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F-2013-1073

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George H. Pinkney v The State Of Oklahoma

F-2013-1073

Filed: Jan. 12, 2015

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

George H. Pinkney appealed his conviction for Possession of Controlled Substance (Marijuana) in the Presence Of a Minor, among other charges. Conviction and sentence modified to five years imprisonment for Count 1. Judge Johnson dissented on the sentencing.

Decision

Appellant's convictions and sentences in Counts 2 and 4 are hereby AFFIRMED. Appellant's conviction in Count 1 is hereby AFFIRMED but the Sentence is MODIFIED to imprisonment for five (5) years. This matter is remanded to the District Court for entry of Judgment and Sentence consistent with the Opinion. Appellant's conviction and sentence in Count 3 is AFFIRMED but the district court is instructed to enter an order nunc pro tunc correcting the Judgment and Sentence to accurately reflect that Appellant's sentence is for imprisonment for two (2) years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there fundamental error in the jury's instruction regarding the applicable punishment range for Count 1, Possession of Controlled Substance (Marijuana) in the Presence Of a Minor?
  • Did the trial court abuse its discretion by refusing to consider suspending a portion of Mr. Pinkney's sentence because he exercised his right to a jury trial?

Findings

  • the court erred in instructing the jury on the applicable punishment range for Count 1
  • the trial court did not abuse its discretion in refusing to consider suspending a portion of Mr. Pinkney's sentence
  • the district court's judgment and sentence contained a clerical error regarding the duration of the sentence in Count 3
  • Appellant's conviction and sentence in Count 1 is modified to imprisonment for five (5) years
  • Appellant's convictions and sentences in Counts 2 and 4 are affirmed
  • the district court is instructed to enter an order nunc pro tunc correcting the Judgment and Sentence to accurately reflect that Appellant's sentence in Count 3 is for two (2) years

F-2013-1073

Jan. 12, 2015

George H. Pinkney

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LUMPKIN, VICE-PRESIDING JUDGE:

Appellant, George H. Pinkney, was tried by jury and convicted of Possession of Controlled Substance (Marijuana) in the Presence Of a Minor (63 O.S.Supp.: 2009, § 2-402(C)) (Count 1); Maintaining Place for Keeping Controlled Substance (63 O.S.Supp.2004, § 2-404(B)) (Count 3), both After Former Conviction of a Felony; Possession of Firearms After Former Conviction of Felony (21 O.S.Supp.2009, § 1283) (Count 2); and Possession of Drug paraphernalia (63 O.S.Supp.2004, § 2-405) (Count 4) in the District Court of Pittsburg County, Case Number CF-2011-322A. The jury recommended as punishment imprisonment for eight (8) years in Count 1; two years, each, in Counts 2 and 3; and incarceration in the county jail for thirty (30) days in Count 4. The trial court sentenced accordingly and imposed court costs and a $250.00 fee for the presentence investigation report. The trial court ordered the sentences in Counts 1, 2, and 3 to run consecutively but ordered the sentence in Count 4 to run concurrently with the sentence in Count 3. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in this appeal:

I. Fundamental error occurred when the jury was incorrectly instructed as to the applicable punishment range for Count 1, Possession of Controlled Substance (Marijuana) in the Presence Of a Minor.

II. The trial court abused its discretion when it refused to consider suspending a portion of Mr. Pinkney’s sentence because he exercised his right to a jury trial.

After thorough consideration of these propositions and the entire record before us on appeal including the original records, transcripts, and briefs of the parties, we have determined that Appellant is entitled to relief as to Proposition One and modify his sentence.

In his first proposition of error, Appellant claims that the jury was incorrectly instructed as to the sentencing range for Possession of Controlled Substance (Marijuana) in the Presence Of a Minor After Former Conviction of a Felony in Count 1. Appellant concedes that he waived appellate review of this claim for all but plain error when he failed to challenge the trial court’s instruction to the jury. Romano v. State, 1995 OK CR 74, ¶ 80, 909 P.2d 92, 120. We review his claim pursuant to the test set forth in Hogan v. State, 2006 OK CR 19, 139 P.3d 907. To be entitled to relief under the plain error doctrine, an appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) the error is plain or obvious; and 3) the error affected his substantial rights. Id.; Simpson v. State, 1994 OK CR 40, ¶ 2, 11, 23, 876 P.2d 690, 693-95. If these elements are met, this Court will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. (quotations and citations omitted).

