Shelly Denise McCandless v The State Of Oklahoma

F 2000-1241

Filed: Oct. 3, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Shelly Denise McCandless appealed her conviction for possession of controlled substances. Conviction and sentence were a total of 21 years imprisonment and fines totaling $1,000.00. Judge Strubhar dissented.

Decision

The Judgment and Sentence imposed on Counts 1 and 4 are AFFIRMED. The Judgment and Sentences for Counts 2 and 3 are hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• was there a violation of double jeopardy in the three convictions for possession of controlled substances?
• did the evidence support the convictions for possession of controlled substances?
• should the motion to suppress evidence have been granted?

Findings

• The court erred in imposing multiple convictions for possession of controlled substances, resulting in the reversal and dismissal of Counts 2 and 3.
• The evidence was sufficient to sustain the convictions on Counts 1 and 4.
• The motion to suppress was not granted due to the absence of plain error.

F 2000-1241

Oct. 3, 2001

Shelly Denise McCandless

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, Shelly Denise McCandless, was convicted in Oklahoma County District Court, Case No. CF 99-3321, of three counts of Possession of a Controlled Dangerous Substance (Counts 1 – 3), in violation of 63 O.S.Supp. 1995, § 2-401, after former conviction of two or more felonies, and of Possession of Drug Paraphernalia, in violation of 63 O.S.Supp.1995, § 2-405. Jury trial was held on September 11th – 12th, 2000, before the Honorable Susan Caswell, District Judge. The jury set punishment at thirteen (13) years imprisonment on Counts 1 and 3; seven (7) years imprisonment on Count 2; and, one (1) year imprisonment and a One Thousand Dollar ($1,000.00) fine on Count 4. Appellant was sentenced on September 21, 2000, and Judge Caswell ordered the sentences to be served consecutively. From the Judgment and Sentences imposed, Appellant filed this appeal.

Appellant raises three propositions of error:
1. The three convictions for possession of various controlled substances with the intent to distribute should have only been one conviction; the three convictions violate the double jeopardy prohibitions; the failure of defense counsel to object to the double jeopardy violation amounts to ineffective assistance of counsel;
2. There was insufficient evidence to support the convictions; and,
3. The motion to suppress should have been granted.

After thorough consideration of this proposition and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that relief is warranted for the reasons set forth below.

In Proposition One, McCandless claims her three convictions for Possession of Controlled Dangerous Substance (Cocaine – Count 1, Marijuana – Count 2, and Methamphetamine – Count 3) are violative of the prohibition against double jeopardy. All three types of drugs were found in two containers, stacked on top of each other, beneath the couch in Appellant’s residence. McCandless relies on Watkins v. State, 1991 OK CR 119, 829 P.2d 42, modified, 1992 OK CR 34, 855 P.2d 141, to argue the three convictions cannot stand. In Watkins, the defendant shipped a single package containing cocaine and PCP from Oklahoma to California. He was convicted of two counts of Distribution of CDS and two counts of Conspiracy to Distribute CDS. This Court found he had been doubly punished for a single crime, holding that under the same evidence test, possession with intent to distribute is a single offense which does not distinguish between types or classifications of drugs. Similarly, in this case, we find Appellant has been punished three times for a single offense of possession. The statutory language of 63 S.Supp. 1995, § 2-401 does not provide for separate charges of possession when different substances are found in a single transaction/cache. Accordingly, we find Counts 2 and 3 should be REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

As to the remaining Counts 1 and 4, we find the evidence sufficient to sustain the convictions. Carolina v. State, 1992 OK CR 65, 839 P.2d 663, 665 (possession may be proven by circumstantial evidence); Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203. Although a motion to suppress was heard and denied prior to trial, the motion was not reurged at trial and our review is for plain error. We find no plain occurred. Propositions Two and Three are therefore denied.

DECISION

The Judgment and Sentence imposed on Counts 1 and 4 are AFFIRMED. The Judgment and Sentences for Counts 2 and 3 are hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS

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Footnotes:

1. 63 O.S.Supp. 1995, § 2-401
2. 63 O.S.Supp.1995, § 2-405
3. Watkins v. State, 1991 OK CR 119, 829 P.2d 42
4. Watkins, 1992 OK CR 34, 855 P.2d 141
5. 63 S.Supp. 1995, § 2-401
6. Carolina v. State, 1992 OK CR 65, 839 P.2d 663
7. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202
8. Cheatham v. State, 1995 OK CR 32, I 48, 900 P.2d 414

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1995) - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-405 (1995) - 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, 1991 OK CR 119, 829 P.2d 42
• Watkins v. State, 1992 OK CR 34, 855 P.2d 141
• Carolina v. State, 1992 OK CR 65, 839 P.2d 663
• Spuehler v. State, 1985 OK CR 132, 709 P.2d 202
• Cheatham v. State, 1995 OK CR 32, 900 P.2d 414