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NEWLUN v. STATE2015 OK CR 7348 P.3d 209Case Number: F-2014-335Decided: 04/16/2015STARR FERNETTE NEWLUN, Appellant, v. STATE OF OKLAHOMA, Appellee.
Cite as: 2015 OK CR 7, 348 P.3d 209

 


OPINION

JOHNSON, JUDGE:
¶1 Appellant Starr Fernette Newlun, was tried in a non-jury trial in the 
District Court of Tulsa County, Case No. CF-2013-843, and convicted of 
Aggravated Driving Under the Influence of Alcohol, after former conviction of a 
felony DUI (Count 1), in violation of 47 O.S.Supp.2012, § 11-902(D), and 
Failure to Yield at an Intersection (Count 2), in violation of 47 O.S.2011, § 11-403. The 
Honorable William C. Kellough, who presided at trial, sentenced Newlun to five 
years suspended and a $600.00 fine for Count 1 and a fine of $10.00 for Count 2. 
From this Judgment and Sentence, Newlun appeals, raising the following 
questions:


(1) whether the present driving under the influence of 
    alcohol--aggravated offense is a felony; and
(2) whether Oklahoma legal authority provides that a subsequent offense 
    of driving under the influence of alcohol, committed over ten years after 
    the sentence imposed on the previous offense has been completed, can be 
    treated as a felony.
¶2 We find relief is required and that the district court's Judgment and 
Sentence on Count 1 should be modified. The Judgment and Sentence on Count 2 is 
affirmed.
Background
¶3 On November 3, 2012, Starr Newlun was stopped in Tulsa after Captain 
Robert Holman with the Tulsa County Sheriff's Office saw her hit a curb with her 
car three times and run a stop sign. Newlun smelled strongly of alcohol, had 
slurred speech, bloodshot watery eyes and difficulty standing. She admitted to 
being drunk and failed several field sobriety tests. She also agreed to take a 
breath test which showed a result of .22 BAC, fifteen hundredths over the 
limit.
¶4 Newlun was subsequently charged and convicted of felony aggravated driving 
under the influence (DUI), after a prior felony DUI. She had been previously 
convicted of felony DUI on October 22, 1997, and sentenced to two years 
imprisonment. Prior to trial on this case, Newlun filed a motion to dismiss 
arguing that she could be convicted only of misdemeanor DUI in this case because 
her prior felony DUI conviction was committed and the resulting sentence 
completed more than ten years before the crime in this case was committed. The 
trial court denied Newlun's motion, finding that "once a person has achieved a 
felony status, [ ] the ten year rule does not apply."
Propositions
¶5 Newlun argues on appeal that the trial court's ruling was in error and 
that under 47 O.S.Supp.2012, § 
11-902, her conviction for DUI in this case should be a misdemeanor, not a 
felony. Because this claim raises an issue of statutory interpretation, it 
presents a question of law that this Court reviews de novo. Hunt v. 
State, 2014 OK CR 17, ¶ 3, 
__ P.3d __; State v. Davis, 2011 OK CR 22, ¶ 5, 260 P.3d 194, 195.
¶6 Title 47 O.S.Supp.2012, § 
11-902(C)(1) provides that a person convicted of driving under the influence 
"shall be guilty of a misdemeanor for the first offense." This section further 
provides that if, during the period of court-imposed probation or within ten 
years of the date following the completion of the execution of any sentence or 
deferred judgment for a violation of this section, a person commits a second 
offense pursuant to the provisions of this section, that person shall, upon 
conviction, be guilty of a felony. 47 O.S.Supp.2012, § 11-902(C)(2). 
This section also addresses the punishment provisions for those convicted of 
second and third or subsequent felony offenses of this section. 47 O.S.Supp.2012, § 
11-902(C)(3)&(4).
¶7 As to aggravated driving under the influence, 47 O.S.Supp.2012, § 11-902(D) 
provides, "[a]ny person who is convicted of a violation of driving under the 
influence with a blood or breath alcohol concentration of fifteen-hundredths 
(0.15) or more pursuant to this section shall be deemed guilty of aggravated 
driving under the influence." This subsection further provides:


