Wendy Leann Underwood v State Of Oklahoma
F-2001-1048
Filed: Dec. 23, 2002
Not for publication
Prevailing Party: State Of Oklahoma
Summary
Wendy Leann Underwood appealed her conviction for Possession of Methamphetamine, After Former Conviction of Two or More Felonies. Her conviction and sentence was originally set at 40 years imprisonment. Judge Chapel dissented, believing her sentence should be lowered to 7 years instead of the modified 30 years.
Decision
The Judgment of the trial court is AFFIRMED. The sentence is MODIFIED to thirty (30) years imprisonment.
Issues
- Was the search that led to the discovery of methamphetamine illegal, and was there ineffective assistance of counsel for failing to litigate this claim?
- Did the trial court err in failing to instruct the jury that Kelly Ann Nall was an accomplice whose testimony required corroboration?
- Did seven of the prior convictions used for sentencing enhancement arise from the same transaction?
- Should Ms. Underwood's sentence have been enhanced according to the specific provisions of the drug statutes rather than under the general habitual offender statute?
- Should Ms. Underwood benefit from the newly enacted legislation reducing penalties for non-violent habitual offenders?
Findings
- the court did not err, the search that led to the discovery of methamphetamine was legal
- the trial court did not err in failing to instruct that Kelly Ann Nall was an accomplice
- the court found it was error to introduce evidence of prior convictions arising from the same transaction, modifying the sentence accordingly
- the court affirmed the sentence enhancement was proper under the general habitual offender statute
- the legislative change to the penalty for non-violent habitual offenders does not apply retroactively
F-2001-1048
Dec. 23, 2002
Wendy Leann Underwood
Appellant
v
State Of Oklahoma
Appellee
SUMMARY OPINION
STRUBHAR, J.: Wendy Leann Underwood, Appellant, was tried by jury and convicted of Possession of Methamphetamine, After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CF-2000-1387. The jury recommended forty (40) years imprisonment and District Judge Ray C. Elliott sentenced Appellant accordingly. From this judgment and sentence, she appeals. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm the judgment, but modify the sentence.
The following propositions of error were considered:
I. Because the search that led to the discovery of methamphetamine was illegal, the methamphetamine should have been suppressed. Defense counsel’s failure to litigate this claim deprived Ms. Underwood of the effective assistance of counsel;
II. The trial court erred in failing to instruct that Kelly Ann Nall was an accomplice as a matter of law whose testimony had to be corroborated;
III. Seven of the prior convictions used to enhance the penalty arose from the same transaction;
IV. Ms. Underwood’s sentence should have been enhanced according to the specific provisions of the drug statutes rather than under the general habitual offender statute; and
V. Ms. Underwood should be given the benefit of the newly enacted legislation reducing the penalty for non-violent habitual offenders.
As to Proposition I, we find counsel was not ineffective in failing to challenge the inventory search of Nall’s car that yielded methamphetamine in a bag the State attributed to her. Contrary to Appellant’s claim, the car was lawfully impounded and inventoried pursuant to a municipal ordinance¹ as the car was not parked in general parking, but rather in a parking space whose use was restricted by signs. Consequently, the car was lawfully impounded at the request of the property owner. Because the impoundment and inventory search were legal, Appellant has failed to meet her burden and her claim of ineffective assistance of counsel must fail. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986).
As to Proposition II, we find Nall was not an accomplice as a matter of law because she was charged and convicted of possession of a separate and distinct bag of methamphetamine for which Appellant was not charged. See Cummings v. State, 968 P.2d 821, 830 (Okl.Cr. 1998), cert. denied, 526 U.S. 1162, 119 S.Ct. 2054, 144 L.Ed.2d 220 (1999). Under the specific facts of this case, we will take judicial notice of the municipal ordinance used to impound Nall’s car as such is not strictly prohibited by Hishaw v. City of Oklahoma City, 822 P.2d 1139 (Okl.Cr. 1991). The test to determine whether a person is an accomplice is whether he or she could have been charged with the crime for which the accused is on trial. As such, the trial court did not err in failing to instruct the jury that Nall was an accomplice as a matter of law and that her testimony required corroboration.
As to Proposition III, we find the record supports Appellant’s claim that seven of the nine prior convictions used to enhance her sentence arose out of the same transaction. The record shows the prosecutor treated the seven convictions as one case. In cross-examining Appellant, he simply asked her if she was the same person that was convicted in the three cases. In addition, the parties treated the seven convictions in CF-90-6572 as one prior conviction and so instructed the jury that Appellant admitted three prior convictions. During closing argument, the prosecutor told the jury Appellant had three prior convictions that resulted in nine violations of the law. By its own action, the State acknowledged the transactional nature of these crimes.
