Keyion Kaseen Terry v The State of Oklahoma
F-2007-432
Filed: Jun. 17, 2008
Not for publication
Prevailing Party: Keyion Kaseen Terry
Summary
Keyion Kaseen Terry appealed his conviction for Possession of Controlled Drug in Jail (marijuana). Conviction and sentence reversed and dismissed, allowing the state to possibly refile charges in the future. Judge A. Johnson dissented from the opinion, arguing that the trial court should have retained jurisdiction to correct its earlier ruling.
Decision
Keyion Kaseen Terry's conviction for Possession of Controlled Drug in Jail (marijuana) AFCF is hereby REVERSED and DISMISSED, but without prejudice to the refiling of this charge. 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 loss of jurisdiction by the judge when he sustained the defense counsel's motion to quash for insufficient evidence of possession of marijuana in jail?
- Did the district court's refusal to consider a suspended sentence constitute an abuse of discretion and an improper punishment for the appellant exercising his right to a jury trial?
- Should the sentence be modified as requested by the appellant if relief is not granted on the basis of the second proposition of error?
Findings
- the court erred
- the court erred
- the court erred
F-2007-432
Jun. 17, 2008
Keyion Kaseen Terry
Appellantv
The State of Oklahoma
Appellee
v
The State of Oklahoma
Appellee
SUMMARY OPINION
MICHAEL S. RICHIE CHAPEL, JUDGE:
Keyion Kaseen Terry was tried by jury and convicted of Possession of Controlled Drug in Jail (marijuana) AFCF, under 57 O.S.2001, § 21, in Tulsa County District Court, Case No. CF-2005-5470. In accordance with the jury’s recommendation, the Honorable Thomas C. Gillert sentenced Terry to imprisonment for ten (10) years. Terry appeals his conviction and his sentence. Terry raises the following propositions of error:
I. JUDGE THORNBRUGH LOST JURISDICTION IN THE CHARGE OF POSSESSION OF MARIJUANA IN JAIL WHEN HE SUSTAINED DEFENSE COUNSEL’S MOTION TO QUASH FOR INSUFFICIENT EVIDENCE.
II. THE DISTRICT COURT’S REFUSAL TO CONSIDER A SUSPENDED SENTENCE WAS AN ABUSE OF DISCRETION AND AN IMPROPER PUNISHMENT FOR APPELLANT ASSERTING HIS RIGHT TO TRIAL BY JURY UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
III. SHOULD THIS COURT REFUSE TO GRANT RELIEF ON THE BASIS OF THE ARGUMENTS PRESENTED IN APPELLANT’S SECOND PROPOSITION OF ERROR, HE WOULD NONETHELESS ASK THAT HIS SENTENCE BE MODIFIED.
In Proposition I, Terry maintains that the district court lost jurisdiction over the charge upon which he was convicted (originally Count II in the case), when the court sustained his motion to quash this charge.¹ In order to properly evaluate this claim, we review some of the procedural history of this case. Terry was originally charged with possession of both marijuana and cocaine in jail, which were found together in a package in his left sock. Reserve Deputy Mike Davis testified at preliminary hearing that he recognized the green leafy substance found in Terry’s sock as marijuana.² On cross examination, Davis acknowledged that he did not have any formal training in drug recognition or in performing field tests. At the conclusion of the hearing, the Honorable Clifford Smith sustained defense counsel’s motion to strike Davis’s testimony regarding the results of the field test and then sustained the defense demurrer to Count II. The State objected, noting that Count II also involved marijuana. The court recalled that the other officer who had testified (Hetherington) did have training in the recognition of marijuana and then modified his ruling on Count II, ordered the State to amend it to refer only to marijuana, and bound Terry over on this modified charge.
On January 10, 2006, defense counsel filed a generic Motion to Quash the Information. On February 28, 2006, at a motions hearing before the Honorable P. Thomas Thornbrugh, defense counsel again argued that the preliminary hearing evidence couldn’t support Count II, because only Davis testified that the substance found appeared to be marijuana, and he had no formal training in the recognition of marijuana. The district court sustained the motion to quash Count II and announced that this count was dismissed. The docket for the next day, March 1, 2006, records that, with all parties present, Judge Thornbrugh scheduled a rehearing on the dismissal of Count II for March 6, 2006. Similarly, the docket for March 6, 2006, records that, with all parties present, Judge Thornbrugh sustained the State’s motion reversing the dismissal of Count II, over the objection of Terry. Terry maintains that when Judge Thornbrugh sustained his motion to quash Count II and dismissed this charge, he lost jurisdiction to proceed on this count, i.e., that he was prohibited from reconsidering or reversing this ruling. The State correctly notes that the sustaining of a motion to quash is not a bar to further prosecution on the offense at issue.³
The State also argues, citing Tilley v. State ex rel. Scaggs, that in this situation, our Court has held that the State has two options: either appeal the sustaining of the motion to quash or refile the case based upon new information obtained since the dismissal. We agree with the State’s interpretation of Tilley; however, Tilley does not support the State’s position in the current appeal. In Tilley, this Court recognized that motions to quash had been authorized by statute in 22 O.S.1991, § 504.1, and also that 22 O.S.1991, § 1053 allowed the State to appeal a district court order sustaining a motion to quash for insufficient evidence on a felony charge. The State had two options after the district court granted the motion to quash and dismissed Count II. It failed to pursue either of these options. We must conclude that the district court did not have jurisdiction to reconsider its ruling on the motion to quash in this case and that the trial court did not have jurisdiction over the trial of Terry on the charge of possession of controlled drug in jail.
We do note that nothing in this Court’s ruling herein shall prevent the State from refiling this charge against Terry in the future.
Regarding Propositions II and III, this Court’s resolution of Proposition I renders these claims moot. After thoroughly considering the entire record before us on appeal, we find that Terry’s conviction for Possession of Controlled Drug in Jail (marijuana) AFCF must be reversed and dismissed.
Decision
Keyion Kaseen Terry’s conviction for Possession of Controlled Drug in Jail (marijuana) AFCF is hereby REVERSED and DISMISSED, but without prejudice to the refiling of this charge. 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
ALLEN MALONE
406 SOUTH BOULDER, SUITE 400
TULSA, OKLAHOMA 74103
SCOTT GENGRAS
ASSISTANT DISTRICT ATTORNEY
TULSA COUNTY DISTRICT ATTORNEY
500 S. DENVER, SUITE 900
TULSA, OKLAHOMA 74103
THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST ST.
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE
Footnotes:
- Okla. Stat. tit. 22 § 504.1(C)
- Okla. Stat. tit. 22 § 504.1
- Okla. Stat. tit. 22 § 1053
- Okla. Stat. tit. 22 § 504.1
Oklahoma Statutes citations:
- Okla. Stat. tit. 57 § 21 - Possession of Controlled Drugs in Jail
- Okla. Stat. tit. 22 § 504.1 - Motion to Quash
- Okla. Stat. tit. 22 § 1053 - Appeal from Order Sustaining Motion to Quash
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
- State v. Tolle, 1997 OK CR 52, 1 6, 945 P.2d 503, 505
- Swain v. State, 1991 OK CR 15, 805 P.2d 684, 685-86
- Fuller v. State, 106 P.2d 832, 835 (Okla.Crim. 1940)
- Tilley v. State ex rel. Scaggs, 1993 OK CR 52, 869 P.2d 847