Clayton Armstead v The State Of Oklahoma

F-2001-991

Filed: Oct. 31, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Clayton Armstead appealed his conviction for Possession of a Controlled Drug (Cocaine Base) with Intent to Distribute, Second or Subsequent Offense. His conviction and sentence were modified to 10 years in prison and a fine of $10,000. Judge Lumpkin dissented, believing the sentence should be 24 years instead of 10.

Decision

Decision Armstead's CONVICTION for Possession of a Controlled Drug with Intent to Distribute, Second or Subsequent Offense, is AFFIRMED. However, his SENTENCE is MODIFIED to imprisonment for 10 years and a fine of $10,000.

Issues

• was the jury improperly instructed regarding the sentencing range for possession of a controlled substance with intent to distribute?
• did the trial court err when it failed to give an instruction on the lesser-included offense of simple possession of a controlled substance?
• does Mr. Armstead's criminal prosecution following the forfeiture of his money and automobile violate the Fifth Amendment's double jeopardy prohibition?
• did Mr. Armstead receive ineffective assistance of counsel during his trial proceedings?
• is the sentence imposed against Mr. Armstead excessive and should it be modified?

Findings

• the court erred in instructing the jury regarding the sentencing range for possession with intent to distribute
• the claim regarding lesser-included offense was waived
• the double jeopardy claim was foreclosed by precedent
• the ineffective assistance of counsel claim was arguably waived and no prejudice was established
• the sentence was modified but not excessive

F-2001-991

Oct. 31, 2002

Clayton Armstead

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Clayton Armstead was tried by jury and convicted of Possession of a Controlled Drug (Cocaine Base) with Intent to Distribute, Second or Subsequent Offense, in Pottawatomie County, Case No. CF-2000-449, under 63 O.S.Supp.2000 § 2-401(B)(2) and § 2-401(D). In accordance with the jury’s recommendation, the Honorable John D. Gardner sentenced Armstead to 30 years imprisonment and a fine of $50,000. Armstead appeals this conviction and sentence. Armstead raises the following propositions of error:

I. The trial court improperly instructed the jury of the sentence to be imposed for possession of a controlled substance with intent to distribute.

II. The trial court erred when it failed to give an instruction on the lesser-included offense of simple possession of a controlled substance.

III. Mr. Armstead’s criminal prosecution following the forfeiture of his money and automobile; and punishment arising from the same conduct violates the Fifth Amendment’s double jeopardy prohibition.

IV. Mr. Armstead received ineffective assistance of counsel during his trial proceedings.

V. The sentence imposed against Mr. Armstead is excessive and should be modified.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Armstead’s conviction should be affirmed, but that his sentence should be modified.

Regarding Proposition I, the State concedes that Armstead’s jury was improperly instructed regarding the sentencing range for possession of a controlled dangerous substance with intent to distribute, both regarding the initial sentencing range and under the second or subsequent offense enhancement. This Court has repeatedly recognized its authority to address claims that a jury was improperly instructed regarding sentencing range and to modify a defendant’s sentence accordingly, even when defense counsel failed to object to the erroneous instruction at trial. We find that under the specific circumstances of this case, Armstead’s sentence should be modified to imprisonment for 10 years and a fine of $10,000.

Regarding Proposition II, this Court finds that Armstead’s treatment of this claim in his brief has effectively waived the claim under our Rule 3.5(A)(5).

Regarding Proposition III, we find that Armstead’s double jeopardy argument is foreclosed by the Supreme Court’s decision in United States v. Ursery, and this Court’s subsequent decision in Lozoya v. State. We further find that Section 11 is irrelevant in a case where only one set of criminal charges were filed, and that the doctrine of collateral estoppel cannot benefit Armstead (even if it did apply), since he lost in the prior civil proceedings.

Regarding Proposition IV, Armstead has arguably waived his ineffective assistance claim under Rule 3.5(A)(5). He has definitely failed to establish that he was prejudiced by any of the allegedly ineffective actions of his trial counsel.

Regarding Proposition V, Armstead’s sentence has been modified; and as modified, it is certainly not excessive.

Decision

Armstead’s CONVICTION for Possession of a Controlled Drug with Intent to Distribute, Second or Subsequent Offense, is AFFIRMED. However, his SENTENCE is MODIFIED to imprisonment for 10 years and a fine of $10,000.

ATTORNEYS AT TRIAL

JEFFREY L. HATFIELD
ATTORNEY AT LAW
1623 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
331 NORTH BROADWAY
SHAWNEE, OKLAHOMA 74801
ATTORNEYS FOR THE STATE

OPINION BY: CHAPEL, J.

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART

JOHNSON, V.P.J.: CONCUR

STRUBHAR, J.: CONCUR

LILE, J.: CONCUR IN PART/DISSENT IN PART

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Footnotes:

1. 63 O.S.Supp.2000 § 2-401(B)(2)
2. 63 O.S.Supp.2000 § 2-401(D)
3. 63 O.S.Supp.2000 § 2-405(B)
4. Ellis v. State, 1988 OK CR 9, 749 P.2d 114, 115-16
5. Scott U. State, 1991 OK CR 31, 808 P.2d 73, 77
6. Salazar v. State, 1993 OK CR 21, 852 P.2d 729, 741 n.9
7. Livingston v. State, 1990 OK CR 40, 795 P.2d 1055, 1059, cert. denied, 498 U.S. 1031, 111 S.Ct. 688, 112 L.Ed.2d 679 (1991)
8. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002)
9. United States v. Ursery, 518 U.S. 267, 270-71, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)
10. Lozoya v. State, 1996 OK CR 55, 932 P.2d 22, 27
11. 21 O.S.1991, § 11
12. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(B)(2) - Possession with Intent to Distribute
• Okla. Stat. tit. 63 § 2-401(D) - Punishment for Second or Subsequent Felony Violations
• Okla. Stat. tit. 63 § 2-405(B) - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 21 § 11 - Prohibition of Double Punishment for the Same Act

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 5th Amendment - Double Jeopardy
• 18 U.S.C. § 981 - Civil Forfeiture
• 18 U.S.C. § 1956 - Money Laundering
• 21 U.S.C. § 841 - Prohibited Acts
• 21 U.S.C. § 853 - Criminal Forfeiture
• 21 U.S.C. § 881 - Forfeiture of Drug Related Property
• 28 U.S.C. § 2466 - Forfeiture of Property Involved in Illegal Drug Activities
• 28 U.S.C. § 2467 - Civil Forfeiture
• 42 U.S.C. § 14135a - National Instant Criminal Background Check System

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Ellis v. State, 1988 OK CR 9, 749 P.2d 114, 115-16
• Scott v. State, 1991 OK CR 31, 808 P.2d 73, 77
• Salazar v. State, 1993 OK CR 21, 852 P.2d 729, 741 n.9
• Livingston v. State, 1990 OK CR 40, 795 P.2d 1055, 1059
• United States v. Ursery, 518 U.S. 267, 270-71, 116 S.Ct. 2135, 135 L.Ed.2d 549
• Lozoya v. State, 1996 OK CR 55, 932 P.2d 22, 27
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674