State of Oklahoma v Robert Brooke

S-2012-719

Filed: Oct. 31, 2013

Not for publication

Prevailing Party: Robert Brooke

Summary

#Robert Brooke appealed his conviction for Driving While Under the Influence of Alcohol and Transporting an Open Bottle of Liquor. Conviction and sentence deferred for five years. None dissented.

Decision

The order of the District Court of Cleveland County deferring judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a requirement for the District Court to impose a minimum of 5 days in an inpatient treatment facility or serve a minimum of 5 days imprisonment under 47 O.S.2011, § 11-902(C)(2)?
• Did the District Court properly conclude that 47 O.S.2011, § 11-902(C)(2) was unenforceable in this case?
• Was the application of 47 O.S.2011, § 11-902(C)(2) to the Appellee unconstitutional as it violated the district court's discretion in assessing punishment?
• Is 47 O.S.2011, § 11-902(C)(2) constitutional on its face?
• Was the issue of the constitutionality of the application of § 11-902(C)(2) to the Appellee moot due to its inapplicability?

Findings

• The court erred in ruling that 47 O.S.2011, § 11-902(C)(2) was unenforceable.
• Evidence was not sufficient to support the argument that Appellee was required to serve a minimum of 5 days imprisonment or complete a 5-day inpatient program.
• The District Court correctly applied § 11-902(G) as the applicable provision to Appellee's case.
• § 11-902(C)(2) is constitutional on its face.
• The issue of the constitutionality of application of § 11-902(C)(2) to Appellee is moot.
• The State's appeal is denied.
• The order of the District Court of Cleveland County deferring judgment and sentence is AFFIRMED.

S-2012-719

Oct. 31, 2013

State of Oklahoma

Appellant

v

Robert Brooke

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellee, Robert Brooke, was charged by Information on December 5, 2011, with Driving a Motor Vehicle While Under the Influence of Alcohol After Former Conviction of the misdemeanor offense of Driving While Intoxicated in the District Court of Gainesville County, State of Texas (Count I) (47 O.S.2011, § 11-902), and Transporting an Open Bottle or Container of Liquor (Count II) (37 O.S.2011, § 537(A)(7)), in the District Court of Cleveland County, Case No. CF-2011-1842.

On August 1, 2012, Appellee entered a plea of guilty to both offenses before the Honorable Tom A. Lucas, District Judge. The State recommended a five year deferred sentence, $100.00 judicial assessment, $100.00 victim’s compensation assessment, $100.00 DAET assessment, ADSAC (DUI School), VIP, and completion of an alcohol and substance abuse evaluation and to follow the recommendations therein. Although the plea was entered pursuant to a plea agreement, the two sides argued over whether Appellee was required to either serve 5 days in the county jail or a minimum of 5 days in an inpatient treatment facility pursuant to 47 O.S.2011, § 902(C)(2).

The District Court followed the recommendation of the State and deferred sentencing for a period of five years. However, the court found that § 11-902(C)(2) was unenforceable and refused to require Appellee to complete a 5-day inpatient program or imprisonment of 5 days. Instead, the District Court found that § 11-902(G) applied to Appellee’s case and ordered that he complete the programs recommended in the alcohol and substance abuse evaluation. The District Court, alternatively, determined that § 11-902(C)(2) was unconstitutional as it violated the district court’s discretion in assessing punishment.

The State appealed the adverse ruling as a reserved question of law pursuant to 22 O.S.2011, §§ 1053(3), 1053.1. In its sole proposition of error, the State claims that the plain and ordinary language of 47 O.S.2011, § 11-902(C)(2), required the District Court to order Appellee to either attend a minimum of 5 days in inpatient treatment or serve a minimum of 5 days imprisonment. The State also contends that application of § 11-902(C)(2) to Appellee’s case is constitutional. A state appeal on a reserved question of law only settles the question of law. State v. Anderson, 1998 OK CR 67, ¶ 2, 972 P.2d 32, 33. Because the question of law raised by the State involves statutory interpretation we review this issue de novo. Smith v. State, 2007 OK CR 16, ¶ 40, 157 P.3d 1155, 1169. Therefore, we accept the trial court’s determination of facts but conduct an independent review of § 11-902(C)(2). Anderson, 1998 OK CR 67, ¶ 2, 972 P.2d at 33.

