CHUY HUMBERTO BRINK, JR. v. STATE OF OKLAHOMA

Oklahoma City, OK - Criminal defense attorney represented Chuy Humberto Brink, Jr. with contending that his convictions on all five counts violate 21 O.S.2011, § 11 because he was punished for the same act.

ppellant, Chuy Humberto Brink, Jr., was convicted by a jury in Oklahoma County District Court, Case No. CF-2017-5819, of Counts 1--3: Assault With a Dangerous Weapon, in violation of 21 O.S.2011, § 645; Count 4: Using a Vehicle To Facilitate the Intentional Discharge of a Firearm, in violation of 21 O.S.2011, § 652(B); and Count 5: Possession of a Firearm While On Probation, in violation of 21 O.S.Supp.2014, § 1283(C). The jury recommended sentences of five years imprisonment each on Counts 1--3; ten years imprisonment on Count 4; and six years imprisonment on Count 5. The Honorable Trevor S. Pemberton, District Judge, presided at trial and sentenced Appellant in accordance with the jury's verdicts. Judge Pemberton ordered the sentences for Counts 1, 2, 3 and 4 to run concurrently each to the other but consecutively to Count 5.1 Judge Pemberton further ordered credit for time served. Appellant now appeals.



¶2 The State's evidence showed that Appellant fired multiple gunshots from a moving vehicle at Michelle Owens, Floyd Sneed and Tony Hare while all three stood on the front porch of Sneed's mobile home. Appellant was on probation at the time. Based on these facts, the State alleged in the Information one count of Assault With a Dangerous Weapon for each victim Appellant shot at during the drive-by shooting (Counts 1--3); one count of Using a Vehicle To Facilitate the Intentional Discharge of a Firearm for Appellant shooting at all three victims from the vehicle (Count 4); and one count of Possession of a Firearm While On Probation for Appellant's possession of the gun used to commit the drive-by shooting (Count 5).



¶3 In his sole proposition of error, Appellant contends that his convictions on all five counts violate 21 O.S.2011, § 11 because he was punished for the same act. Appellant argues that Counts 4 and 5 must be dismissed to remedy the double punishment violation. This appeal presents an issue of first impression for this Court, namely, whether the drive-by shooting statute authorizes additional punishment for other crimes of violence like Assault With a Dangerous Weapon that are based on the same act. We address this issue below in resolving Appellant's challenge based on Section 11 to his convictions and sentences on Counts 1, 2, 3 and 4. We further address Appellant's double punishment challenge to his Count 5 conviction for Possession of a Firearm While on Probation.



¶4 Appellant admits he did not raise a Section 11 double punishment objection at any point below. Our review is therefore limited to plain error. Frazier v. State, 2020 OK CR 7, ¶ 8, 470 P.3d 296, 302. To be entitled to relief for plain error, an appellant must show: "1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding." Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Baird v. State, 2017 OK CR 16, ¶ 25, 400 P.3d 875, 883; Tollett v. State, 2016 OK CR 15, ¶ 4, 387 P.3d 915, 917; 20 O.S.2011, § 3001.1.



¶5 Appellant shows actual or obvious error affecting his substantial rights with this claim. Section 11 generally prohibits multiple convictions for the same act under different crimes found in Title 21.2 The analysis under Section 11 "focus[es] on the relationship between the crimes, considering '(1) the particular facts of each case; (2) whether those facts set out separate and distinct crimes; and (3) the intent of the Legislature.'" Frazier, 2020 OK CR 7, ¶ 9, 470 P.3d at 302 (quoting Sanders v. State, 2015 OK CR 11, ¶ 8, 358 P.3d 280, 284). "If the offenses at issue are separate and distinct, requiring dissimilar proof, Oklahoma's statutory ban on 'double punishment' is not violated." Sanders, 2015 OK CR 11, ¶ 6, 358 P.3d at 283. However, "[i]f the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent express legislative intent." Barnard v. State, 2012 OK CR 15, ¶ 27, 290 P.3d 759, 767 (emphasis added).



¶6 The record shows Appellant's convictions on Counts 1, 2, 3 and 4 arose from Appellant firing the same gun, at the same three victims, during the same drive-by shooting. The Information alleged one count of Assault With a Dangerous Weapon for each victim Appellant shot at during the drive-by shooting. See 21 O.S.2011, § 645; Burleson v. Saffle, 2002 OK CR 15, ¶¶ 7-8, 46 P.3d 150, 153. The State asserts on appeal that Appellant was also appropriately charged, convicted and sentenced in this case based on this same evidence of an additional count of Using a Vehicle To Facilitate the Intentional Discharge of a Firearm under 21 O.S.2011, § 652(B). The State argues "the Legislature has clearly defined [both] as separate crimes which may be charged without violating Section 11." Nothing within the plain language of Section 652, however, suggests this provision was ever intended to be an additional authorized punishment for the crime of Assault With a Dangerous Weapon or any other crime.



¶7 Had the Legislature intended for the drive-by shooting statute to serve as an additional charge authorizing multiple punishment for other crimes involving gun violence, it could have explicitly said so in Section 652(B). Cf. Knapper v. State, 2020 OK CR 16, ¶ 95, 473 P.3d 1053, 1081-82 (holding the Legislature has expressly authorized multiple punishments for gang-related murder in the gang-related crime statute). Because the Legislature did not, Appellant may not be convicted and sentenced on each of Counts 1--4. Again, where the charged crimes truly arise out of one act, Section 11 "prohibits prosecution for more than one crime, absent express legislative intent." Lavorchek v. State, 2019 OK CR 13, ¶ 6, 443 P.3d 573, 577 (emphasis added).



