DocketNumber: No. F-2004-126
Citation Numbers: 119 P.3d 203, 2005 OK CR 13, 76 O.B.A.J. 1873, 2005 Okla. Crim. App. LEXIS 10, 2005 WL 1950906
Judges: Chapel, Johnson, Lumpkin
Filed Date: 8/16/2005
Status: Precedential
Modified Date: 10/19/2024
OPINION
T1 Gary Hartwell Barnard was tried by jury and convicted of one count of Escape from County Jail, under 21 0.8.2001, § 448(A), After Former Conviction of Two or More Felonies, in Grady County, Case No. CF-2008-275. In accordance with the jury's recommendation, the Honorable Richard Van Dyck sentenced Barnard to imprisonment for thirty (80) years. Barnard appeals his conviction and his sentence.
Facts
T2 On August 20, 2008, Gary Barnard was serving time in the Grady County Jail pursuant to a court order, for failing to pay warrants arising out of two cases in which he had been convicted of misdemeanors.
13 At some point during that afternoon, Barnard and another inmate, Timothy Thompson, walked off their job site, found clothing to change into, and left the fairgrounds. They were not being directly supervised, and their absence was not noticed until that evening, after Hooper had returned the other ten inmates who were working that day to the Grady County Jails.
ANALYSIS
15 In Proposition I, Barnard argues that the escape statute under which he was charged and convicted cannot be applied to his escape from county jail. Barnard was charged and convicted of escaping from county jail under 21 0.S$.2001, § 448(A). The statute provides:
Any person having been imprisoned in a county or city jail or detained in a juvenile detention facility awaiting charges on a felony offense or prisoner awaiting trial or having been sentenced on a felony charge to the custody of the Department of Corrections who escapes from a juvenile detention facility while actually confined therein or escapes from a county or city jail, either while actually confined therein, while permitted to be at large as a trusty, or while awaiting transportation to a Department of Corrections facility for execution of sentence, shall be guilty of a felony punishable by imprisonment of not less than one (1) year nor more than seven (7) years.
Barnard, who has never disputed the basic facts of his escape, argues that this statute cannot be applied to his case, because the reason for his incarceration-failing to pay court-ordered costs in connection with misdemeanor convictions-is not covered by the specific and limited language of this provision. Barnard properly preserved this claim at trial.
T6 In MceBrain v. State,
{7 We begin our analysis by noting, as we did in McBrain, that "[where the language of a statute is plain and unambigu
T8 Although Barnard was certainly imprisoned in a county jail, he was not awaiting charges on a felony offense; he was not awaiting trial; nor had he been sentenced to the Department of Corrections for a felony offense.
19 The State acknowledges that McBrain is the controlling case in the current appeal, but argues that MceBrain should be interpreted as holding that § 448(A) applies to prisoners being "held on" misdemeanors, which (the State argues) includes Barnard. Such an approach is inconsistent with both MceBrain and the language of § 448(A) upon which that decision rested. The State also argues that finding that § 448(A) does not cover Barnard's escape leads to an "unjust result," which should be avoided. While avoiding an unjust result can be a consideration in situations of statutory vagueness,
{10 The State also points out that our McBrain opinion found it "implausible" that someone who escaped from jail while awaiting trial on a misdemeanor would not be guilty of any crime.
T11 In the interest of candor, this Court acknowledges that it may have played a role in creating the current statutory gap. In 1981, in Smith v. State,
112 In Proposition II, Barnard argues that the trial court erred in altering our Uniform Criminal Jury Instruction No. 6-53, to allow for an escape conviction under § 448(A) by someone who was "being held on a court order for failing to pay or appear."
1 13 Barnard's further claims on appeal, in Propositions III, IV, V, VI, and VII, are all rendered moot by this Court's reversal of his escape conviction. They need not be further addressed.
Decision
T15 Barnard's conviction for ESCAPE FROM COUNTY JAIL, AFTER FORMER CONVICTION OF TWO OF MORE FELONIES, is hereby REVERSED and this case is hereby REMANDED to the district court, where it shall be DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
. The first case, CF-97-237, originally charged a felony failure to return rental property, but eventually resulted in a misdemeanor petit larceny conviction. The second case, CM-99-807, involved a conviction for misdemeanor DUI.
. See 22 0.$.2001, § 983; Section VIII, Rules 8.1-8.8, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003). The July 8, 2003, court minute-signed by both the judge and Barnard-notes that Barnard owed a total of $9,448.18 in the two cases and that he could be released from custody upon payment of $522.00. Barnard would then have been expected to continue making payments according to the previous court-ordered schedule. Hence Barnard's custody was akin to being detained for indirect contempt of court.
