Bruce Morris Barnett v The State Of Oklahoma

F-2005-357

Filed: Jun. 23, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bruce Morris Barnett appealed his conviction for Trafficking in Illegal Drugs and misdemeanor possession of marijuana. Conviction and sentence was modified to a fine of $25,000 instead of $100,000. Judge Lewis dissented.

Decision

The judgment and sentence are hereby AFFIRMED, except the fine portion of Appellant's sentence is hereby MODIFIED to $25,000.00. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in imposing a fine in excess of that permitted by law?
• Did the defense counsel provide ineffective assistance by failing to address the sentencing error?
• Was the evidence sufficient to establish trafficking in illegal drugs?
• Was the evidence sufficient to establish unlawful possession of marijuana?

Findings

• the court erred by imposing a fine in excess of that permitted by law and modified the fine to $25,000
• the evidence was sufficient to establish trafficking
• the evidence was sufficient to establish unlawful possession of marijuana

F-2005-357

Jun. 23, 2006

Bruce Morris Barnett

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE: Appellant, Bruce Morris Barnett, was tried by jury in the District Court of Tulsa County, Case Number CF-2004-3545, and convicted of Trafficking in Illegal Drugs (more than 20 grams of methamphetamine), in violation of 63 O.S.Supp.2002 § 2-415, Count I, and misdemeanor possession of marijuana, in violation of 63 O.S.2001, § 2-402, Count II. The jury set punishment at ten (10) years imprisonment and no fine on Count I and six months on Count II. The trial judge sentenced Appellant in accordance with the jury’s determination, ran the sentences concurrently, and added a fine of $100,000 on Count I, based upon the mandatory statutory language. Appellant now appeals his convictions and sentences.

Appellant raises the following propositions of error in this appeal:

I. The district court erred by imposing a fine in excess of that permitted by law, and defense counsel was ineffective by failing to bring the error to the court’s attention at sentencing;
II. The evidence was insufficient to establish trafficking; and
III. The evidence was insufficient to establish unlawful possession of marijuana.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find reversal is not required, but modification is warranted as set forth below.

With respect to proposition one, we find (and the State concedes) the trial judge erred by making the mandatory fine provision from the 63 O.S.Supp.2002, § 2-415(C)(4), i.e., $25,000 to $200,000, optional. When the jury imposed no fine, the trial judge imposed what he mistakenly thought was the minimum fine, i.e., $100,000. No one corrected him. While that fine is within the range of punishment, we find it is proper to modify to the minimum fine of $25,000.

With respect to propositions two and three, we find, after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury’s verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204.

DECISION

The judgment and sentence are hereby AFFIRMED, except the fine portion of Appellant’s sentence is hereby MODIFIED to $25,000.00. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

[A] APPEARANCES AT TRIAL:

DAVID PHILLIPS
PUBLIC DEFENDER’S OFFICE
TULSA COUNTY
423 SOUTH BOULDER, SUITE 300
TULSA, OK 74103
COUNSEL FOR APPELLANT

TARA PERKINSON
ASSISTANT DISTRICT ATTORNEY
DISTRICT ATTORNEY’S OFFICE
TULSA COUNTY COURTHOUSE
500 SOUTH DENVER
TULSA, OK 74103
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, V.P.J.
CHAPEL, P.J.: CONCUR
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR IN RESULT
LEWIS, J.: CONCUR

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Footnotes:

1. 63 O.S.Supp.2002 § 2-415
2. 63 O.S.2001 § 2-402
3. 63 O.S.Supp.2002, § 2-415(C)(4)
4. Spuehler v. State, 1985 OK CR 132, "I 7, 709 P.2d 202, 203-204.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (Supp. 2002) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 63 § 2-402 (2001) - Possession of Marijuana
• Okla. Stat. tit. 63 § 2-415(C)(4) (Supp. 2002) - Mandatory fine provision

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:

• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204