George Robert Brewington v The State Of Oklahoma
F-2008-832
Filed: Dec. 10, 2009
Not for publication
Prevailing Party: The State of Oklahoma
Summary
George Robert Brewington appealed his conviction for possession of a controlled substance. His conviction and sentence were for thirty years in prison for two counts of possession and one count of unlawful possession of drug paraphernalia. Judge Lumpkin dissented.
Decision
The Judgment and Sentence of the District Court on Counts 1 and 4 is AFFIRMED. The Judgment and Sentence on Count 2 is REVERSED and REMANDED with instructions to dismiss. Additionally, the District Court shall modify the Judgment and Sentence nunc pro tunc to reflect that the conviction on Count 1 was for violation of 63 O.S. Supp. 2006, § 2-402(C). Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon delivery and filing of this decision.
Issues
- Was there sufficient evidence to sustain the conviction on Count 1 for possession of a controlled dangerous substance?
- Was there sufficient evidence to sustain the conviction on Count 2 for possession of a controlled dangerous substance without a tax stamp affixed?
- Was Brewington denied effective assistance of counsel due to trial counsel's failure to seek suppression of evidence seized from his co-defendant's residence?
Findings
- The evidence was sufficient to sustain conviction on Count 1 for possession of a controlled dangerous substance.
- The evidence was insufficient to sustain a conviction on Count 2 for possession of a controlled dangerous substance without a tax stamp affixed.
- Brewington was not deprived of his right to effective assistance of counsel.
- The Judgment and Sentence on Counts 1 and 4 is AFFIRMED.
- The Judgment and Sentence on Count 2 is REVERSED and REMANDED with instructions to dismiss.
- The District Court shall modify the Judgment and Sentence nunc pro tunc to reflect that the conviction on Count 1 was for violation of 63 O.S. Supp. 2006, § 2-402(C).
F-2008-832
Dec. 10, 2009
George Robert Brewington
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
A. JOHNSON, VICE PRESIDING JUDGE:
Appellant George Robert Brewington was tried by jury and convicted in the District Court of Logan County, Case No. CF-2007-292, of one count of Possession of a Controlled Dangerous Substance Within 2000 Feet of Public Park and in the Presence of a Minor Child Under 12 After Former Conviction of Two or More Felonies in violation of 63 O.S.Supp.2006, § 2-401(F) (Count 1), one count of Possession of a Controlled Dangerous Substance Without a Tax Stamp Affixed After Former Conviction of Two or More Felonies in violation of 68 O.S.2001, § 450.1 (Count 2), and one count of Unlawful Possession of Drug Paraphernalia After Former Conviction of Two or More Felonies (Count 4) in violation of 63 O.S.Supp.2006, § 2-405. Brewington waived jury sentencing and requested that he be sentenced by the court. The State recommended, and Brewington accepted, that he be sentenced to thirty years imprisonment each on Counts 1 and 2 and one year imprisonment on Count 4. All sentences were recommended to be served concurrently. The Honorable Donald L. Worthington, who presided at trial, sentenced Brewington accordingly.
From this judgment and sentence, Brewington appeals raising the following issues: (1) whether the evidence was sufficient to sustain his conviction on Count 1 for possession of a controlled dangerous substance; (2) whether the evidence was sufficient to sustain his conviction on Count 2 for possession of a controlled dangerous substance without a tax stamp affixed; and (3) whether he was denied effective assistance of counsel for trial counsel’s failure to seek suppression of evidence seized from his co-defendant’s residence.
We find reversal is not required on Counts 1 and 4 and affirm. We find reversal is required on Count 2 and remand with instructions to dismiss. Additionally, in accordance with our discussion in note 1, we remand for a nunc pro tunc correction to the Judgment and Sentence to reflect that Brewington’s conviction on Count 1 was for a violation of 63 O.S.Supp.2006, § 2-402(C).
