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F-2003-991

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James Preston Ray, Sr. v The State Of Oklahoma

F-2003-991

Filed: May 6, 2005

Not for publication

Prevailing Party: James Preston Ray, Sr.

Summary

James Preston Ray, Sr., appealed his conviction for manufacturing methamphetamine. His conviction and sentence were for life imprisonment, and he also received a fine of $50,000. In this case, Judge Lumpkin dissented on the issue of the fine.

Decision

Ray's CONVICTION for Manufacture of a Controlled Dangerous Substance (methamphetamine) and his SENTENCE OF LIFE IMPRISONMENT are hereby AFFIRMED. His FINE of $50,000, however, is hereby VACATED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was Mr. Ray's Fourteenth Amendment due process rights violated when the jury was erroneously instructed as to the range of punishment in the second stage of the trial proceedings?
  • Did the trial court err by allowing the State to proceed with the second page of the Information, alleging prior felony convictions?
  • Was it improper for the trial court to allow evidence of Mr. Ray's prior felony convictions to be introduced to the jury during the first stage trial proceedings?
  • Did the admission of other crimes evidence prejudice the jury and deprive Mr. Ray of his fundamental right to a fair trial?
  • Was the evidence sufficient to convict Mr. Ray of manufacturing a controlled dangerous substance, methamphetamine?
  • Did the trial court improperly assess the $50,000 fine?
  • Is Mr. Ray's sentence excessive?
  • Did the cumulative effect of all the errors deprive Mr. Ray of a fair trial?

Findings

  • the court erred in instructing the jury on the range of punishment
  • the trial court did not err in allowing the State to proceed with the second page of the Information
  • the trial court did not err in allowing introduction of prior felony convictions
  • the admission of other crimes evidence did not prejudge the jury against Ray
  • evidence was sufficient to convict Ray of manufacturing controlled dangerous substance
  • the trial court's assessment of the $50,000 fine was improper and must be vacated
  • Ray's sentence of life imprisonment is not excessive
  • the cumulative effect of errors did not deny Ray a fair trial

F-2003-991

May 6, 2005

James Preston Ray, Sr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: James Preston Ray, Sr., was tried by jury and convicted of one count of Manufacture of a Controlled Dangerous Substance (methamphetamine), under 63 O.S.Supp.2002 § 2-401(G), After Former Conviction of Two or More Felonies, in LeFlore County, Case No. CF-2002-256. In accordance with the jury’s recommendation, the Honorable Danita G. Williams sentenced Ray to life imprisonment. The trial court also sentenced Ray to a fine of $50,000. Ray appeals his conviction and his sentence. Ray raises eight propositions of error in support of his appeal.

I. Mr. Ray’s Fourteenth Amendment due process rights pursuant to the United States Constitution were violated when the jury was erroneously instructed as to the range of punishment in the second stage of the trial proceedings.

II. The trial court erred when it allowed the State to proceed in Mr. Ray’s case with the second page of the Information, alleging prior felony convictions.

III. The trial court improperly allowed evidence of Mr. Ray’s prior felony convictions to be introduced to the jury during the first stage trial proceedings.

IV. Admission of other crimes evidence prejudiced the jury, deprived Mr. Ray of his fundamental right to a fair trial, and warrants reversal of the sentence.

V. The evidence was insufficient to convict Mr. Ray of manufacturing controlled dangerous substance, methamphetamine.

VI. The trial court improperly assessed the $50,000 fine.

VII. Mr. Ray’s sentence is excessive.

VIII. The cumulative effect of all the errors addressed above deprived Mr. Ray of a fair trial.

Propositions III through VIII will be resolved summarily. Propositions I and II merit more thorough treatment.

