Daniel Gene Mosley v The State Of Oklahoma
C-2001-537
Filed: Mar. 20, 2002
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Daniel Gene Mosley appealed his conviction for possession of methamphetamine and possession of marijuana. Conviction and sentence for possession of methamphetamine were affirmed, and the possession of marijuana conviction was reversed. Lile dissented.
Decision
The judgments and sentences under Counts I and III are hereby AFFIRMED and are ordered to be served consecutively. The judgment and sentence under Count II, Possession of C.D.S. (marijuana) are hereby REVERSED, and the matter is REMANDED to the District Court of Cleveland County for further proceedings consistent with this opinion.
Issues
- Was there a violation of double jeopardy prohibitions due to simultaneous convictions for possession of two controlled substances?
- Did the Petitioner’s trial counsel render ineffective assistance by failing to raise the double jeopardy issue at trial?
- Was the Petitioner's guilty plea involuntary because he was not informed of the consequences of his sentences?
Findings
- the court erred in affirming the convictions for possession of two controlled substances as it violated double jeopardy prohibitions
- the sentence under Count II, Possession of C.D.S. (marijuana), was reversed
- Petitioner's plea was entered knowingly and voluntarily
- the judgments and sentences under Counts I and III were affirmed
- the matter was remanded to the District Court for further proceedings consistent with this opinion
C-2001-537
Mar. 20, 2002
Daniel Gene Mosley
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, PRESIDING JUDGE: On April 27, 2000, Petitioner pled guilty, in Cleveland County District Court Case No. CF-2000-360, to the crimes of Possession of Methamphetamine (Count I), in violation of 63 O.S.Supp.1999, § 2-402(B)(1), Possession of Marijuana (Count II), in violation of 63 O.S.Supp.1999, § 2-402(B)(2), and Possession of Drug Paraphernalia (Count III), in violation of 63 O.S.Supp. 1999, § 2-405(B), all after two or more drug-related felonies. The State offered him a plea agreement of a one year suspended sentence plus certain costs on count one while dismissing counts two and three. The agreement was contingent upon his successful completion of drug court. Furthermore, if Petitioner failed to uphold his part of the bargain, he agreed to receive sentences of ten (10) years imprisonment on Count I, ten (10) years imprisonment on Count II, and one (1) year in the county jail on Count III, along with certain costs and fines.
The record in this case is quite irregular. Most of the documents relating to Petitioner’s plea and plea agreement are located in an exhibit, which is a copy of Petitioner’s drug file kept by the Cleveland County District Attorney. That file contains an agreement Petitioner signed, styled Performance Contract. This agreement is dated April 27, 2000 and contains more than thirty (30) specific conditions Petitioner agreed to perform or uphold. There is no court minute in the district court file relating to the guilty plea, and the Summary of Facts form is in the drug file, but was not filed in the case. Petitioner waived a Court Reporter at the hearing, and so there is no transcript of the plea hearing. A Summary Order was filed in the District Court the next day, stating, Matter stayed pending completion of Drug Court…
On September 20, 2000, the Cleveland County D.A. filed a Motion to Terminate and Sentence in Accordance with Plea Agreement, alleging Petitioner had violated his plea agreement by failing to remain drug free, possessing alcohol, failing to attend Drug Court sessions, failing to contact his case manager, being arrested again for drug possession, and other violations. During the hearing on that motion, Petitioner admitted he had severely violated his drug court contract. His defense was that he is addicted to drugs, that he messed up, and that he could not complete the program on his own. The trial court sustained the motion to terminate, finding Petitioner had violated his plea agreement. The trial court entered judgment and sentence against Petitioner in accordance with his agreement as follows: ten (10) years imprisonment, $5,000.00 fine, and certain costs on Count I; ten (10) years imprisonment, $5,000.00 fine, and certain costs on Count II, and one year in the Cleveland County Detention Center, $500.00 fine, and certain costs on Count III. The sentences were ordered to be served consecutively.
On October 20, 2000, Petitioner, through counsel, filed an application to withdraw guilty plea, claiming his plea had not been entered voluntarily, knowingly, and intelligently because he did not know the trial judge would order his sentences to be served consecutively. Following a lengthy hearing, the trial court denied the application to withdraw guilty plea, finding Petitioner’s plea was entered knowingly and voluntarily.
Petitioner now appeals from the trial court’s denial of his application to withdraw guilty plea. Petitioner raises the following propositions of error:
I. Petitioner’s convictions for possession of two controlled substances violate double jeopardy prohibitions and defense counsel rendered ineffective assistance by failing to raise this issue at trial; and
II. Petitioner’s plea was involuntary as he was not informed of the consequences of his sentences.
After a thorough consideration of these propositions and the entire record before us, we find proposition one has merit and grant certiorari. In proposition one, Petitioner claims, for the first time on appeal, that his simultaneous convictions for possession of two types of controlled dangerous substance under 63 O.S.Supp.1999, § 2-402(B), i.e., both marijuana and methamphetamine, violate double jeopardy principles. We agree. See, e.g., Watkins v. State, 829 P.2d 42, 43 (Okl.Cr.1991), modified-855 P.2d 141, 142 (The statutory prohibition does not distinguish between types or classifications of drugs regulated by the Uniform Controlled Dangerous Substances Act.). While this issue was not raised at trial, in the application to withdraw guilty plea, the hearing on said application, or the Petition for Writ of Certiorari, as it clearly should have been, we find plain error and reverse Petitioner’s conviction and sentence on Count II.
With respect to proposition two, we find Petitioner’s plea was entered into knowingly and voluntarily.
DECISION
The judgments and sentences under Counts I and III are hereby AFFIRMED and are ordered to be served consecutively. The judgment and sentence under Count II, Possession of C.D.S. (marijuana) are hereby REVERSED, and the matter is REMANDED to the District Court of Cleveland County for further proceedings consistent with this opinion.
Footnotes:
- 63 O.S.Supp.1999, § 2-402(B)(1)
- 63 O.S.Supp.1999, § 2-402(B)(2)
- 63 O.S.Supp.1999, § 2-405(B)
- Watkins v. State, 829 P.2d 42, 43 (Okl.Cr.1991)
- Simpson v. State, 876 P.2d 690, 693 (Okl.Cr. 1994)
- Lozoya v. State, 932 P.2d 22, 30 (Okl.Cr.1996)
Oklahoma Statutes citations:
- Okla. Stat. tit. 63 § 2-402(B)(1) - Possession of Methamphetamine
- Okla. Stat. tit. 63 § 2-402(B)(2) - Possession of Marijuana
- Okla. Stat. tit. 63 § 2-405(B) - Possession of Drug Paraphernalia
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, 829 P.2d 42, 43 (Okl.Cr.1991)
- Simpson v. State, 876 P.2d 690, 693 (Okl.Cr. 1994)
- Lozoya v. State, 932 P.2d 22, 30 (Okl.Cr.1996)