The sentencing provisions of § 11-902(C)(2) require a term of imprisonment of at least five (5) days if the alcohol and drug abuse evaluation does not recommend residential or inpatient treatment for a period of not less than five (5) days. However, the text of § 11-902(C)(2) reveals that its sentencing provisions only apply when an individual commits a second offense pursuant to the provisions of this section and upon conviction [is] sentenced. State v. Young, 1999 OK CR 14, ¶ 27, 989 P.2d 949, 955 (It is [ ] well established that statutes are to be construed according to the plain and ordinary meaning of their language.). Although a guilty plea may be counted as a prior conviction for certain criminal offenses, a deferred sentence is not a conviction in the case in which it is entered. See Folks v. State, 2008 OK CR 29, ¶ 20, 207 P.3d 379, 384; Watts v. State, 2008 OK CR 27, ¶ 6, 194 P.2d 133, 136; 22 O.S.2011, § 991c(A) (Upon a verdict or plea of guilty or upon a plea of nolo contendere, but before a judgment of guilt, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings). As imposition of a deferred sentence does not involve entry of a conviction or imposition of a sentence, the sentencing provisions of § 11-902(C)(2) are inapplicable when the court defers sentencing pursuant to § 991c. Instead, § 11-902(G) is the applicable provision in those circumstances. Section 11-902(G) requires [a]ny person who is found guilty of a violation of the provisions of [§ 11-902] to participate in an alcohol and drug substance abuse evaluation and follow all recommendations made in the assessment and evaluation for treatment. It further directs the district court to require, the person as a condition of any sentence imposed, including deferred and suspended sentences, [ ] to participate in and successfully complete all recommendations from the evaluation.

Section 11-902(G) does not have the specific requirement of imprisonment of at least five (5) days if the alcohol and drug abuse evaluation does not recommend residential or inpatient treatment for a period of not less than five (5) days. As the District Court did not enter a conviction or sentence Appellee in the present case, but deferred sentencing for a period of five years, § 11-902(C)(2) was inapplicable to Appellee’s case. The District Court properly followed § 11-902(G) and imposed, as a condition of Appellee’s probation, the requirement that he follow the recommendations from the evaluation, including the ADSAC and VIP programs.

As to the constitutionality of § 11-902(C)(2) we note that a claim that a statute is unconstitutional on its face is separate and distinct from a claim that a statute is unconstitutional as applied. Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In Oklahoma, the sentencing body (judge or jury) has broad discretion in assessing punishment. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149. However, the sentence must be authorized by law, i.e., within the statutory range set by the Legislature. King v. State, 2001 OK CR 22, ¶ 6, 29 P.3d 1089, 1090-91; Freeman v. State, 1994 OK CR 37, ¶ 38, 876 P.2d 283, 291. The substantive power to prescribe crimes and determine punishments is vested with the legislature. United States v. Dixon, 509 U.S. 688, 746, 113 S.Ct. 2849, 2882, 125 L.Ed.2d 556 (1993); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), (legislatures, not courts, prescribe the scope of punishment.); Rea, 2001 OK CR 28, ¶ 5, 34 P.3d at 149 (Legislatures, not courts, define punishment.). Thus, § 11-902(C)(2) is constitutional on its face. Because we find that § 11-902(C)(2) was inapplicable to Appellee’s case, the issue of the constitutionality of application of this subsection to Appellee is moot and we do not determine this issue.

Therefore, finding the District Court properly determined that § 11-902(C) was inapplicable and correctly followed § 11-902(G), the State’s appeal is denied.