Regarding Proposition I, Ray was charged and convicted of manufacturing methamphetamine, under 63 O.S.Supp.2002, § 2-401(G). The punishment for violating this provision is imprisonment for not less than seven (7) years nor more than life and by a fine of not less than Fifty Thousand Dollars ($50,000). Ray was also charged with having five prior convictions, including four convictions for felony driving under the influence of intoxicating liquor and one conviction for unlawful possession of a controlled substance. This Court has previously held that where a defendant’s prior convictions are for a mixture of drug and non-drug offenses, the State can elect to proceed, for enhancement purposes, under either the general Habitual Offender statute, 63 O.S.Supp.2002, § 2-401(G)(2), 21 O.S., § 51.1 (previously, 21 O.S., § 51, and also referred to as the general felony enhancement statute), or under the provisions of the Uniform Controlled Dangerous Substances Act, 63 O.S., § 2-101 et seq. We have further held that the State cannot, however, mix the enhancement provisions of these two approaches. We have likewise insisted that a defendant’s sentence be determined by reference to a single statutory provision. The effect of these holdings, at least until 2002, has been that if the State elects to enhance a defendant’s § 2-401 drug conviction under the general habitual offender statute, the State loses the ability to enforce the fine provision for the underlying drug crime, since the general enhancement statute does not contain any provisions regarding such fines. Hence in cases where a defendant had a mixture of drug and non-drug prior convictions, the State has been forced to choose between pursuing longer imprisonment terms under the general habitual offender statute and enforcing the fines established by the legislature for the underlying drug offense.

This changed in 2002. In 2002, the Oklahoma legislature amended 63 O.S., § 2-401(D) to state as follows: Any person convicted of a second or subsequent felony violation of the provisions of this section, except for paragraph 4 of subsection B of this section, shall be punished as a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes. In addition, the violator shall be fined twice the fine otherwise authorized, which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. Convictions for second or subsequent violations of the provisions of this section shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation. Hence the current version of § 2-401 does not force the State to choose between the greater imprisonment enhancements under § 51.1 and the fines under § 2-401. Rather, the current § 2-401 (D) incorporates § 51.1, thereby providing for the imprisonment range enhancements under § 51.1, in addition to doubling the fine for the underlying § 2-401 offense, for defendants who have one or more prior drug offenses.

The effective date for this amendment was March 8, 2002. Although § 2-401 was amended again in 2003, the substance of § 2-401(D) was not altered in any way (though it was broken down into three sub-parts). Although the language of 63 O.S.Supp.2002, § 2-401(D) refers to a person convicted of a second or subsequent felony violation of the provisions of this section (emphasis added), suggesting that prior drug offenses arising under different statutory sections-such as Ray’s prior drug possession conviction–do not count for the purpose of enhancement under § 2-401 (D), this Court has consistently rejected this narrow textual interpretation in the past. Hence the State could have elected to proceed under 63 O.S.Supp.2002, 2-401(D), in the second stage of Ray’s trial. And the State could then have requested that Ray’s jury be instructed according to the imprisonment ranges provided for under § 51.1, as incorporated into § 2-401(D), in addition to twice the fine for the underlying manufacturing CDS conviction. In order for the new § 2-401(D) enhancement scheme to apply, however, the jury would have to specifically find that the defendant had at least one prior drug conviction.

The record does not, however, contain any request from the State to proceed under § 2-401(D); and Ray’s jury was not given any instruction whatsoever regarding a fine. Furthermore, the second-stage instruction regarding punishment did not specifically require Ray’s jury to find that he had at least one prior drug conviction and was consistent with enhancement under the § 51.1 habitual offender provision, based upon the combination of Ray’s drug and non-drug priors. Consequently, even though the State could have proceeded under the new § 2-401(D), the record establishes that the State effectively elected to proceed under the general enhancement provisions of § 51.1. This approach remains open to the State in a case like Ray’s, since his prior convictions were for both drug and non-drug crimes.

Furthermore, once the State elected to proceed under § 51.1, it was improper for the trial court to add on the fine provided for under § 2-401(G), since this still violates our established case law forbidding sentencing under two separate statutory provisions. While it is proper for the Oklahoma legislature to incorporate the provisions of § 51.1 into the new § 2-401(D), the State cannot proceed under § 51.1, which still does not provide for a fine, and then attempt to go back and add on a fine based upon the underlying drug offense provision. Hence the $50,000 fine imposed by the trial court must be vacated.