In a 3.11 motion, Appellant claims trial counsel was ineffective in failing to object to the introduction of the evidence of prior convictions and to argue to the court seven of the crimes arose from the same transaction. Appellant asks this Court to supplement the record with the Information from Oklahoma County District Court Case No. CF-90-6572 as evidence that the prior convictions were part of one transaction or in the alternative remand the matter for an evidentiary hearing to resolve the factual issue of the number of Appellant’s prior convictions. We GRANT the motion to allow the supplementation of the Information as further evidence the crimes arose out of the same transaction. The Information shows the counts occurred over a three-day period in which Appellant sold and arranged drug deals with the same undercover officer and other defendants. However, based on this record, there is no need for an evidentiary hearing and that request is DENIED.
In Miller v. State, 675 P.2d 453, 455 (Okl.Cr.1984), this Court held that under 21 O.S.1981, § 51(B), only one prior conviction arising out of the same transaction could be used for enhancement purposes. As such, it was error to introduce State’s Exhibit 10 showing more than one transactional conviction. The fact the jury was advised of nine prior convictions instead of three, coupled with the fact the prosecutor argued she deserved no more chances because she had had nine, most assuredly contributed to the jury’s sentencing decision. Consequently, we find Appellant’s sentence should be modified from forty years imprisonment to thirty years imprisonment.
As to Proposition IV, we find Appellant’s sentence was properly enhanced under the general habitual offender statute rather than the Uniform Controlled Dangerous Substances Act because three of her predicate offenses did not fall within the purview of the Uniform Controlled Dangerous Substances Act. Jones v. State, 789 P.2d 245, 247 (Okl.Cr.1990). The Uniform Controlled Dangerous Substances Act defines second or subsequent offenses as prior convictions under this act, specifically referencing 63 O.S.2001, § 2-101 et seq. The statute is clear and its language unambiguous. Under strict statutory construction, Appellant’s claim must fail. Given our resolution of proposition IV, we find that Appellant’s claim of ineffective assistance of counsel based on counsel’s failure to challenge her sentence enhancement under § 51.1 is without merit.
As to her final proposition, we find the legislative change to § 51.1 is not procedural but substantive and accordingly, absent express language indicating its retroactive effect, it can only apply prospectively. Cartwright v. State, 778 P.2d 479 (Okl.Cr.1989), cert. denied, 497 U.S. 1015, 110 S.Ct. 3261, 111 L.Ed.2d 831 (1990). See also 22 O.S.2001, § 3. Accordingly, relief is not warranted on this claim.
DECISION
The Judgment of the trial court is AFFIRMED. The sentence is MODIFIED to thirty (30) years imprisonment.
APPEARANCES AT TRIAL
DOUG FRIESEN
ATTORNEY AT LAW
1309 N. SHARTEL
OKLAHOMA CITY, OK 73103
ATTORNEY FOR APPELLANT
APPEARANCES ON APPEAL
LEE ANN JONES PETERS
OKLAHOMA INDIGENT DEFENSE SYSTEM
1623 CROSS CENTER DR.
NORMAN, OK 73019
ATTORNEY FOR APPELLANT
NATHAN DILLS
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR, #505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLEE
W.A. DREW EDMONDSON
ATTORNEY GENERAL
BRANT M. ELMORE
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE
OPINION BY: STRUBHAR, J.
LUMPKIN, P.J.: CONCUR IN RESULTS
JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: SPECIALLY CONCURS
LILE, J.: DISSENT
RA CHAPEL, JUDGE, SPECIALLY CONCURRING: I concur in affirming the conviction in this case. I also concur in modifying the sentence. I would, however, modify the sentence to 7 years as I find merit not only in Proposition III, but also in Propositions IV and V.
Footnotes:
- ¹ Okla. Stat. tit. 47 § 6-107.
- ² 21 O.S.1981, § 51(B).
- ³ 63 O.S.2001, § 2-412.
- ⁴ 22 O.S.2001, § 3.
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 51(B) (1981) - Prior Convictions
- Okla. Stat. tit. 63 § 2-101 et seq. (2001) - Uniform Controlled Dangerous Substances Act
- Okla. Stat. tit. 63 § 2-412 (2001) - Subsequent Offenses
- Okla. Stat. tit. 22 § 3 (2001) - General Provisions
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:
- Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986)
- Cummings v. State, 968 P.2d 821, 830 (Okl.Cr. 1998), cert. denied, 526 U.S.
- Hishaw U. City of Oklahoma City, 822 P.2d 1139 (Okl.Cr. 1991)
- Miller v. State, 675 P.2d 453, 455 (Okl.Cr.1984)
- Jones v. State, 789 P.2d 245, 247 (Okl.Cr.1990)
- McBrain U. State, 764 P.2d 905, 908 (Okl.Cr.1988)
- Anderson v. State, 992 P.2d 409, 422 (Okl.Cr.1999), cert. denied, 531 U.S. 850, 121 S.Ct. 124, 148 L.Ed.2d 79 (2000)
- Cartwright V. State, 778 P.2d 479 (Okl.Cr.1989), cert. denied, 497 U.S. 1015, 110 S.Ct. 3261, 111 L.Ed.2d 831 (1990)