Robert Guy Wisner v State Of Oklahoma

F-2000-1313

Filed: Aug. 31, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Robert Guy Wisner appealed his conviction for Attempting to Manufacture a Controlled Dangerous Substance, Unlawful Possession of a Controlled Drug, and Unlawful Possession of Marihuana. His conviction and sentence included 50 years in prison and a $50,000 fine for the first charge, plus one year in prison for the other two charges, to be served one after the other. Judge Lile dissented regarding the second charge. The court decided to keep the conviction for Attempting to Manufacture a Controlled Dangerous Substance and Unlawful Possession of Marihuana but reversed the conviction for Unlawful Possession of a Controlled Drug and instructed to dismiss that charge.

Decision

The Judgment and Sentence of the trial court as to Counts I and III is AFFIRMED. Count II is REVERSED with instructions to DISMISS.

Issues

• Was Appellant's conviction on Count I founded on illegally seized evidence?
• Did Appellant's convictions for two separate offenses violate the prohibitions against double punishment and double jeopardy?
• Did prosecutorial misconduct deny Appellant a fair trial and constitute fundamental error?
• Was the sentence imposed excessive and should it be modified?

Findings

• the trial court did not err in admitting the evidence seized from Appellant's truck as the search was lawful
• Appellant's right to be free from double jeopardy was violated by his separate convictions for possession of marihuana and possession of dihydrocodeinone, leading to the reversal of Count II
• any error in the prosecutor's argument did not deny Appellant a fair trial and no relief is warranted
• Appellant's sentence was within the statutory limit and does not shock the conscience of the Court
• the claim attacking the fine due to indigency is prematurely raised

F-2000-1313

Aug. 31, 2001

Robert Guy Wisner

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Robert Guy Wisner, Appellant, was tried by jury and convicted of Attempting to Manufacture a Controlled Dangerous Substance (63 O.S.Supp. 1994, §2-401(F)) (Count I), Unlawful Possession of a Controlled Drug (Dihydrocodeinone) (63 O.S.Supp.1995, §2-402(B)(2)) (Count II) and Unlawful Possession of Marihuana (63 O.S.Supp.1995, §2-402(B)(2)) (Count III), in the District Court of Kiowa County, Case No. CF-99-27, the Honorable Richard Darby, District Judge, presiding. The jury recommended a sentence of 50 years imprisonment and a $50,000 fine for Count I and one year imprisonment for Counts II and III. The trial court imposed sentence in accordance with the jury’s recommendation and ordered the sentences to run consecutively. From this judgment and sentence, he appeals.

The following propositions of error were considered: I. Appellant’s conviction on Count I must be reversed because it is founded on illegally seized evidence; II. Appellant’s convictions for two separate offenses, which arose from a single transaction, violate the prohibitions against double punishment and double jeopardy; III. Prosecutorial misconduct denied the Appellant a fair trial and constituted fundamental error; and IV. The sentence imposed is excessive and should be modified.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm in part and reverse in part. As to Proposition I, we find the trial court did not err in admitting the evidence seized from Appellant’s truck as the search was incident to a lawful arrest based on probable cause. Davis v. State, 792 P.2d 76, 84 (Okl.Cr. 1990). As to Proposition II, we find Appellant’s right to be free from double jeopardy was violated by his separate convictions for possession of marihuana and possession of dihydrocodeinone. Watkins v. State, 829 P.2d 42, 43 (Okl.Cr. 1991), on rehearing, 855 P.2d 141, 142 (Okl.Cr. 1992) (finding double jeopardy violation where defendant convicted of two counts of possession of a CDS with intent to distribute where defendant caused a single package containing two types of CDS’s to be shipped to Oklahoma from California because convictions arose out of a single transaction). As such, Count II must be reversed with instructions to dismiss.

As to Proposition III, we find any error in the prosecutor’s argument did not deny Appellant a fair trial and no relief is warranted. Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995). As to his final claim, we find that Appellant’s sentence was within the statutory limit and does not shock the conscience of this Court. Accordingly, relief is not warranted. Perryman v. State, 990 P.2d 900, 905 (Okl.Cr. 1999). In addition, we find his claim attacking the fine due to his indigency is prematurely raised. Anderson v. State, 765 P.2d 1232, 1234 (Okl.Cr. 1988).

DECISION

The Judgment and Sentence of the trial court as to Counts I and III is AFFIRMED. Count II is REVERSED with instructions to DISMISS.

APPEARANCES AT TRIAL
A. BRAD COX
ATTORNEY AT LAW
501 SOUTHWEST C AVE., STE. 300
LAWTON, OK 73501
ATTORNEY FOR APPELLANT

DAN DEAVER
ASSISTANT DISTRICT ATTORNEY
JIMMY HARMON
ASSISTANT DISTRICT ATTORNEY
JACKSON COUNTY COURTHOUSE
ALTUS, OK 73521
ATTORNEYS FOR THE STATE

APPEARANCES ON APPEAL
STEPHEN B. HACKETT
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

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

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Footnotes:

1. 63 O.S.Supp. 1994, §2-401(F)
2. 63 O.S.Supp.1995, §2-402(B)(2)
3. 63 O.S.Supp.1995, §2-402(B)(2)
4. Davis v. State, 792 P.2d 76, 84 (Okl.Cr. 1990)
5. Watkins v. State, 829 P.2d 42, 43 (Okl.Cr.1991), on rehrg, 855 P.2d 141, 142 (Okl.Cr.1992)
6. Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995)
7. Perryman v. State, 990 P.2d 900, 905 (Okl.Cr.1999)
8. Anderson v. State, 765 P.2d 1232, 1234 (Okl.Cr.1988)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1994) - Attempting to Manufacture a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-402 (1995) - Unlawful Possession of a Controlled Drug
• Okla. Stat. tit. 63 § 2-402 (1995) - Unlawful Possession of Marihuana

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:

• Davis v. State, 792 P.2d 76, 84 (Okl.Cr. 1990)
• Watkins v. State, 829 P.2d 42, 43 (Okl.Cr.1991)
• Watkins v. State, 855 P.2d 141, 142 (Okl.Cr.1992)
• Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995)
• Perryman v. State, 990 P.2d 900, 905 (Okl.Cr.1999)
• Anderson v. State, 765 P.2d 1232, 1234 (Okl.Cr.1988)