Muhajir A. Sango v The State Of Oklahoma

F-2002-613

Filed: Aug. 20, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Muhajir A. Sango appealed his conviction for Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute. His conviction and sentence were for thirty years in prison and a $10,000 fine. The court found that there was an error in how the jury was told about the punishment range, so they decided Sango needs to be resentenced. Judge Strubhar disagreed with part of the decision.

Decision

The Judgment of the district court is AFFIRMED. However, the Sentence shall be REVERSED and this case shall be REMANDED for RESENTENCING.

Issues

• Was the State's introduction of irrelevant evidence related to gang affiliation improper and did it deny Appellant a fair trial?
• Did trial counsel's failure to object to the introduction of irrelevant and highly prejudicial evidence constitute ineffective assistance of counsel?
• Did the trial court's erroneous instructions on the range of punishment result in an improper sentence being imposed by the jury?

Findings

• The court erred in instructing the jury on the wrong range of punishment, leading to a remand for resentencing.
• The evidence of gang affiliation was not addressed with contemporaneous objections and did not result in plain error.
• Trial counsel's failure to object to the introduction of gang-related evidence did not constitute ineffective assistance of counsel.

F-2002-613

Aug. 20, 2003

Muhajir A. Sango

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, VICE PRESIDING JUDGE: Appellant, Muhajir A. Sango, was convicted at jury trial of Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute, after Former Conviction of Two or More Drug Felonies, in the District Court of Oklahoma County, Case No. CF-2000-6130, before the Honorable Twyla Mason Gray, District Judge. In accordance with the jury verdict, Judge Gray sentenced Appellant to thirty (30) years imprisonment and a fine of $10,000. Appellant has perfected his appeal to this Court. Appellant raises the following propositions of error in support of his appeal:

1. The State’s introduction of irrelevant evidence, which showed gang affiliation by Appellant and suggested Appellant was guilty of uncharged crimes, was improper and denied Appellant a fair trial.
2. Trial counsel’s failure to object to the introduction of irrelevant and highly prejudicial evidence of gang membership and gang activities deprived Appellant of the effective assistance of counsel.
3. The trial court’s erroneous instructions on the range of punishment resulted in the jury imposing a sentence longer than it otherwise would have.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts and briefs of the parties, we have determined, because of the instructional error alleged in proposition three, this case should be remanded for resentencing.

In proposition three, we find that the trial court failed to instruct the jury on the proper range of punishment found in 63 O.S.Supp.2000, 2-401(C), for habitual drug offenders which is not less than ten years nor more than life imprisonment. Instead, the trial court instructed that the range of punishment was not less than twenty years nor more than life imprisonment. Therefore, this case should be remanded for resentencing. Scott V. State, 1991 OK CR 31, 17, 808 P.2d 73, 78, (Any attempt to compute a proper sentence mathematically is futile, or worse, lends an air of apparent certainty to mere speculation).

In propositions one and two, we find that the evidence and the prosecutors statements were not met with contemporaneous objections; therefore, we will review for plain error only. Ochoa V. State, 1998 OK CR 41, I 36, 963 P.2d 583, 597. There was no plain error here. We further find that trial counsel’s conduct did not amount to ineffective assistance of counsel. The evidence did not affect the finding of guilt; therefore, Appellant cannot meet the prejudice prong of Strickland V. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we are remanding this case for resentencing, we need not determine if the evidence affected Appellant’s sentence.

DECISION

The Judgment of the district court is AFFIRMED. However, the Sentence shall be REVERSED and this case shall be REMANDED for RESENTENCING.

ATTORNEYS AT TRIAL

DAVID DUNLAP
437 N.W. 5TH STREET
SUITE 201
OKLAHOMA CITY, OK 73102
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

MARK P. HOOVER
INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

STEPHEN ALCORN
ASSISTANT DISTRICT ATTORNEY
W. A. DREW EDMONDSON
ATTORNEY GENERAL
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR STATE

BRENDA R. FITZPATRICK
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

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

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Footnotes:

1. 63 O.S.Supp.2000, 2-401(C)
2. Scott V. State, 1991 OK CR 31, 17, 808 P.2d 73, 78
3. Ochoa V. State, 1998 OK CR 41, I 36, 963 P.2d 583, 597
4. Strickland V. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(C) (2000) - Habitual drug offenders

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:

• Scott v. State, 1991 OK CR 31, I 17, 808 P.2d 73, 78
• Ochoa v. State, 1998 OK CR 41, I 36, 963 P.2d 583, 597
• Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)