Elgret Lorenzo Burdex v The State Of Oklahoma

F-2010-914

Filed: Apr. 26, 2012

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Elgret Lorenzo Burdex appealed his conviction for Uttering a Forged Instrument. Conviction and sentence were modified from life imprisonment to twenty years. Judge Lumpkin dissented.

Decision

The Judgment of the district court is AFFIRMED. The matter is REMANDED to the district court to MODIFY Burdex's sentence from life imprisonment to twenty years imprisonment. Pursuant to Rule 3. 15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• whether he was denied a speedy trial
• whether the evidence was sufficient to support the verdict
• whether the trial court erred by allowing the State to continue the preliminary hearing
• whether the State improperly used stale felonies for enhancement
• whether the State improperly used former felony charges where the sentence was one year in the county jail
• whether he received effective assistance of counsel
• whether the trial judge erred by failing to advise the jury of the meaning of a life sentence
• whether his sentence is excessive
• whether cumulative error deprived him of a fair trial

Findings

• the court did not err in denying Burdex's right to a speedy trial
• the evidence was sufficient to support the verdict
• the trial court did not err by allowing the State to continue the preliminary hearing
• the State did not improperly use stale felonies for enhancement
• the State did not improperly use former felony charges where the sentence was one year in the county jail
• Burdex did not receive ineffective assistance of counsel
• the trial court did not err by failing to advise the jury of the meaning of a life sentence
• the original sentence was excessive
• the sentence was modified from life imprisonment to twenty years imprisonment

F-2010-914

Apr. 26, 2012

Elgret Lorenzo Burdex

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, PRESIDING JUDGE:

Appellant Elgret Lorenzo Burdex was tried by jury and convicted of one count of Uttering a Forged Instrument, After Former Conviction of Two or More Felonies in violation of 21 O.S.2001 § 1592, in the District Court of Caddo County, Case No. CF-2008-49. The jury fixed punishment at life imprisonment. The Honorable Richard G. Van Dyck, who presided at trial, sentenced Burdex accordingly. From this Judgment and Sentence Burdex appeals, raising the following issues: (1) whether he was denied a speedy trial; (2) whether the evidence was sufficient to support the verdict; (3) whether the trial court erred by allowing the State to continue the preliminary hearing; (4) whether the State improperly used stale felonies for enhancement; (5) whether the State improperly used former felony charges where the sentence was one year in the county jail; (6) whether he received effective assistance of counsel; (7) whether the trial judge erred by failing to advise the jury of the meaning of a life sentence; (8) whether his sentence is excessive; and (9) whether cumulative error deprived him of a fair trial. We find reversal is not required and affirm the Judgment, but modify Burdex’s sentence for the reasons discussed below.

1. We have reviewed Burdex’s alleged violation of his constitutional right to a speedy trial using the four-pronged balancing test set out by the United States Supreme Court in Barker U. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), and find that Burdex was not denied his right to a speedy trial.¹ See Ellis V. State, 2003 OK CR 18, I 25, 76 P.3d 1131, 1136.

2. Reviewing the evidence in the light most favorable to the State, we find any rational jury could find the inconsistent explanations offered by Burdex to account for his possession of the check showed knowledge that the check was bogus. Burdex’s claim challenging the sufficiency of the evidence is therefore denied. Logsdon v. State, 2010 OK CR 7, I 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, 1 7, 709 P.2d 202, 203-204.

3. The magistrate did not abuse his discretion in granting the State’s request to continue the preliminary hearing in order to obtain copies of Burdex’s Judgments and Sentences from his prior convictions for enhancement. See Harris v. State, 1992 OK CR 74, I 8, 841 P.2d 597, 599 (decision to grant a continuance of preliminary hearing is within the sound discretion of the examining magistrate).

4. Reviewing for plain error only, we find Burdex has not proven that the State used two stale prior felony convictions outside the ten-year rule of 21 O.S.Supp.2002, § 51.12 to enhance his sentence. ² See Dufries v. State, 2006 2 See 21 D.S.Supp.2002, § 51.1 (general enhancement statute); 21 O.S.Supp.2002, § 51.2 (Except as provided in [21 O.S.Supp.2002, § 51.1a], no person shall be sentenced under Section 51.1 of this title when a period of ten (10) years has elapsed since the completion of the sentence imposed on the former conviction; provided, said person has not, in the meantime, been convicted of a misdemeanor involving moral turpitude or a felony.).

5. Reviewing for plain error only, we reject Burdex’s claim that it was error to use his conviction in CF-1999-6510 for obtaining money by false pretenses (21 O.S.1991, § 1541.1) to enhance his sentence because it was a misdemeanor. The Judgment and Sentence for this conviction is styled as a felony and the punishment is consistent for a felony conviction for obtaining money by false pretenses where the value of the property is between $50.00 and $500.00. Without additional evidence from Burdex that this conviction was a misdemeanor, he has not shown the use of this conviction was plain error.

6. Burdex did not receive ineffective assistance of counsel because trial counsel did not object to the prior convictions that were properly used to enhance his sentence. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148; Davis v. State, 2005 OK CR 21, 7, 123 P.3d 243, 246.