. Hooper testified that be picked up twelve inmates to work for him that day, that he saw all of them at 11:30 a.m., and that he did not do a head count when he loaded them back into the van at the end of the day. When he asked if everyone
. 1988 OK CR 261, 764 P.2d 905.
. Although § 443(4) has been amended since this Court's decision in McBrain, the amendments simply added (1) the references to juvenile detention facilities, and (2) the language noting that such an escape would be a felony. Compare 21 0.S.1981, § 443(A) with 21 0.S.2001, § 443(A). The amendments did not otherwise change the structure or scope of § 443(A).
. The defendant in McBrain had been awaiting trial on both felony charges and a misdemeanor charge at the time of his escape, but he maintained that the jury should not have been informed about the misdemeanor charge, since § 443(A) only applied to escapes by someone awaiting trial on one or more felony charges. See 1988 OK CR 261, 119-10, 764 P.2d at 907-08.
. Id. at °10-11, 764 P.2d at 908. This Court notes that the subsequent amendments to the statute expand each of these situations to include persons detained in juvenile detention facilities. The Court acknowledges that the addition of the language relating to juvenile detention facilities, without the addition of commas or other helpful punctuation, has served to make a statute that was already difficult to read even more obtuse. Nevertheless, the basic three-part structure of § 443(A) remains discernible.
. See Instruction No. 6-53, OUJI-CR (2d) (Supp. 2000). In the instruction for § 443(A), the third element is that the prisoner or person detained in a juvenile detention facility be "(awaiting charges for a felony offense)/(awaiting trial)/(hav
. See McBrain, 1988 OK CR 261, ¶ 11, 764 P.2d at 908 (citation omitted).
. We noted that the Legislature specifically used the word "felony" in defining the first and third situations, but omitted this limiting word from the second clause. We concluded, "Its omittance from the second clause surely indicates the legislature's intent for the clause to apply to both felony and misdemeanor charges."
. It should be noted that Barnard's presence outside the actual confines of the county jail at the time he escaped is not the reason § 443(A) does not apply here, since this provision does apply to escapes by prisoners "while permitted to be at large as a trusty." See 21 0.$.2001, § 443(A); see also McCoy v. State, 1975 OK CR 117, ¶ 10, 536 P.2d 1309, 1312-13 (per curiam) (§ 443 applies to escape from lawful custody that occurs outside confines of a penal institution).
. See, eg., Delfrate v. State, 1987 OK CR 20, 17, 732 P.2d 900, 902 (interpreting § 443 so as to avoid manifestly unjust sentencing enhancement for defendant) (superseded by subsequent statutory amendment to § 443).
. Indeed, to do so would itself create an unjust result.
. The language of other "nearby" escape provisions demonstrates our Legislature's ability to speak broadly when it wishes a statute to be applied broadly. See, eg., 21 0.8.2001, § 438 (punishment for person facilitating prison escape by another-by sending or carrying something into prison-depends upon whether prisoner was (a) "confined upon any charge or conviction of felony," or (b) "confined otherwise than upon a charge or conviction of felony") 21 0.$.2001, § 441 ("Every person who willfully assists any prisoner in escaping or attempting to escape from the custody of any officer or person having the lawful charge of such prisoner under any process of law or under any lawful arrest, is guilty of a misdemeanor.").
. 1988 OK CR 261, ¶ 11, 764 P.2d at 908. Nevertheless, the holding of McBrain was based upon the statutory language at issue, not the implausibility of a non-criminal escape. Id.
. See 57 0.$.2001, § 56.
. The Court notes that, depending on the facts, it might have been possible to charge Barnard with assisting his cohort, Timothy Thompson, to escape, under 21 0.$.2001, § 437.
. 1981 OK CR 41, 626 P.2d 1357.
. See 21 0.S.1971, § 435 (repealed, effective November 1, 1983).
. 1981 OK CR 41, 16, 626 P.2d at 1359.
. Barnard's escape would have been covered under the former § 435. See Hood v. State, 1964 OK CR 86, 19, 395 P.2d 348, 349-50 (finding that former § 435 applied to person who escaped from city jail, where he was being held for nonpayment of fines on prior convictions).
. This ruling cannot, of course, resurrect the former § 435 or expand the application of our current § 443. Only direct action by the Legislature can do that.
. The trial court substituted this quoted language for the third element of the uniform instruction, quoted supra in note 8. See Instruction No. 6-53, OUJI-CR (2d) (Supp.2000).
. See Atterberry v. State, 1986 OK CR 186, 731 P.2d 420 (conviction reversed where trial court improperly expanded scope of child abuse statute through inaccurate jury instruction).
. See Fontenot v. State, 1994 OK CR 42, 155, 881 P.2d 69, 84-85.