Edward John VanWoundenberg v The State of Oklahoma

F-2002-899

Filed: Jul. 22, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Edward John VanWoundenberg appealed his conviction for Driving While Under the Influence (DUI). Conviction and sentence were upheld to twenty (20) years imprisonment. Judge Strubhar dissented.

Decision

The Judgment and Sentence of the District Court is AFFIRMED, and "Attachment A" of the Judgment and Sentence is MODIFIED nunc pro tunc to reflect a total of $1,004.00 in costs and fees.

Issues

• Was there instructional error that left VanWoundenberg's jury without proper guidance on lesser offenses, thereby denying him a fair trial?
• Did the trial court err by further enhancing VanWoundenberg's sentence under the general provisions of Title 21, § 51, after his DUI conviction was already enhanced under the specific provisions of 47 O.S.Supp.2000, § 11-902(C)?
• Should this court remand VanWoundenberg's case to the District Court with instructions to correct the Judgment and Sentence by an order nunc pro tunc?
• Did the cumulative effect of all the errors addressed deprive VanWoundenberg of a fair trial?

Findings

• the trial court did not err in failing to give an instruction on the lesser included offense of driving while impaired
• the trial court did not err in allowing the State to enhance VanWoundenberg's sentence under § 51
• the Judgment and Sentence should be amended to reflect a total amount of costs and fees of $1,004.00
• there is no cumulative error
• the Judgment and Sentence of the District Court is AFFIRMED, and modified nunc pro tunc to reflect a total of $1,004.00 in costs and fees

F-2002-899

Jul. 22, 2003

Edward John VanWoundenberg

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Edward John VanWoundenberg was tried by jury and convicted of Driving While Under the Influence in violation of 47 O.S.Supp.2000, § 11-902, after two or more former convictions, in the District Court of McIntosh County, Case No. CR-2000-223. In accordance with the jury’s recommendation the Honorable Steven W. Taylor sentenced VanWoundenberg to twenty (20) years imprisonment. VanWoundenberg appeals from this conviction and sentence.

VanWoundenberg raises four propositions of error in support of his appeal:

I. Instructional error left VanWoundenberg’s jury without proper guidance on lesser offenses which denied him a fair trial;

II. Because VanWoundenberg’s sentence for a second felony driving under the influence conviction, already enhanced from a misdemeanor to a felony under the specific provisions of 47 O.S.Supp. 2000, § 11-902(C), was further enhanced under the general provisions of Title 21, § 51, the sentence should be favorably modified;

III. This court should remand VanWoundenberg’s case to the District Court with instructions to correct the Judgment and Sentence by an order nunc pro tunc; and

IV. The cumulative effect of all the errors addressed above deprived VanWoundenberg of a fair trial.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits, we find neither reversal nor modification are required by the law and evidence. However, we find a clerical error in the Judgment and Sentence must be corrected by an order nunc pro tunc.

In Proposition I we find the evidence did not support an instruction on the lesser included offense of driving while impaired. The trial court did not err in failing to give such an instruction, and trial counsel was not ineffective for failing to request it.

We find in Proposition III that the trial court did not err in allowing the State to enhance VanWoundenberg’s sentence under § 51. VanWoundenberg had six former convictions – three felony convictions for driving under the influence (DUI) in violation of Title 47 and three non-DUI felonies – within ten years of this offense. Driving under the influence becomes a felony, rather than a misdemeanor, if a defendant has a prior conviction for driving under the influence; the range of punishment for felony DUI expands to no more than seven years. The State used one of VanWoundenberg’s prior felony DUIs to charge him with felony driving under the influence in this case. The State then used the three non-DUI felonies to enhance his punishment under § 51, with a minimum 20 year sentence.

On appeal, VanWoundenberg repeats his vigorous trial arguments that this enhancement was improper. He claims that once the case was enhanced from a misdemeanor DUI to a felony DUI under the specific provisions of Title 47, his punishment could not be further enhanced under § 51. This Court has not resolved this precise issue, but we have resolved a similar question. In determining enhancement under § 51 was proper, the trial court properly relied on Cooper v. State.

In Cooper, the defendant was charged with drug crimes but had both drug-related and non-drug-related prior offenses. He claimed his sentence should have been enhanced only under the specific provisions found in the controlled dangerous substances statutes. We held that the prosecutor may elect enhancement under the general sentencing statute or the specific drug statute, where a defendant had both drug-related and non-drug-related priors. While VanWoundenberg was charged with driving under the influence, rather than a controlled substances offense, the principle is the same. His charges could not be enhanced under § 51 if all his priors were for offenses under Title 47. However, as he also had prior convictions for felonies found in Title 21, the prosecutor had the option to use those convictions to enhance the sentence under the provisions of § 51.

