State of Oklahoma v. Jacob Chairez

Tulsa, Oklahoma criminal defense lawyer represented the Defendant charged with possession of a firearm while in the commission of a felony, possession of a controlled substance, and acquiring proceeds from drug activity.

21 O.S. 1287 provides:

A. Any person who, while committing or attempting to commit a felony, possesses a pistol, shotgun or rifle or any other offensive weapon in such commission or attempt, whether the pistol, shotgun or rifle is loaded or not, or who possesses a blank or imitation pistol, altered air or toy pistol, shotgun or rifle capable of raising in the mind of one threatened with such device a fear that it is a real pistol, shotgun or rifle, or who possesses an air gun or carbon dioxide or other gas-filled weapon, electronic dart gun, conductive energy weapon, knife, dagger, dirk, switchblade knife, blackjack, ax, loaded cane, billy, hand chain or metal knuckles, in addition to the penalty provided by statute for the felony committed or attempted shall, upon conviction, be guilty of a Class B4 felony offense for possessing such weapon or device, which shall be a separate offense from the felony committed or attempted and shall be punishable by imprisonment in the custody of the Department of Corrections for a period of not less than two (2) years nor for more than ten (10) years for the first offense, and guilty of a Class B1 felony offense punishable for a period of not less than ten (10) years nor more than thirty (30) years for any second or subsequent offense.

B. Any person convicted of violating the provisions of this section after having been issued a handgun license pursuant to the provisions of the Oklahoma Self-Defense Act shall have the license revoked and shall be liable for an administrative fine of One Thousand Dollars ($1,000.00) upon a hearing and determination by the Oklahoma State Bureau of Investigation that the person is in violation of the provisions of this section.

C. As used in this section:

1. "Altered toy pistol" shall mean any toy weapon which has been altered from its original manufactured state to resemble a real weapon; and

2. "Altered air pistol" shall mean any air pistol manufactured to propel projectiles by air pressure which has been altered from its original manufactured state.

63 O.S. 2-401-B2 provides:

A. Except as authorized by the Uniform Controlled Dangerous Substances Act, it shall be unlawful for any person:

1. To distribute, dispense, transport with intent to distribute or dispense, possess with intent to manufacture, distribute, or dispense, a controlled dangerous substance or to solicit the use of or use the services of a person less than eighteen (18) years of age to cultivate, distribute or dispense a controlled dangerous substance;

2. To create, distribute, transport with intent to distribute or dispense, or possess with intent to distribute, a counterfeit controlled dangerous substance; or

3. To distribute any imitation controlled substance as defined by Section 2-101 of this title, except when authorized by the Food and Drug Administration of the United States Department of Health and Human Services.

B. Any person who violates the provisions of this section with respect to:

1. A substance classified in Schedule I or II, except for marijuana, upon conviction, shall be guilty of transporting or possessing with an intent to distribute a controlled dangerous substance, a Class C2 felony offense, and shall be sentenced to a term of imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes, and a fine not more than One Hundred Thousand Dollars ($100,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. A second conviction for the violation of provisions of this paragraph is a Class C2 felony offense punishable by a term of imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes. A third or subsequent conviction for the violation of the provisions of this paragraph is a Class C2 felony offense punishable by a term of imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes;

2. Any other controlled dangerous substance classified in Schedule III, IV, V or marijuana, upon conviction, shall be guilty of a Class D1 felony offense and shall be sentenced to a term of imprisonment as provided for in subsections B through F of Section 20N of Title 21 of the Oklahoma Statutes and a fine not more than Twenty Thousand Dollars ($20,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. A second conviction for the violation of the provisions of this paragraph is a Class D1 felony offense punishable by a term of imprisonment as provided for in subsections B through F of Section 20N of Title 21 of the Oklahoma Statutes. A third or subsequent conviction for the violation of the provisions of this paragraph is a Class D1 felony offense punishable by a term of imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes; or

3. An imitation controlled substance as defined by Section 2-101 of this title, upon conviction, shall be guilty of a misdemeanor and shall be sentenced to a term of imprisonment in the county jail for a period not more than one (1) year and a fine not more than One Thousand Dollars ($1,000.00). A person convicted of a second violation of the provisions of this paragraph shall be guilty of a Class D2 felony offense and shall be sentenced to a term of imprisonment as provided for in subsections B through F of Section 20O of Title 21 of the Oklahoma Statutes, and a fine not more than Five Thousand Dollars ($5,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.