1. The evidence was sufficient to sustain conviction on Count 1, possession of a controlled dangerous substance. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have concluded beyond a reasonable doubt that Brewington had knowledge and control of the drugs and therefore possessed them.
2. The State concedes, and we agree, that the evidence was insufficient to sustain a conviction on Count 2, possession of a controlled dangerous substance without a tax stamp affixed. To obtain a conviction on this count, the State was required to prove that Brewington possessed seven grams or more of a CDS sold by weight or ten or more dosage units of a CDS not sold by weight. The evidence showed that Brewington possessed only 1.9 grams of methamphetamine and only three dosage units of hydrocodone, an amount insufficient to prove possession of a controlled dangerous substance without a tax stamp.
3. Brewington was not deprived of his right to effective assistance of counsel because he cannot affirmatively prove prejudice resulting from his attorney’s failure to move to suppress evidence seized in a consensual search of his co-defendant’s residence. Any motion to suppress would have been properly denied because the co-defendant freely and voluntarily consented to the search of her home.
DECISION
The Judgment and Sentence of the District Court on Counts 1 and 4 is AFFIRMED. The Judgment and Sentence on Count 2 is REVERSED and REMANDED with instructions to dismiss. Additionally, the District Court shall modify the Judgment and Sentence nunc pro tunc to reflect that the conviction on Count 1 was for violation of 63 O.S. Supp. 2006, § 2-402(C).
Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY
THE HONORABLE DONALD L. WORTHINGTON, DISTRICT JUDGE
APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
JANET L. COX
2733 NW 110TH STREET
OKLAHOMA CITY, OK 73120
ATTORNEY FOR DEFENDANT
S. GAIL GUNNING
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT
VINCENT ANTONIOLI
OKLAHOMA ATTORNEY GENERAL
W. A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEYS
CHRISTY A. BAKER
LOGAN COUNTY COURTHOUSE
313 N.E. 21ST STREET
GUTHRIE, OK
ATTORNEYS FOR STATE
OPINION BY: A. JOHNSON, V.P.J.
C. JOHNSON, P.J.: Concur
LUMPKIN, J.: Concur
CHAPEL, J.: Concur
LEWIS, J.: Concur
George Robert Brewington v The State Of Oklahoma
F-2008-832
Filed: Dec. 10, 2009
Not for publication
Prevailing Party: The State of Oklahoma
Summary
George Robert Brewington appealed his conviction for possession of a controlled substance. His conviction and sentence were for thirty years in prison for two counts of possession and one count of unlawful possession of drug paraphernalia. Judge Lumpkin dissented.
Decision
The Judgment and Sentence of the District Court on Counts 1 and 4 is AFFIRMED. The Judgment and Sentence on Count 2 is REVERSED and REMANDED with instructions to dismiss. Additionally, the District Court shall modify the Judgment and Sentence nunc pro tunc to reflect that the conviction on Count 1 was for violation of 63 O.S. Supp. 2006, § 2-402(C). Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon delivery and filing of this decision.
Issues
- Was there sufficient evidence to sustain the conviction on Count 1 for possession of a controlled dangerous substance?
- Was there sufficient evidence to sustain the conviction on Count 2 for possession of a controlled dangerous substance without a tax stamp affixed?
- Was Brewington denied effective assistance of counsel due to trial counsel's failure to seek suppression of evidence seized from his co-defendant's residence?
Findings
- The evidence was sufficient to sustain conviction on Count 1 for possession of a controlled dangerous substance.
- The evidence was insufficient to sustain a conviction on Count 2 for possession of a controlled dangerous substance without a tax stamp affixed.
- Brewington was not deprived of his right to effective assistance of counsel.
- The Judgment and Sentence on Counts 1 and 4 is AFFIRMED.
- The Judgment and Sentence on Count 2 is REVERSED and REMANDED with instructions to dismiss.
- The District Court shall modify the Judgment and Sentence nunc pro tunc to reflect that the conviction on Count 1 was for violation of 63 O.S. Supp. 2006, § 2-402(C).