Kenneth Clark Knox v State Of Oklahoma

F-2009-149

Filed: Mar. 16, 2011

Not for publication

Prevailing Party: State Of Oklahoma

Summary

# Kenneth Clark Knox appealed his conviction for Sexual Battery. Conviction and sentence of four (4) years imprisonment and three (3) years of post-imprisonment supervision were upheld. # A. Johnson dissented.

Decision

The Judgment is AFFIRMED. The three (3) years of post-incarceration supervision is vacated and the case is REMANDED to the District Court for an Order Nunc Pro Tunc reflecting that the sentence is four (4) years imprisonment, after former conviction of two or more felonies. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence to establish that Appellant committed sexual battery?
• Did the trial court exceed its authority by imposing three years of post-incarceration supervision given the effective date of Title 21, Section 1123(E)?
• Must the written judgment and sentence be corrected to comply with the oral pronouncement of sentence by an Order Nunc Pro Tunc?

Findings

• the court erred in finding the evidence sufficient to support the conviction for sexual battery
• the three (3) years of post-incarceration supervision is vacated
• the case is remanded to the District Court for an Order Nunc Pro Tunc reflecting a sentence of four (4) years imprisonment

F-2009-149

Mar. 16, 2011

Kenneth Clark Knox

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Kenneth Clark Knox was tried by jury and convicted of Sexual Battery, After Former Conviction of Two or More Felonies (21 O.S.Supp.2006, § 1123(B)), Case No. CF-2007-5755, in the District Court of Tulsa County. The jury recommended as punishment four (4) years imprisonment and the trial court sentenced accordingly, and ordering a three (3) year term of post-imprisonment supervision. It is from this judgment and sentence that Appellant appeals. Appellant raises the following propositions of error in support of his appeal:

I. The State’s evidence was insufficient to establish a sexual battery and Appellant’s conviction must be reversed with instructions to dismiss.

II. Because Title 21, Section 1123(E) became effective only after the conduct alleged by the State, the three year post-imprisonment supervision imposed by the court is void and must be vacated.

III. Alternatively, the written judgment and sentence must be corrected to comply with the court’s oral pronouncement of sentence by an Order Nunc Pro Tunc.

After 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 nor modification of sentence is warranted under the law and the evidence. In Proposition I, when considered in the light most favorable to the State, the evidence is sufficient to establish beyond a reasonable doubt that Appellant committed the offense of sexual battery. See Rutan v. State, 2009 OK CR 3, IT 49, 202 P.3d 839, 849, citing Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559 and Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204 (standard of review for challenges to sufficiency of the evidence). While there was conflicting testimony, there was sufficient competent evidence to support the finding that Appellant intentionally touched the victim in a lewd and lascivious manner. In Propositions II and III, we find the trial court exceeded its authority in sentencing Appellant to three (3) years post-incarceration supervision. Finding no express indication that the Legislature intended the 2007 amendment to Title 21 § 1123, effective November 1, 2007 and providing for post-incarceration supervision, to be applied retroactively, Appellant was entitled only to an application of the law which was in effect at the time he committed the crime. See Cox U. State, 2006 OK CR 51, I 14, 152 P.3d 244, 250; Williams v. State, 2002 OK CR 9, II 4, 59 P.3d 518, 519; State v. Watkins, 1992 OK CR 50, II 5-6, 837 P.2d 477, 478. See also 22 O.S.Supp.2008, § 991a(A)(1)(f) 2 (effective February 28, 2008, specifically granting trial court authority to sentence defendants to post-incarceration supervision for violations of 21 O.S. § 1123). Therefore, the three (3) years of post-incarceration supervision levied in this case is vacated and the case is remanded to the District Court for an Order Nunc Pro Tunc correcting the Judgment and Sentence to reflect a sentence of four (4) years imprisonment for sexual battery, after former conviction of two or more felonies.

DECISION

The Judgment is AFFIRMED. The three (3) years of post-incarceration supervision is vacated and the case is REMANDED to the District Court for an Order Nunc Pro Tunc reflecting that the sentence is four (4) years imprisonment, after former conviction of two or more felonies. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.Supp.2006, § 1123(B)
2. 21 O.S.Supp.2008, § 991a(A)(1)(f)
3. Rutan v. State, 2009 OK CR 3, IT 49, 202 P.3d 839, 849
4. Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
5. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
6. Cox U. State, 2006 OK CR 51, I 14, 152 P.3d 244, 250
7. Williams v. State, 2002 OK CR 9, II 4, 59 P.3d 518, 519
8. State v. Watkins, 1992 OK CR 50, II 5-6, 837 P.2d 477, 478

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2006) - Sexual battery, after former conviction of two or more felonies
• Okla. Stat. tit. 21 § 1123 (2007) - Sexual battery, post-incarceration supervision
• Okla. Stat. tit. 22 § 991a (2008) - Post-incarceration supervision for violations of 21 O.S. § 1123

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:

• Rutan v. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849
• Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Cox v. State, 2006 OK CR 51, I 14, 152 P.3d 244, 250
• Williams v. State, 2002 OK CR 9, II 4, 59 P.3d 518, 519
• State v. Watkins, 1992 OK CR 50, II 5-6, 837 P.2d 477, 478