Tucker v. State

• Decision Date: 21 December 2016
• Docket Number: Case Number: F-2015-472
• Citation: 395 P.3d 1
• Parties: Charlie TUCKER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

395 P.3d 1

Charlie TUCKER, Appellant,

v.The STATE of Oklahoma, Appellee.

Case Number: F-2015-472

Court of Criminal Appeals of Oklahoma.

Decided: December 21, 2016

ATTORNEYS AT TRIAL, KEVIN FINLAY, KRISTI M. GUNDY, 303 SOUTH PETERS, NORMAN, OK 73069, COUNSEL FOR DEFENDANT

ZACHARY SIMMONS, DANE TOWERY, ASSISTANT DISTRICT ATTORNEYS, 201 SOUTH JONES, NORMAN, OK 73069, COUNSEL FOR THE STATE

ATTORNEYS ON APPEAL, CINDY BROWN DANNER, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

E. SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA, DONALD D. SELF, ASSISTANT ATTORNEY GENERAL, 313 NE 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

SMITH, PRESIDING JUDGE:

¶ 1 Charlie Tucker was tried by jury and convicted of Count I, Assault and Battery with a Deadly Weapon in violation of 21 O.S.2011, § 652, and Count III, Obstructing an Officer (misdemeanor) in violation of 21 O.S.2011, § 540, all after former conviction of a felony, in the District Court of Cleveland County, Case No. CF–2012–2223.¹ In accordance with the jury's recommendation the Honorable Tracy Schumacher sentenced Tucker to ten (10) years imprisonment (Count I) and thirty (30) days in jail (Count III), to run concurrently. Tucker must serve 85% of his sentence on Count I before being eligible for parole consideration. Tucker appeals from these convictions and sentences.

¶ 2 Tucker raises three propositions of error in support of his appeal:

I. The State improperly used a stale prior conviction to enhance Mr. Tucker's sentence.

II. Mr. Tucker failed to receive the effective assistance of counsel regarding his status as a habitual offender, resulting in the State's improper use of a prior conviction to enhance his sentence.

III. Because the trial court's instructions improperly allowed a conviction for assault and battery with a deadly weapon without requiring proof of an intent to kill, the judgment against Mr. Tucker must be modified.

¶ 3 After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we affirm Tucker's conviction. We remand the case for resentencing on Count I.

¶ 4 We find in Proposition I that there is a high probability that the prior conviction used to enhance Tucker's sentence was stale. The enhanced sentence was based on one prior conviction. The range of punishment for his crime, as charged, was ten years to life imprisonment. 21 O.S.2011, § 652(C) ; 21 O.S.2011, § 51.1(A)(1). There is no minimum sentence for assault and battery with a deadly weapon as a first offense. 21 O.S.2011, § 652(C). A sentence may be enhanced with a prior conviction if the current offense is committed within ten years following completion of execution of the previous sentence. 21 O.S.2011, § 51.1(A). That ten-year period may be prolonged if, between completion of the sentence on the former conviction and the current offense, a person was convicted of a misdemeanor involving moral turpitude. 21 O.S.2011, § 51.2. Tucker received the minimum sentence for assault and battery with a deadly weapon with one prior conviction, ten years.

¶ 5 The State's argument turns on (a) whether ten years had passed between Tucker's last conviction and his current conviction and (b) whether Tucker's 2010 misdemeanor conviction for domestic abuse satisfies Oklahoma's statute providing for sentence enhancement when a conviction involves a crime of moral turpitude.

¶ 6 Tucker admitted that he had a prior Mississippi conviction for accessory after the fact to armed robbery. Tucker originally pled in Warren County Circuit Court, Mississippi, in 1999, on a non-adjudication order; had he successfully completed 36 months of supervised probation, the case would have been dismissed. However, Tucker was not successful, his non-adjudicated sentence was revoked, and on January 12, 2001, he received a 5-year sentence in Mississippi, suspended upon successful completion of the Restitution Center. The record supports Tucker's claim that this sentence was completed and discharged on January 29, 2002, more than ten years before the current offense. The burden is on the defendant to show that the sentence of a former conviction has been satisfied for more than ten years and thus cannot support a sentence enhancement under § 51.2. Goodwin v. State , 1986 OK CR 180, ¶ 8, 730 P.2d 1202, 1204. Tucker bases this claim on two Mississippi documents. The first, from the Mississippi Department of Corrections, is titled "Petition for Termination of Probation", and filed in Warren County, Mississippi on January 29th, 2002. This document notes that Tucker was placed in the Restitution Center, was released from that Center on March 30, 2001 and returned to probation, and had no further probation violations. The document asks the Warren County Circuit Court to discharge Tucker's probation. The second, from the Warren County Circuit Court, is titled "Discharge Order" and states that Tucker's probation is terminated.

