Recil Gravitt v State Of Oklahoma

F-2000-1308

Filed: Oct. 26, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Recil Gravitt appealed his conviction for distribution of a controlled dangerous substance, maintaining a dwelling for drug activity, and possession of a controlled dangerous substance in the presence of a minor. The conviction and sentence were upheld, but the fine for one count was changed. Judge Johnson dissented.

Decision

The Judgment and Sentence of the trial court on Counts II and III is AFFIRMED. The Judgment on Count I is AFFIRMED, but the fine imposed is MODIFIED to $10,000.00.

Issues

• Was there an error in the court not ruling on the defendant's motions until during trial to the defendant's prejudice?
• Did the court err in admitting evidence of other crimes?
• Did the court err in not sustaining demurrers to the evidence?
• Did the court err in allowing evidence not provided in discovery?
• Was the defendant a victim of prosecutorial misconduct?
• Was the defendant denied effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution?

Findings

• the court did not err in not ruling on defendant's motions until during trial to the defendant's prejudice
• the court did not err in admitting evidence of other crimes
• the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt
• the court did not err in allowing evidence not provided in discovery
• the defendant was not denied a fair trial by any of the alleged misconduct of the prosecutor
• the defendant failed to meet his burden to show he received ineffective assistance of counsel
• the fine imposed on Count I is modified to $10,000

F-2000-1308

Oct. 26, 2001

Recil Gravitt

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Recil Gravitt, Appellant, was convicted by a jury of Distribution of a Controlled Dangerous Substance, After Former Conviction of Two or More Felonies (63 O.S.Supp.1994, §2-401) (Count I), Maintaining a Dwelling, After Former Conviction of Two or More Felonies (63 O.S.1991, §2-404) (Count II), and Possession of a Controlled Dangerous Substance in the Presence of a Minor, After Former Conviction of Two or More Felonies (63 O.S.Supp. 1995, §2-402(C))(Count III), in the District Court of Creek County, Case No. CF-98-438A, District Judge Donald D. Thompson presiding.

The trial court, in accordance with the jury’s recommendation, sentenced Appellant to thirty (30) years imprisonment and a one-hundred thousand ($100,000) dollar fine on Count I, twenty (20) years imprisonment and a ten thousand ($10,000) dollar fine on Count II, and twenty-eight (28) years imprisonment and a ten thousand ($10,000) dollar fine on Count III. The trial court ordered the terms to be served consecutively. From this Judgment and Sentence, he appeals.

The following propositions of error were considered:
I. The court erred in not ruling on defendant’s motions until during trial to the defendant’s prejudice;
II. The court erred in admitting evidence of other crimes;
III. The court erred in not sustaining demurrers to the evidence;
IV. The court erred in allowing evidence not provided in discovery;
V. The defendant was a victim of prosecutorial misconduct; and
VI. The defendant was denied ineffective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm and modify the fine imposed on Count I.

As to Propositions I and II, we find Appellant was not prejudiced by the brief reference in opening statement to evidence ultimately suppressed as the jury was properly admonished the statement was not evidence. The record shows none of the suppressed evidence was admitted or discussed following the court’s ruling and we find no error.

As to Proposition III, we find the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis, that Appellant delivered dilaudid to Sasser, that Appellant maintained his house for the selling of drugs and that the instant sale was not an isolated incident, and that Appellant possessed dilaudid in the presence of a minor under 12 years of age. Miller v. State, 977 P.2d 1099, 1107 (Okl.Cr.1998), cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999); Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985).

As to Proposition IV, we find the trial court did not err in admitting the evidence about the Cole’s Directory. See Welch v. State, 2 P.3d 356, 370 (Okl.Cr.), cert. denied, U.S. , 121 S.Ct. 665, 148 L.Ed.2d 567 (2000); Powell v. State, 995 P.2d 510, 526 (Okl.Cr.2000).

As to Proposition V, we find Appellant was not denied a fair trial by any of the alleged misconduct of the prosecutor. Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995).

As to Proposition VI, we find Appellant has failed to meet his burden to show he received ineffective assistance of counsel. Accordingly, relief is denied. Anderson v. State, 992 P.2d 409, 422 (Okl.Cr.1999), cert. denied, 531 U.S. 850, 121 S.Ct. 124, 148 L.Ed.2d 79 (2000).

