Jesus Ceniceros, Jr. v State Of Oklahoma

F 2011-858

Filed: Oct. 5, 2012

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Jesus Ceniceros, Jr. appealed his conviction for drug-related crimes. His conviction and sentence included life in prison for aggravated trafficking in illegal drugs, among several other charges with various fines and prison terms. The court found that the search warrant used to investigate him was valid, but it agreed with his claim that some charges against him should not have been separate. As a result, the court reversed and dismissed two of his convictions but affirmed the others. Judge C. Johnson dissented.

Decision

The judgments and sentences in counts three and five of the Information shall be REVERSED and REMANDED with instructions to DISMISS; the remaining counts shall be AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was the search warrant executed by the Oklahoma Bureau of Narcotics and Dangerous Drugs valid under Oklahoma statutes?
• should the trafficking and distribution counts against the appellant merge based on double jeopardy claims?
• were the sentences imposed on the appellant excessive and oppressive?

Findings

• The court did not err regarding the search warrant's adequacy.
• Counts of trafficking and distribution should not merge, resulting in plain error and dismissal of counts three and five.
• The sentences imposed were not excessive and the trial court did not abuse its discretion in ordering consecutive sentences.

F 2011-858

Oct. 5, 2012

Jesus Ceniceros, Jr.

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Jesus Ceniceros, Jr., was tried by jury and convicted in Pottawatomie County District Court case number CF-2010-203, before the Honorable John G. Canavan, Jr., District Judge for the following eight counts, with their respective punishments. Count 1: aggravated trafficking in illegal drugs, in violation of 63 D.S.Supp.2009, § 2-415, Life (of which 85% must be served before becoming eligible for parole) and a $100,000.00 fine; Count 2: trafficking in illegal drugs, in violation of 63 O.S.Supp.2009, § 2-415, Five (5) years and a $50,000.00 fine; Count 3: unlawful distribution of a controlled dangerous substance (methamphetamine), in violation of 63 O.S.Supp.2009, § 2-401, Two (2) years and a $20,000.00 fine; Count 4: trafficking in illegal drugs, in violation of 63 O.S.Supp.2009, § 2-415, Five (5) years and a $50,000.00 fine; Count 5: unlawful distribution of a controlled dangerous substance (methamphetamine), in violation of 63 O.S.Supp.2009, § 2-401, Two (2) years and a $10,000.00 fine; Counts 6 and 7: unlawful use of a communications device to facilitate a felony, in violation of 13 O.S.Supp.2009, § 176.3, One (1) year and $5,000.00 fine each; and Count 8: possession of proceeds from drug activity, in violation of 63 O.S.Supp.2001, § 2-503.1, Five (5) years and a $50,000.00 fine. The trial court formally sentenced Appellant and directed that all counts run consecutively.

Appellant timely filed this appeal raising the following propositions of error:

1. The search warrant executed by the Oklahoma Bureau of Narcotics and Dangerous Drugs upon Appellant’s residence did not meet the requirements of the Oklahoma statutes.
2. The trafficking and distribution counts to which the State charged the appellant should merge.
3. The sentences recommended by the jury and imposed by the trial court upon the appellant’s conviction in CF-2010-0203 were excessive and oppressive.

After thorough consideration of Appellant’s propositions of error and the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we have determined that the judgments and sentences for counts three and five should be reversed and remanded with instructions to dismiss; the judgments and sentences in the remaining counts shall be affirmed.