7. Reviewing for plain error, we find the trial court did not err by not defining the meaning of a life sentence in this case. See Skinner v. State, 2009 OK CR 19, I 41, 210 P.3d 840, 855 (defendant not entitled to instruction on meaning of life sentence in cases not involving the 85% Rule).

8. While Burdex’s sentence is within the range of punishment provided by law, the life sentence leveled against him for this non-violent crime (even with his prior record) shocks the conscience of this Court. Gomez v. State, 2007 OK CR 33, I 18, 168 P.3d 1139, 1146; Rea v. State, 2001 OK CR 28, 1 5 n.3, 34 P.3d 148, 149 n.3. The jury struggled with deciding punishment and sent out questions seeking information to guide them in their punishment decision. The trial court was unable to provide the jury with any guidance in calculating an appropriate sentence. The jury’s questions indicate that it had a specific number of years it wanted Burdex to serve; it opted for a life sentence to guarantee that the percentage of time that Burdex actually served was ample. Parole and early release were obviously taken into account by the jury. Based on the facts and circumstances of this case, we find that sentence modification is appropriate and modify Burdex’s sentence from life imprisonment to twenty years imprisonment.

9. Burdex’s sentence must be modified because it is excessive and shocks our conscience. No other error, either individually or when considered in a cumulative fashion, merits additional relief. DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157.

DECISION

The Judgment of the district court is AFFIRMED. The matter is REMANDED to the district court to MODIFY Burdex’s sentence from life imprisonment to twenty years imprisonment. Pursuant to Rule 3. 15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. ¹ See Ellis v. State, 2003 OK CR 18, ¶ 25, 76 P.3d 1131, 1136.
2. ² See 21 O.S.Supp.2002, § 51.1 (general enhancement statute); 21 O.S.Supp.2002, § 51.2 ("Except as provided in [21 O.S.Supp.2002, § 51.1a], no person shall be sentenced under Section 51.1 of this title when a period of ten (10) years has elapsed since the completion of the sentence imposed on the former conviction; provided, said person has not, in the meantime, been convicted of a misdemeanor involving moral turpitude or a felony.").
3. ³ See Nipps v. State, 1978 OK CR 30, ¶ 16, 576 P.2d 310, 312; Goodwin v. State, 1986 OK CR 180, ¶ 7, 730 P.2d 1202, 1204.
4. ⁴ See Walker v. State, 1998 OK CR 14, ¶ 9, 953 P.2d 354, 356.
5. ⁵ See Skinner v. State, 2009 OK CR 19, ¶ 41, 210 P.3d 840, 855.
6. ⁶ See Gomez v. State, 2007 OK CR 33, ¶ 18, 168 P.3d 1139, 1146; Rea v. State, 2001 OK CR 28, ¶ 5 n.3, 34 P.3d 148, 149 n.3.
7. ⁷ See DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1592 - Uttering a forged instrument
• Okla. Stat. tit. 21 § 51.12 - Enhancement of sentences
• Okla. Stat. tit. 21 § 51.1 - General enhancement statute
• Okla. Stat. tit. 21 § 51.2 - Stale convictions
• Okla. Stat. tit. 21 § 1541.1 - Obtaining money by false pretenses
• Okla. Stat. tit. 21 § 1541.2 - Penalties for obtaining money by false pretenses
• Okla. Stat. tit. 21 § 51 - Prior felony enhancement

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 17 U.S.C. § 107 - Limitations on Exclusive Rights: Fair Use
• 21 U.S.C. § 1541.1 - Obtaining Money by False Pretenses
• 21 U.S.C. § 1541.2 - Obtaining Money by False Pretenses; Punishment
• 21 U.S.C. § 51.1 - Prior Felony Convictions; Enhancement
• 21 U.S.C. § 51.2 - Prior Convictions; Ten Year Rule

Other citations:

No other rule citations found.

Case citations:

• Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)
• Ellis v. State, 2003 OK CR 18, ¶ 25, 76 P.3d 1131, 1136
• Logsdon v. State, 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161
• Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204
• Harris v. State, 1992 OK CR 74, ¶ 8, 841 P.2d 597, 599
• Dufries v. State, 2006 OK CR 13, ¶ 12, 133 P.3d 887, 889-90
• Nipps v. State, 1978 OK CR 30, ¶ 16, 576 P.2d 310, 312
• Goodwin v. State, 1986 OK CR 180, ¶ 7, 730 P.2d 1202, 1204
• Walker v. State, 1998 OK CR 14, ¶ 9, 953 P.2d 354, 356
• Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148
• Davis v. State, 2005 OK CR 21, ¶ 7, 123 P.3d 243, 246
• Skinner v. State, 2009 OK CR 19, ¶ 41, 210 P.3d 840, 855
• Gomez v. State, 2007 OK CR 33, ¶ 18, 168 P.3d 1139, 1146
• Rea v. State, 2001 OK CR 28, ¶ 5 n.3, 34 P.3d 148, 149 n.3
• DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157