Though not raised, we do find plain error in the amount of fine imposed on Count I. A review of the record shows the jury was misinstructed on the range of fine for Count I. The instructions combined the fine provisions from 63 O.S.Supp.1994, §2-401 with the enhancement provisions found in the Habitual Offender Statute, 21 O.S.1991, §51. The unenhanced punishment for unlawful delivery of a CDS is imprisonment for not less than five years and not more than life and a fine of not more than one-hundred thousand ($100,000) dollars. 63 O.S.Supp. 1994, §2-401. All of Appellant’s convictions were charged after two or more felony convictions and enhanced under 21 O.S.1991, §51 which provides for a term of imprisonment not less than twenty (20) years. Section 51 does not provide for a fine, but the trial court or jury has the authority to impose a fine where one is not prescribed by law under 21 O.S.Supp. 1993, §64. The maximum allowable fine under §64 is ten thousand ($10,000) dollars. Thus, we find the fine imposed against Appellant in Count I should be reduced to ten thousand ($10,000) dollars. See Novey v. State, 709 P.2d 696, 699-700 (Okl.Cr.1985).

DECISION

The Judgment and Sentence of the trial court on Counts II and III is AFFIRMED. The Judgment on Count I is AFFIRMED, but the fine imposed is MODIFIED to $10,000.00.

APPEARANCES AT TRIAL
LAWRENCE MARTIN WALLACE CREEKMORE
ATTORNEY AT LAW ATTORNEY AT LAW
123 S. BROADWAY P.O. BOX 90
CLEVELAND, OK 74020 SAPULPA, OK 74067
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLANT

CAROL ISKI W.A. DREW EDMONDSON
ATTORNEY GENERAL ASSISTANT DISTRICT ATTORNEY OF OKLAHOMA
CREEK COUNTY COURTHOUSE STEVEN E. LOHR
222 EAST DEWEY ASSISTANT ATTORNEY GENERAL
SAPULPA, OK 74066 2300 N.LINCOLN BLVD., SUITE112
ATTORNEYS FOR THE STATE OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.
LUMPKIN, P.J.: CONCUR IN RESULT
JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR
LILE, J.: CONCUR

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Footnotes:

1. 63 O.S.Supp.1994, §2-401
2. 63 O.S.1991, §2-404
3. 63 O.S.Supp. 1995, §2-402(C)
4. Miller v. State, 977 P.2d 1099 (Okl.Cr.1998), cert. denied, 528 U.S. 897 (1999)
5. Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985)
6. Welch v. State, 2 P.3d 356 (Okl.Cr.), cert. denied, U.S. , 121 S.Ct. 665 (2000)
7. Powell v. State, 995 P.2d 510 (Okl.Cr.2000)
8. Spears v. State, 900 P.2d 431 (Okl.Cr.), cert. denied, 516 U.S. 1031 (1995)
9. Anderson v. State, 992 P.2d 409 (Okl.Cr.1999), cert. denied, 531 U.S. 850 (2000)
10. 63 O.S.Supp.1994, §2-401
11. 21 O.S.1991, §51
12. 21 O.S.Supp. 1993, §64
13. Novey v. State, 709 P.2d 696 (Okl.Cr.1985)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1994) - Distribution of a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-404 (1991) - Maintaining a Dwelling
• Okla. Stat. tit. 63 § 2-402 (1995) - Possession of a Controlled Dangerous Substance in Presence of a Minor
• Okla. Stat. tit. 21 § 51 (1991) - Enhancement Provisions for Habitual Offenders
• Okla. Stat. tit. 21 § 64 (1993) - Authority to Impose Fines

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:

• Miller v. State, 977 P.2d 1099, 1107 (Okl.Cr.1998), cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999)
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)
• Welch v. State, 2 P.3d 356, 370 (Okl.Cr.), cert. denied, U.S. , 121 S.Ct. 665, 148 L.Ed.2d 567 (2000)
• Powell v. State, 995 P.2d 510, 526 (Okl.Cr.2000)
• Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995)
• Anderson v. State, 992 P.2d 409, 422 (Okl.Cr.1999), cert. denied, 531 U.S. 850, 121 S.Ct. 124, 148 L.Ed.2d 79 (2000)
• Novey v. State, 709 P.2d 696, 699-700 (Okl.Cr.1985)