Ray’s jury was properly instructed, however, regarding the imprisonment ranges for his crime (as enhanced under § 51.1); and his life sentence falls within the proper range for the crime of which the jury convicted him. Thus his sentence of life imprisonment is affirmed.

Regarding Proposition II, Ray argues that the State should not have been allowed to proceed on the second page of the Information filed against him, because the trial court’s bind over order failed to state that the court was binding him over on his priors, as well as the single manufacturing count. A second page was filed against Ray, charging that he had five prior felony offenses, on the same day that the original Information was filed in the case, i.e., July 20, 2002. Ray and two of his co-defendants waived preliminary hearing and filed a joint stipulation of facts, in lieu of a preliminary hearing, which included the following stipulation: that the State could introduce sufficient evidence regarding the second page of the information filed herein regarding the prior convictions of each Defendant. On December 19, 2002, the Honorable Michael Lee issued an order noting that the parties had agreed to submit the case, for preliminary hearing purposes, on a written stipulation and that [t]he court has received and considered the stipulation and now makes this decision. The court found that the State had sufficiently established probable cause that Ray had committed the crime of manufacturing methamphetamine, and then bound him over for arraignment and trial on the charge of Manufacture of Controlled Dangerous Substance-Methamphetamine.

Thus the bind over order failed to mention the prior offenses with which Ray had been charged. Ray was formally arraigned on January 22, 2003, acknowledged receipt of the Information, waived formal reading of it, and entered a plea of not guilty. He raised no objection to the Information or the prior offenses charged therein until July 23, 2003, just before the beginning of voir dire in his trial. Ray then raised his current claim regarding the failure of the bind over order to note his prior convictions. After hearing argument on the issue, the trial court, the Honorable Danita G. Williams, found that Ray had stipulated to his prior offenses, for the purpose of waiving preliminary hearing, that Judge Lee explicitly accepted Ray’s stipulations, and that Judge Lee’s failure to explicitly reference the prior offenses was merely a scrivener’s error, and not fatal to the State’s ability to proceed on the second page. The court further ruled that Ray waived any defect in this regard, by failing to object at the time of his arraignment. Ray cites cases addressing the issue of defects in the charging documents; however, his case does not involve any such defect in the charge or the prior offenses alleged against him, which did not change from the time of the original filing. Furthermore, Ray waived any challenge to the failure of the bind over order to specifically state that he was bound over on his prior convictions, by failing to object at the time of arraignment.

There was never any uncertainty that the State intended to hold Ray accountable for his prior offenses, the omission in the bind over order notwithstanding. Ray was in no way prejudiced or confused by this omission; and the trial court’s ruling in this regard was not clearly erroneous or improper. Hence Ray’s challenge is rejected.

Regarding Proposition III, the indirect reference to the fact that Ray was a convicted felon, which was implicit in Larry Bryant’s testimony that he was a probation and parole officer making a home visit to Ray, was not improper. The trial court did not abuse its discretion in allowing the testimony; nor did the State attempt to rely unfairly upon it. Ray fails to establish that he was unfairly prejudiced by this testimony or any reference to his criminal past during trial.

Regarding Proposition IV, in which Ray challenges the admission of certain other crimes evidence: some of the evidence was not objected to, and its admission was not plain error; and the trial court did not abuse its discretion in admitting the evidence to which Ray did object.

Regarding Proposition V, the evidence presented at trial was more than sufficient to convict Ray of knowingly participating in the manufacture of methamphetamine at his residence.

