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F-2002-1561

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Joe Edward Stratmoen v The State Of Oklahoma

F-2002-1561

Filed: Sep. 25, 2003

Not for publication

Prevailing Party: Joe Edward Stratmoen

Summary

Joe Edward Stratmoen appealed his conviction for Unlawful Possession of a Controlled Drug (Methamphetamine) and Possession of a Weapon While Committing a Felony. His original conviction and sentence were thirty years for the drug charge and twenty years for the weapon charge. The court later modified the weapon sentence to two years. Stratmoen sought a new trial for his sentences, which led to a jury resentencing him to life in prison for the drug charge and ten years for the weapon charge. Stratmoen raised five arguments in his appeal, claiming errors in his trial and sentencing process. The court found that it did not have to reverse the case but did correct the earlier mistakes. They modified the weapon sentence back to two years and confirmed that Stratmoen was sentenced to life in prison with the possibility of parole for the drug charge. However, Judge Lumpkin disagreed and thought the resentencing should not have happened at all, arguing that the correct earlier sentences should be reinstated.

Decision

The Sentence of the District Court on Count I is AFFIRMED. Count I is REMANDED for an Order Nunc Pro Tunc, which should reflect that Stratmoen was sentenced to life in prison with the possibility of parole. The Sentence on Count II is MODIFIED to two (2) years imprisonment.

Issues

  • Was the trial court without authority to impanel a jury for re-sentencing purposes in this non-capital case?
  • Did the trial court err in ordering resentencing for Count II based on a stipulation to prior convictions that did not extend to this count?
  • Was Officer Samuel Taylor's testimony regarding the search warrant an evidentiary harpoon that was not harmless?
  • Did the prosecutor's mention of parole considerations during deliberations infect the proceedings and likely inflate the verdict?
  • Was the life sentence imposed for possession of a controlled drug with intent to distribute excessive under the circumstances?

Findings

  • The trial court did not err in granting a jury resentencing trial for Count I.
  • The trial court erred in ordering resentencing for Count II, as it could not be further enhanced.
  • The officer's testimony did not amount to an evidentiary harpoon.
  • The prosecutor's mention of parole did not influence the jury's decision or prejudice Stratmoen.
  • Stratmoen's life sentence is not excessive and does not shock the conscience.
  • The sentence for Count I is remanded for correction to reflect life in prison with the possibility of parole.
  • The sentence for Count II is modified to two (2) years imprisonment.

F-2002-1561

Sep. 25, 2003

Joe Edward Stratmoen

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOE EDWARD STRATMOEN was tried by jury and convicted of Count I, Unlawful Possession of a controlled Dangerous Drug (Methamphetamine) in violation of 63 O.S.Supp. 1999, § 401(B)(2), and Count II, Possession of Weapon While Committing A Felony in violation of 21 O.S.1991, § 1287, after former conviction of two or more felonies, in the District Court of Wagoner County, Case No. CF-99-262. In accordance with the jury’s recommendation the Honorable G. Bruce Sewell sentenced Stratmoen to thirty (30) years imprisonment (Count I) and twenty (20) years imprisonment (Count II). Stratmoen appealed these convictions and sentences, and this Court modified his sentence on Count II to two (2) years imprisonment. Stratmoen filed a pro se Motion for Post-Conviction Relief. After an evidentiary hearing, the trial court vacated the sentences on both counts and ordered a jury resentencing trial, at which Stratmoen would have the opportunity to present evidence on the issue of his prior convictions. The jury determined he had committed those prior offenses. In accordance with the jury’s recommendation, the Honorable G. Bruce Sewell sentenced Stratmoen to life in prison (Count I), and ten (10) years imprisonment (Count II). Stratmoen appeals from these sentences.

Stratmoen raises five propositions of error in support of his appeal:

I. The trial court was without authority to impanel a jury for re-sentencing purposes only in this non-capital case;

II. Even if the trial court had jurisdiction to impanel a jury for re-sentencing purposes only, the justification for the re-sentencing, namely defense counsel’s stipulation to prior convictions without Stratmoen’s agreement, did not extend to Count 2, which this Court held is not subject to enhancement;

III. Officer Samuel Taylor’s testimony that the search warrant was based on reports that a subject named Joe was dealing methamphetamine out of the house was an evidentiary harpoon that was not harmless;

IV. Stratmoen’s sentence should be reduced because the prosecutor’s injection of consideration of parole into the deliberations process infected the proceedings and likely inflated the verdict; and

V. The life sentence imposed for possession of a controlled drug with intent to distribute is excessive under the particular circumstances of this case.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, exhibits, and briefs, we find reversal is not required by the law and evidence. However, Stratmoen’s sentence in Count II must be modified to two (2) years imprisonment, and the sentence for Count I set forth in the Judgment and Sentence must be corrected. We find in Proposition I that, under Title 22, Section 1085, a trial court may order a jury resentencing trial as a remedy upon finding in favor of a petitioner on a non-capital application for post-conviction relief. This statute does not prohibit trial courts from granting jury resentencing. Statutes should be construed to determine the intent of the Legislature, applying the plain and ordinary meaning of the statutory language. Nothing in the non-capital post-conviction statutory scheme supports a conclusion that the Legislature intended to limit the remedies a trial court could fashion after granting an application for post-conviction relief. Indeed, the language is broad enough to give the trial court many options, depending on the nature of the case and the error involved. The statute gives the trial court itself the power to resentence a defendant who is successful on a post-conviction application. However, Oklahoma defendants have a right to be sentenced by a jury. Stratmoen complained on post-conviction that he had not consented to stipulate to his prior offenses, rather than have the jury determine that issue. The trial court did not err in granting Stratmoen a jury trial on the issue of his sentence. This proposition is denied.