The State concedes that plain error occurred and that Appellant is entitled to relief. As the trial court erroneously instructed the jury as to both the minimum and maximum term of imprisonment for the charged offense, we agree. The trial court instructed the jury that the punishment for Count 1 after one (1) prior conviction was imprisonment in the State penitentiary for a term of six (6) years to life. The statutory range of punishment for the offense under the general enhancement provision of 21 O.S.Supp.2002, § 51.1(A)(3) is imprisonment not exceeding ten (10) years. 63 O.S.Supp.2009, § 2-402(C)(1). Therefore, we find that Appellant has shown the existence of an actual error. McIntosh v. State, 2010 OK CR 17, ¶ 9, 237 P.3d 800, 803.

Because the statutory range of punishment for the offense is clearly set forth in the applicable statutes, we find that Appellant has shown that the error is plain and obvious. Scott v. State, 1991 OK CR 31, ¶ 12, 808 P.2d 73, 77. The improper instruction on the range of punishment affected Appellant’s substantial rights. Id.; Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923; Simpson, 1994 OK CR 40, ¶ 24, 876 P.2d at 699. Having determined that plain error occurred, we must determine whether said error was harmless. Id.; Simpson, 1994 OK CR 40, ¶¶ 19-20, 876 P.2d at 698 (reversal is not warranted for plain error if the error was harmless.). Reviewing the entire record, we cannot say that we have no grave doubt that the error had a substantial influence on the outcome of the jury’s sentencing decision. Simpson, 1994 OK CR 40, at ¶ 37, 876 P.2d at 702. To the contrary, the error seriously affected the fairness, integrity or public reputation of the trial. McIntosh, 2010 OK CR 17, ¶ 10, 237 P.3d 800, 803; Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 701. Therefore, we find that modification of Appellant’s sentence for Possession of Controlled Substance (Marijuana) in the Presence Of a Minor After Former Conviction of a Felony in Count 1 to imprisonment for five (5) years is the appropriate relief. McIntosh, 2010 OK CR 17, ¶¶ 10-11, 237 P.3d at 803; Scott, 1991 OK CR 31, ¶ 14, 808 P.2d at 77.

As to Proposition Two, we find that Appellant has not shown the existence of plain error in the trial court’s sentencing decision. Appellant did not challenge the trial judge’s sentencing decision before the trial court. Therefore, we find that he has waived appellate review of the issue for all but plain error. Simpson, 1994 OK CR 40, ¶ 23, 876 P.2d at 699. Reviewing Appellant’s claim for plain error pursuant to the test set forth in Hogan we find that Appellant has not shown the existence of an actual error. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923. We find that Appellant’s constitutional rights as set forth in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, 147 (1968), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other grounds in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), were not violated. Appellant has not proven that the trial court refused to consider granting a suspended sentence solely on the basis of his request to have a jury trial. Riley v. State, 1997 OK CR 51, ¶¶ 18-19, 947 P.2d 530, 534-35; Doyle v. State, 1978 OK CR 44, ¶ 11, 578 P.2d 366, 369. Plain error did not occur. Proposition Two is denied.

In reviewing the record of this case, it is apparent there is an error in the District Court’s Judgment and Sentence document. The Judgment and Sentence reflects that Appellant’s sentence in Count Three is imprisonment for one (1) year. However, at sentencing, the trial court announced Appellant’s sentence in Count Three as imprisonment for two (2) years. See LeMay v. Rahhal, 1996 OK CR 21, ¶ 18, 917 P.2d 18, 22 (the oral pronouncements of sentence controls over written conflicting orders). This is obviously the result of a clerical error and should be corrected. Head v. State, 2006 OK CR 44, ¶ 30, 146 P.3d 1141, 1149; Arnold v. State, 1987 OK CR 220, ¶ 9, 744 P.2d 216, 218; Dunaway v. State, 1977 OK CR 86, ¶ 19, 561 P.2d 103, 108. Upon remand, the district court is directed to enter an order nunc pro tunc correcting the Judgment and Sentence to accurately reflect that Appellant’s sentence in Count Three is imprisonment for two (2) years.