¶ 7 The Mississippi statutory chapter dealing with probation and parole, in a subsequent section, states that after discharge from probation by the court of original jurisdiction, the probationer may have civil rights restored by the Governor. Miss Code Ann. § 47–7–41. This certainly suggests that the Discharge Order operated as a completion of execution of Tucker's sentence in that case.² The State notes that the Mississippi Supreme Court has held that, while statute limits supervised probation to five years, a suspended sentence may include "'unsupervised' post-release supervision". Johnson v. State , 925 So.2d 86, 102 (¶ 29) (Miss. 2006).

However, Johnson does not, as the State suggests, allow this Court to assume that the remainder of Tucker's sentence continued as unsupervised probation until the five years ran. In Johnson , the defendant had eight years suspended, with five of those years on supervised probation. As the Johnson Court explained, Mississippi statutes provide for suspended sentence, supervised probation (not to exceed five years), and post-release supervision; that opinion was the Court's attempt to clarify the relationship among those statutory provisions. Id . at 91 (¶ 6). That Court held that a trial court may both suspend a sentence in whole or in part, and sentence a defendant to a period of post-release supervision; if the latter extends past the five-year statutory maximum, any time over that period becomes "unsupervised post-release supervision". Id. at 102 (¶ 29). The opinion does not say that an order which does not mention post-release supervision at all can be said to include post-release supervision. Here, the Circuit Court order states that Tucker's probation is terminated. That is all it says. Reading that order in conjunction with Mississippi § 47-7-41, and the discussion in Johnson , this Court cannot conclude with any certainty that Tucker's five-year suspended sentence did not completely discharge on January 29, 2002.

¶ 8 If Tucker's Mississippi sentence completely discharged in January 2002, it is outside the ten-year limit for enhancement, should not have been used, and Tucker should not have been convicted after a former conviction. However, the State argues that the ten-year period was prolonged by Tucker's conviction for misdemeanor domestic abuse in Cleveland County, in case number CM-2010-2139. 21 O.S.2011, § 51.2. The State asserts that domestic abuse is a crime of moral turpitude. Tucker argues that domestic abuse is merely a kind of assault and battery, which is not a crime of moral turpitude. Winfield v. State , 1920 OK CR 148, 18 Okla.Crim. 257, 268, 191 P. 609, 612. The State contends that Winfield is limited to the context of impeachment, and claims that this holding does not apply to sentence enhancement under § 51.2. This alleged distinction is not borne out by the State's cited cases.

¶ 9 The law does not support the State's claim that domestic violence is a crime of moral turpitude. This Court, citing the Oklahoma Supreme Court, accepted a definition of moral turpitude as "anything done contrary to justice, honesty, modesty, or good morals." Saulmon v. State , 1980 OK CR 58, ¶ 12, 614 P.2d 83, 86. Saulmon appears to limit this broad language in the initial sentence by describing crimes of moral turpitude as including embezzlement, forgery, robbery, swindling, and "all crimes of which fraud is an element." Id. The State relies on Saulmon's initial broad language, as well as that in Bunn v. State , 1977 OK CR 52, ¶ 6, 561 P.2d 969, 971. There, we held that driving under the influence was a crime of moral turpitude because it is inherently dangerous to the public, and "shows a lack of personal integrity and a lack of concern for and respect of the person of others and their property." Id. ¶ 7, 561 P.2d at 972. Neither the crime in Saulmon nor that in Bunn is comparable to domestic assault and battery. However, those cases define "moral turpitude" similarly to what the State urges us to adopt here. That definition is arguably broad enough to encompass virtually any crime—surely not what the Legislature intended by using the phrase in the very specific statutory context of § 51.2.

¶ 10 The State also relies on an unpublished summary opinion finding that Malicious Intimidation because of Race (a crime very different from domestic assault and battery) is a crime of moral turpitude in the § 51.2 context. Silmon v. State , F–2011–894, slip op. at 2 (Okl.Cr. Jan. 4, 2013) (not for publication). In Silmon this Court cited the Saulmon definition of moral turpitude as something contrary to justice and good morals, showing a lack of personal integrity, and a lack of concern and respect for others (omitting the specific language about fraud, etc.). Id. at 2–3. Silmon relied, in its turn, on Bunn and other impeachment cases involving moral turpitude.³ One of these is Price v. State , a published case in which we applied an Eighth Circuit definition which restricted moral turpitude to "the gravest...