Rick Alan Haunschild v The State of Oklahoma

F 2000-740

Filed: Jul. 6, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Rick Alan Haunschild appealed his conviction for Attempted Escape. Conviction and sentence were modified to two years imprisonment. Judge Lumpkin and Judge Lile dissented.

Decision

The Judgment of the trial court is hereby AFFIRMED, but the Sentence imposed is MODIFIED to two (2) years imprisonment.

Issues

• whether the Appellant's sentence was excessive in violation of specific state law
• whether the Appellant should have been charged under a more specific statute for Attempted Escape
• whether the "by force or fraud" language precludes a conviction under the statute for Attempted Escape from a non-penitentiary

Findings

• the conviction is affirmed
• the sentence is modified to two (2) years imprisonment

F 2000-740

Jul. 6, 2001

Rick Alan Haunschild

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, Rick Alan Haunschild, was convicted of Attempted Escape, in violation of 21 O.S.Supp. 1998, §§ 42, 443, in Comanche County District Court, Case No. CRF 99-194. On May 15, 2000, after a non-jury trial before the Honorable Mark Smith, District Judge, Appellant was found guilty and was sentenced to three and one half (3-1/2) years imprisonment. From the Judgment and Sentence imposed, Appellant filed this appeal.

In his sole proposition of error, Appellant complains his sentence is excessive in that it is in excess of that provided by specific state law. 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 Appellant’s conviction should be affirmed, but find his sentence should be modified for the reasons set forth below.

The facts of the case show Appellant attempted to escape from the Lawton Correctional Facility, a private prison owned and operated by the Wackenhut Corrections Corporation. The facility is not a statutorily listed penal institution (57 D.S.Supp. 1999, § 509). Because the facility was not a penitentiary, Appellant should have been charged and convicted under the more specific statute Attempt to Escape from Prison Not a Penitentiary, found in Title 21, Section 436. See 21 O.S.Supp. 1998, § 11; McWilliams v. State, 1989 OK CR 39, 10, 777 P.2d 1370, 1372 (section 11 mandates that a crime be brought under the specific statutory provisions rather than more general codifications).

We also find the by force or fraud language of 21 O.S.Supp. 1998, § 436 does not preclude a conviction under this statute for the same reasons set forth in McWilliams. Id. at 19, 777 P.2d at 1372. Accordingly, we find Appellant’s sentence for Attempted Escape should be and hereby is modified to two (2) years imprisonment. 21 S.Supp. 1998, § 436; 21 O.S.Supp. 1998, § 9.

DECISION

The Judgment of the trial court is hereby AFFIRMED, but the Sentence imposed is MODIFIED to two (2) years imprisonment.

APPEARANCES AT TRIAL

DON HERRING
ATTORNEY AT LAW
P.O. BOX 13070
OKLAHOMA CITY, OK 73113
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL

DANNY LOHMANN
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

TAYLOR STEIN
ASSISTANT DISTRICT ATTORNEY
COMANCHE COUNTY COURTHOUSE
LAWTON, OK 73501
ATTORNEYS FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73104
ATTORNEYS FOR APPELLEE

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

LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the Court’s decision to affirm the conviction in this case; however, I dissent to the modification of the sentence. See McWilliams v. State, 777 P.2d 1370-72 (Okl.Cr.1989) (Lumpkin, J.: Dissenting).

LILE, JUDGE: DISSENTS

I dissent to the Court’s decision for the reasons set forth in Judge Lumpkin’s dissent in McWilliams v. State, 1989 OK CR 39, 777 P.2d 1370.

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Footnotes:

1. Okla. Stat. tit. 21 § 42
2. Okla. Stat. tit. 21 § 443
3. 57 O.S.Supp. 1999 § 509
4. Okla. Stat. tit. 21 § 436
5. Okla. Stat. tit. 21 § 11
6. McWilliams v. State, 1989 OK CR 39, 777 P.2d 1370
7. McWilliams v. State, 1989 OK CR 39, 777 P.2d 1372
8. Okla. Stat. tit. 21 § 9
9. McWilliams v. State, 777 P.2d 1370-72 (Okl.Cr.1989)
10. McWilliams v. State, 1989 OK CR 39, 777 P.2d 1370

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 42 - Attempted Escape
• Okla. Stat. tit. 21 § 443 - Sentencing
• Okla. Stat. tit. 57 § 509 - Penal Institution
• Okla. Stat. tit. 21 § 436 - Attempt to Escape from Prison Not a Penitentiary
• Okla. Stat. tit. 21 § 9 - General Principles of Criminal Law

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:

• McWilliams v. State, 1989 OK CR 39, 1 10, 777 P.2d 1370, 1372
• McWilliams v. State, 777 P.2d 1370-72 (Okl.Cr.1989)
• McWilliams v. State, 1989 OK CR 39, 777 P.2d 1370