Leroy White Jr. v The State Of Oklahoma

F-2007-1162

Filed: Mar. 28, 2008

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Leroy White Jr. appealed his conviction for multiple crimes, including Trafficking in Illegal Drugs and Assault and Battery upon a Police Officer. His conviction and sentence were upheld by the court, which included 25 years in prison and fines for various offenses. Judge Johnson dissented.

Decision

The Judgments and Sentences of Imprisonment imposed by the District Court are AFFIRMED. The Fine imposed on Count I is AFFIRMED. The Fines imposed on Counts II, III, V, VI, VII and IX are VACATED. The Motion for Oral Argument is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there a violation of Article II of the Oklahoma Constitution and the Fourth and Fourteenth Amendments due to the warrantless search of White's hotel room?
• did White's convictions for trafficking and failure to secure a tax stamp violate statutory and constitutional prohibitions against double punishment?
• if the entry into White's hotel room was determined to be an unreasonable search and seizure, should Count VI be reversed with instructions to dismiss based on White's right to resist an unlawful arrest?
• was it reversible error for the District Court to fail to instruct the jury on the appropriate range of fines for the charged offenses?

Findings

• the warrantless search was justified by exigent circumstances
• the convictions for trafficking and failure to obtain a tax stamp do not violate double punishment prohibitions
• the issue regarding the unreasonable search is moot
• the trial court failed to instruct jurors on sentencing options for fines, leading to the vacating of fines on multiple counts
• the Judgments and Sentences of Imprisonment are AFFIRMED
• the Fine imposed on Count I is AFFIRMED
• the Fines imposed on Counts II, III, V, VI, VII and IX are VACATED
• the Motion for Oral Argument is DENIED

F-2007-1162

Mar. 28, 2008

Leroy White Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE:

Leroy White, Jr., was tried by jury and convicted of Count I, Trafficking in Illegal Drugs in violation of 63 O.S.Supp.2004, § 2-415(C); Count II, Failure to Obtain a Drug Stamp in violation of 68 O.S.2001, § 450; Count III, Assault and Battery upon a Police Officer in violation of 21 O.S.2001, § 649(B); Count V, Unlawful Possession of Paraphernalia in violation of 63 O.S.Supp.2004, § 2-405(C); Count VI, Aggravated Assault and Battery upon a Police Officer in violation of 21 O.S.2001, § 450; Count VII, Attempting to Destroy Evidence in violation of 21 O.S.2001, § 454; and Count IX, Threatening a Violent Act in violation of O.S.Supp.2004, § 1378(B) in the District Court of Tulsa County, Case No. CF-2007-1129. In accordance with the jury’s recommendation the Honorable Clancy C. Smith sentenced White to twenty-five (25) years imprisonment and a $25,000 fine, all but $1,000 suspended (Count I); three (3) years imprisonment and a $500 fine (Count II); three (3) years imprisonment and a $250 fine (Count III); one (1) year in the county jail and a $250 fine (Count V); two (2) years imprisonment and a $500 fine (Count VI); six (6) months in the county jail and a $250 fine on each of Counts VII and IX. All sentences of imprisonment were concurrent to Count I except Count VI, which ran consecutively. White appeals from these convictions and sentences.

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

I. The warrantless search of White’s hotel room violated Article II of the Oklahoma Constitution and the Fourth and Fourteenth Amendments of the United States Constitution. The fruits of the search of the room must be suppressed, requiring the reversal of White’s convictions in Counts I, II and V;

II. White’s convictions for both trafficking and failure to secure a tax stamp as charged in Counts I and II violate statutory and constitutional prohibitions against double punishment under the facts of this case;

III. If this Court finds the manner in which law enforcement entered White’s hotel room to constitute an unreasonable search and seizure, Count VI must be reversed with instructions to dismiss based upon White’s right to resist an unlawful arrest; and

IV. It was reversible error for the District Court to fail to instruct the jury as to the appropriate range of fines for the charged offenses. The Court imposed fines at sentencing without any input from the jury. The error requires an order remanding White’s convictions for resentencing.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that the fines imposed in Counts II, III, V, VI, VII and IX must be vacated. No further relief is necessary. We find in Proposition I that the warrantless entry into White’s room was justified by exigent circumstances. White’s request for oral argument on this issue is DENIED.

