Williams v. State

2002 OK CR 39, 59 P.3d 518, 73 O.B.A.J. 19, 2002 Okla. Crim. App. LEXIS 46, 2002 WL 31655507

• Court: Court of Criminal Appeals of Oklahoma
• Decided: November 26, 2002
• Docket: F-2001-1422
• Status: Published

Opinions

SUMMARY OPINION

LUMPKIN, Presiding Judge.

11 Appellant Richard Earl Williams was tried by jury for the erimes of Distribution of Controlled Dangerous Substances (Count I) (63 0.S.Supp.1999, § 2-401); Possession of a Controlled Dangerous Substances (Count II) (63 O0.S.Supp.1999, § 2-402) After Former Conviction of Four Felonies; and Possession of Drug Paraphernalia (Count IV) (63 0.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:

I. The trial court failed to properly instruct the jury on the applicable range of punishment, and thus violated Appellant's right to due process and fundamental fairness.

T3 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.

T 4 In his sole proposition of error, we find Appellant is not entitled to the benefit of 21 0.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 0.8.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).

15 Further, we find that as Appellant was not entitled to a jury instruction pursuant to 21 0.9.2001, § 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).

T 6 Accordingly, this appeal is denied.

DECISION

T7 The Judgment and Sentence is AFFIRMED.

JOHNSON, V.P.J., STRUBHAR and LILE, JJ,; concur. CHAPEL, J.;: dissent.

1 . Appellant was charged conjointly with Willard Maurice Callahan, William Kenneth Davis, and Roderick Laverne Gardner. Appellant was not charged in Count III of the felony information. (O.R.2).