APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY HONORABLE
CURTIS L. DeLAPP, DISTRICT JUDGE
KANE ATTORNEY FOR DEFENDANT
SIGLER, ASST. DISTRICT ATTORNEY, ATTORNEY FOR STATE
J. WALTERSCHEID, NORMAN, ATTORNEY FOR APPELLANT
SCOTT PRUITT ATTORNEY GENERAL, ASSISTANT ATTORNEY GENERAL,
ATTORNEYS FOR APPELLEE
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.
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.
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.
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, ¶ 34, ...