Lonnie Sie Chance v The State of Oklahoma

F-2010-1123

Filed: Sep. 3, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Lonnie Sie Chance appealed his conviction for First Degree Burglary and Unlawful Possession of Drug Paraphernalia. His conviction and sentence were originally set at thirty years in prison for burglary and one year in county jail for drug paraphernalia. One judge disagreed with the modification to his sentence. The Court of Criminal Appeals agreed that there were mistakes made during the trial, particularly in how the jury was informed about the sentencing process. They decided to reduce Chance's sentence for burglary from thirty years to twenty years. They also found that the charge for drug paraphernalia should have been done differently and changed his jail time from one year to thirty days. Additionally, the court said there needs to be a new hearing to determine how much money Chance should pay in restitution to the victim, since the proper steps weren't followed initially. In the end, the court approved the convictions but modified the sentences. Judge Lumpkin thought the original sentence for burglary should stay the same and disagreed with reducing it.

Decision

The judgment of the district court is AFFIRMED. However, the sentence imposed on Count I is MODIFIED from thirty years imprisonment to twenty years imprisonment and the sentence imposed on Count II is MODIFIED from one year in the county jail to thirty days in the county jail. Further, the case is REMANDED to the district court for a hearing to determine the proper restitution amount as is required by 22 O.S.2001, § 991a and 22 O.S.2001, § 991f. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there improper prosecutorial argument and evidence concerning probation and parole that deprived Appellant of his right to a fair jury sentencing trial?
• Did the trial court commit plain error by improper procedure, instructions, and verdict forms on Count II that deprived Appellant of his rights to a fair jury sentencing?
• Did the trial court abuse its discretion by imposing restitution without following the mandatory statutory procedure governing restitution orders?

Findings

• the court erred in admitting improper prosecutorial argument and evidence concerning probation and parole, resulting in prejudice to Appellant
• the instructions and trial of Count II constituted plain error, modifying the sentence from one year to thirty days in jail
• the trial court abused its discretion in assessing restitution without proper procedures, prompting vacating of the restitution order and requiring new proceedings

F-2010-1123

Sep. 3, 2011

Lonnie Sie Chance

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Lonnie Sie Chance, was convicted after jury trial in Garfield County District Court, Case No. CF-2010-207, of First Degree Burglary, After Former Conviction of Two or More Felonies (Count I) and Unlawful Possession of Drug Paraphernalia (Count II). The jury assessed punishment at thirty years imprisonment on Count I, and one year in the county jail on Count II. The trial court sentenced Appellant accordingly ordering the sentences be served concurrently. It is from this Judgment and Sentence that Appellant appeals to this Court.

Appellant raises the following propositions of error:
1. Improper prosecutorial argument and evidence concerning probation and parole combined to deprive Appellant of his right to a fair jury sentencing trial under the 5th, 6th and 14th Amendments to the United States Constitution and Art. II, §§ 7 and 20 of the Oklahoma Constitution.
2. On Count II, through improper procedure, instructions and verdict forms, the trial court committed plain error depriving Appellant of his rights to a fair jury sentencing under the 5th, 6th and 14th Amendments to the United States Constitution and Art. II, §§ 7 and 20 of the Oklahoma Constitution.
3. The trial court abused its discretion by imposing restitution without following the mandatory statutory procedure governing restitution orders, in violation of Appellant’s due process rights under the 14th Amendments to the United States Constitution and Art. II, § 7 of the Oklahoma Constitution.

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 affirm Mr. Chance’s Judgment and modify his Sentence.

As to Proposition I, we find that the Judgments and Sentences and ‘pen packet’ introduced contained unmistakable improper references to the pardon and parole system which were exacerbated by the prosecutor’s argument to the jury that this information could be used to determine sentencing. This error was plain error resulting in prejudice to Appellant. Accordingly, we modify Appellant’s sentence on Count I from thirty years imprisonment to twenty years imprisonment. See Hunter v. State, 2009 OK CR 17, I 8, 208 P.3d 931, 933; Darks v. State, 1998 OK CR 15, I 59, 954 P.2d 152, 167.

Appellant complains in his second proposition that error occurred when the misdemeanor offense of Unlawful Possession of Drug Paraphernalia charged against him in Count II was tried in a bifurcated proceeding despite the fact that it was not subject to enhancement. He also complains that error occurred when the jury was erroneously instructed by the trial court that, The punishment for Unlawful Possession of Drug Paraphernalia after three previous convictions is imprisonment in the county jail for one year or a fine of $1000 or both. The State concedes that the misdemeanor crime of Unlawful Possession of Drug Paraphernalia was not subject to enhancement under either the general enhancement provisions of 21 O.S.Supp.2002, § 51.1 or the specific enhancement provisions of 63 O.S.Supp.2004, § 2-405. The State also concedes that the crime of Unlawful Possession of Drug Paraphernalia should not have been tried in a bifurcated proceeding. However, because defense counsel objected to neither the instructions regarding the range of punishment nor the trial of the paraphernalia charge in a bifurcated proceeding, the State asserts that this Court may review for plain error and argues that these errors did not rise to the level of plain error. See Marshall v. State, 2010 OK CR 8, I 56, 232 P.3d 467, 480; McIntosh v. State, 2010 OK CR 17, II 9, 10, 237 P.3d 800, 803.

In this case, the jury instruction not only misstated the range of punishment but failed to allow the jury to impose any jail time less than the maximum allowed. This was plain error that was not harmless. Accordingly, Appellant’s sentence of one year in jail for Unlawful Possession of Drug Paraphernalia is modified to thirty days in the county jail.

