Rodney Lamont Garrett v State Of Oklahoma

F-2003-976

Filed: Sep. 17, 2004

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Rodney Lamont Garrett appealed his conviction for Conspiracy to Traffic Controlled Dangerous Substance and Attempting to Traffic A Controlled Dangerous Substance. Conviction and sentence were modified to ten years imprisonment in each count, with the sentences to run concurrently. Judge Strubhar dissented in part.

Decision

The Judgments are AFFIRMED. The Sentences are MODIFIED to ten (10) years imprisonment in each count, with the sentences to run concurrently.

Issues

• Was there double punishment for attempting to traffic and conspiracy to traffic, given that they require the same elements of proof?
• Did the evidence support the conclusion that the conspiracy and attempt to traffic were separate crimes with different elements?
• Was the appellant entitled to a suspended sentence under 63 O.S. 2001, § 2-415(D)(3)?

Findings

• The court did not err in finding that the charges of Attempting to Traffic and Conspiracy to Traffic are not subject to double punishment.
• The conviction for Conspiracy to Traffic was supported by sufficient evidence.
• The conviction for Attempting to Traffic was supported by sufficient evidence.
• The court modified the sentences to ten years imprisonment in each count, with the sentences to run concurrently.
• The court vacated the ten-year suspended sentence in each count.
• The appeal was denied.

F-2003-976

Sep. 17, 2004

Rodney Lamont Garrett

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Rodney Lamont Garrett was tried in a non-jury trial for Conspiracy to Traffic Controlled Dangerous Substance (Count I) (63 O.S. 2001, § 2-408); Attempting to Traffic A Controlled Dangerous Substance (Count II) (63 O.S. 2001, § 2-415); Possession of a Firearm while Committing a Felony (Count III) (21 O.S. 2001, § 1287); and Transportation of Proceeds Derived from a Violation of the Controlled Dangerous Substances Act (Count IV) (63 O.S. 2001, § 2-503.1C), Case No. CF-2002-1267, in the District Court of Oklahoma County. Counts III and IV were dismissed. Appellant was found guilty in Counts I and II and sentenced to twenty (20) years imprisonment in each count, with ten (10) years in each count suspended. The sentences were ordered to run concurrently. It is from this judgment and sentence that Appellant appeals. Appellant raises the following proposition of error in support of his appeal:

I. Attempt to Traffic and Conspiracy to Traffic Require exactly the same elements of proof, and therefore convicting for both is double punishment.

II. After a thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined under the law and the evidence that reversal is not warranted but the sentences should be modified. Appellant’s convictions and sentences for Conspiracy to Traffic Controlled Dangerous Substance and Attempting to Traffic A Controlled Dangerous Substance are not prohibited by 21 O.S.2001, § 11, as the acts were two separate crimes. See Davis v. State, 993 P.2d 124, 125-129 (Okl.Cr. 1999). The conspiracy conviction was based on evidence that prior to March 9, Appellant and Korey Nelson met and agreed to act as large-scale drug dealers. They subsequently met with a confidential informant (CI) who in turn met with undercover agents from the Oklahoma Bureau of Narcotics and Dangerous Drugs. The CI arranged a meeting for March 9 between the agents and Appellant. On the scheduled date, Appellant met the agents with the intent to purchase cocaine from them. The attempt to traffic conviction is based on evidence that Appellant intended to purchase cocaine from the undercover agents. To that end, he met the agents, discussed quality and price of cocaine, and established he had the agreed upon price in cash. Further, Appellant agreed to follow the agents to another location to make the exchange of money for drugs. However, he was prevented from completing the offense of trafficking by possession when he was the subject of a traffic stop by deputies of the Oklahoma County Sheriff’s Office.

While there may have been some overlap in the evidence used to support each offense, the record shows the two crimes contained different elements that under the facts of the case constituted separate transactions. Further, we note that Appellant was properly charged in Count II pursuant to 63 O.S. 2001, § 2-415 and 21 O.S. 2001, § 42. Finally, we find that pursuant to 63 O.S. 2001, § 2-415(D)(3), Appellant is not entitled to a suspended sentence. Therefore, we vacate the 10 year suspended sentence in each count and modify Appellant’s sentences to ten years imprisonment in each count, with the sentences to run concurrently. Accordingly, this appeal is denied.

DECISION

The Judgments are AFFIRMED. The Sentences are MODIFIED to ten (10) years imprisonment in each count, with the sentences to run concurrently.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE

APPEARANCES AT TRIAL

FRANK COURBOIS 120 N. ROBINSON OKLAHOMA CITY, OK 73102 COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL

FRANK COURBOIS 120 N. ROBINSON OKLAHOMA CITY, OK 73102 COUNSEL FOR APPELLANT

C. WELSEY LANE II DISTRICT ATTORNEY NATHAN DILLS ASSISTANT DISTRICT ATTORNEY 320 ROBERT S. KERR, STE. 505 OKLAHOMA CITY, OK 73102 COUNSEL FOR THE STATE

W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA WILLIAM R. HOLMES ASSISTANT ATTORNEY GENERAL 112 STATE CAPITOL OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE

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

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Footnotes:

1. 63 O.S. 2001, § 2-408
2. 63 O.S. 2001, § 2-415
3. 21 O.S. 2001, § 1287
4. 63 O.S. 2001, § 2-503.1C
5. 21 O.S. 2001, § 11
6. Davis v. State, 993 P.2d 124, 125-129 (Okl.Cr. 1999)
7. 63 O.S. 2001, § 2-415(D)(3)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-408 (2001) - Conspiracy to Traffic Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-415 (2001) - Attempting to Traffic A Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 1287 (2001) - Possession of a Firearm while Committing a Felony
• Okla. Stat. tit. 63 § 2-503.1C (2001) - Transportation of Proceeds Derived from a Violation of the Controlled Dangerous Substances Act
• Okla. Stat. tit. 21 § 11 (2001) - Prohibition against Double Punishment
• Okla. Stat. tit. 63 § 2-415(D)(3) (2001) - Suspension of Sentence
• Okla. Stat. tit. 21 § 42 (2001) - Attempt

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:

• Davis v. State, 993 P.2d 124, 125-129 (Okl.Cr. 1999)