C. 1. Except when authorized by the Food and Drug Administration of the United States Department of Health and Human Services, it shall be unlawful for any person to manufacture or distribute a controlled substance or synthetic controlled substance.

2. Any person convicted of violating the provisions of paragraph 1 of this subsection with respect to distributing a controlled substance is guilty of a Class C2 felony offense and shall be punished by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes, and a fine not more than Twenty-five Thousand Dollars ($25,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.

3. A second conviction for the violation of the provisions of paragraph 1 of this subsection with respect to distributing a controlled substance is a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes. A third or subsequent conviction for the violation of the provisions of this paragraph is a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes.

4. Any person convicted of violating the provisions of paragraph 1 of this subsection with respect to manufacturing a controlled substance is guilty of a Class C2 felony offense and shall be punished by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes, and a fine not more than Twenty-five Thousand Dollars ($25,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.

5. A second conviction for the violation of the provisions of paragraph 1 of this subsection with respect to manufacturing a controlled substance is a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes. A third or subsequent conviction for the violation of the provisions of this paragraph is a Class C2 felony offense punishable by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes.

D. Convictions for violations of the provisions of this section shall be subject to the statutory provisions for suspended or deferred sentences, or probation as provided in Section 991a of Title 22 of the Oklahoma Statutes.

E. Any person who is at least eighteen (18) years of age and who violates the provisions of this section by using or soliciting the use of services of a person less than eighteen (18) years of age to distribute, dispense, transport with intent to distribute or dispense or cultivate a controlled dangerous substance or by distributing a controlled dangerous substance to a person under eighteen (18) years of age, or in the presence of a person under twelve (12) years of age, is guilty of a Class C1 felony offense punishable by:

1. For a first violation of this subsection, a term of imprisonment in the custody of the Department of Corrections not less than two (2) years nor more than ten (10) years;

2. For a second violation of this subsection, a term of imprisonment in the custody of the Department of Corrections for not less than four (4) years nor more than twenty (20) years; or

3. For a third or subsequent violation of this subsection, a term of imprisonment in the custody of the Department of Corrections for not less than ten (10) years nor more than life.

F. Any person who violates any provision of this section by transporting with intent to distribute or dispense, distributing or possessing with intent to distribute a controlled dangerous substance to a person, or violation of subsection G of this section, in or on, or within two thousand (2,000) feet of the real property comprising a public or private elementary or secondary school, public vocational school, public or private college or university, or other institution of higher education, recreation center or public park, including a state park or recreation area, public housing project, or child care facility as defined by Section 402 of Title 10 of the Oklahoma Statutes, shall be guilty of a Class C1 felony offense and shall be punished by:

1. For a first offense, a term of imprisonment as provided for in subsections B through E of Section 20L of Title 21 of the Oklahoma Statutes; or

2. For a second or subsequent violation of this section, a term of imprisonment as provided for in subsections B through E of Section 20L of Title 21 of the Oklahoma Statutes, or by the imposition of a fine, or by both, not exceeding thrice that authorized by the appropriate provision of this section. Convictions for second and subsequent violations of the provisions of this section shall not be subject to statutory provisions of suspended sentences, deferred sentences or probation.

G. 1. Except as authorized by the Uniform Controlled Dangerous Substances Act, it shall be unlawful for any person to manufacture or attempt to manufacture any controlled dangerous substance or possess any substance listed in Section 2-322 of this title or any substance containing any detectable amount of pseudoephedrine or its salts, optical isomers or salts of optical isomers, iodine or its salts, optical isomers or salts of optical isomers, hydriodic acid, sodium metal, lithium metal, anhydrous ammonia, phosphorus, or organic solvents with the intent to use that substance to manufacture a controlled dangerous substance.

2. Any person violating the provisions of this subsection with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled dangerous substance, possessing any substance listed in this subsection or Section 2-322 of this title, or combining fentanyl with any other controlled dangerous substance, upon conviction, is guilty of a Class A2 felony offense and shall be punished by imprisonment in the custody of the Department of Corrections for not less than seven (7) years nor more than life and by a fine not less than Fifty Thousand Dollars ($50,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. The possession of any amount of anhydrous ammonia in an unauthorized container shall be prima facie evidence of intent to use such substance to manufacture a controlled dangerous substance.

