Terrell Dwayne Gurley v The State of Oklahoma

C-2001-341

Filed: Jan. 16, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Terrell Dwayne Gurley appealed his conviction for multiple crimes, including robbery and burglary. His conviction and sentence were for a total of 99 years for some counts and 75 or 1 year for others. Judge Lile dissented regarding one of the burglary charges.

Decision

We REVERSE the trial court's decision regarding Count VII: Burglary in the First Degree, and REMAND the case with instructions to dismiss Count VII. The remaining counts are AFFIRMED.

Issues

• Was there a violation of the constitutional protection against double punishment regarding Counts I and V?
• Did the conviction for Count VII: Burglary in the First Degree subject Gurley to double punishment?
• Are Gurley's sentences excessive and should they be modified?

Findings

• the court erred in reversing the trial court's decision regarding Count VII: Burglary in the First Degree
• the court found that the sentences for Count I: Robbery with a Firearm, and Count V: Possession of a Firearm After Former Conviction of a Felony, do not violate the constitutional protection against double punishment
• the court did not find Gurley's sentences excessive
• the court remanded the case with instructions to dismiss Count VII
• the remaining counts were affirmed

C-2001-341

Jan. 16, 2002

Terrell Dwayne Gurley

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE:

Terrell Dwayne Gurley pled guilty to Count I: Robbery with a Firearm, in violation of 21 O.S.Supp.2000, § 801; Count II: Kidnapping, in violation of 21 O.S.Supp.2000, § 741; Count III: Burglary in the First Degree, in violation of 21 O.S.1991, § 1431; Count IV: Larceny of an Automobile, in violation of 21 O.S.Supp.2000, § 1720; Count V: Possession of a Firearm after Felony Conviction, in violation of 21 O.S.Supp.2000, § 1283; Count VI: Forcible Entry, in violation of 21 O.S. 1991, § 1438(B); Count VII: Burglary in the First Degree, in violation of 21 O.S.1991, § 1431; and Count VIII: Attempting to Intimidate a State’s Witness, in violation of 21 O.S.Supp. 2000, § 455, in Oklahoma County District Court Case No. CF-2000-387. On March 14, 2001, the Honorable Ray C. Elliot sentenced Gurley to ninety-nine (99) years imprisonment for each of Counts I, II and VIII, seventy-five (75) years imprisonment for each of Counts III, IV, V and VII, and one (1) year imprisonment for Count VI. Judge Elliot ordered Gurley to serve the sentences consecutively. Gurley moved to withdraw his plea on March 19, 2001. The District Court overruled his motion at a hearing on March 23, 2001. Gurley filed a petition for certiorari on May 23, 2001. We ordered the State to file a Response Brief, which was filed on January 16, 2002. Gurley raises the following propositions of error in support of his petition for certiorari:

I. Petitioner has been subjected to multiple punishments, which require dismissal of Count V – Possession of a Firearm After Conviction of a Felony, and Count VII – Burglary in the First Degree.

II. Mr. Gurley’s sentences are excessive and should be modified.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we reverse the judgment of the lower court with respect to Count VII: Burglary in the First Degree, and remand the case to the trial court with instructions to dismiss this count. We find in Proposition I that Gurley’s sentences for Count I: Robbery with a Firearm, and Count V: Possession of a Firearm After Former Conviction of a Felony, do not violate his Constitutional protection against double punishment because the offenses are separate and distinct. However, Gurley’s conviction for Count VII: Burglary in the First Degree, subjects him to double punishment because a conviction for both First Degree Burglary and Robbery with a Firearm arising from the same criminal transaction violates 21 O.S.1991, § 11. Gurley’s possession offense requires the State to prove the additional element of a prior felony conviction. Without this element Gurley’s acts would not support his possession offense.

We therefore reverse and remand this case to the trial court with instructions to dismiss Count VII. In Proposition II, we find that Gurley’s sentences are not excessive because they are not so disproportionate as to shock the conscience of the Court.

Decision

We REVERSE the trial court’s decision regarding Count VII: Burglary in the First Degree, and REMAND the case with instructions to dismiss Count VII. The remaining counts are AFFIRMED.