This Court’s resolution of Proposition I renders moot Ray’s Proposition VI claim. Regarding Proposition VII, this Court finds that Ray’s remaining sentence of life imprisonment is within the legally authorized range established for his crime and not excessive. Regarding Proposition VIII, the errors alleged, even considered cumulatively, did not result in the denial of Ray’s right to a fair trial. Any errors committed, even taken together, were harmless beyond a reasonable doubt.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Ray’s conviction for one count of Manufacture of a Controlled Dangerous Substance (methamphetamine) After Former Conviction of Two or More Felonies and his sentence of life imprisonment for this crime should be affirmed. His fine of $50,000, however, must be struck down.

DECISION

Ray’s CONVICTION for Manufacture of a Controlled Dangerous Substance (methamphetamine) and his SENTENCE OF LIFE IMPRISONMENT are hereby AFFIRMED. His FINE of $50,000, however, is hereby VACATED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

This Court also rejects Ray’s claim that Bryant’s second-stage testimony included an evidentiary harpoon. Any confusion regarding how many prior convictions Ray had was cleared up within the prosecutor’s own questioning of this witness. Furthermore, any confusion regarding Ray’s priors-resulting from either testimony or the Offender Lookup sheet-was resolved by the second-stage jury instructions, which clearly and accurately state the nature and number of Ray’s prior convictions.

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Footnotes:

  1. 63 O.S.Supp.2002 § 2-401(G)
  2. 63 O.S.Supp.2002, § 2-401(G)(2)
  3. 21 O.S. § 51.1
  4. 21 O.S. § 51
  5. 63 O.S. 1981, § 2-401
  6. 21 O.S.1981, § 51
  7. 63 O.S. § 2-101 et seq.
  8. 63 O.S.Supp.2002 § 2-401(D)
  9. 63 O.S.Supp.2002, § 2-401(D)
  10. 21 O.S.2001, § 51.1
  11. 21 O.S.2001, § 64(B)
  12. 21 O.S.Supp.2002, § 51.1(A)(2)
  13. 21 O.S.Supp.2002, § 51.1(C)
  14. 21 O.S.1991, § 51
  15. 63 O.S.1971, § 2-403
  16. 63 O.S.1971, § 2-412
  17. 63 O.S.2001, § 2-412
  18. 63 O.S.Supp.2002, § 2-401(D)
  19. 63 O.S.Supp.2002 § 2-401(D)
  20. 21 O.S.2001, § 51
  21. 63 O.S.1971, § 2-412
  22. 63 O.S.Supp.2002 § 2-401(D)
  23. 63 O.S.Supp.2003 § 2-401(D)
  24. 63 O.S.Supp.2002 § 2-401(D)
  25. 21 O.S.2001, § 51.1

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-401(G) - Manufacture of a Controlled Dangerous Substance
  • Okla. Stat. tit. 63 § 2-401(D) - Repeat drug offenses
  • Okla. Stat. tit. 21 § 51.1 - Habitual offenders
  • Okla. Stat. tit. 21 § 64(B) - Fines
  • Okla. Stat. tit. 21 § 51 - General habitual offender statute
  • Okla. Stat. tit. 63 § 2-412 - Enhancement for second or subsequent offenses

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
  • Novey v. State, 1985 OK CR 142, 709 P.2d 696, 699
  • Hayes v. State, 1976 OK CR 113, 550 P.2d 1344, 1347-48
  • Gaines v. State, 1977 OK CR 259, 568 P.2d 1290, 1294
  • State v. Clabon, 1994 OK CR 8, 870 P.2d 169, 174
  • Mitchell v. State, 1987 OK CR 13, 733 P.2d 412, 415-16
  • Fite v. State, 1993 OK CR 58, 873 P.2d 293
  • Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 61 L.Ed.2d 560
  • Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04
  • Sanders v. Oklahoma, 2002 OK CR 42, 60 P.3d 1048, 1051
  • Hambrick v. State, 1975 OK CR 86, 535 P.2d 703, 705
  • Berry v. State, 1992 OK CR 41, 834 P.2d 1002, 1004-05
  • Faubion v. State, 1977 OK CR 302, 569 P.2d 1022, 1025
  • Johnson v. State, 1977 OK CR 9, 559 P.2d 1250, 1252

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