VanWoundenberg relies on Kolberg v. State. Contrary to his argument, Kolberg does not hold that the maximum possible sentence for a subsequent felony driving under the influence conviction is found in Title 47. While Kolberg refers to the general provisions of § 51, the case does not interpret the sentence enhancement question as described in Cooper. Kolberg was concerned with the Title 47 requirement that a misdemeanor driving under the influence charge becomes a felony only where a defendant’s prior conviction for driving under the influence is within ten years of the charged offense. In that case, the defendant’s prior conviction was older than ten years, although the sentence had been completed within the ten year period. The State argued the Court should apply the language of § 51, allowing for a prior conviction to be used for enhancement if the sentence had been completed within ten years of the charged crime. The Court found that the explicit differing language in Title 47 specifically controlled over the general language of § 51, and held a prior conviction under Title 47 must be within ten years, as the statute required. Kolberg interpreted a completely different issue, which also involved provisions of Title 47 and § 51. That issue is not before this Court, and Kolberg does not apply to the issue of sentence enhancement under Title 47 when a defendant has a variety of prior convictions.

In Proposition III we find the Judgment and Sentence should be amended to reflect a total amount of costs and fees of $1,004.00. This Court may correct clerical errors through an order nunc pro tunc. The record shows that VanWoundenberg’s $40 Application for Court Appointed Attorney Fee was waived, and should not have been included in the total amount of fees. We find in Proposition IV that, as there is no error, there is no cumulative error.

Decision

The Judgment and Sentence of the District Court is AFFIRMED, and Attachment A of the Judgment and Sentence is MODIFIED nunc pro tunc to reflect a total of $1,004.00 in costs and fees.

ATTORNEYS AT TRIAL

J. MICHAEL SHERROD
P.O. BOX 848
EUFAULA, OKLAHOMA 74432
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

KIMBERLY D. HEINZE
APPELLATE DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR APPELLANT

GREG STIDHAM
KAREN VOLZ
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEYS
ATTORNEY GENERAL OF OKLAHOMA
MCINTOSH COUNTY COURTHOUSE
EUFAULA, OKLAHOMA 74432
ATTORNEYS FOR THE STATE

PATRICK T. CRAWLEY
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA
ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, J. JOHNSON, P.J.: CONCUR LILE, V.P.J.: CONCUR LUMPKIN, J.: CONCUR IN RESULT STRUBHAR, J.: CONCUR

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Footnotes:

1. 1 Penny U. State, 1988 OK CR 280, 765 P.2d 797, 800 (evidence did not support lesser included where (a) the defendant said he'd had one beer several hours earlier and was not drunk; (b) he explained his erratic driving with heavy rain and road conditions; and (c) he appeared drunk and had a .12 breath test result).
2. 2 Shrum v. State, 1999 OK CR 41, 991 P.2d 1032, 1036; Strickland U. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984).
3. 3 21 O.S.2001, § 51 is the general sentence enhancement provision of Title 21.
4. 4 47 O.S.2001, § 11-902(C). This section was not substantively amended from 47 O.S.Supp.2000, $11-902(C), under which VanWoundenberg was charged.
5. 5 21 O.S.2001, § 51.
6. 6 1991 OK CR 26, 806 P.2d 1136.
7. 7 Cooper, 806 P.2d at 1139. See Mitchell v. State, 1987 OK CR 13, 733 P.2d 412, 415 (Controlled Dangerous Substances Act and § 51 rely on totally different predicate felonies for enhancement, reflecting legislative intent that drug felons with non-drug-related prior offenses may be punished more harshly); Hayes v. State, 1976 OK CR 113, 550 P.2d 1344, 1348. See also Novey V. State, 1985 OK CR 142, 709 P.2d 696, 699-700 (where defendant has drug-related and non-drug-related prior offenses, prosecution may elect which enhancement statute to use, but trial court may not instruct on both enhancement statutes).
8. 8 Broome v. State, 1968 OK CR 77, 440 P.2d 761, 763 (§ 51 does not apply where defendant's prior offense is for a crime prohibited by Title 47).
9. 9 1996 OK CR 41, 925 P.2d 66.
10. 10 46 O.S.2001, § 11-902(C).
11. 11 21 O.S.2001, § 51.
12. 12 Kolberg, 925 P.2d at 68.
13. 13 Demry U. State, 1999 OK CR 31, 986 P.2d 1145; Kamees v. State, 1991 OK CR 91, 815 P.2d 1204, 1208.
14. 14 Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000).

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 (2001) - Driving While Under the Influence
• Okla. Stat. tit. 21 § 51 (2001) - Sentence Enhancement
• Okla. Stat. tit. 47 § 11-902(C) (2001) - Driving Under the Influence with Prior Convictions
• Okla. Stat. tit. 47 § 11-902(C) (2000) - Driving Under the Influence with Prior Convictions

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:

No case citations found.