Rodney Gene Cullins v The State Of Oklahoma

C-2010-1113

Filed: Sep. 8, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Rodney Gene Cullins appealed his conviction for drug-related crimes, including manufacturing methamphetamine and possession of drugs. His conviction and sentence included life imprisonment, fines, and all sentences to be served one after the other. The court affirmed most of the original decisions but agreed to lower one of the fines. Judge Lumpkin dissented.

Decision

The Petition for Writ of Certiorari is GRANTED as to Proposition 3, and the fine in Count 1 is hereby MODIFIED to $10,000.00. In all other respects, the trial court's order denying Petitioner's motion to withdraw plea, and the Judgment and Sentence of the trial court, are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there double jeopardy or double punishment for Petitioner's convictions for manufacturing and possessing methamphetamine, and for possessing methamphetamine and marijuana?
• Did the trial court provide incorrect advice on the statutory sentencing range for Count 4 (Possession of Marijuana)?
• Should Petitioner's sentence on Count 1 be modified to vacate the fine, which is not authorized by law?
• Are Petitioner's sentences excessive?

Findings

• Proposition 1 is denied.
• Proposition 2 is denied.
• The fine on Count 1 is modified from $50,000 to $10,000.
• Proposition 4 is denied.

C-2010-1113

Sep. 8, 2011

Rodney Gene Cullins

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

GRANTING CERTIORARI IN PART

MICHAEL S. RICHIE C. JOHNSON, JUDGE:

On April 28, 2010, Petitioner, Rodney Gene Cullins, entered negotiated pleas of guilty to several drug-related crimes in Delaware County District Court, Case No. CF-2010-29A: Count 1, Manufacturing Methamphetamine (63 O.S.Supp.2005, § 2-401(G)); Count 2, Maintaining a Place Where Controlled Drugs are Kept (63 O.S.Supp.2004, § 2-404)); Count 3, Possession of Methamphetamine (63 O.S.Supp.2009, § 2-402); Count 4, Possession of Marijuana, Subsequent Offense (63 O.S.Supp.2009, § 2-402); and Count 5, Possession of Drug Paraphernalia (63 O.S.Supp.2004, § 2-405). The felony crimes (Counts 1-4) were charged After Conviction of Two or More Non-Drug-Related Felonies (21 O.S.Supp.2002, § 51.1(C)). Pursuant to the plea agreement, Petitioner was enrolled in the Drug Court program. Petitioner was advised that failure to complete the program would result in the imposition of sentences negotiated in the plea agreement.

The State subsequently moved to terminate Petitioner from the Drug Court program. At a hearing held October 13, 2010, the Honorable Robert G. Haney, District Judge, granted the State’s request and sentenced Petitioner, per the original agreement, as follows: Count 1, life imprisonment and a $50,000 fine; Counts 2 and 3, life imprisonment and $1000 fine; Count 4, ten years imprisonment and a $1000 fine; and Count 5, a $100 fine. Pursuant to the original plea agreement, all sentences were ordered to be served consecutively to one another. Petitioner filed an Application to Withdraw Guilty Pleas on October 22, 2010. At a hearing held November 10, 2010, the district court denied that request. This appeal followed.

Petitioner raises the following propositions of error:
1. Petitioner’s convictions for both manufacturing methamphetamine and possessing methamphetamine (Counts 1 and 3), and possession of both methamphetamine and marijuana (Counts 3 and 4) constitute double jeopardy or double punishment.
2. Petitioner should be allowed to withdraw his plea to Count 4 (Possession of Marijuana) due to incorrect advice on the statutory sentencing range.
3. Petitioner’s sentence on Count 1 should be modified to vacate the fine, which is not authorized by law.
4. Petitioner’s sentences are excessive.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and Petitioner’s brief, we grant certiorari as to Proposition 3, but otherwise affirm. As to Proposition 1, these arguments have been waived by Petitioner’s failure to raise them below. Double-punishment claims are largely fact-driven, and the record is so devoid of factual development that we are unable to review these claims even for plain error. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S., Ch. 18, App.; Head v. State, 2006 OK CR 44, 1 9, 146 P.3d 1141, 1144; Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355. Proposition 1 is therefore denied.

As to Proposition 2, Petitioner pled guilty to a subsequent-offense marijuana-possession charge, after conviction of multiple prior non-drug-related felonies. The trial court properly advised him of the applicable sentencing range on Count 4. 21 O.S.Supp.2002, § 51.1(C); King v. State, 1976 OK CR 103, 1 11, 553 P.2d 529, 535. Proposition 2 is denied.

