State of Oklahoma v. Warren Harding Dean

Muskogee, Oklahoma, criminal defense lawyer represented the Defendant charged with Possession of a Controlled Dangerous Substance (Marijuana) in a Penal Institution.

Digested by: Kent Morlan

Appellant was an inmate at Jess Dunn Correctional Center when he was discovered to be in possession of a baggie containing approximately ten (10) grams of marijuana. Appellant was charged with possession of a controlled dangerous substance in a penal institution after former conviction of two or more felonies. In the penalty phase of the two-stage proceeding, the State alleged that Appellant had six (6) prior felony convictions. After the jury retired to deliberate, a note was sent to the trial court indicating their inability to agree on punishment. The jury and counsel for both the State and the defense were called into open court, where inquiry of the jury foreman revealed that the jury was hopelessly deadlocked. Defense counsel's motion for a mistrial as to the second stage proceedings was granted, the jury was discharged, and the trial judge informed the parties that he would impose sentence.

It is therefore necessary to examine the trial court's procedure before it ruled on the motion for new trial. We find that the court properly sentenced Appellant to five (5) years imprisonment. Although the trial judge granted a mistrial upon the jury's inability to agree on punishment, a review of the record indicates that the trial judge was exercising his authority pursuant to 22 O.S. 1981 § 927 [22-927]. Section 927 provides:

Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.

Here the jury indicated that it was unable to agree on punishment. Upon inquiry by the court, it was determined that the jury was hopelessly deadlocked. The jury was then discharged from its duty to decide punishment and the trial court imposed the minimum sentence for a first offense. See 57 O.S.Supp. 1988 § 21 [57-21]. The Appellant did not file a pre-trial request for the jury to fix punishment pursuant to 22 O.S. 1981 § 926 [22-926], nor did he object to the dismissal of the jury or the trial court's imposition of sentence.

For the foregoing reasons the Appellant's original conviction of Possession of a Controlled Dangerous Substance (Marijuana) in a Penal Institution and sentence of Five (5) years imprisonment is AFFIRMED. The judgment of Possession of a Controlled Dangerous Substance (Marijuana) in a Penal Institution After Former Conviction of Two or More Felonies and sentence of Twenty (20) years imprisonment is vacated. The case is remanded to the District Court of Muskogee County with directions to enter an amended judgment and sentence consistent with this opinion.