ATTORNEYS AT TRIAL

WILLIAM D. SMITH
925 Northwest Sixth Street
Oklahoma City, Oklahoma 73106

ATTORNEYS ON APPEAL

S. GAIL GUNNING
APPELLATE DEFENSE COUNSEL
1623 Cross Center Drive
Norman, Oklahoma 73019

ATTORNEY FOR DEFENDANT

STEPHEN DEUTCH
ANGELA WRIGHT
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEYS
OKLAHOMA COUNTY DISTRICT ATTORNEY’S OFFICE
320 Robert S. Kerr, Suite 505
Oklahoma City, Oklahoma 73102

ATTORNEYS FOR RESPONDENT

OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
JOHNSON, V.P.J.: CONCUR IN RESULTS
STRUBHAR, J.: CONCUR
LILE, J.: CONCUR IN PART/DISSENT IN PART

The transactional approach to 21 O.S. 1991, § 11, set forth in Lawson v. State, 1971 OK CR 188, 484 P.2d 900, is the exact approach terminated by Davis v. State, 1999 OK CR 48, 993 P.2d 124. In fact, Lawson was abandoned even prior to Davis. In Taylor v. State, 1995 OK CR 10, 889 P.2d 319, Judge Chapel (writing for a unanimous Court, on this issue) said: The burglary Taylor perpetrated was complete when he entered the victim’s residence with the intent to commit a crime. The offenses committed after entry were separate and distinct. Davis requires a fact-intensive review of the relationship between the crimes. The one transaction test, as well as the ultimate objective test and the primary offense test were rejected. If the crimes truly are one act, then and only then does Section 11 prohibit double punishment. In this case, when the Appellant’s associate rang the door bell and Appellant put a gun to the victim’s head, he commenced both a burglary and an armed robbery. However, this one act did not complete either crime. The only completed crime at that point was Feloniously Pointing a Firearm, which was not charged. Appellant grabbed Mr. Coats by the shirt and forced him back into the apartment at gunpoint. As soon as Appellant inserted any part of his body into the occupied apartment with the intent to commit any crime therein, the crime of First Degree Burglary was complete. The Robbery with a Firearm, however, was not complete at that point as there had been no taking or carrying away of personal property of another. The acts necessary to commit each crime were not identical, and under the authority of Taylor, the provisions of 22 O.S.1991, § 11 do not apply. I dissent to the order reversing and remanding with instructions to dismiss Count VII, Burglary in the First Degree After Two or More Felony Convictions. I am authorized to state that Judge Lumpkin joins in this special vote.

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Footnotes:

1. Appellant's Brief erroneously refers to Counts III and VI.
2. See 21 O.S.1991, § 11; see also State v. Murray, 947 P.2d 591 (Okl.Cr.1997) (holding that a criminal act giving rise to offenses which are not separate and distinct violates § 11).
3. See Lawson v. State, 484 P.2d 900, 901 (Okl.Cr.1971) (holding that 21 O.S.1991, § 11 prohibits convictions for both First Degree Burglary and Robbery with Firearms where they arise from one single "criminal transaction").
4. See Jones v. State, 965 P.2d 385, 386 (Okl.Cr.1998).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2011) - Robbery with a Firearm
• Okla. Stat. tit. 21 § 741 (2011) - Kidnapping
• Okla. Stat. tit. 21 § 1431 (2011) - Burglary in the First Degree
• Okla. Stat. tit. 21 § 1720 (2011) - Larceny of an Automobile
• Okla. Stat. tit. 21 § 1283 (2011) - Possession of a Firearm after Felony Conviction
• Okla. Stat. tit. 21 § 1438 (2011) - Forcible Entry
• Okla. Stat. tit. 21 § 455 (2011) - Attempting to Intimidate a State's Witness
• Okla. Stat. tit. 21 § 11 (2011) - Double Punishment

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:

• State v. Murray, 947 P.2d 591 (Okl.Cr.1997)
• Lawson v. State, 484 P.2d 900 (Okl.Cr.1971)
• Jones v. State, 965 P.2d 385 (Okl.Cr.1998)
• Davis v. State, 1999 OK CR 48, 993 P.2d 124
• Taylor v. State, 1995 OK CR 10, 889 P.2d 319