As to Proposition 3, the $50,000 fine authorized for a first offense in Count 1 (see 63 O.S.Supp.2005, § 2-401(G)), is no longer available when sentence is enhanced pursuant to 21 O.S.Supp.2002, § 51.1(C). Coates v. State, 2006 OK CR 24, I 6, 137 P.3d 682, 684-85. However, as Petitioner concedes, the court had the authority to impose a fine of up to $10,000 for any felony. 21 O.S.2001, § 64(B). Accordingly, the fine on Count 1 should be modified from $50,000 to $10,000.

Finally, as to Proposition 4, given the trial court’s thorough colloquy with Petitioner on the ramifications of his agreement to the plea terms, we cannot say the sentences imposed are shocking to the conscience. Rea V. State, 2001 OK CR 28, 1 5, 34 P.3d 148, 149. Proposition 4 is therefore denied.

DECISION

The Petition for Writ of Certiorari is GRANTED as to Proposition 3, and the fine in Count 1 is hereby MODIFIED to $10,000.00. In all other respects, the trial court’s order denying Petitioner’s motion to withdraw plea, and the Judgment and Sentence of the trial court, are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY
THE HONORABLE ROBERT G. HANEY, DISTRICT JUDGE

APPEARANCES AT TRIAL
LEE GRIFFIN
ATTORNEY AT LAW
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR PETITIONER

APPEARANCES ON APPEAL
EBERLE S. GAIL GUNNING
INDIGENT DEFENSE SYSTEM
P.O. BOX 367
JAY, OK 74346
ATTORNEY FOR DEFENDANT

KENNETH E. WRIGHT III
ASSISTANT DISTRICT ATTORNEY
P.O. BOX 528
JAY, OK 74346
ATTORNEY FOR THE STATE

W. A. DREW EDMONDSON
ATTORNEY GENERAL
DONALD D. SELF
ASSISTANT ATTORNEY GENERAL
313 N. E. 21st ST.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY C. JOHNSON, J.

A. JOHNSON, P.J.: CONCUR

LEWIS, V.P.J.: CONCUR

LUMPKIN, J.: CONCUR

SMITH, J.: CONCUR

RB

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Footnotes:

1. 63 O.S.Supp.2005, § 2-401(G)
2. 63 O.S.Supp.2004, § 2-404
3. 63 O.S.Supp.2009, § 2-402
4. 63 O.S.Supp.2009, § 2-402
5. 63 O.S.Supp.2004, § 2-405
6. 21 O.S.Supp.2002, § 51.1(C)
7. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S., Ch. 18, App.
8. Head v. State, 2006 OK CR 44, 19, 146 P.3d 1141, 1144
9. Walker v. State, 1998 OK CR 14, 3, 953 P.2d 354, 355
10. 21 O.S.Supp.2002, § 51.1(C)
11. King v. State, 1976 OK CR 103, 11, 553 P.2d 529, 535
12. 63 O.S.Supp.2005, § 2-401(G)
13. 21 O.S.Supp.2002, § 51.1(C)
14. Coates v. State, 2006 OK CR 24, 6, 137 P.3d 682, 684-85
15. 21 O.S.2001, § 64(B)
16. Rea V. State, 2001 OK CR 28, 5, 34 P.3d 148, 149
17. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2005) - Manufacturing Methamphetamine
• Okla. Stat. tit. 63 § 2-404 (2004) - Maintaining a Place Where Controlled Drugs are Kept
• Okla. Stat. tit. 63 § 2-402 (2009) - Possession of Methamphetamine
• Okla. Stat. tit. 63 § 2-402 (2009) - Possession of Marijuana, Subsequent Offense
• Okla. Stat. tit. 63 § 2-405 (2004) - Possession of Drug Paraphernalia
• Okla. Stat. tit. 21 § 51.1(C) (2002) - After Conviction of Two or More Non-Drug-Related Felonies
• Okla. Stat. tit. 21 § 64(B) (2001) - Imposition of 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:

• Head v. State, 2006 OK CR 44, I 9, 146 P.3d 1141, 1144
• Walker v. State, 1998 OK CR 14, I 3, 953 P.2d 354, 355
• King v. State, 1976 OK CR 103, I 11, 553 P.2d 529, 535
• Coates v. State, 2006 OK CR 24, I 6, 137 P.3d 682, 684-85
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149