3. Any person violating the provisions of this subsection with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled dangerous substance in the following amounts:

a. one (1) kilogram or more of a mixture or substance containing a detectable amount of heroin,

b. five (5) kilograms or more of a mixture or substance containing a detectable amount of:

(1) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed,

(2) cocaine, its salts, optical and geometric isomers, and salts of isomers,

(3) ecgonine, its derivatives, their salts, isomers, and salts of isomers, or

(4) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in divisions (1) through (3) of this subparagraph,

c. fifty (50) grams or more of a mixture or substance described in division (2) of subparagraph b of this paragraph which contains cocaine base,

d. one hundred (100) grams or more of phencyclidine (PCP) or one (1) kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP),

e. ten (10) grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD),

f. four hundred (400) grams or more of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-pheylethy)-4-piperidinyl] propanamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide,

g. one thousand (1,000) kilograms or more of a mixture or substance containing a detectable amount of marijuana or one thousand (1,000) or more marijuana plants regardless of weight,

h. fifty (50) grams or more of methamphetamine, its salts, isomers, and salts of its isomers or five hundred (500) grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, or

i. ten (10) grams or more of a mixture or substance containing a detectable amount of fentanyl, its analogs, or derivatives,

upon conviction, is guilty of aggravated manufacturing of a controlled dangerous substance, a Class A1 felony offense, punishable by imprisonment in the custody of the Department of Corrections for not less than twenty (20) years nor more than life and by a fine not less than Fifty Thousand Dollars ($50,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. Any person convicted of a violation of the provisions of this paragraph shall be required to serve a minimum of eighty-five percent (85%) of the sentence received prior to becoming eligible for state correctional earned credits towards the completion of the sentence or eligible for parole.

4. Any sentence to the custody of the Department of Corrections for any violation of paragraph 3 of this subsection shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation. A person convicted of a second or subsequent violation of the provisions of paragraph 3 of this subsection shall be punished as a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes and shall be required to serve a minimum of eighty-five percent (85%) of the sentence received prior to becoming eligible for state correctional earned credits or eligibility for parole.

5. Any person who has been convicted of manufacturing or attempting to manufacture methamphetamine pursuant to the provisions of this subsection and who, after such conviction, purchases or attempts to purchase, receive or otherwise acquire any product, mixture, or preparation containing any detectable quantity of base pseudoephedrine or ephedrine shall, upon conviction, be guilty of a Class B3 felony offense punishable by imprisonment in the custody of the Department of Corrections for a term in the range of twice the minimum term provided for in paragraph 2 of this subsection.

H. Any person convicted of any offense described in the Uniform Controlled Dangerous Substances Act may, in addition to the fine imposed, be assessed an amount not to exceed ten percent (10%) of the fine imposed. Such assessment shall be paid into a revolving fund for enforcement of controlled dangerous substances created pursuant to Section 2-506 of this title.

I. Any person convicted of any offense described in this section shall, in addition to any fine imposed, pay a special assessment trauma-care fee of One Hundred Dollars ($100.00) to be deposited into the Trauma Care Assistance Revolving Fund created in Section 1-2530.9 of this title.

J. For purposes of this section, “public housing project” means any dwelling or accommodations operated as a state or federally subsidized multifamily housing project by any housing authority, nonprofit corporation or municipal developer or housing projects created pursuant to the Oklahoma Housing Authorities Act.

K. When a person is found guilty of a violation of the provisions of this section, the court shall order, in addition to any other penalty, the defendant to pay a one-hundred-dollar assessment to be deposited in the Drug Abuse Education and Treatment Revolving Fund created in Section 2-503.2 of this title, upon collection.

L. Any person convicted of a second or subsequent felony violation of the provisions of this section, except for paragraphs 1 and 2 of subsection B of this section, paragraphs 2, 3, 4 and 5 of subsection C of this section, paragraphs 1, 2, and 3 of subsection E of this section and paragraphs 1 and 2 of subsection F of this section, shall be punished as a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes.

