Love v. State
217 P.3d 116
Okla. Crim. App.
2009
Check Treatment

*1 is, any pursuant § interest 727 was for by §

interest authorized 3.6. conclusion,

T9 In we hold that the lan- 8.6(G)

guage in subsection of the Workers' Act,

Compensation directing that "interest pursuant computed

shall be to Section 727 of 12,"

Titlе provided means interest computed using 8.6 shall be the rate of

interest set forth interpreta- This

tion is dictated the text of subsection

3.6(G), ordinary meaning of the words legislative

therein and the history §of 8.6.

These same considerations reveal no intent part Legislature

on the of the 727 to general

serve as a source of authority to

award on interest Workers' Compensation Accordingly,

awards. Compen- Workers'

sation Court did not err in denying the re-

quest of Naomi Reeder to prejudgment add

interest to an award benefits, of death

such by § interest is not authorized ‍‌‌‌​​‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌​​​​​​‌‌​​​‌​​​​​‌‌​‌​‌​‍3.6 of the Compensation

Workers' Act any other рrovision of the Compensation Workers' Act. judgment denying request to add

prejudgment interest to the award is SUS-

TAINED. EDMONDSON, C.J., TAYLOR,

T 10

V.C.J., HARGRAVE, KAUGER, WATT,

WINCHESTER, COLBERT, REIF,

JJ., concur.

[11 OPALA, J., part; concur in dissent in

part.

2009 OK CR 20

Tommy Wayne LOVE, Appellant Oklahoma,

STATE of Appellee.

No. F-2008-236. Appeals

Court of Criminal of Oklahoma.

