State Of Oklahoma v Stephen Joseph Haley

S-2013-140

Filed: Feb. 20, 2014

Not for publication

Prevailing Party: State of Oklahoma

Summary

Stephen Joseph Haley appealed his conviction for Unlawful Possession of Marijuana-Subsequent Offense. The conviction and sentence were dismissed, meaning Haley was not charged as a felon based on his previous convictions. Judge Smith dissented, arguing that the court misinterpreted the law and that Haley should have been classified as a second offender due to his previous drug convictions.

Decision

The Order of the District Court granting Haley's motion to dismiss the supplemental information is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was the district court correct in granting Haley's motion to quash and dismiss the supplemental information?
• Did the district court misinterpret 63 O.S.2011, § 2-402 regarding the use of prior convictions to enhance current charges?
• Is a prior conviction for unlawful possession of methamphetamine sufficient to elevate a charge of unlawful possession of marijuana under § 2-402?
• Does the requirement of having a prior violation of § 2-402 control the enhancement provisions for unlawful possession of marijuana?
• What is the proper interpretation of the phrase "a second or subsequent violation of this section" in the context of § 2-402(B)(2)?

Findings

• the district court's ruling was affirmed
• the enhancement provision for felony marijuana possession requires a prior violation of the same statutory section
• the State's interpretation of the statute was rejected
• Haley's previous drug conviction could not be used to elevate his current charge to a felony

S-2013-140

Feb. 20, 2014

State Of Oklahoma

Appellant

v

Stephen Joseph Haley

Appellee

SUMMARY OPINION

The State of Oklahoma appeals the February 7, 2013 order entered by the Honorable Dennis W. Hladik of the District Court of Garfield County in Case No. CF-2012-252, granting Appellee Haley’s Motion to Quash and Dismiss. The district court’s ruling dismissed the supplemental Information that reduced Haley’s charge of Unlawful Possession of Marijuana-Subsequent Offense in Count One from a felony to a misdemeanor. We exercise jurisdiction under 22 O.S.2011, § 1053(1) and affirm the district court’s ruling.

BACKGROUND

The State charged Haley by Information on April 30, 2012, with Unlawful Possession of a Controlled Dangerous Substance (Marijuana)- Subsequent Offense (Count 1) in violation of 63 O.S.2011, § 2-402 and Unlawful Possession of Drug Paraphernalia (Count 2) in violation of 63 O.S.2011, § 2-405. The State also filed a Supplemental Information that same date, alleging that Haley had a prior conviction in Garfield County Case No. CF-2006-344 for Unlawful Possession of a Controlled Drug with Intent to Distribute. The magistrate, the Honorable Brian Lovell, held a preliminary hearing and bound Haley over for trial. Thereafter, the State filed an amended Supplemental Information alleging three additional non-drug related prior felony convictions for sentence enhancement. Haley filed a motion to quash and dismiss the amended Information. According to the docket sheet, the motion to quash was heard and denied by the Honorable Tom Newby. The State then filed a Second Amended Information, alleging the same two counts against Haley and the same four prior convictions on the Supplemental Information. Haley moved for and was granted another preliminary hearing. The Honorable Norman L. Grey presided at the second preliminary hearing, and bound Haley over for trial. Haley refiled his Motion to Quash the amended Information on January 14, 2013, and the district court sustained the motion.

FACTS

The facts are not in dispute. In the course of serving a search warrant at a local residence, Enid police officers found a residual amount of marijuana and drug paraphernalia in the room where Haley was located. Haley does not dispute that he has a previous felony conviction for possession of methamphetamine with intent to distribute.

DISCUSSION

The issue before the Court is one of statutory construction. Statutory construction issues raise questions of law that we review de novo. See Murphy v. State, 2012 OK CR 8, I 30, 281 P.3d 1283, 1292. Under 63 O.S.2011, § 2-402, any person who unlawfully possesses marijuana is guilty of a misdemeanor punishable by confinement for not more than one year and by a fine not exceeding $1,000.00. 63 O.S.2011, § 2-402 (A)(1) & (B)(2). Section 2-402(B)(2) includes the following specific enhancement provision, A second or subsequent violation of this section with respect to marijuana is a felony punishable by imprisonment for not less than two (2) years nor more than ten (10) years and by a fine not exceeding Five Thousand Dollars ($5,000.00). (Emphasis added)

The district court held that the State could not use Haley’s previous conviction for unlawful possession of methamphetamine with intent to distribute [a violation of 63 O.S., § 2-401] to elevate his current charge of unlawful possession of marijuana from a misdemeanor to a felony because his prior conviction involving methamphetamine was not a previous violation of the same statutory section involved in this case, i.e., a violation of § 2-402. 1

The State argues that the district court misinterpreted 63 O.S.2011, § 2-402(B)(2) and erred in dismissing the supplemental Information. 2 The State contends that a second or subsequent violation of this section means any prior conviction under the Uniform Controlled Dangerous Substances Act [63 O.S., § 1 The court stated, It’s clear to me that the prior offense has to be a marijuana charge. 2 Title 63 O.S., § 2-402 has been amended effective November 1, 2012.

