Joe Stratmoen v The State Of Oklahoma

F 2000-292

Filed: Apr. 24, 2001

Not for publication

Prevailing Party: Joe Stratmoen

Summary

Joe Stratmoen appealed his conviction for two charges: Unlawful Possession of a Controlled Dangerous Drug (Methamphetamine) and Possession of a Weapon While Committing a Felony. The conviction and sentence were affirmed, with a modification in the punishment for the second charge. Judge Lumpkin dissented regarding the modification of the sentence for Count 2.

Decision

The Judgment and Sentence imposed in Count 1 is hereby AFFIRMED. Appellant's conviction in Count 2 is AFFIRMED, but his sentence MODIFIED to a term of two (2) years imprisonment.

Issues

• Was there a failure of the trial court to instruct on the State's burden of proof in the second stage, or was the evidence of former convictions insufficient?
• Did the jury receive erroneous instructions regarding the range of punishment in the second stage for Count Two?
• Was the jury erroneously instructed on the minimum range of punishment in the second stage of trial for Count One?
• Could the State enhance Count 2 under Oklahoma's general enhancement scheme set forth at 21 O.S.Supp.1999, § 51?
• Was the jury properly instructed on the range of punishment for Count 1 in accordance with the provisions set forth at 63 O.S.Supp. 1999, § 2-401(D)?

Findings

• the trial court did not err regarding the State's burden of proof in the second stage; Appellant's stipulation sufficed to establish his prior convictions
• the jury was properly instructed on the range of punishment for Count 2; however, the sentence was modified to the minimum of two years imprisonment
• the jury was properly instructed on the minimum range of punishment for Count 1

F 2000-292

Apr. 24, 2001

Joe Stratmoen

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE PRESIDING JUDGE: Appellant, Joe Stratmoen, was tried and convicted by a jury in Wagoner County District Court, Case No. CF 99-262, of Unlawful Possession of Controlled Dangerous Drug (Methamphetamine), in violation of 63 O.S.Supp. 1999, § 2-401(B)(2) (Count 1) and Possession of a Weapon While Committing a Felony Offense, in violation of 21 O.S.Supp.1999, § 1287, (Count 2) after former conviction of two or more felonies. Jury trial was held on January 31, 2000 and February 2, 2000, before the Honorable G. Bruce Sewell, District Judge. Sentencing was held March 7, 2000, and Judge Sewell sentenced Appellant to thirty (30) years imprisonment on Count 1 and to twenty (20) years imprisonment on Count 2 in accordance with the jury’s verdicts. Thereafter, Appellant filed this appeal.

Appellant raised the following three propositions of error:

1. The trial court failed to instruct on the State’s burden of proof in the second stage; alternatively, the State presented insufficient evidence of Mr. Stratmoen’s former convictions;
2. The jury was erroneously instructed as to the range of punishment in the second stage on Count Two;
3. The jury was erroneously instructed as to the minimum range of punishment in the second stage of trial on Count One.

After thorough consideration of the propositions raised and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that Appellant’s convictions should be affirmed, but Count 2 is modified.

In our analysis of Proposition Two, we begin by recognizing a fundamental rule of statutory construction that statutes imposing penal sanctions should be strictly construed. Gilbert v. State, 1982 OK CR 100, I 30, 648 P.2d 1226, 1232; see also Gessman v. State, 1972 OK CR 212, 1 12, 500 P.2d 1092, 1095 (Statutes whose sole purpose is to enhance punishment for second or subsequent convictions, or crime, are purely penal in nature and must be strictly construed.), overruled on other grounds in Berry v. State, 1993 OK CR 41, I 11, 834 P2d 1002, 1005. Section 1287 is relatively unique in the manner in which it operates; it cannot exist without another felony having been first committed or attempted. It is apparent from the Legislature’s enactment of § 1287 that it perceived committing or attempting to commit a felony with the use of a firearm or other weapon posed a more serious threat to public security and was thereby deserving of greater punishment.

It is not just the simple possession of the firearm or weapon alone that is punished but is instead the use of the weapon in combination with a felony act or attempt. The statute creates a special enhancer for the underlying felony or attempted felony; an extra penalty is imposed in addition to the penalty provided by statute for the felony committed or attempted. 21 O.S.Supp. 1999, § 1287.

In People V. Honeycutt, 415 N.W.2d 12 (Mich. Ct. App. 1987), the Michigan Court of Appeals addressed whether its statute for Possession of a Firearm During the Commission of a Felony was subject to Michigan’s general habitual offender statute. It found the state statutory scheme did not reveal a legislative intent to allow a conviction for Possession of a Firearm During the Commission of a Felony to be enhanced under the habitual offender statute. In so finding, the Court looked to several provisions within the felony-firearm statute. Notably, all of the provisions it found relevant to the issue before it are provisions in common with those of Oklahoma’s statute. As does § 1287, Michigan’s statute makes Possession of a Firearm During the Commission of a Felony a separate and distinct felony offense from that of the predicate felony and provides graduated penalties for repeated violations.