June

117 T2 Love propositions raises four of error in support appeal: of his I. It was error for the District Court to requested instruction, refuse jury Lovе's gave jury which option of either sentencing permitting Love or the court so; to do stop II. The and search of Love's vehicle violated right Love's to be free from unreasonable search and seizure under both the United States and Oklahoma Constitutions; presented III. The evidence at trial was insufficient support to a conviction in Allen, Defender, Curt Assistant Public Tul- III, Count signal; failure to and sa, OK, attorney for defendant at trial. Trafficking IV. drugs pro- controlled Smith, Courtney Assistant District Attor- 2-415, hibited 63 0.S$.Supp.2004, Tulsa, ney, OK, attorney for State at trial. unconstitutional, purports because it to Southerland, Stuart Assistant Public De- create a non-rebuttable presumрtion of fender, Tulsa, OK, attorney petitioner on an intent to drugs, large distribute on a appeal. scale, solely based upon quantity possessed. Edmondson, W.A. Drew Attorney General Welch, of Oklahoma Blakeney Jennifer Assis- thorough 13 After consideration of General, Attorney OK, tant City, Oklahoma the entire record appeal, before us on includ attorneys respondent appeal. on ing record, original transcriрts, exhibits briefs, and we find that neither modification OPINION required by nor reversal is the law or evi Proposition dence. We find in I that Love CHAPEL, Judge. right jury could not waive his to a trial Tommy Wayne by jury Love was tried without the consent of the Statе.2 We further I, Trafficking convicted of Count in Con that, although find attempted Love to waive Drugs trolled O.8.Supp. violation of 68 trial, jury a right unilaterally he had no to 2-415(C), in the District Court of jury punishment.3 waive assessment of Con County, Tulsa In CF-2006-58771 accor sequently, the trial court did not err in refus jury's dance with the recommendation the requested jury Love's instruction.4 Honorable Gordon MeAllister sentenced (20) twenty years imprisonment Love to in Proposition We find II $25,000, a susрended. fine of all stop justified. traffic $500 The trial court's appeals Love from this findings conviction and sen factual Suppress, the Motion to tence. signal that Love failed to a turn and other non-jury procеedings 1. Love was convicted in 3. Morrison v. State, 74, ¶ 14, 1980 OK CR II, Driving Suspension Count Under in violation 203, 209.; P.2d Case v. CR 250, OK 6-303, III, O0.S.Supp.2005,§ of 47 and Count 619, 625; 555 P.2d Reddell v. 0.S.2001, Signal to Failure in violation of 47 229,¶33, OK CR 543 P.2d 581-82. Follow § 11-604. The trial court sentenced Love to a ing Crawford, any proрosed Case also held that $50 fine of and costs on Count II and fine of jury waiver of assessment of be must III, costs on Count with credit for time $10 joined by prosecutor and trial court. served on both counts so neither fines nor сosts were owed. 4. addition, In we will not find that the trial court - giving applicable Valega City erred in uniform in- City, v. Oklahoma 1988 OK CR struction, accurately which states the law. 12 101, ¶ 5, Brown, Crawford 114, ¶ 13, ©.$.2001, 577.2. may cla im.12 Love must traffic have been affеcted that fail trafficking show the ure, clearly were not 5Wefurther impermissibly statute interferes with his ex find that the search of Love's car was inci ercise of a right fundamental operates to a dent lawful arrest. 6Wеfind in Proposi disadvantage his aas member suspect of a that, taking class, tion III light evidence in or show that the statute is not rational *3 ly legitimate State, related to a any state interest.13 most favorable to the rational trier beyond of fact could find Love does suggest reasonable not requires doubt his case signal serutiny, that strict Love failed to turning, argues before that there is no legitimate may that failure have state affected interest in enacting punish other traffic.7 ment possession based on quantity of a of Proposition T5 In IV Love claims drugs opposed as drug distribution. He trafficking that the statute pro violates due equal рrotection claims that is if violated the equal protection. cess and Possession of five merely provides statute punish for a harsher grams or more of crack prohibited cocaine is ment based on the possession, amount in trafficking.8s Love claims this violates due presuming without that defendants intend to process equal protection because it cre drugs, distribute the persons because guilty ates a nоn-rebuttable presumption, based of drugs distribution of may receive lesser solely drugs on the amount of possessed, that penalties persons than possess who drugs in major the defendant is a drug dealer. This a certаin quantity proof without of distribu Court held Anderson v. State that the tion. suggests He that if Legislature the trafficking ‍‌‌‌​​‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌​​​​​​‌‌​​​‌​​​​​‌‌​‌​‌​‍statute does not proc violate due wants to enact a harsh pos finding, In ess.9 so specifically Court large sessiоn of quantities drugs, of it should found that the statute did any not create sort by do so incorporating quantity requirements presumption of a that the defendant sold or into the statute eriminalizing possession with drugs."10 intended vein, to sell In thе same intent to distribute. presume the statute does not that trafficking T7 On its argument face this must fail. major drug defendants are dealers. As-we Legislature The legitimate has a state inter Anderson, said in "The merely statute sets est in punishing harshly people those who guidelines punishment, forth repre possess large drugs. amounts of The deci by sents a determination Legislature that sion by to do separately this classifying per possess 'those who [five or grams more of possess specific sons who drugs amounts of crack cocaine] deserve a punishment.! stiff reasonable, not arbitrary, and ! ground of 11 difference-the possession-re amount presume willWe validity of fairly lates and substantially object to the of a state law when analyzing an equal protection legislation. 14 Legislature could have State, 50, ¶ 5, 5. Seabolt v. 2006 OK CR 152 P.3d 9. State, Anderson v. 1995 OK CR 63, ¶ 5, 905 235, 237; O.S.2001, § 11-604. P.2d 231, 233. 10. Id. Belton, 6. New York v. U.S. 454, 460, 101 (1981) (after 2860, 2864, S.Ct. 69 LEd.2d lawful custodial arrest of an 11. a car, Id. occupant passenger search police may inci compartment arrest); State, Nealy 142, dent to v. 1981 OK CR State, 37, ¶ 20, 12. Hatch v. 1996 OK CR 924 P.2d 636 P.2d 381. 284, 289. State, Dodd v. 2004 OK. CR ¶ 80, 100 P.3d 13. Hatch, 1996 OK CR 37, ¶ 21, 924 P.2d at 289; 1017, 1041-42. Count III was not decided State, v. 1995 OK CR Clayton 3, ¶ 17, 892 P.2d jury. sitting The trial court, as a fact-finder 646, 654. misdemeanors, on both heard pre the evidence sented to the and convicted Love of both Hatch, 37, ¶ 21, 1996 OKCR 924 P.2d at Count II and Count III. Officer Warne testified v. State, 1994 OK 58, ¶ 5, CR 881 P.2d Crawford driving that he was on the same road and saw 88, 90; City Dukes, New Orleans v. 427 U.S. Love turn without signaling. op There was no 297, 303, 2513, 2517, 96 S.Ct. 49 LEd.2d 511 posing testimony. (1976). unpublished This Court has held in Opinions trafficking statute does not 0.S.Supp.2004, 8. 63 2-415. See, equal protection. violate e.g., Ezеll LUMPKIN, JUDGE: CONCUR IN goal through chosen to effect this a different However, statutory provision. it is not con RESULT. stitutionally required to do Legisla so. The 1 1 I agree While with the results reached pass

