Ebrima Tamba v The State Of Oklahoma

F-2018-418

Filed: May 16, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Ebrima Tamba appealed his conviction for Trafficking in Illegal Drugs. Conviction and sentence: 20 years imprisonment. No judge dissented.

Decision

The Judgment and Sentence of the district court 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 excessive sentence imposed on Tamba for trafficking in illegal drugs?
• did Tamba receive ineffective assistance of counsel during his trial?

Findings

• The court did not err in imposing a twenty-year sentence for trafficking in illegal drugs.
• The court found that Tamba was not denied constitutionally effective assistance of counsel.

F-2018-418

May 16, 2019

Ebrima Tamba

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant Ebrima Tamba appeals his Judgment and Sentence from the District Court of Caddo County, Case No. CF-2016-43, for Trafficking in Illegal Drugs, in violation of 63 O.S.Supp.2015, § 2-415. The Honorable S. Wyatt Hill, Associate District Judge, presided over Tamba’s jury trial and sentenced him, in accordance with the jury’s verdict, to twenty years imprisonment. Tamba appeals raising the following issues: (1) whether he received an excessive sentence; and (2) whether he was prejudiced by ineffective assistance of counsel. We find relief is not required and affirm the Judgment and Sentence of the district court.

1. Tamba contends his twenty year sentence for trafficking in illegal drugs is shockingly excessive. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Baird v. State, 2017 OK CR 16, ¶ 40, 400 P.3d 875, 886. In support of his position Tamba complains that the sentence imposed was excessive because it was greater than the minimum sentence allowed for aggravated trafficking in marijuana and he was found to possess nearly 900 pounds less than the amount required for aggravated trafficking. Tamba also notes that subsequent to his arrest the law changed in Oklahoma allowing a person in possession of a medical marijuana license to consume and possess marijuana within certain restrictions. It is of no consequence that Tamba’s sentence for trafficking marijuana was greater than the minimum allowed for aggravated trafficking or that subsequent to his offense the law changed to allow the legalization of medical marijuana. Those statutes have no application in the present case.

2. Additionally, Tamba asks this Court to consider changes in the law subsequent to the commission of his offense; effective November 11, 2018, the range of punishment for trafficking in marijuana, first offense, is not more than ten years imprisonment. See 63 O.S.Supp.2018, § 2-415; 63 O.S.2018, § 2401(B)(2). Amendments to the law are ordinarily not given retroactive application. Intervening statutory changes will ordinarily be applied prospectively from their effective date, unless specifically declared to have retroactive effect. Witherow v. State, 2017 OK CR 17, ¶ 9, 400 P.3d 902, 905, (the appellant incurred the mandatory punishment of life without the possibility of parole when this punishment was required by statute in effect at the time he committed the crime regardless of the fact that range of punishment was subsequently changed). See also Williams v. State, 2002 OK CR 39, ¶ 4, 59 P.3d 518, 519 (appellant was entitled only to an application of the law in effect at the time he committed the crime as there was no express indication that the Legislature intended the amended range of punishment to be applied retroactively).

Finally, Tamba argues his sentence is excessive in light of the fact that he had no prior convictions, was an educated family man, and was a productive member of society. Tamba’s sentence for trafficking 115 pounds of marijuana is well within the range of punishment allowed by law. It does not shock the conscience. Tamba’s claim of excessive sentence is without merit and is denied.

2. Tamba contends that he was denied constitutionally effective assistance of counsel. This Court reviews claims of ineffective assistance of counsel de novo, to determine whether counsel’s constitutionally deficient performance, if any, prejudiced the defense so as to deprive the defendant of a fair trial with reliable results. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. Under this test, Tamba must affirmatively prove prejudice resulting from his attorney’s actions. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067; Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148. Tamba complains that defense counsel rendered ineffective assistance by failing to challenge the validity of the stop and then move to suppress, as fruit of the poisonous tree, the evidence seized during the allegedly unlawful stop. Tamba has not shown that had defense counsel moved to suppress the evidence the challenge would have been successful. As he has not made the requisite showings of deficient performance and prejudice his ineffective assistance of counsel claim is denied.

DECISION

The Judgment and Sentence of the district court 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.

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Footnotes:

1. 63 O.S.Supp.2015, § 2-415
2. 63 O.S.Supp.2018, § 2-415
3. 63 O.S.2018, § 2401(B)(2)
4. Baird U. State, 2017 OK CR 16, I 40, 400 P.3d 875, 886
5. Witherow U. State, 2017 OK CR 17, I 9, 400 P.3d 902, 905
6. Williams U. State, 2002 OK CR 39, I 4, 59 P.3d 518, 519
7. Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
8. Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
9. Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (2015) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 63 § 2-415 (2018) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 63 § 2401(B)(2) (2018) - Possession and Use of Marijuana

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

• Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals

Case citations:

• Baird v. State, 2017 OK CR 16, I 40, 400 P.3d 875, 886
• Witherow v. State, 2017 OK CR 17, I 9, 400 P.3d 902, 905
• Williams v. State, 2002 OK CR 39, I 4, 59 P.3d 518, 519
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
• Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148