63 O.S. 2-503.1 (A) provides:

A. It is unlawful for any person knowingly or intentionally to receive or acquire proceeds and to conceal such proceeds, or engage in transactions involving proceeds, known to be derived from any violation of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, or of any statute of the United States relating to controlled dangerous substances as defined by the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title. This subsection does not apply to any transaction between an individual and the counsel of the individual necessary to preserve the right to representation of the individual, as guaranteed by the Oklahoma Constitution and by the Sixth Amendment of the United States Constitution. However, this exception does not create any presumption against or prohibition of the right of the state to seek and obtain forfeiture of any proceeds derived from a violation of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, or of any statute of the United States relating to controlled dangerous substances as defined by the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title.

B. It is unlawful for any person knowingly or intentionally to give, sell, transfer, trade, invest, conceal, transport, or maintain an interest in or otherwise make available anything of value which that person knows is intended to be used for the purpose of committing or furthering the commission of any violation of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, or of any statute of the United States relating to controlled dangerous substances as defined by the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title.

C. It is unlawful for any person knowingly or intentionally to direct, plan, organize, initiate, finance, manage, supervise, or facilitate the transportation or transfer of proceeds known to be derived from any violation of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, or of any statute of the United States relating to controlled dangerous substances as defined by the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title.

D. It is unlawful for any person knowingly or intentionally to conduct a financial transaction involving proceeds derived from a violation of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, or of any statute of the United States relating to controlled dangerous substances as defined by the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, when the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or control of the proceeds known to be derived from a violation of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, or of any statute of the United States relating to controlled dangerous substances as defined by the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, or to avoid a transaction reporting requirement under state or federal law.

E. Any person convicted of violating any of the provisions of this section is guilty of a Class C2 felony offense and may be punished by imprisonment as provided for in subsections B through F of Section 20M of Title 21 of the Oklahoma Statutes, or by a fine of not more than Fifty Thousand Dollars ($50,000.00), or by both said imprisonment and fine.

JUDGE SHARON HOLMES: DEFENDANT PRESENT, NOT IN CUSTODY, REPRESENTED BY TRACY TIERNAN. STATE REPRESENTED BY LUKE THOMPSON. DEFENDANT SWORN IN OPEN COURT. COURT REPORTER LIZ JONES. DEFENDANT ENTERS A PLEA OF GUILTY AND WAIVES RIGHTS TO JURY, NON-JURY TRIAL. COURT ACCEPTS PLEA, DEFENDANT SENTENCED TO:

COUNT 1) COURT WITHHOLDS A FINDING OF GUILTY AND DEFERS FOR FIVE (5) YEARS UNTIL 5/19/2031 @ 9 AM IN ROOM 506. DEFENDANT TO BE UNDER THE SUPERVISION OF THE DIVISION OF PROBATION AND PAROLE OF THE STATE DEPARTMENT OF CORRECTIONS. DEFENDANT ASSESSED A COURT FUND OF $ 100, PLUS COSTS.

COUNT 2) COURT WITHHOLDS A FINDING OF GUILTY AND DEFERS FOR FIVE (5) YEARS UNTIL 5/19/2031 @ 9 AM IN ROOM 506. DEFENDANT TO BE UNDER THE SUPERVISION OF THE DIVISION OF PROBATION AND PAROLE OF THE STATE DEPARTMENT OF CORRECTIONS. DEFENDANT ASSESSED A COURT FUND OF $ 100, PLUS COSTS.

COUNT 3) COURT WITHHOLDS A FINDING OF GUILTY AND DEFERS FOR FIVE (5) YEARS UNTIL 5/19/2031 @ 9 AM IN ROOM 506. DEFENDANT TO BE UNDER THE SUPERVISION OF THE DIVISION OF PROBATION AND PAROLE OF THE STATE DEPARTMENT OF CORRECTIONS. DEFENDANT ASSESSED A COURT FUND OF $ 100, PLUS COSTS.

ALL COUNTS TO RUN CONCURRENT. DEFENDANT TO COMPLETE DUI SCHOOL, ADSAC, AND RANDOM UA'S. DEFENDANT MUST COMPLETE MONTHLY CHECK IN'S WITH THE COURT, SURRENDER FIREARMS, AND DEFENDANT IS PROHIBITED FROM CONSUMING ILLEGAL SUBSTANCES. COMPLIANCE REVIEW SET FOR 6/22/2026 AT 9:00 AM IN ROOM 506.

DEFENDANT ADVISED OF APPEAL RIGHTS, RULE 8 ISSUED, ORDER OF DEFERRED SENTENCE ISSUED. BOND EXONERATED.