We find the State could not seek enhancement of Count 2 under Oklahoma’s general enhancement scheme set forth at 21 O.S.Supp.1999, § 51.1. The trial court should have instructed the jury the proper range of punishment was two (2) to ten (10) years imprisonment, in accordance with the specific enhancement provisions set forth in 21 O.S.Supp.1999, § 1287. We note the jury imposed the minimum sentence under the range it was given. For the above reasons, we hereby order Appellant’s conviction on Count 2 should be AFFIRMED, but his sentence is hereby MODIFIED to the minimum of two (2) years imprisonment.

As to Proposition One, we find no specific instruction on the State’s burden of proof was necessary as Appellant stipulated to his prior convictions. A defendant does not receive a jury determination of guilt if he stipulates to his prior convictions in the second stage of a bifurcated trial. Dodd U. State, 1999 OK CR 20, 1 7, 982 P.2d 1086, 1088-89. Further, Appellant’s stipulation was sufficient to establish his prior convictions were obtained in accordance with the law and Appellant did not establish any defect in the prior convictions. Rosteck v. State, 1988 OK CR 11, 1 7, 749 P.2d 556, 558. Proposition Three also does not warrant relief. The record before this Court reflects the jury was properly instructed on the range of punishment for Count 1 in accordance with the provisions set forth at 63 O.S.Supp. 1999, § 2-401(D).

DECISION

The Judgment and Sentence imposed in Count 1 is hereby AFFIRMED. Appellant’s conviction in Count 2 is AFFIRMED, but his sentence MODIFIED to a term of two (2) years imprisonment.

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

DONOVAN DOBBS MARY S. BRUEHL
ATTORNEY AT LAW ATTORNEY AT LAW
P.O. BOX 242 1330 N. CLASSEN BLVD.
WAGONER, OKLAHOMA SUITE 306
OKLAHOMA CITY, OK 73106
ATTORNEY FOR DEFENDANT ATTORNEY FOR APPELLANT

ERIC JOHNSON W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA
WAGONER COUNTY COURTHOUSE ALECIA GEORGE
WAGONER, OKLAHOMA ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR THE STATE
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73104-4894

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Footnotes:

1. 63 O.S.Supp. 1999, § 2-401(B)(2)
2. 21 O.S.Supp.1999, § 1287
3. 21 O.S.Supp. 1999, § 1289.26
4. 21 O.S.Supp.1999, § 1550
5. 21 O.S.Supp.1999, § 1287.1
6. 21 O.S. 1981, § 1287
7. 21 O.S.Supp. 1995, § 1287
8. 21 O.S.1991, § 51
9. 21 O.S.Supp. 1988, § 11
10. 21 O.S.1991, § 801
11. 21 O.S.Supp. 1985, § 51
12. 63 O.S.Supp. 1985, § 2-201 et seq.
13. 21 O.S.Supp.1 1992, § 888
14. 21 O.S.1991, § 1983

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(B)(2) (1999) - Unlawful Possession of Controlled Dangerous Drug
• Okla. Stat. tit. 21 § 1287 (1999) - Possession of a Weapon While Committing a Felony Offense
• Okla. Stat. tit. 21 § 51 (1991) - General Recidivist Statute
• Okla. Stat. tit. 21 § 11 (1988) - Applicability of General and Specific Enhancement Provisions
• Okla. Stat. tit. 21 § 443(D) (1999) - Enhancement for Escape from Penitentiary
• Okla. Stat. tit. 21 § 801 (1991) - Armed Robbery
• Okla. Stat. tit. 21 § 1983 (1991) - Possession of a Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 1283 (1991) - Possession of a Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 1284 (1991) - Possession of a Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 888 (1992) - Forcible Sodomy of a Child Under Sixteen

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Gilbert v. State, 1982 OK CR 100, "I 30, 648 P.2d 1226, 1232
• Gessman v. State, 1972 OK CR 212, 1 12, 500 P.2d 1092, 1095
• Berry v. State, 1993 OK CR 41, I 11, 834 P2d 1002, 1005
• Pebworth v. State, 1993 OK CR 28, 1 10, 855 P.2d 605, 606
• Ott v. State, 1998 OK CR 51, 1 10, 967 P.2d 472, 476
• Snyder v. State, 1989 OK CR 81, I 4, 806 P.2d 652, 654
• Chester v. State, 1971 OK CR 233, T 6, 485 P.2d 1065, 1067
• Ruth v. State, 1998 OK CR 50, 99 5-14, 966 P.2d 799, 800-01
• Chambers v. State, 1988 OK CR 255, 764 P.2d 536, 538
• Jones v. State, 1990 OK CR 17, 789 P.2d 245, 247
• Faubion v. State, 569 P.2d 1022, 1025
• Hayes v. State, 550 P.2d 1344, 1348
• Novey v. State, 709 P.2d 696, 699
• Applegate v. State, 1995 OK CR 49, 1 14, 904 P.2d 130, 135
• Butler v. State, 1968 OK CR 107, § 3, 442 P.2d 532