We find in Proposition II that White’s convictions for trafficking and failure to obtain a tax stamp do not violate the statutory prohibition against multiple punishment. We further find that these convictions do not violate the constitutional prohibition against double jeopardy. White also suggests that it is not possible to legitimately acquire and affix a tax stamp according to the law. We have rejected this claim where, as here, the defendant presents no evidence to support it.

We find that Proposition III is moot given our resolution of Proposition I. We find in Proposition IV that the trial court failed to instruct jurors on the sentencing option of fines on each count, but imposed fines on each count although none were recommended. The State concedes this was error. Count I, Trafficking, carries a mandatory minimum fine of $25,000. The trial court imposed this minimum mandatory fine and suspended all but $1,000. White cannot show he was prejudiced by this, as a properly instructed jury could not have recommended a smaller fine. The error in impositions of fines on Counts II, III, V, VI, VII and IX is cured by vacating those fines. No further relief is required.

Decision

The Judgments and Sentences of Imprisonment imposed by the District Court are AFFIRMED. The Fine imposed on Count I is AFFIRMED. The Fines imposed on Counts II, III, V, VI, VII and IX are VACATED. The Motion for Oral Argument is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

JULIE ANN BALL ASSISTANT PUBLIC DEFENDER
423 SOUTH BOULDER AVE. STE. 300 TULSA, OKLAHOMA 74103
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

STUART SOUTHERLAND ASSISTANT PUBLIC DEFENDER
423 SOUTH BOULDER AVE. STE. 300 TULSA, OKLAHOMA 74103
ATTORNEY FOR PETITIONER

W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
JOHN LACKEY ASSISTANT DISTRICT ATTORNEY
JAY SCHNIEDERJAN ASSISTANT ATTORNEY GENERAL
500 SOUTH DENVER, STE. 900
TULSA, OKLAHOMA 74103
ATTORNEY FOR STATE

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

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Footnotes:

1. 63 O.S.Supp.2004, § 2-415(C);
2. 68 O.S.2001, § 450;
3. 21 O.S.2001, § 649(B);
4. 63 O.S.Supp.2004, § 2-405(C);
5. 21 O.S.2001, § 450;
6. 21 O.S.2001, § 454;
7. O.S.Supp.2004, § 1378(B);
8. 21 O.S.2001, § 11;
9. 68 O.S.2001, § 450.8(C);
10. White v. State, 1995 OK CR 15, 900 P.2d 982, 995;
11. Hall U. State, F-1998-783 (Okl.Cr. Sept. 21, 1999);
12. Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 883;
13. Seabolt U. State, 2006 OK CR 50, 152 P.3d 235, 237;
14. Brigham City, Utah v. Stuart, 547 U.S. 398, 405, 126 S.Ct. 1943, 1949, 164 L.Ed.2d 650 (2006);
15. Dennis U. Poppel, 222 F.3d 1245, 1255-57 (10th Cir. 2000);
16. Hill v. State, 1995 OK CR 28, 898 P.2d 155, 160.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (2004) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 68 § 450 (2001) - Failure to Obtain a Drug Stamp
• Okla. Stat. tit. 21 § 649 (2001) - Assault and Battery upon a Police Officer
• Okla. Stat. tit. 63 § 2-405 (2004) - Unlawful Possession of Paraphernalia
• Okla. Stat. tit. 21 § 450 (2001) - Aggravated Assault and Battery upon a Police Officer
• Okla. Stat. tit. 21 § 454 (2001) - Attempting to Destroy Evidence
• Okla. Stat. tit. 63 § 1378 (2004) - Threatening a Violent Act
• Okla. Stat. tit. 21 § 11 (2001) - Prohibition against Multiple Punishment
• Okla. Stat. tit. 68 § 450 (2001) - Tax Stamp Act and Drug 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:

• Seabolt v. State, 2006 OK CR 50, 152 P.3d 235, 237
• Brigham City, Utah v. Stuart, 547 U.S. 398, 405, 126 S.Ct. 1943, 1949, 164 L.Ed.2d 650 (2006)
• Dennis v. Poppel, 222 F.3d 1245, 1255-57 (10th Cir. 2000)
• White v. State, 1995 OK CR 15, 900 P.2d 982, 995
• Hall v. State, F-1998-783 (Okl.Cr. Sept. 21, 1999) (not for publication)
• Mooney v. State, 1999 OK CR 34, 990 P.2d 875, 883
• Hill v. State, 1995 OK CR 28, 898 P.2d 155, 160