James M. McCullough, Jr. v The State Of Oklahoma

F-2000-880

Filed: Sep. 19, 2001

Not for publication

Prevailing Party: The State of Oklahoma

Summary

James M. McCullough, Jr. appealed his conviction for possession of marijuana. Conviction and sentence were modified from ten years to seven years imprisonment. Judge Lile dissented, stating the error did not amount to plain error and he would not modify the sentence.

Decision

The Judgment of the trial court is hereby AFFIRMED, but the sentence is hereby MODIFIED TO SEVEN (7) YEARS imprisonment.

Issues

• Was there an error in allowing the State to use the Appellant's deferred sentences as prior convictions for enhancement purposes?
• Did the trial court err by admitting a deferred sentence for a prior firearm violation for enhancement purposes?
• Was the error in using the deferred sentence for enhancement harmless beyond a reasonable doubt?
• Should the Appellant's sentence be modified from ten years to seven years imprisonment?

Findings

• the court erred by using the deferred sentence for prior firearm violation for enhancement purposes
• the introduction of Appellant's three drug priors for enhancement purposes was not error
• the sentence was modified from ten (10) years to seven (7) years imprisonment
• the Judgment of the trial court is hereby affirmed

F-2000-880

Sep. 19, 2001

James M. McCullough, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, James M. McCullough, Jr., was convicted by a jury in Oklahoma County District Court, Case No. CF 98-5247, for Possession of Marijuana, in violation of 63 O.S.Supp.1996, § 2-402, after former conviction of two felonies (Count 2). Jury trial was held before the Honorable Niles Jackson, District Judge, on April 11th and 12th, 2000. The jury set punishment at ten (10) years imprisonment and Judge Jackson sentenced Appellant on May 26, 2000, in accordance with the jury’s verdict. From the Judgment and Sentence imposed, Appellant filed this appeal.

In his sole proposition of error, Appellant contends the trial court erred by allowing the State to use all of Appellant’s deferred sentences as prior convictions for enhancement purposes. 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 modification of sentence is warranted for the reasons set forth below.

Because no objection was raised at trial to the introduction of deferred sentences for enhancement, our review of this claim is for plain error. See Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693. Although we find it was not error to admit Appellant’s three drug priors for enhancement purposes, see Faubion v. State, 1977 OK CR 302, 11 10-12, 569 P.2d 1022, 1024-25; State v. Frazier, 1977 OK CR 160, II 1-3, 563 P.2d 656, 657-58, it was error to use the deferred sentence imposed for a prior firearm violation. See Novey v. State, 1985 OK CR 142, I 14, 709 P.2d 696, 699-700. Because we cannot say this error was harmless beyond a reasonable doubt and did not affect the jury’s imposition of sentence, we find plain error occurred and hereby MODIFY Appellant’s sentence from ten (10) years to seven (7) years imprisonment.

DECISION

The Judgment of the trial court is hereby AFFIRMED, but the sentence is hereby MODIFIED TO SEVEN (7) YEARS imprisonment.

APPEARANCES AT TRIAL

MS. LORI COMBS
ATTORNEY AT LAW
1033 NE 36th
OKLAHOMA CITY, OK 73111
ATTORNEY FOR DEFENDANT

MR. MARK P. HOOVER
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73109
ATTORNEY FOR APPELLANT

MR. NATHAN DILLS
ASSISTANT DISTRICT ATTORNEY
OKLAHOMA COUNTY

MR. W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
OKLAHOMA CITY, OK 73105
ATTORNEY FOR STATE

MR. PARTICK T. CRAWLEY
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEY FOR STATE

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

The error does not amount to plain error. I would not modify the sentence.

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Footnotes:

1. 63 O.S.Supp.1996, § 2-402
2. Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693.
3. Faubion v. State, 1977 OK CR 302, ¶¶ 10-12, 569 P.2d 1022, 1024-25;
4. State v. Frazier, 1977 OK CR 160, ¶¶ 1-3, 563 P.2d 656, 657-58;
5. Novey v. State, 1985 OK CR 142, ¶ 14, 709 P.2d 696, 699-700.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 (1996) - Possession of Marijuana
• Okla. Stat. tit. 21 § 701.8 (2011) - Enhancement of Sentences
• Okla. Stat. tit. 21 § 51.1 (2011) - Definition of Prior Conviction

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:

• Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693
• Faubion v. State, 1977 OK CR 302, 11 10-12, 569 P.2d 1022, 1024-25
• State v. Frazier, 1977 OK CR 160, II 1-3, 563 P.2d 656, 657-58
• Novey v. State, 1985 OK CR 142, I 14, 709 P.2d 696, 699-700