¶8 The State's charging decision here conflicts with our holding in Burleson that "the Legislature intended to allow multiple counts for the offense of use of a vehicle to facilitate the intentional discharge of a weapon, where multiple victims are involved." Burleson, 2002 OK CR 15, ¶ 8, 46 P.3d at 153. Under Burleson, the State could have charged Appellant in the present case with three counts of Using a Vehicle To Facilitate the Intentional Discharge of a Firearm--one for each victim. Instead, the State filed three counts of Assault With a Dangerous Weapon and used Section 652(B) to include an additional count of drive-by shooting. While the decision of which charge, and how many counts, to file generally falls within the prosecutor's broad discretion, see State v. Cooper, 2018 OK CR 40, ¶ 19, 434 P.3d 951, 957, Appellant's convictions and sentences for all four counts in this case violated Section 11 and resulted in a double punishment violation.



¶9 To summarize, Appellant may only be convicted and sentenced under Section 11 either of Counts 1--3 or Count 4 because these counts arose from the same act. When this Court finds a double punishment violation, we generally dismiss the charge carrying the lesser punishment. Anderson v. State, 1972 OK CR 289, ¶ 6, 502 P.2d 1299, 1301. However, based on the circumstances presented here, we find the matter should be remanded to the District Court so it may remedy the Section 11 violation in the first instance. We therefore uphold the jury's verdicts on appeal but vacate the sentences pronounced by the trial court and remand this case to the District Court for resentencing on Counts 1--4. On remand, the District Court shall dismiss either Counts 1--3 or, alternatively, Count 4 as a remedy for the Section 11 violation. The District Court shall also conduct resentencing on the surviving count or counts in a manner not inconsistent either with the jury's sentencing recommendations or this Opinion. See 22 O.S.2011, § 1066.



¶10 We turn next to Appellant's double punishment challenge to his Count 5 conviction. Appellant fails to show error of any kind with this claim. Possession of a Firearm While On Probation is a status crime similar to the crime of felon in possession of a firearm set forth at 21 O.S.Supp.2014, § 1283(A). In Frazier, we observed that "the unlawful possession of a firearm by a convicted felon is a status crime and generally separate and distinct from any subsequent criminal activity with the same firearm." Id., 2020 OK CR 7, ¶ 9, 470 P.3d at 302 (citing Sanders, 2015 OK CR 11, ¶ 7, 358 P.3d at 283-84). "While the crime of felon in possession is complete upon a convicted felon being in possession, either personally or constructively, of a weapon, it is the individual's further actions that dictate whether additional criminal charges may arise from those acts." Id. (citing Sanders, 2015 OK CR 11, ¶ 8, 358 P.3d at 284).



¶11 We held in Frazier that convictions for felon in possession of a firearm, transporting a loaded firearm and carrying a firearm while under the influence violated Section 11 because "[t]he firearm used to support Frazier's three charges was found in the pickup he occupied by himself when he was stopped by the trooper for speeding." Id., 2020 OK CR 7, ¶ 10, 470 P.3d at 302-03. Because there was no evidence showing a temporal break between the acts used to support all three charges, and because all three counts relied on the same time frame, we found all three counts were based on the same act and ordered two of them dismissed. Id. In Sanders, the defendant's convictions for felonious possession of a firearm by a convicted felon and knowingly concealing stolen property were also supported by the same weapon and, thus, violated Section 11. Sanders, 2015 OK CR 11, ¶¶ 11-12, 358 P.3d at 284.



¶12 Frazier and Sanders are both distinguishable from the present case, however, because of the differing acts established by Appellant's testimony. The jury could reasonably infer based on the record evidence that Appellant, who was serving probation at the time of the shooting, possessed the gun while inside the truck prior to commencing the drive-by shooting.3 The crime of Possession of a Firearm While On Probation charged in this case thus was completed before Appellant commenced with the drive-by shooting. See 21 O.S.Supp.2014, § 1283(C). Appellant's subsequent act of shooting at the victims from the moving vehicle formed the basis for Appellant's crimes in Counts 1--4. There is no Section 11 violation because "[t]he record . . . shows separate and distinct offenses committed in rapid succession and requiring different proof." Davis v. State, 2018 OK CR 7, ¶ 5, 419 P.3d 271, 276. Relief for this aspect of Appellant's claim is denied as there was no error and, thus, no plain error. Id.

The Judgment of the District Court on Counts 1--4 is AFFIRMED but the Sentences imposed are VACATED and the matter is REMANDED to the District Court for RESENTENCING in a manner not inconsistent with this Opinion. On remand, the District Court shall dismiss either Counts 1--3 or, alternatively, Count 4 as a remedy for the Section 11 violation discussed herein. The District Court shall also conduct resentencing on the surviving count or counts as discussed in this Opinion.



¶14 The Judgment and Sentence of the District Court on Count 5 is AFFIRMED.



¶15 Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2021), the MANDATE is ORDERED issued upon the delivery and filing of this decision.