State Of Oklahoma v Douglas Raymond Norwood

S-2014-786

Filed: Mar. 31, 2015

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Douglas Raymond Norwood appealed his conviction for misdemeanor possession of marijuana. The original conviction and sentence for felony possession of marijuana were dismissed. Judge Smith dissented. In this case, the State of Oklahoma wanted to keep Norwood's felony charge because he had past convictions for drug-related crimes. However, Norwood argued that those previous convictions were not the same type of violation. The court agreed with Norwood and changed his charge to a misdemeanor. The State then appealed this decision. The appeals court looked at the law regarding drug charges and previous convictions. They decided that for a felony charge to stick, the past offenses needed to match specific rules, which Norwood's did not. As a result, the appeals court upheld the lower court’s decision to dismiss the felony charge and keep the misdemeanor charge.

Decision

The Order and Judgment of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient legal basis to sustain the Appellee's motion to dismiss the felony charge of possession of a controlled drug?
• Did the trial court correctly interpret the enhancement provisions of section 2-402(B) of Title 63 regarding prior convictions?
• Was the State's appeal properly based on a reserved question of law following the trial court's dismissal of the felony charge?
• Did the Court find that Appellee's prior controlled drug convictions were applicable for enhancement under section 2-402?

Findings

• the court affirmed the dismissal of the felony charge
• the court found the State's information was insufficient to charge a felony
• the court resolved the reserved question in accordance with previous case law

S-2014-786

Mar. 31, 2015

State Of Oklahoma

Appellant

v

Douglas Raymond Norwood

Appellee

SUMMARY OPINION

The State of Oklahoma, Appellant, appeals the judgment in the District Court of Tulsa County, Case No. CF-2014-2206, which dismissed a felony charge of possession of a controlled drug (marijuana) and convicted the Appellee Norwood upon his plea of guilty to misdemeanor possession of marijuana. The State charged Appellee with felony possession of marijuana, in violation of 63 O.S.Supp.2012, § 2-402(B)(2) by virtue of Appellee’s three (3) prior convictions for possession of a controlled drug with intent to distribute in violation of 63 O.S.Supp.2012, § 2-401.

The Appellee moved to dismiss the felony charge, arguing that because his prior convictions were violations of section 2-401 rather than section 2-402 of Title 63, his current offense was a misdemeanor rather than felony. The district court sustained Appellee’s motion and dismissed the felony charge, accepted Appellee’s guilty plea to misdemeanor possession of marijuana, and entered judgment and sentence. The State perfected this appeal.

The State’s right of appeal to this Court rests upon statutory authority; it exists only when expressly authorized, City of Elk City U. Taylor, 2007 OK CR 15, I 7, 157 P.3d 1152, 1154; and cannot be enlarged by construction. State v. Sayerwinnie, 2007 OK CR 11, I 4, 157 P.3d 137, 138. Title 22, O.S.2011, section 1053, provides that the State may appeal in the following cases and no other:

1. Upon judgment for the defendant on quashing or setting aside an indictment or information;
2. Upon an order of the court arresting the judgment;
3. Upon a question reserved by the state or a municipality;
4. Upon judgment for the defendant on a motion to quash for insufficient evidence in a felony matter;
5. Upon a pretrial order, decision, or judgment suppressing or excluding evidence where appellate review of the issue would be in the best interests of justice; and
6. Upon a pretrial order, decision or judgment suppressing or excluding evidence in cases alleging violation of any provisions of Section 13.1 of Title 21 of the Oklahoma Statutes.

The trial court’s judgment of conviction in this case bars further prosecution of the felony charge. 22 O.S.2011, § 14. Where the proceedings below terminate in a conviction or acquittal, or other order barring further prosecution, the State’s appeal is limited to a reserved question of law. City of Norman U. Taylor, 2008 OK CR 22, I 8, 189 P.3d 726, 729 (acquittal on trial de novo limited appeal to reserved question of law). From the proceedings below, Appellant has fairly reserved the question of whether the application of the enhancement provisions of section 2-402(B) of Title 63 involved an erroneous interpretation of the statute.