In deciding proposition one, we find that the search warrant adequately described the place to be searched so that the authorities serving the warrant could find the place without the aid of any other information save that contained in the warrant. Harvey v. State, 1984 OK CR 52, ¶ 4, 676 P.2d 865, 866. In deciding proposition two, we find that Appellant raised this issue as a double jeopardy claim at trial, claiming that the elements of the two offenses are the same; they are not, nor does one crime encompass the other under an elements test. On appeal, he claims, without citing 21 O.S.2011, § 11, that the two acts of distribution and trafficking merge with each other. We will review this claim for plain error. See Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d. 907, 923. The acts giving rise to possession of a trafficking amount of methamphetamine and distribution of methamphetamine found in counts two and three, and in counts four and five, were committed during two separate drug transactions. Each transaction garnered a charge of trafficking and distribution of the same cache of methamphetamine. We find that the separate trafficking and distribution charges were prohibited by 21 O.S.2011, § 11, as they constituted one act or transaction. Ferguson v. State, 1982 OK CR 50, ¶ 6, 644 P.2d 121, 122; Heldenbrand v. Mills, 1970 OK CR 146, ¶¶ 14-16, 476 P.2d 375, 378; see Ellis v. State, 1992 OK CR 35, ¶¶ 27-30, 834 P.2d 985, 990-91 (double punishment prohibition merely prevents the courts from prescribing a greater punishment than the legislature intended). We find that plain error occurred which resulted in Appellant being punished twice for one criminal act, which was not intended by the legislature. As a result, the convictions for distribution of a controlled dangerous drug found in counts three and five should be dismissed.

In proposition three, we find that the punishment set by the jury and assessed by the trial court was within the range of punishment and the punishment does not shock this Court’s conscience; therefore, we find that the sentences are not excessive. Neloms v. State, 2012 OK CR 7, ¶ 39, 274 P.3d 161, 171 (quoting Rea v. State, 2001 OK CR 28, ¶ 5 n. 3, 34 P.3d 148, 149 n. 3). We also find that the trial court did not abuse its discretion in ordering that the sentences be served consecutively. Birdine v. State, 2004 OK CR 7, ¶ 7, 85 P.3d 284, 286.

DECISION

The judgments and sentences in counts three and five of the Information shall be REVERSED and REMANDED with instructions to DISMISS; the remaining counts shall be AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 1, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 63 O.S.Supp.2009, § 2-415
2. 63 O.S.Supp.2009, § 2-401
3. 13 O.S.Supp.2009, § 176.3
4. 63 O.S.Supp.2001, § 2-503.1
5. 21 O.S.2011, § 11
6. Hogan U. State, 2006 OK CR 19, 9 38, 139 P.3d. 907, 923
7. Ferguson v. State, 1982 OK CR 50, II 6, 644 P.2d 121, 122
8. Heldenbrand U. Mills, 1970 OK CR 146, 91 14-16, 476 P.2d 375, 378
9. Ellis v. State, 1992 OK CR 35, 91 27-30, 834 P.2d 985, 990-91
10. Neloms U. State, 2012 OK CR 7, 1 39, 274 P.3d 161, 171
11. Rea v. State, 2001 OK CR 28, I 5 n. 3, 34 P.3d 148, 149 n. 3
12. Birdine v. State, 2004 OK CR 7, IF 7, 85 P.3d 284, 286
13. Hogan, 2006 OK CR 19, I 38, 139 P.3d. at 923

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 - Aggravated trafficking in illegal drugs
• Okla. Stat. tit. 63 § 2-415 - Trafficking in illegal drugs
• Okla. Stat. tit. 63 § 2-401 - Unlawful distribution of a controlled dangerous substance
• Okla. Stat. tit. 13 § 176.3 - Unlawful use of a communications device to facilitate a felony
• Okla. Stat. tit. 63 § 2-503.1 - Possession of proceeds from drug activity
• Okla. Stat. tit. 21 § 11 - Double jeopardy prohibition
• Okla. Stat. tit. 22 § 18 - Rules of the Oklahoma Court of Criminal Appeals

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:

• Harvey v. State, 1984 OK CR 52, I 4, 676 P.2d 865, 866
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Ferguson v. State, 1982 OK CR 50, II 6, 644 P.2d 121, 122
• Heldenbrand v. Mills, 1970 OK CR 146, 91 14-16, 476 P.2d 375, 378
• Ellis v. State, 1992 OK CR 35, 91 27-30, 834 P.2d 985, 990-91
• Neloms v. State, 2012 OK CR 7, I 39, 274 P.3d 161, 171
• Rea v. State, 2001 OK CR 28, I 5 n. 3, 34 P.3d 148, 149 n. 3
• Birdine v. State, 2004 OK CR 7, IF 7, 85 P.3d 284, 286