ture has wide discretion to laws which Court, I disаgree with some of the people differently treat some from others.15 analysis and methodology. in enacting Its decision to do so the traffick equal protection. statute does not violate T2 I my continue to analysis adhere to originally ‍‌‌‌​​‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌​​​​​​‌‌​​​‌​​​​​‌‌​‌​‌​‍18 Love charged after for- Cannon v. mer conviction felony. of one in- The state 89, ¶ 2, (Lumpkin Concur in pass preliminary tended to hearing to Result) Witt, (citing Wainwright v. 469 U.S. an allegation add of a prior second offense to 412, 422, 844, 851, 105 S.Ct. 83 L.Ed.2d 841 *4 page the second of the Information. Love (1985)), that "while exceptions, there are accept indicated he plea would a offer and in statements generally regard footnotes are preliminary waived hearing, changed then his dicta, ed having precedential as no value." I mind plea. about the The State later asked believe the Court should be clear thаt its to have the case preliminary remanded for holding is shown a holding body in the of hearing they so could add a second offense to opinion an and not left to surmise a page, request the second that was de- by placement reader in a footnote. Although nied. there is no amended Infor- {3 Further, jury punish Record, determination of Original mation in the Love was not strictly ment statutory right. is a tried on See 22 page the second of the Information. ©.8.2001, State, § 926.1. See jury The Information also Romano v. as read to the did not ¶¶8, 71, 368, 1993OK CR 68 & 847P.2d 384- allegation convictions, an prior include of no (state had, constitution does not address the stage jury second and the was not punishment ranges instructed on the if jury sentencing defendant; a role of the in prior However, present. conviction was the the procedure law and to be followed in Judgment and Sentence states that Love was sentencing a defendant is set out in Trafficking 926.1]). convicted Count I of in Illegal language [now Thus the of the Drugs, "prior convictions." We direct the State, King statute controls. See 2008 OK ¶ 13, 7, (in District Court to an enter Order Nune Pro CR give P.3d order to correcting Judgment Tune the and Sentence Legislature's effect to the expressed inten to reflect Love's actual conviction remov- tions we construe using plain statutes ing prior thе reference to convictions. ordinary meaning and of language). their T4 plain language The of 926.1 states Decision jury that punishment determination of is a Judgment T9 The and Sentence of the discretionary proсedure only is made District Court is AFFIRMED. The case is mandatory if requests jury the defendant REMANDED to the District Court for an punishment. statutory to set The lan- correcting Order Nune Pro Tunc Judg- guage if indicates a defendant fails to file a ment and Sentence to reflect that Love was jury demand sentencing, judge for the trial prior not convicted after conviction aof of- option tasking jury has the of to deter- 3.15, fense. Pursuant to Rule Rules punishment mine оr elect to set Oklahoma Appeals, Court Criminal Title himself or herself. This statute does not 22, Ch.18, (2009), App. the MANDATE is grant any standing request the State to upon delivery ORDERED issued object jury sentencing. to filing of this decision. majority opinion previous The relies on JOHNSON, V.P.J., JOHNSON, A. C. P.J. improp- decisions from this Court which have LEWIS, J.: concur. erly right jury meshed the constitutional to a J.; LUMPKIN, statutory right sentencing. concur results. trial with the to (Okl.Cr. 11, 2002) (not January No. E-2000-1543 v. State, Tyler publication). 1352, right constitutiоnal trial, jury to a which the defendant and the State equally

share, is limited right to the to jury have a guilt. Const., determination of See Okl. Arti II, cle ‍‌‌‌​​‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌​​​​​​‌‌​​​‌​​​​​‌‌​‌​‌​‍Romano, Section 19. See also 1993 OK ¶¶8, 69-70, CR 847 P.2d at Guindon v. ¶¶ 4-6, 1981 OK CR statutory

451. The option sentenc placed in the hands of the defendant

and the judge, trial not under

§ 926.1. merely Cases that state bald asser right by

tions of a the State without citation authority cannot be authority princi for a

ple of statutory law. The language controls. Therefore, ‍‌‌‌​​‌​‌‌​‌‌‌‌‌‌​​‌​‌‌‌‌​​​​​​‌‌​​​‌​​​​​‌‌​‌​‌​‍urge I the Court to return to the statutory

basies of construction apply

plain language of the statute.

2009 OK CIV APP 10 HOLDINGS,

VERTEX LLC,

Plaintiff/Appellee, CRANKE,

James II Hope Cranke, wife;

husband and and Steve A.

Rush, Defendants/Appellants,

Waldo Bales and Bales, Cecille husband wife; and The County Board of

Commissioners County, Delaware Oklahoma, Defendants. 104,815.

No.

Court of Civil Appeals Oklahoma,

Division No. 3.

July 31, 2008.

Rehearing Sept. Denied

Certiorari Denied Jan.