Lori Jo Schram v State Of Oklahoma

F-2004-281

Filed: Aug. 2, 2005

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Lori Jo Schram appealed her conviction for Possession of Precursor Substances with the Intent to Manufacture a Controlled Dangerous Substance (Methamphetamine). Conviction and sentence were upheld at ten years in prison, with five years suspended and a fine of $10,000. Additionally, she was ordered to pay $2,544.46 in restitution for damage caused to a victim's trailer. However, the court decided to vacate the restitution order because it was not properly determined. Judge C. Johnson dissented.

Decision

The Judgment and Sentence is AFFIRMED, the order of restitution is VACATED and the issue of the amount of the victim's loss is REMANDED to the trial court for proper determination in accordance with this opinion.

Issues

• Was there an error in overruling Appellant's motion to suppress due to illegal search and warrant issues?
• Did prosecutorial misconduct result in prejudice to the Appellant and an inflated sentence?
• Did the trial court err in assessing restitution based on damages when Appellant was acquitted of manufacturing?

Findings

• the trial court did not err in overruling Appellant's motion to suppress
• the trial court's rulings regarding prosecutorial misconduct did not constitute reversible error
• the order of restitution was vacated and remanded for a proper determination

F-2004-281

Aug. 2, 2005

Lori Jo Schram

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE: Appellant Lori Jo Schram was tried by jury and convicted of Possession of Precursor Substances with the Intent to Manufacture a Controlled Dangerous Substance (Methamphetamine), (63 O.S.Supp.2003, § 2-401 (G)), Case No. CF-2003-46, in the District Court of Grady County. The jury recommended as punishment ten (10) years imprisonment, with five (5) years suspended and a ten thousand dollar ($10,000.) fine. The trial court sentenced accordingly, and additionally imposed victim restitution costs of $2,544.46. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following proposition of error in support of her appeal:

I. The trial court erred in overruling Appellant’s motion to suppress because the evidence was obtained pursuant to a search warrant that was obtained through an illegal search.
II. Numerous acts of prosecutorial misconduct prejudiced Appellant resulting in an inflated sentence.
III. The trial court erred in assessing Appellant restitution based on damage caused to the victim’s trailer caused by methamphetamine manufacturing because Appellant was acquitted of manufacturing and was convicted only of possession of precursors with intent to manufacture.

After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that neither reversal of the conviction nor modification of the sentence is warranted under the law and the evidence. However, the order of restitution is vacated and the issue is remanded to the District Court for a proper determination.

In Proposition I, Officer Layton was at the trailer, having been invited to the property by the landowner to investigate suspicious activity. Therefore, he was legitimately on the porch to view the incriminating items sitting out in the open. His search of the porch and nearby shed was proper under the plain view exception to the Fourth Amendment warrant requirement. Fritz U. State, 1986 OK CR 181, IT 9, 730 P.2d 530, 533 citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d. 564 (1971). See also Wackerly v. State, 2000 OK CR 15, II 16, 12 P.3d 1, 9. Therefore, the trial court did not abuse its discretion in overruling Appellant’s motion to suppress. See Battiest U. State, 1988 OK CR 95, IT 6, 755 P.2d 688, 690.

In Proposition II, we find the trial court’s rulings sustaining the defense objections to instances of prosecutorial misconduct and the court’s subsequent admonishments to the jury to disregard the remarks cured any error as the prosecutor’s comments do not appear to have determined the verdict. Turrentine U. State, 1998 OK CR 33, II 56, 965 P.2d 955, 974. Further, in light of the relatively light sentence received by Appellant, the prosecutor’s comments did not contribute to an excessive sentence.

In Proposition III, we find the trial court failed to comply with the guidelines set forth in Honeycutt v. State, 1992 OK CR 36, 834 P.2d 993, 1000, for determining the amount of restitution. Under 22 O.S.2001, § 991a(A)(1), the decision to order restitution is within the trial judge’s total discretion. However, this discretion is not without limits. First, the judge must determine whether the restitution can be paid without imposing manifest hardship on the defendant or his immediate family. Second, the extent of the damage to the victim must be determinable with reasonable certainty. The record must reflect a basis for the trial judge’s determination of a victim’s loss or the decision is arbitrary and violative of Section 991a. Id. Here, the record does not reflect a basis for the trial judge’s order for restitution. Therefore, the order of restitution is vacated and the issue of the amount of the victim’s loss is remanded to the trial court for proper determination.

DECISION

The Judgment and Sentence is AFFIRMED, the order of restitution is VACATED and the issue of the amount of the victim’s loss is REMANDED to the trial court for proper determination in accordance with this opinion.

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Footnotes:

1. 63 O.S.Supp.2003, § 2-401 (G)
2. Fritz U. State, 1986 OK CR 181, IT 9, 730 P.2d 530, 533 citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d. 564 (1971)
3. Wackerly v. State, 2000 OK CR 15, II 16, 12 P.3d 1, 9
4. Battiest U. State, 1988 OK CR 95, IT 6, 755 P.2d 688, 690
5. Turrentine U. State, 1998 OK CR 33, II 56, 965 P.2d 955, 974
6. Honeycutt v. State, 1992 OK CR 36, 834 P. .2d 993, 1000
7. 22 O.S.2001, § 991a(A)(1)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2003) - Possession of Precursor Substances with Intent to Manufacture a Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 991a(A)(1) (2001) - Restitution
• Okla. Stat. tit. 21 § 701.8 (2011) - [unspecified subject; referenced in context]

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:

• Fritz U. State, 1986 OK CR 181, IT 9, 730 P.2d 530, 533
• Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d. 564 (1971)
• Wackerly v. State, 2000 OK CR 15, II 16, 12 P.3d 1, 9
• Battiest U. State, 1988 OK CR 95, IT 6, 755 P.2d 688, 690
• Turrentine U. State, 1998 OK CR 33, II 56, 965 P.2d 955, 974
• Honeycutt v. State, 1992 OK CR 36, 834 P.2d 993, 1000