Kermit Lee Brannon, Jr. v The State Of Oklahoma

M-2016-483

Filed: Aug. 3, 2017

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Kermit Lee Brannon, Jr. appealed his conviction for Driving a Motor Vehicle While Under the Influence of Drugs and Unsafe Lane Use. The conviction and sentence for Driving Under the Influence was 1 year in jail and a $1,000 fine; for Unsafe Lane Use, it was 10 days in jail and a $500 fine. Judge Terrell Crosson sentenced him to serve these sentences one after the other. The court found that Brannon's Unsafe Lane Use conviction had insufficient evidence, so they reversed that conviction and told the lower court to dismiss it. However, they upheld the conviction for Driving Under the Influence and did not find his sentences too harsh. Judge Lumpkin and Judge Lewis agreed with the decision, while Judge Johnson did not participate.

Decision

The Judgment and Sentence in the District Court of Rogers County, imposed on May 2, 2016, on Count 1 of Case No. CM-2015-1012 for Driving a Motor Vehicle While Under the Influence of Drugs, is AFFIRMED. The Judgment and Sentence on Count 2 in that case number for Unsafe Lane Use is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), MANDATE IS ORDERED ISSUED on the filing of this decision.

Issues

• Was there a violation of the prohibition against double punishment?
• Did the evidence suffice to convict Appellant?
• Is Appellant's sentence excessive?
• Did ineffective assistance of counsel deny Mr. Brannon a fair trial?

Findings

• Count 2 conviction for Unsafe Lane Use is reversed and remanded with instructions to dismiss.
• The sentence for Count 1 for Driving a Motor Vehicle While Under the Influence of Drugs is affirmed.
• The prohibition against double punishment is moot due to the reversal of Count 2.
• The claim of ineffective assistance of counsel is moot due to the reversal of Count 2.
• The sentence is not excessive and does not shock the conscience of the Court.

M-2016-483

Aug. 3, 2017

Kermit Lee Brannon, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant, Kermit Lee Brannon, Jr., while represented by counsel, was found guilty by a jury of the misdemeanors of Driving a Motor Vehicle While Under the Influence of Drugs (Count 1) in violation of 47 O.S.Supp.2013, § 11-902(A)(4), and of Unsafe Lane Use (Count 2) in violation of 47 O.S.2011, § 11-309. Trial was before the Honorable Terrell Crosson, Special Judge, in the District Court of Rogers County, Case No. CM-2015-1012. The jury’s verdicts fixed punishment at one (1) year in the county jail and a fine of $1,000.00 on Count 1, and on Count 2, at ten (10) days and a fine of $500.00. On May 2, 2016, Judge Crossen sentenced Appellant in accordance with those verdicts and left the sentences to run consecutively. Appellant appeals these convictions. Appellant has been admitted to bail pending that appeal, and he now raises the following propositions of error:

I. Appellant’s convictions violate the prohibition against double punishment.

II. Evidence was insufficient to convict Appellant.

III. Appellant’s sentence is excessive.

IV. Ineffective assistance of counsel denied Mr. Brannon a fair trial.

Having thoroughly considered the propositions of error and the entire record before this Court, including the original record, transcript, and briefs of the parties; the Court FINDS Appellant’s Count 2 conviction requires reversal for insufficient evidence, but it finds no further error warranting reversal or modification. Although Appellant’s Proposition II is titled, Evidence was insufficient to convict Appellant; within the body of that proposition, he challenges only his Count 2 conviction for Unsafe Lane Use. Specifically, he contends there was no evidence proving that he changed lanes without giving the required signal and did so without first ascertaining that his lane movement could be made with safety. The record supports this contention, and the State confesses the error. Where there is insufficient evidence for a conviction, the remedy is to reverse and remand with instructions to dismiss. Carter U. State, 1988 OK CR 250, 99 8-9, 764 P.2d 206, 209. We grant that remedy and find that such relief renders Appellant’s Propositions I and IV moot, as each of those propositions relies exclusively on the resulting prejudice suffered by Appellant from his Count 2 conviction that is being dismissed. Remaining is Appellant’s Proposition III. In that proposition, he argues his sentences are excessive and should be modified. Appellant acknowledges that before a sentence within the statutory range of punishment will be modified, it must, under all the facts and circumstances, shock the conscience of the Court. Gomez v. State, 2007 OK CR 33, I 18, 168 P.3d 1139, 1146. Part of Appellant’s argument here is that he received the maximum sentence in each case running consecutively. Our reversal of one of those sentences lessens the persuasiveness of that argument. Additionally, there are circumstances that favor a harsh punishment. Those include Appellant’s admitted criminal history of being twice convicted on previous drug possession charges, and that he now stands convicted of yet another offense involving the use of drugs. The Court does not find the sentence imposed to be shocking to the conscience.

DECISION

The Judgment and Sentence in the District Court of Rogers County, imposed on May 2, 2016, on Count 1 of Case No. CM-2015-1012 for Driving a Motor Vehicle While Under the Influence of Drugs, is AFFIRMED. The Judgment and Sentence on Count 2 in that case number for Unsafe Lane Use is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), MANDATE IS ORDERED ISSUED on the filing of this decision.

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Footnotes:

1. Oklahoma Stat. tit. 47 § 11-902(A)(4)
2. Oklahoma Stat. tit. 47 § 11-309
3. Carter v. State, 1988 OK CR 250, 99 8-9, 764 P.2d 206, 209
4. Gomez v. State, 2007 OK CR 33, ¶ 18, 168 P.3d 1139, 1146
5. Oklahoma Stat. tit. 47 § 11-309

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 (2013) - Driving Under the Influence of Drugs
• Okla. Stat. tit. 47 § 11-309 (2011) - Unsafe Lane Use

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:

• Carter v. State, 1988 OK CR 250, 99 8-9, 764 P.2d 206, 209
• Gomez v. State, 2007 OK CR 33, I 18, 168 P.3d 1139, 1146