DECISION

Appellant’s convictions and sentences in Counts 2 and 4 are hereby AFFIRMED. Appellant’s conviction in Count 1 is hereby AFFIRMED but the Sentence is MODIFIED to imprisonment for five (5) years. This matter is remanded to the District Court for entry of Judgment and Sentence consistent with the Opinion. Appellant’s conviction and sentence in Count 3 is AFFIRMED but the district court is instructed to enter an order nunc pro tunc correcting the Judgment and Sentence to accurately reflect that Appellant’s sentence is for imprisonment for two (2) years.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. Romano v. State, 1995 OK CR 74, I 80, 909 P.2d 92, 120.
  2. Hogan v. State, 2006 OK CR 19, 139 P.3d 907.
  3. Simpson v. State, 1994 OK CR 40, 99 2, 11, 23, 876 P.2d 690, 693-95.
  4. McIntosh v. State, 2010 OK CR 17, I 9, 237 P.3d 800, 803.
  5. Scott v. State, 1991 OK CR 31, I 12, 808 P.2d 73, 77.
  6. Hogan, 2006 OK CR 19, 9 38, 139 P.3d at 923.
  7. Simpson, 1994 OK CR 40, I 24, 876 P.2d at 699.
  8. Head v. State, 2006 OK CR 44, I 30, 146 P.3d 1141, 1149.
  9. Arnold v. State, 1987 OK CR 220, I 9, 744 P.2d 216, 218.
  10. Dunaway v. State, 1977 OK CR 86, I 19, 561 P.2d 103, 108.
  11. LeMay v. Rahhal, 1996 OK CR 21, I 18, 917 P.2d 18, 22.
  12. Riley v. State, 1997 OK CR 51, 18-19, 947 P.2d 530, 534-35.
  13. Doyle v. State, 1978 OK CR 4 44, 11, 578 P.2d 366, 369.
  14. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, 147 (1968).
  15. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other grounds in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).
  16. 63 O.S.2011, § 2-402(C)(1).
  17. 63 O.S.2011, § 2-402(C)(2).
  18. 63 O.S.2011, § 2-412.
  19. 21 O.S.2011, § 11(A).
  20. Applegate v. State, 1995 OK CR 49, I 13, 904 P.2d 130, 135.
  21. Novey v. State, 1985 OK CR 142, "I 14, 709 P.2d 696, 699.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-402(C) (2009) - Possession of Controlled Substance (Marijuana) in the Presence Of a Minor
  • Okla. Stat. tit. 63 § 2-404(B) (2004) - Maintaining Place for Keeping Controlled Substance
  • Okla. Stat. tit. 21 § 1283 (2009) - Possession of Firearms After Former Conviction of Felony
  • Okla. Stat. tit. 63 § 2-405 (2004) - Possession of Drug paraphernalia
  • Okla. Stat. tit. 21 § 51.1(A)(3) (2002) - General enhancement provision
  • Okla. Stat. tit. 63 § 2-412 (2011) - Definition of second or subsequent offense
  • Okla. Stat. tit. 21 § 11(A) (2011) - General habitual offender statute
  • Okla. Stat. tit. 63 § 2-402(C)(2) (2011) - Specific enhancement provisions for possession of controlled substances

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 21 U.S.C. § 851 - Procedures for Increased Penalties for Repeat Offenders

Other citations:

No other rule citations found.

Case citations:

  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
  • Romano v. State, 1995 OK CR 74, I 80, 909 P.2d 92, 120
  • Hogan v. State, 2006 OK CR 19, 139 P.3d 907
  • Simpson v. State, 1994 OK CR 40, 99 2, 11, 23, 876 P.2d 690, 693-95
  • McIntosh v. State, 2010 OK CR 17, I 9, 237 P.3d 800, 803
  • Scott v. State, 1991 OK CR 31, I 12, 808 P.3d 73, 77
  • United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, 147 (1968)
  • North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)
  • Riley v. State, 1997 OK CR 51, 18-19, 947 P.2d 530, 534-35
  • Doyle v. State, 1978 OK CR 44, 11, 578 P.2d 366, 369
  • LeMay v. Rahhal, 1996 OK CR 21, I 18, 917 P.2d 18, 22
  • Head v. State, 2006 OK CR 44, I 30, 146 P.3d 1141, 1149
  • Arnold v. State, 1987 OK CR 220, I 9, 744 P.2d 216, 218
  • Dunaway v. State, 1977 OK CR 86, I 19, 561 P.2d 103, 108
  • Holloway v. State, 1976 OK CR 17, I 9, 549 P.2d 368, 370
  • Faubion v. State, 1977 OK CR 302, I 11, 569 P.2d 1022, 1025
  • Patterson v. State, 1974 OK CR 166, I 12, 527 P.2d 596, 601
  • Applegate v. State, 1995 OK CR 49, I 13, 904 P.2d 130, 135
  • Novey v. State, 1985 OK CR 142, "I 14, 709 P.2d 696, 699

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