Finally, Appellant asserts that the trial court abused its discretion in assessing restitution without holding a hearing to determine, to a reasonable certainty, that the amount of restitution requested was the actual amount of the victim’s loss as is required by 22 O.S.2001, § 991a and 22 O.S.2001, § 991f. The record supports this argument and the State agrees, conceding that the district court’s restitution order must be vacated and new proceedings conducted to determine a proper restitution amount. See Logsdon v. State, 2010 OK CR 7, II 8-13, 231 P.3d 1156, 1162.

DECISION

The judgment of the district court is AFFIRMED. However, the sentence imposed on Count I is MODIFIED from thirty years imprisonment to twenty years imprisonment and the sentence imposed on Count II is MODIFIED from one year in the county jail to thirty days in the county jail. Further, the case is REMANDED to the district court for a hearing to determine the proper restitution amount as is required by 22 O.S.2001, § 991a and 22 O.S.2001, § 991f. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY
THE HONORABLE RONALD G. FRANKLIN, DISTRICT JUDGE

APPEARANCES AT TRIAL
GREG CAMP
2901 S. VAN BUREN
ENID, OK 73701
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
TERRY J. HULL
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

TALLENA MCMICHAEL
E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
114 W. BROADWAY
ENID, OK 73701

SANDRA D. RINEHART
ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR THE STATE
313 N.E. 21 st ST.
OKLAHOMA CITY, OK 73105

OPINION BY C. JOHNSON, J.

A. JOHNSON, P.J.: CONCUR
LEWIS, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR IN PART/DISSENT IN PART
SMITH, J.: CONCUR

LUMPKIN, JUDGE: CONCUR IN PART/DISSENT IN PART

While I agree with the Court’s decision to affirm the judgments of guilt in each of these offenses, and the modification of the sentence as to the misdemeanor offense in Count II, I cannot agree to the modification of sentence in Count I. There is absolutely no evidence the sentence in Count I was decided based on passion, prejudice or any outside influence. In fact, while the maximum possible sentence was life in prison, the jury only sentenced Appellant to 30 years on Count I, a sentence that is only 10 years above the minimum sentence allowed based on Appellant’s prior convictions. This record reveals no prejudice was present due to the error. When no actual prejudice can be shown, it should not be presumed. In this case the Appellant did not object either to the evidence or the argument, thus he has waived all error unless plain error is shown. Simpson v. State, 1994 OK CR 40, IT 11, 876 P.2d 690, 695. Even if plain error is found, the record must be reviewed to determine if prejudice is shown. Id., 1994 OK CR 40, IT 30, 876 P.2d at 700. See also Smallwood v. State, 1995 OK CR 60, II 29, 907 P.2d 217, 227 ([t]his Court has consistently held that it is not error alone that reverses the lower court’s judgments, but error plus injury, and the burden is upon the appellant to establish the fact that he was prejudiced in his substantial rights by the commission of the alleged error). This record reveals no evidence of prejudice as to the allegations in Proposition I. The jury sentence should be affirmed.

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Footnotes:

1. Appellant must serve 85% of the sentence imposed for First Degree Burglary under 21 O.S.Supp.2009, § 13.1.
2. The misdemeanor crime of Unlawful Possession of Drug Paraphernalia was not subject to enhancement under either the general enhancement provisions of 21 O.S.Supp.2002, § 51.1 or the specific enhancement provisions of 63 O.S.Supp.2004, § 2-405.
3. Appellant's sentence of one year in jail for Unlawful Possession of Drug Paraphernalia is modified to thirty days in the county jail.
4. Restitution order must be vacated and new proceedings conducted to determine a proper restitution amount as is required by 22 O.S.2001, § 991a and 22 O.S.2001, § 991f.
5. There is no evidence the sentence in Count I was decided based on passion, prejudice or any outside influence.
6. The jury only sentenced Appellant to 30 years on Count I, a sentence that is only 10 years above the minimum sentence allowed based on Appellant's prior convictions.
7. When no actual prejudice can be shown, it should not be presumed.
8. The record must be reviewed to determine if prejudice is shown, as per Simpson v. State, 1994 OK CR 40, IT 11, 876 P.2d 690, 695.
9. This Court has consistently held that it is not error alone that reverses the lower court's judgments, but error plus injury, and the burden is upon the appellant to establish the fact that he was prejudiced in his substantial rights by the commission of the alleged error.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 13.1 (2009) - Sentence for first degree burglary
• Okla. Stat. tit. 21 § 51.1 (2002) - General enhancement provisions
• Okla. Stat. tit. 63 § 2-405 (2004) - Specific enhancement provisions
• Okla. Stat. tit. 22 § 991a (2001) - Restitution orders
• Okla. Stat. tit. 22 § 991f (2001) - Restitution hearings

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:

• Hunter v. State, 2009 OK CR 17, I 8, 208 P.3d 931, 933
• Darks v. State, 1998 OK CR 15, I 59, 954 P.2d 152, 167
• Marshall v. State, 2010 OK CR 8, "I 56, 232 P.3d 467, 480
• McIntosh v. State, 2010 OK CR 17, II 9, 10, 237 P.3d 800, 803
• Logsdon v. State, 2010 OK CR 7, II 8-13, 231 P.3d 1156, 1162
• Simpson v. State, 1994 OK CR 40, IT 11, 876 P.2d 690, 695
• Smallwood v. State, 1995 OK CR 60, II 29, 907 P.2d 217, 227