DECISION

The order of the District Court of Cleveland County deferring judgment and sentence is AFFIRMED.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY

THE HONORABLE TOM A. LUCAS, DISTRICT JUDGE

APPEARANCES AT TRIAL

KIMBERLY K. CONYERS
ASSISTANT DISTRICT ATTORNEY
201 S. JONES, SUITE 300
NORMAN, OK 73069
COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

KIMBERLY K. CONYERS
ASSISTANT DISTRICT ATTORNEY
201 S. JONES, SUITE 300
NORMAN, OK 73069
COUNSEL FOR APPELLANT

JOEL L. BARR
ATTORNEY AT LAW
231 S. PETERS
NORMAN, OK 73069
COUNSEL FOR DEFENDANT

JOEL L. BARR
ATTORNEY AT LAW
231 S. PETERS
NORMAN, OK 73069
COUNSEL FOR APPELLEE

OPINION BY: LUMPKIN, J.

LEWIS, P.J.: Concur
SMITH, V.P.J.: Concur
C. JOHNSON, J.: Concur
A. JOHNSON, J.: Concur

RA

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Footnotes:

1. 47 O.S.2011, § 11-902
2. 37 O.S.2011, § 537(A)(7)
3. 22 O.S.2011, §§ 1053(3), 1053.1
4. 22 O.S.2011, § 991c(A)
5. 22 O.S.2011, § 991c(B)
6. 2011 OKLA. SESS. LAWS CH. 350, § 3
7. 2011 OKLA. SESS. LAWS CH. 373, § 6
8. 2012 OKLA. SESS. LAWS CH. 11, § 13
9. 2012 OKLA. SESS. LAWS CH. 11, § 14
10. State v. Anderson, 1998 OK CR 67, 2, 972 P.2d 32, 33
11. Smith v. State, 2007 OK CR 16, 40, 157 P.3d 1155, 1169
12. State v. Young, 1999 OK CR 14, 27, 989 P.2d 949, 955
13. Folks v. State, 2008 OK CR 29, 20, 207 P.3d 379, 384
14. Watts v. State, 2008 OK CR 27, 6, 194 P.2d 133, 136
15. Rea v. State, 2001 OK CR 28, 5, 34 P.3d 148, 149
16. King v. State, 2001 OK CR 22, 6, 29 P.3d 1089, 1090-91
17. Freeman v. State, 1994 OK CR 37, 38, 876 P.2d 283, 291
18. United States v. Dixon, 509 U.S. 688, 746, 113 S.Ct. 2849, 2882, 125 L.Ed.2d 556 (1993)
19. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)
20. Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 (2011) - Driving a Motor Vehicle While Under the Influence of Alcohol
• Okla. Stat. tit. 37 § 537(A)(7) (2011) - Transporting an Open Bottle or Container of Liquor
• Okla. Stat. tit. 47 § 11-902(C)(2) (2011) - Sentencing provisions for Driving Under the Influence
• Okla. Stat. tit. 47 § 11-902(G) (2011) - Requirements for participation in substance abuse evaluation
• Okla. Stat. tit. 22 § 1053(3) (2011) - Reserved questions of law
• Okla. Stat. tit. 22 § 1053.1 (2011) - Reserved questions of law
• Okla. Stat. tit. 22 § 991c(A) (2011) - Deferred sentencing provisions
• Okla. Stat. tit. 22 § 991c(B) (2011) - Court requirements for DUI offenders

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:

• State v. Anderson, 1998 OK CR 67, I 2, 972 P.2d 32, 33
• Smith v. State, 2007 OK CR 16, 40, 157 P.3d 1155, 1169
• State v. Young, 1999 OK CR 14, I 27, 989 P.2d 949, 955
• Folks v. State, 2008 OK CR 29, I 20, 207 P.3d 379, 384
• Watts v. State, 2008 OK CR 27, I 6, 194 P.2d 133, 136
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149
• King v. State, 2001 OK CR 22, I 6, 29 P.3d 1089, 1090-91
• Freeman v. State, 1994 OK CR 37, I 38, 876 P.2d 283, 291
• United States v. Dixon, 509 U.S. 688, 746, 113 S.Ct. 2849, 2882, 125 L.Ed.2d 556
• Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535