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Thompson v. State

Court of Criminal Appeals of Oklahoma

February 15, 2018

KENDALL RAY THOMPSON,
v.
THE STATE OF OKLAHOMA, Appellee.

         AN APPEAL FROM THE DISTRICT COURT OF HASKELL COUNTY THE HONORABLE BRIAN C. HENDERSON, ASSOCIATE DISTRICT JUDGE

          ATTORNEYS AT TRIAL GARY BUCKLES EVAN FREEMAN P.O. BOX 771 POTEAU, OK 74953 COUNSEL FOR DEFENDANT

          ATTORNEYS ON APPEAL JAMES H. LOCKARD DEPUTY DIVISION CHIEF HOMICIDE DIRECT APPEALS DIV. OKLA. INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT

          FARLEY WARD DISTRICT ATTORNEY ADAM SCHARN ASSISTANT DISTRICT ATTORNEY HASKELL COUNTY COURTHOUSE 202 EAST MAIN STREET, SUITE 11 STIGLER, OK 74462 COUNSEL FOR THE STATE

          MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA MATTHEW D. HAIRE ASSISTANT ATTORNEY GENERAL 313 NE 21ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE

          SUMMARY OPINION

          KUEHN, JUDGE

         ¶1 Kendall Ray Thompson was tried by jury and convicted of Counts I and II, Manslaughter in the First Degree in violation of 21 O.S.2011, § 711, and Count III, Failure to Stop at a Stop Sign (Misdemeanor) in violation of 47 O.S.2011, § 11-201, all after former conviction of two or more felonies, in the District Court of Haskell County, Case No. CF-2014-74. In accordance with the jury's recommendation the Honorable Brian C. Henderson sentenced Thompson to twenty (20) years imprisonment on each of Counts I and II, to be served concurrently, and a fine of $5.00 on Count III. Thompson must serve 85% of his sentences on Counts I and II before becoming eligible for parole consideration. Thompson appeals from these convictions and sentences.

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

I. The trial court erred in denying Appellant's motion to quash and instructing the jury on the enhanced range of punishment for first degree murder [sic].
II. Under the facts and circumstances of this case, the concurrent twenty-year sentences are excessive and should be modified by at least partial suspension.
III. Appellant's convictions for both misdemeanor manslaughter and the underlying misdemeanor cannot stand.

         ¶3 After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief in Counts I and II. Count III must be vacated and remanded with orders to dismiss.

         ¶4 We first find in Proposition I that the trial court did not err in denying Thompson's motion at trial to quash the Supplemental Information charging him with prior convictions. This is not a jurisdictional claim; Thompson waived this issue because he failed to timely assert that the evidence at preliminary hearing was insufficient before he entered a plea at arraignment. Primeaux v. State, 2004 OK CR 16, ¶ 18, 88 P.3d 893, 900; Koonce v. State, 1985 OK CR 26, ¶ 7, 696 P.2d 501, 504, overruled on other grounds, Landtroop v. State, 1988 OK CR 90, ¶ 6, 753 P.2d 1371, 1371.

         ¶5 As well, Appellant's argument that he was surprised by the second page allegations because the second page was not filed with each amended Information is unpersuasive. We have upheld a conviction where a second page was initially separately filed, and not included in the subsequently-filed amended Informations; the defendant had been bound over on the alleged prior convictions, and the record clearly showed he was not surprised by them. Doyle v. State, 1989 OK CR 85, ¶¶ 10, 11, 785 P.2d 317, 322. Like the defendant in Doyle, the ...


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