Mandate Issued: 04/11/2018
FROM THE DISTRICT COURT OF TEXAS COUNTY, OKLAHOMA HONORABLE
JEFF CLARK, JUDGE.
Christopher Liebman, Guymon, Oklahoma, for Appellant,
Heather Poole, Oklahoma City, Oklahoma, for Appellee.
Appellant, Nathan Simpson, seeks review of the trial
court's January 27, 2017 order sustaining the revocation
of his driving privileges, the suspension of which had been
requested by the Department of Public Safety, due to
Appellant's November 10, 2015 conviction for felony drug
possession while using a motor vehicle. After the initial
guilty plea, Appellant negotiated a modification of his drug
possession charge and by agreement the conviction was
modified to "endeavoring to possess a controlled
dangerous substance" (CDS), in violation of 63 O.S.
Supp.2004 §2-405. In this appeal, Appellant asserts his
conviction for "endeavoring to possess a CDS"
removes the offense he was convicted of from the mandatory
revocation categories created by 47 O.S. Supp.2013
On August 31, 2014, Appellant was stopped while driving in
Texas County, Oklahoma, which resulted in his being charged
with possession of a controlled dangerous substance,
methamphetamine, after former conviction of two or more
felonies. On November 10, 2015, Appellant initially entered a
plea to the crime of possession of a control dangerous
substance. In October 2016, Appellant sought post-conviction
relief, requesting the opportunity to vacate his previously
entered plea. On November 28, 2016, Appellant and the
district attorney's office agreed Appellant's
original 2015 plea could be vacated; Appellant was allowed to
plea to a modified charge of endeavoring to possess CDS, in
violation of 63 O.S. Supp.2004 §2 -405.
After Appellant entered his original plea in November 2015,
he sought dismissal of the Department of Public Safety order
of revocation, stripping him of his driving privileges. This
appeal from the driver's license revocation was premised
on Appellant's petition for appeal or modification of his
original possession plea, as Appellant argued the modified
plea of "endeavoring to possess" no longer required
revocation of his license under 47 O.S. Supp.2013
§6-205. The trial court disagreed and entered the
appealed from order, sustaining the driver's license
revocation, on January 27, 2017.
A judicial determination whether ambiguity in the language of
a statute exists is a question of law. "[C]onsistent
with a court's construction of alleged ambiguity in a
contract, a judicial determination of the presence of more
than one reasonable construction of the statutory language,
i.e., ambiguity, presents a question of law because the
determination that a statutory construction is reasonable is
based initially on a plain meaning of the words in the
statute where no fact is disputed." In re Initiative
Petition No. 397, State Question No. 767, 2014 OK 23,
¶9, 326 P.3d 496, 501.
Appellant's first proposition of error asserts his
conviction for "endeavoring" to possess a
controlled dangerous substance is not an offense contained
within the exhaustive list of drug offenses in 47 O.S.
Supp.2013 §6-205 (A)(6):
A. The Department of Public Safety shall revoke the driving
privilege of any person, whether adult or juvenile, who, in
any municipal, state or federal court within the United
States, receives a deferred sentence, or a conviction, when
such conviction has become final, or a deferred prosecution,
for any of the following offenses:
6. A misdemeanor or felony conviction for unlawfully
possessing, distributing, dispensing, manufacturing,
trafficking, cultivating, selling, transferring, attempting
or conspiring to possess, distribute, dispense, manufacture,
traffic, sell, or transfer of a controlled dangerous
substance as defined in the Uniform Controlled Dangerous
Substances Act while using a motor vehicle[.]
argues that endeavoring to possess CDS is covered under the
Uniform Controlled Dangerous Substances Act, 63 O.S.
Supp.2004 §2-405, and should be enumerated under
subsection six of the revocation statute, 47 O.S.
§6-2-5(A)(6) and since it is not specifically listed