was corrected by Appellant’s tape-recorded statement to police, which was played for the jury, and by the prosecutor’s closing argument. The other crimes reference was, in reality, Appellant’s general reference to drug use by his girlfriend. There was no evidence that Appellant himself used illicit drugs; in fact, his statement expressed disapproval of his girlfriend’s use of them. The jury was instructed that statements by the attorneys were not evidence. We find no error.

Appellant’s final proposition alleges that his punishment is excessive, and that his consecutive sentences should be modified to run concurrently. Because we have determined that two of the three counts should be vacated, no further analysis of this proposition is necessary.

DECISION

The Judgment and Sentence of the district court is VACATED with respect to Counts II and III; Count I is AFFIRMED.

APPEARANCES AT TRIAL

DONALD A. HERRING, ESQ.
Founders Tower, Ste. 1100
5900 Mosteller Drive
Oklahoma City, OK 73112
ATTORNEY FOR DEFENDANT

ROBERT BEAL
ASST. DISTRICT ATTORNEY
GRADY COUNTY COURTHOUSE
CHICKASHA, OK 73023
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

LISBETH L. McCARTY
APPELLATE DEFENSE COUNSEL
1623 Cross Center Drive
Norman, OK 73019
ATTORNEY FOR APPELLANT

SANDRA D. HOWARD
ASST. ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73105
ATTORNEY FOR APPELLEE

OPINION BY JOHNSON, V.P.J.
LUMPKIN, P.J.: CONCURS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS
LILE, J.: CONCURS IN PART/DISSENTS IN PART

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Footnotes:

1. 21 O.S.1991, § 1578
2. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)
3. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)
4. United States v. Universal C.I.T. Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952)
5. Hunnicutt U. State, 1988 OK CR 91, 11 12-14, 755 P.2d 105

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1578 - Possession of Forged Evidences of Debt
• Okla. Stat. tit. 21 § 701.8 - Sentencing

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:

• Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)
• Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)
• United States v. Universal C.I.T. Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952)
• Hunnicutt v. State, 1988 OK CR 91, 11 12-14, 755 P.2d 105