Parron Lavon Burrus v State Of Oklahoma
F-2018-1137
Filed: Dec. 5, 2019
Not for publication
Prevailing Party: State of Oklahoma
Summary
Parron Lavon Burrus appealed his conviction for Conspiracy to Distribute a Controlled Dangerous Substance and Possession of a Controlled Dangerous Substance with Intent to Distribute. His conviction and sentence were for thirty years in prison for Count I and twenty-five years in prison for Count II, with the sentences to be served one after the other. Judge Hudson dissented.
Decision
The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY THE HONORABLE WYATT HILL, ASSOCIATE DISTRICT JUDGE
Issues
- Was Appellant's term of incarceration excessive and should it be modified?
- Did the trial court abuse its discretion by ordering consecutive sentences for separate offenses?
- Was the trial court prejudiced against Appellant due to its previous involvement in prosecuting him?
- Did the requirement that Appellant testify under oath at sentencing constitute error?
Findings
- the trial court did not err in not modifying Appellant's sentences
- the court did not abuse its discretion in ordering consecutive sentences
- evidence supported the imposition of the sentences
- the trial court's requirement for Appellant's testimony at sentencing to be under oath was not erroneous
- Appellant failed to demonstrate bias or prejudice by the trial judge
- the appeal is denied and the judgment and sentence is affirmed
F-2018-1137
Dec. 5, 2019
Parron Lavon Burrus
Appellant
v
State Of Oklahoma
Appellee
SUMMARY OPINION
JOHN D. HADDEN LUMPKIN, JUDGE:
Appellant Parron Lavon Burrus was tried by jury and found guilty of Conspiracy to Distribute a Controlled Dangerous Substance – Methamphetamine (Count I) (63 O.S.Supp.2012, §§ 2-401 & 2-408) and Possession of a Controlled Dangerous Substance with Intent to Distribute (Count II) (63 O.S.Supp.2012, § 2-401), both counts After Former Conviction of Two or More Felonies, in the District Court of Caddo County, Case No. CF-2017-319. The jury recommended as punishment imprisonment for thirty (30) years and a $5,500.00 fine in Count I and twenty-five (25) years in prison and a $5,500.00 fine in Count II. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals.
Appellant raises the following proposition of error in support of his appeal:
I. Appellant’s term of incarceration is excessive and should be modified.
After thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted. In his sole proposition of error, Appellant contends that his sentences are excessive and should be modified. He argues that while his offenses were inextricably intertwined and separate convictions might stand, consecutive sentences should not. In addition, he argues the trial court was prejudiced against him as the judge said that any testimony Appellant might give at sentencing had to be under oath, and because the judge had previously prosecuted him on other matters when the judge was an Assistant District Attorney.
This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928. Appellant’s sentences are within the statutory ranges of punishment providing for sentences of six (6) years to life in prison. See 63 O.S.Supp.2012 §§ 2-401 & 2-498; 21 O.S.2011, § 51.1(C). There is no absolute constitutional or statutory right to receive concurrent sentences. 22 O.S.2011, § 976. In fact, sentences are to run consecutively unless the trial judge, in his or her discretion, rules otherwise. Id. See also Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.
An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Id. Appellant’s attempt to frame his convictions as part of the same criminal episode is not supported by the evidence. The record shows two separate offenses on two separate dates were committed. That the offenses were part of a continuing criminal enterprise to supply methamphetamine to the Anadarko area does not warrant a modification of Appellant’s sentences. Modification of his sentence is also not warranted based upon the trial judge’s requirement that any statements made by Appellant at sentencing must be made under oath on the witness stand. Appellant has not shown any error in this ruling. See Malone v. State, 2002 OK CR 34, ¶ 7, 58 P.3d 208, 209-10; 22 O.S.2011, §§ 973 & 975.
Further, Appellant has not shown that the fact that the trial judge may have prosecuted Appellant in a previous case contributed to an excessive sentence. See Engles v. State, 2015 OK CR 17, ¶ 9, 366 P.3d 311, 314. Here, Appellant never moved to have the trial court disqualified or sought the court’s recusal based on the court’s previous involvement in prior prosecutions. After a thorough review of the record, we find Appellant has not shown that under the facts and circumstances of his case, that his sentences were excessive or that the trial court abused its discretion in ordering the sentences of this repeat offender to be served consecutively. This proposition is denied. Accordingly, this appeal is denied.
DECISION
The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY
THE HONORABLE WYATT HILL, ASSOCIATE DISTRICT JUDGE
APPEARANCES AT TRIAL
JAMES H. SHAW
6440 AVONDALE, STE. 201
OKLAHOMA CITY, OK 73116
COUNSEL FOR APPELLANT
APPEARANCES ON APPEAL
RICKI J. WALTERSCHEID
OKLA. INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR THE DEFENSE
JASON M. HICKS
DISTRICT ATTORNEY
P. JOSHUA McGOLDRICK
201 W. OKLAHOMA, STE. 1
ANADARKO, OK 73005
COUNSEL FOR THE STATE
MIKE HUNTER
ATTORNEY GENERAL OF OKLAHOMA
STEPHANIE ROBINSON
ASST. ATTORNEY GENERAL
313 N.E. 21ST ST.
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE
OPINION BY: LUMPKIN, J.
LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur in Result
HUDSON, J.: Concur
ROWLAND, J.: Concur
Footnotes:
- 63 O.S.Supp.2012, §§ 2-401 & 2-408
- 63 O.S.Supp.2012 § 2-401
- Pullen U. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928.
- 21 O.S.2011, § 51.1(C)
- 22 O.S.2011, § 976
- Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
- Malone v. State, 2002 OK CR 34, I 7, 58 P.3d 208, 209-10
- 22 O.S.2011, §§ 973 & 975
- Engles U. State, 2015 OK CR 17, I 9, 366 P.3d 311, 314.
Oklahoma Statutes citations:
- Okla. Stat. tit. 63 § 2-401 (2012) - Controlled Dangerous Substances
- Okla. Stat. tit. 63 § 2-408 (2012) - Distribution of Controlled Dangerous Substances
- Okla. Stat. tit. 21 § 51.1 (2011) - Sentencing
- Okla. Stat. tit. 22 § 976 (2011) - Sentences to Run Concurrently or Consecutively
- Okla. Stat. tit. 22 § 973 (2011) - Conditions of Sentences
- Okla. Stat. tit. 22 § 975 (2011) - Reducing Sentences
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:
- Pullen v. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928.
- Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
- Malone v. State, 2002 OK CR 34, I 7, 58 P.3d 208, 209-10.
- Engles v. State, 2015 OK CR 17, I 9, 366 P.3d 311, 314.