Lavonte Antonio Johnson v The State Of Oklahoma

F-2018-272

Filed: May 9, 2019

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Lavonte Antonio Johnson appealed his conviction for possessing a firearm while on probation. His sentence was 27 years in prison. Judge Hudson dissented.

Decision

The order of the district court of Oklahoma County accelerating Appellant's deferred judgment and sentencing in Case No. CF-2014-2033 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the district court in accelerating Appellant's deferred sentence based on unwarned statements about a firearm?
• Did Appellant's statements to law enforcement about the firearm occur during a custodial interrogation requiring Miranda warnings?
• Was Appellant subjected to a routine traffic stop that did not necessitate Miranda warnings?

Findings

• The court did not err in denying Appellant's claim regarding the lack of Miranda warnings as he was not subjected to custodial interrogation.
• The court did not abuse its discretion in accelerating Appellant's deferred sentence.

F-2018-272

May 9, 2019

Lavonte Antonio Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE:
Appellant Lavonte Antonio Johnson appeals from the acceleration of his deferred sentence in Oklahoma County District Court Case No. CF-2014-2033. On May 20, 2014, Appellant entered a plea of guilty to Using a Vehicle to Facilitate the Intentional Discharge of a Firearm in violation of 21 O.S.2011, § 652(B). The trial court deferred sentencing for five years. On February 13, 2018, the State filed an application to accelerate the deferred sentence alleging Appellant committed the new crimes of possessing a firearm while on probation and bail jumping. On March 6, 2018, a hearing on the application to accelerate was held before the Honorable Ray C. Elliott, District Judge. Judge Elliott found the State presented sufficient evidence to prove Appellant violated the conditions of probation and sentenced him to 27 years imprisonment.

FACTS
Appellant’s car was stopped by a sheriff’s deputy because the paper tag it displayed was not legible. Appellant could not produce a driver’s license. The deputy intended to have Appellant accompany him to his patrol car where an on-board computer could be used to verify the status of Appellant’s license. Prior to making the request, the deputy asked Appellant if he had any weapons. Appellant admitted to having a pistol in the waistband of his pants. Appellant was arrested for an outstanding warrant.

Appellant brings one proposition of error on appeal:

PROPOSITION
DEPUTY CHITWOOD’S QUESTIONS ABOUT WEAPONS AMOUNTED TO A CUSTODIAL INTERROGATION ABSENT MIRANDA WARNINGS, AND THE DISTRICT COURT ABUSED ITS DISCRETION BY ACCELERATING MR. JOHNSON’S SENTENCE BASED ON HIS UNWARNED STATEMENTS TO LAW ENFORCEMENT ACKNOWLEDGING AND IDENTIFYING A FIREARM.

ANALYSIS
Appellant contends statements he made to the deputy concerning the pistol were inadmissible because they were not preceded by Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1601, 16 L.Ed.2d (1966). Appellant did not object to the admission of the statements below and therefore review is for plain error. 12 O.S.2011, § 2104 (a court may take notice of plain errors affecting substantial rights although they were not brought to the attention of the court). The Court will correct plain error only where it seriously affects the fairness, integrity, or public reputation of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.

For the Miranda safeguards to apply, the person must be subjected to custodial interrogation. Blanton v. State, 2007 OK CR 37, ¶ 6, 172 P.3d 207, 210. A custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Custody for purposes of Miranda is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. Howes v. Fields, 565 U.S. 499, 508-09, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012). Routine traffic stops do not pose such danger. See Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (persons temporarily detained pursuant to [routine traffic] stops are not ‘in custody’ for the purposes of Miranda.); Edge v. City of Oklahoma City, 1988 OK CR 166, ¶ 7, 760 P.2d 836, 838.

We find Appellant was subjected to a routine traffic stop and that he was not entitled to Miranda warnings. This proposition of error is denied. A trial court’s decision to accelerate a deferred sentence is reviewed for an abuse of discretion. Whitaker v. State, 2015 OK CR 1, ¶ 5, 341 P.3d 87, 89. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the issue; a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. State v. Farthing, 2014 OK CR 4, ¶ 4, 328 P.3d 1208, 1209. Appellant has not shown an abuse of discretion or plain error.

DECISION
The order of the district court of Oklahoma County accelerating Appellant’s deferred judgment and sentencing in Case No. CF-2014-2033 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE

APPEARANCES AT APPEAL ACCELERATION
THOMAS HURLEY
PUBLIC DEFENDER’S OFFICE
320 ROBERT S. KERR AVE
OKLAHOMA CITY, OK 73102

ANDREA DIGILO MILLER
ASSISTANT PUBLIC DEFENDER
611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR AVE
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

DANIEL POND
ASST. DISTRICT ATTORNEY
MIKE HUNTER
OKLA. ATTORNEY GENERAL
320 ROBERT S. KERR AVE
OKLAHOMA CITY, OK 73102

JOSHUA R. FANELLI
ASST. ATTORNEY GENERAL
313 N.W. 21st STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR STATE

OPINION BY:
LEWIS, P.J.:
KUEHN, V.P.J.: Concur
LUMPKIN, J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: Concur

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Footnotes:

1. See Miranda U. Arizona, 384 U.S. 436, 86 S.Ct. 1601, 16 L.Ed.2d (1966).
2. 12 O.S.2011, § 2104 (a court may take "notice of plain errors affecting substantial rights although they were not brought to the attention of the court").
3. Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
4. Blanton U. State, 2007 OK CR 37, I 6, 172 P.3d 207, 210.
5. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.
6. Howes U. Fields, 565 U.S. 499, 508-09, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012).
7. Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984).
8. Edge v. City of Oklahoma City, 1988 OK CR 166, I 7, 760 P.2d 836, 838.
9. Whitaker U. State, 2015 OK CR 1, I 5, 341 P.3d 87, 89.
10. State V. Farthing, 2014 OK CR 4, IT 4, 328 P.3d 1208, 1209.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 (2011) - Using a Vehicle to Facilitate the Intentional Discharge of a Firearm
• Okla. Stat. tit. 12 § 2104 (2011) - Notice of Plain Errors
• Okla. Stat. tit. 22 § 3.15 (2019) - Mandate for 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:

• Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1601, 16 L.Ed.2d (1966)
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Blanton v. State, 2007 OK CR 37, I 6, 172 P.3d 207, 210
• Howes v. Fields, 565 U.S. 499, 508-09, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012)
• Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984)
• Edge v. City of Oklahoma City, 1988 OK CR 166, I 7, 760 P.2d 836, 838
• Whitaker v. State, 2015 OK CR 1, I 5, 341 P.3d 87, 89
• State v. Farthing, 2014 OK CR 4, IT 4, 328 P.3d 1208, 1209