The State argues it is unreasonable to read this statute as requiring evidence of a prior misdemeanor marijuana possession in order to establish a charge of felony marijuana possession. Haley, on the other hand, maintains that a plain reading of the statute shows that a felony marijuana charge must be preceded by a prior violation of § 2-402. We agree.

In Watts v. State, 2008 OK CR 28, 19 7-11, 197 P.3d 1094, 1096-97, this Court interpreted the words in this section with regard to the specific enhancement provision for the crime of maintaining a dwelling where a controlled dangerous drug was kept located at 63 O.S.2001, § 2-404(C) of the Uniform Controlled Dangerous Substances Act. Similar to § 2-402(B) now under review, § 2-404(C) provided Any person convicted of a second or subsequent violation of this section is punishable by … (Emphasis added).

We held the specific enhancement penalty provision in § 2-404(C) for a second or subsequent violation of this section unmistakably referred to a serial violator of section 2-404 of Title 63. Id. at I 10, 197 P.3d at 1096. We stated, [t]he plain language of section 2-404(C) provides for enhancement of punishment only when a person is convicted of a second or subsequent violation of any of the six subsections of section 2-404(A). Id. at I 10, 197 P.3d at 1097 (emphasis in original).

Watts controls our decision here. A charge of unlawful marijuana possession may be enhanced to a felony under 63 O.S.2011, § 2-402(B)(2) only when the defendant has had a prior § 2-402 violation. Because Haley’s previous drug conviction was not a violation of § 2-402, it cannot be used to enhance his unlawful possession of marijuana charge in this case to a felony. This matter was correctly decided by the district court and no relief is warranted.

DECISION

The Order of the District Court granting Haley’s motion to dismiss the supplemental information is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon delivery and filing of this decision.

APPEARANCES AT TRIAL

TALLENA HART
ASSISTANT DISTRICT ATTORNEY
GARFIELD COUNTY
114 W. BROADWAY
ENID, OK 73701
ATTORNEY FOR STATE

JEFF CRITES
114 E. BROADWAY, SUITE 300
ENID, OK 73701
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL

TALLENA HART
ASSISTANT DISTRICT ATTORNEY
GARFIELD COUNTY
114 W. BROADWAY
ENID, OK 73701
ATTORNEY FOR APPELLANT

ROBERT W. JACKSON
P. O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLEE

OPINION BY: A. JOHNSON, J.

LEWIS, P.J.: Concur
SMITH, V.P.J.: Dissent
LUMPKIN, J.: Concur
C. JOHNSON, J.: Concur

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Footnotes:

1. Okla. Stat. tit. 63 § 2-402
2. Okla. Stat. tit. 63 § 2-405
3. Okla. Stat. tit. 63 § 2-401
4. Okla. Stat. tit. 63 § 2-412
5. Watts v. State, 2008 OK CR 28, 197 P.3d 1094
6. Holloway v. State, 1976 OK CR 17, 549 P.2d 368
7. Patterson v. State, 1974 OK CR 166, 527 P.2d 596
8. Faubion v. State, 1977 OK CR 302, 569 P.2d 1022

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 1053 (2011) - Jurisdiction and appeals
• Okla. Stat. tit. 63 § 2-401 (2011) - Unlawful possession of a controlled drug
• Okla. Stat. tit. 63 § 2-402 (2011) - Unlawful possession of marijuana
• Okla. Stat. tit. 63 § 2-405 (2011) - Unlawful possession of drug paraphernalia
• Okla. Stat. tit. 63 § 2-412 (2011) - Definition of second or subsequent offense

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:

• Murphy v. State, 2012 OK CR 8, I 30, 281 P.3d 1283, 1292
• Watts v. State, 2008 OK CR 28, 19 7-11, 197 P.3d 1094, 1096-97
• Holloway v. State, 1976 OK CR 17, 549 P.2d 368
• Patterson v. State, 1974 OK CR 166, 527 P.2d 596
• Faubion v. State, 1977 OK CR 302, 569 P.2d 1022
• State v. Stice, 2012 OK CR 14, I 11, 288 P.3d 247, 250