We recently decided the issue adversely to the Appellant in State V. Haley, Case No. 2013-140 (Okl.Cr. February 20, 2014)(Unpublished). The State charged Haley with unlawful possession marijuana, second offense, alleging a prior conviction for unlawful possession of a controlled drug with intent to distribute. The trial court quashed the enhanced felony charge on the defendant’s motion, and the State appealed. This Court affirmed.

The State argued in Haley that a second or subsequent violation of this section means any prior conviction under the Uniform Controlled Dangerous Substances Act, and that any previous felony drug conviction supported an enhanced felony charge for a subsequent offense of marijuana possession. This Court disagreed. The Court in Haley relied on our decision in Watts v. State, 2008 OK CR 28, 99 7-11, 197 P.3d 1094, 1096-97, which held the words in this section, when used to describe a second or subsequent violation of maintaining a dwelling where drugs are kept, unmistakably referred to a serial violator of section 2-404 of Title 63. Id. at I 10, 197 P.3d at 1096. We stated there that [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 section 2-402 conviction. Because Appellee’s prior controlled drug convictions were not violations of section 2-402, the State’s information was insufficient to charge a felony, and was properly dismissed. The reserved question is answered.

DECISION

The Order and Judgment of the District Court of Tulsa County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE TOM C. GILLERT, DISTRICT JUDGE

APPEARANCES AT TRIAL
J. BRIAN RAYL
423 S. BOULDER, STE. 300
TULSA, OK 74013
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
BECKY M. JOHNSON
MATTHEW KEHOE
ASST. DISTRICT ATTORNEYS
500 S. DENVER, 9TH FLOOR
TULSA, OK 74103

NALANI CHING
ASST. DISTRICT ATTORNEY
500 S. DENVER, 9TH FLOOR
TULSA, OK 74103

STUART SOUTHERLAND
423 S. BOULDER, STE. 300
TULSA, OK 74013
ATTORNEYS FOR THE STATE

OPINION BY: PER CURIAM

SMITH, P.J.: DISSENTS
LUMPKIN, V.P.J.: CONCUR IN RESULTS
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

Appellee’s request for oral argument is denied.

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Footnotes:

1. City of Elk City U. Taylor, 2007 OK CR 15, I 7, 157 P.3d 1152, 1154;
2. State v. Sayerwinnie, 2007 OK CR 11, I 4, 157 P.3d 137, 138.
3. 22 O.S.2011, § 14.
4. City of Norman U. Taylor, 2008 OK CR 22, I 8, 189 P.3d 726, 729.
5. State V. Haley, Case No. 2013-140 (Okl.Cr. February 20, 2014)(Unpublished).
6. Watts v. State, 2008 OK CR 28, 99 7-11, 197 P.3d 1094, 1096-97.
7. 63 O.S.2011, § 2-402(B)(2).
8. BLACK'S LAW DICTIONARY 1214 (5th ed., 1979).
9. State V. Haley, Case No. S-2013-140 (Okl.Cr. February 20, 2014) (Unpublished).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402(B)(2) - Controlled Dangerous Substances
• Okla. Stat. tit. 63 § 2-401 - Controlled Dangerous Substances
• Okla. Stat. tit. 22 § 1053 - Appeals by the State
• Okla. Stat. tit. 22 § 14 - Limited Appeals
• Okla. Stat. tit. 21 § 13.1 - Violations Regarding Controlled Substances
• Okla. Stat. tit. 63 § 2-404 - Maintaining a Dwelling Where Drugs are Kept

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:

• City of Elk City v. Taylor, 2007 OK CR 15, I 7, 157 P.3d 1152, 1154
• State v. Sayerwinnie, 2007 OK CR 11, I 4, 157 P.3d 137, 138
• City of Norman v. Taylor, 2008 OK CR 22, I 8, 189 P.3d 726, 729
• State v. Haley, Case No. 2013-140 (Okl.Cr. February 20, 2014)(Unpublished)
• Watts v. State, 2008 OK CR 28, I 7-11, 197 P.3d 1094, 1096-97