We find in Proposition II that the trial court should not have ordered Stratmoen resentenced on Count II. The resentencing trial was predicated solely on Stratmoen’s lack of consent to the stipulation to his prior convictions. In Stratmoen I, we modified the sentence on Count II because we found the offense of possession of a weapon in commission of a felony was itself an enhancement statute and could not be further enhanced. As Stratmoen’s sentence on Count II could not be further enhanced, there was no reason for a resentencing trial on this count, based on the issue of stipulation to prior offenses. Our previous decision in this case was res judicata on this issue. This proposition is granted, and Stratmoen’s sentence on Count II is modified to two (2) years, the term this Court imposed in Stratmoen I.

We find in Proposition III that the officer’s testimony was not an evidentiary harpoon. The trial court sustained Stratmoen’s objection but did not abuse its discretion in refusing to admonish the jury. We find in Proposition IV that, while both parties mentioned the short time between Stratmoen’s prior convictions and the current offenses, the arguments were not such an unmistakable reference to the pardon and parole system that it prejudiced Stratmoen, and the record does not show the prosecutor’s argument influenced the jury’s question about the eligibility for parole on a life sentence. We find in Proposition V that Stratmoen’s sentence is not so disproportionate as to shock the conscience.

However, there is a serious error in the Judgment and Sentence. The transcripts and verdict forms show that the jury recommended, and Stratmoen was sentenced to, life in prison with the possibility of parole. The Judgment and Sentence in this case inaccurately states Stratmoen’s sentence as life in prison without parole. It would be a miscarriage of justice to allow the Judgment and Sentence to reflect this incorrect sentence. The case is remanded for an Order Nunc Pro Tunc reflecting the correct sentence, life in prison with the possibility of parole, on Count I.

Decision

The Sentence of the District Court on Count I is AFFIRMED. Count I is REMANDED for an Order Nunc Pro Tunc, which should reflect that Stratmoen was sentenced to life in prison with the possibility of parole. The Sentence on Count II is MODIFIED to two (2) years imprisonment.

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Footnotes:

  1. 63 O.S.Supp. 1999, § 401(B)(2)
  2. 21 O.S.1991, § 1287
  3. 22 O.S.2001, § 1085
  4. 21 O.S.2001, § 1287
  5. Rogers v. State, 1995 OK CR 8, 890 P.2d 959, 972
  6. Jones v. State, 1988 OK CR 267, 764 P.2d 914, 917
  7. Woodward v. Morrisey, 1999 OK CR 43, 991 P.2d 1042
  8. Lay v. State, 1982 OK CR 162, 654 P.2d 619, 620-21
  9. Stafford v. State, 1990 OK CR 74, 800 P.2d 738, 740
  10. Selsor v. State, 2000 OK CR 9, 2 P.3d 344
  11. Murphy v. State, 2002 OK CR 32, 54 P.3d 556
  12. Martinez v. State, 1999 OK CR 47, 992 P.2d 426
  13. Maines v. State, 1979 OK CR 71, 597 P.2d 774

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 401(B)(2) - Unlawful possession of a controlled dangerous substance
  • Okla. Stat. tit. 21 § 1287 - Possession of a weapon while committing a felony
  • Okla. Stat. tit. 22 § 1085 - Jury resentencing in non-capital cases
  • Okla. Stat. tit. 22 § 926.1 - Right to be sentenced by a jury
  • Okla. Stat. tit. 22 § 1080 - Grounds for post-conviction relief
  • Okla. Stat. tit. 22 § 1086 - Waiver and res judicata in post-conviction relief

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
  • Stratmoen v. State, F-2000-292 (Okl.Cr.2001) (not for publication)
  • State U. Young, 1999 OK CR 14, 989 P.2d 949, 955
  • Dean U. State, 1989 OK CR 40, 778 P.2d 476
  • Nipps v. State, 1981 OK CR 38, 626 P.2d 1349, 1350
  • Rogers v. State, 1995 OK CR 8, 890 P.2d 959, 972
  • Jones U. State, 1988 OK CR 267, 764 P.2d 914, 917
  • Woodward v. Morrisey, 1999 OK CR 43, 991 P.2d 1042
  • Lay v. State, 1982 OK CR 162, 654 P.2d 619, 620-21
  • Stafford v. State, 1990 OK CR 74, 800 P.2d 738, 740
  • Selsor U. State, 2000 OK CR 9, 2 P.3d 344
  • Murphy v. State, 2002 OK CR 32, T 2, 54 P.3d 556, 560
  • Martinez v. State, 1999 OK CR 47, I 5, 992 P.2d 426, 428
  • Maines v. State, 1979 OK CR 71, 597 P.2d 774, 775-76

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