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Witherow v. State

Court of Criminal Appeals of Oklahoma

June 15, 2017

BRUCE ESLEY WITHEROW, Appellant,
v.
THE STATE OF OKLAHOMA, Appellee.

         AN APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY HONORABLE CURTIS L. DeLAPP, DISTRICT JUDGE

         APPEARANCES AT TRIAL

          MARK KANE ATTORNEY FOR DEFENDANT

          JARED SIGLER, ASST. DISTRICT ATTORNEY, ATTORNEY FOR STATE

         APPEARANCES ON APPEAL

          RICKI J. WALTERSCHEID, NORMAN, ATTORNEY FOR APPELLANT

          E. SCOTT PRUITT ATTORNEY GENERAL, ASSISTANT ATTORNEY GENERAL, ATTORNEYS FOR APPELLEE

          OPINION

          LEWIS, VICE-PRESIDING JUDGE

         ¶1 Bruce Esley Witherow, Appellant, was tried by jury and found guilty of Count 1, trafficking in illegal drugs, after two (2) or more prior felony drug convictions, in violation of 63 O.S.Supp.2014, § 2-415; Count 2, use of surveillance equipment to avoid detection, after former conviction of two (2) or more felonies, in violation of 21 O.S.2011, § 1993 (C); and Count 3, unlawful possession of drug paraphernalia, a misdemeanor, in violation of 63 O.S.2011, § 2-405, in the District Court of Washington County, Case No. CF-2015-186. The jury sentenced Appellant to life without parole and a $25, 000.00 fine in Count 1, four (4) years imprisonment in Count 2, and a $1, 000.00 fine in Count 3. The Honorable Curtis L. DeLapp, District Judge, pronounced judgment and ordered the sentences served concurrently. Mr. Witherow appeals.

         FACTS

         ¶2 Appellant raises no challenge in this appeal to his conviction of the charged offenses. Only a brief statement of facts is necessary. On May 22, 2015, Bartlesville police officers executed a search warrant at Appellant's residence. The officers eventually extricated Appellant from a crawlspace beneath the house where he was hiding. Officers also recovered approximately 82 grams of what proved to be methamphetamine, in three separate packages of approximately 27 grams (about 1 oz.) each, far in excess of the 20 gram trafficking quantity. Appellant has been convicted previously of four felony violations involving methamphetamine.

         ANALYSIS

         ¶3 In Proposition One, Appellant argues that fundamental error occurred when the trial court instructed the jury that Appellant was subject to a mandatory sentence of life without parole in Count 1. Appellant waived all but plain error when he failed to timely object at trial. Simpson v. State, 1994 OK CR 40, ¶ 2, 23, 876 P.2d 690, 692-93. He must now show that a plain or obvious error in the trial court's instruction affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. We will ordinarily correct plain error only if it seriously affects the fairness, integrity or public reputation of the proceedings. Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 701.

         ¶4 On May 22, 2015, when Appellant was arrested and charged in Count 1, the enhanced punishment for trafficking in illegal drugs, after having "previously been convicted of two or more violations of... any provision of the Uniform Controlled Dangerous Substances Act which constitutes a felony, " was a mandatory sentence of life without parole. 63 O.S.Supp.2014, § 2-415 (D)(3); Randolph v. State, 2010 OK CR 2, ΒΆ 34, ...


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