WILLIAMS v. STATE

WILLIAMS v. STATE
2002 OK CR 39
59 P.3d 518
Case Number: F-2001-1422
Decided: 11/26/2002
RICHARD EARL WILLIAMS, Appellant -vs- STATE OF OKLAHOMA, Appellee

S U M M A R Y O P I N I O N

LUMPKIN, PRESIDING JUDGE:

¶1 Appellant Richard Earl Williams was tried by jury for the crimes of Distribution of Controlled Dangerous Substances (Count I) [59 P.3d 518] (63 O.S.Supp.1999, § 2-401); Possession of a Controlled Dangerous Substances (Count II) (63 O.S.Supp.1999, § 2-402) After Former Conviction of Four Felonies; and Possession of Drug Paraphernalia (Count IV) (63 O.S.Supp.1999, § 2-405), in Case No. CRF-2000-1288, in the District Court of Oklahoma County.1 The jury found Appellant guilty in Counts II and IV and recommended twenty (24) years imprisonment in Count II and one year imprisonment and a one thousand dollar ($1,0000) fine in Count IV. The trial court suspended the fine in Count IV, but imposed the prison sentences recommended by the jury. The sentences were ordered to be served concurrently. It is from this judgment and sentence that Appellant appeals.

¶2 Appellant raises the following proposition of error in support of his appeal:

¶3 After a thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that neither reversal nor modification is warranted under the law and the evidence.

¶4 In his sole proposition of error, we find Appellant is not entitled to the benefit of 21 O.S. 2001, § 51.1(C) as the 2001 amendment does not apply retroactively to Appellant's case. Nestell v. State, 954 P.2d 143, 144 (Okl.Cr.1998). See also Bowman v. State, 789 P.2d 631, 632 (Okl.Cr.1990). As there is no express indication that the Legislature intended the amendment changing the range of punishment to be applied retroactively, Appellant was entitled only to an application of the law which was in effect at the time he committed the crime. See State v. Watkins, 837 P.2d 477, 478 (Okl.Cr.1992); J.M.R. v. Moore, 610 P.2d 811, 814 (Okl.Cr.1980). Therefore, the trial court did not abuse its discretion in instructing the jury pursuant to 21 O.S.Supp.2000, § 51.1(B). See Gilson v. State, 8 P.3d 883, 914 (Okl.Cr.2000) (the determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Absent an abuse of that discretion, this Court will not interfere with the trial court's judgment if the instructions as a whole accurately state the applicable law).

¶5 Further, we find that as Appellant was not entitled to a jury instruction pursuant to 21 O.S. 2001, § 51.1(C), trial counsel's failure to object to the absence of such an instruction or to request such an instruction was not ineffective assistance of counsel. Phillips v. State, 989 P.2d 1017, 1044 (Okl.Cr.1999).

¶6 Accordingly, this appeal is denied. [59 P.3d 519]

DECISION

¶7 The Judgment and Sentence is AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE TAMMY BASS-JONES, DISTRICT JUDGE

APPEARANCES AT TRIAL

ANTHONY MCKESSON
ASSISTANT PUBLIC DEFENDER
611 COUNTY OFFICE BLDG.
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

ROBERT MACY
DISTRICT ATTORNEY
MARK LANE
ASHLEY ALTSHULER
ASSISTANT DISTRICT ATTORNEYS
505 COUNTY OFFICE BLDG.
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

KIMBERLY J. TABOR
ASSISTANT PUBLIC DEFENDER
611 COUNTY OFFICE BLDG.
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KELLYE BATES
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73105
COUNSEL FOR APPELLANT

OPINION BY: LUMPKIN, P.J.

RA

FOOTNOTES

CHAPEL, JUDGE DISSENTING:

¶1 I dissent to affirming Williams's sentence for Count II, as his jury was improperly instructed on the punishment range for the crime for which Williams was tried and convicted.

¶2 The crime - possession of a controlled substance after former conviction of two or more felonies - was committed on February 23, 2000. The then-applicable sentencing range was twenty (20) years to life imprisonment.

¶3 In Salazar v. State, this Court categorically stated that "procedural changes in the law, which do not prejudice or operate to the detriment of the defendant, apply to all trials occurring after the enactment of the statute."

¶4 The rule of Salazar should apply irrespective of whether the legislature expressly stated that a sentencing change should be imposed retroactively.

When the legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could[.]

Moreover, why would the legislature arbitrarily punish Defendant 1 more severely than Defendant 2 merely because he committed the identical crime on June 30 rather than July 1, 2001? Punishment is designed to deter, rehabilitate, and remove danger from society. If the Oklahoma Legislature determines that a penalty range can meet these goals, it should apply to all pending actions rather than splitting hairs based upon the precise date of the offense.

¶5 Consistent with these principles, some jurisdictions require the legislature to specifically state that the amended lesser punishment does not apply to crimes committed before the date of its passage.

¶6 Here, Williams was tried after the amended statute became effective. Salazar should have been followed and the lowered range of punishment should have been applied at his trial. Williams's sentence should be modified to the minimum (6) years' imprisonment, and this Proposition should be granted. [59 P.3d 520]

FOOTNOTES