Nothing in this subsection shall preclude the defendant from being 
    charged or punished as provided in paragraph 1, 2, 3, 4 or 5 of subsection C 
    of this section. Any person who is convicted pursuant to the provisions of 
    this subsection shall be guilty of a misdemeanor for a first offense and 
    shall be punished as provided in paragraph 1 of subsection C of this 
    section. Any person who, during the period of any court-imposed probationary 
    term or within ten (10) years of the completion of the execution of any 
    sentence or deferred judgment, commits a second violation of this subsection 
    shall, upon conviction, be guilty of a felony and shall be punished as 
    provided in paragraph 2 of subsection C of this section. Any person who 
    commits a second felony offense pursuant to this subsection shall, upon 
    conviction, be guilty of a felony and shall be punished as provided in 
    paragraph 3 of subsection C of this section. Any person who commits a third 
    or subsequent felony offense pursuant to the provisions of this subsection 
    shall, upon conviction, be guilty of a felony and shall be punished as 
    provided in paragraph 4 of subsection C of this 
section.
¶8 A fundamental principle of statutory construction requires this Court to 
determine and give effect to the intention of the Legislature. State v. 
Iven, 2014 OK CR 8, ¶ 13, 335 P.3d 264, 168. Legislative 
intent is determined first by the plain and ordinary language of the statute. 
Johnson v. State, 2013 OK CR 
12, ¶ 10, 308 P.3d 1053, 
1055. "A statute should be given a construction according to the fair import of 
its words taken in their usual sense, in conjunction with the context, and with 
reference to the purpose of the provision." Id. (citation omitted). When 
language of a statute is unambiguous, resort to additional rules of construction 
is unnecessary. Barnard v. State, 2005 OK CR 13, ¶ 7, 119 P.3d 203, 205-06. We must hold 
a statute to mean what it plainly expresses and cannot resort to interpretive 
devices to create a different meaning. Johnson, 2013 OK CR 12, ¶ 10, 308 P.3d at 
1055.
¶9 Additionally, a primary rule of statutory construction, the "rule of 
lenity," requires that we construe statutes strictly against the state and 
liberally in favor of the accused. State v. Day, 1994 OK CR 67, ¶ 11, 882 P.2d 1096, 1098. "[W]ords not 
found in the text of a criminal statute will not be read into it for the purpose 
of extending it or giving it an interpretation in conformity with a supposed 
policy." State v. District Court of Cleveland County, State of Okl., 1991 OK CR 68, ¶ 6, 816 P.2d 552, 554


A statute will not be enlarged by implication or intendment 
    beyond the fair meaning of the language used, or what their terms reasonably 
    justify, and will not be held to include offenses and persons other than 
    those which are clearly described and provided for, although the court in 
    interpreting and applying particular statutes may think the legislature 
    should have made them more comprehensive.
State v. Tran, 2007 OK CR 
39, ¶ 8, 172 P.3d 199, 200, 
quoting Matthews v. Powers, 1967 OK CR 37, ¶ 10, 425 P.2d 479, 482. As we said in 
State v. Young, 1999 OK CR 
14, ¶ 27, 989 P.2d 949, 955, 
"[i]t is not our place to interpret a statute to address a matter the 
Legislature chose not to address, even if we think that interpretation might 
produce a reasonable result.""The purpose of strict construction is not to 
reward those who commit acts which should be punishable. Rather, it is to ensure 
that when liberty is at stake, all citizens have fair and clear warning of what 
conduct is prohibited, and, equally important, the severity of punishment for 
any infraction." Durant v. State, 2008 OK CR 17, ¶ 8, 188 P.3d 192, 194.
¶10 In Kolberg v. State, 1996 OK CR 41, ¶ 2-8, 925 P.2d 66, 67-68, this Court 
addressed an issue similar to the one in this case under facts similar to those 
presented here. The defendant in Kolberg was charged and convicted of 
DUI, second and subsequent offense. His prior conviction was for felony DUI. As 
in the present case, the felony DUI at issue in Kolberg occurred over ten 
years after his first felony DUI conviction. Kolberg argued, and this Court 
agreed, that because his conviction on the first felony DUI had occurred over 
ten years before he committed the second felony DUI, the time constraints of 
section 11-902 required that his second felony DUI be modified to misdemeanor 
DUI.1 
Appellant Newlun relies upon Kolberg to support her position that her 
felony DUI should also be modified to a misdemeanor. This published authority is 
both on point and persuasive.
¶11 The plain language of section 11-902 specifies that the first offense of 
DUI is a misdemeanor and a second offense of DUI committed while a person is on 
probation or within ten years of the date following the completion of the 
execution of any sentence or deferred judgment for a DUI under this section, is 
a felony. Nothing in the plain language of the statute supports an 
interpretation that once a person has been convicted of a felony he cannot 
subsequently be convicted of a misdemeanor DUI if his next offense occurs more 
than ten years after the completion of his sentence for the prior DUI. While the 
State argues that the legislature's omission of time limitations from 
subsections 3 and 4 of section 11-902(C) supports the conclusion that second and 
third DUI offenses are felonies, these subsections address only the 
punishment provisions for second and third felonies.2 They do not define the 
circumstances under which second and third DUI offenses actually become 
felonies. The language in section 11-902(C)(3)&(4) does not preclude the 
Kolberg interpretation allowing a person to be convicted of a misdemeanor 
after a felony DUI conviction. While it might be reasonable policy to preclude a 
person who has a felony DUI from ever again being charged with a misdemeanor 
DUI, policy matters fall within the purview of the legislature and not the 
Court. Johnson v. State, 2012 
OK CR 5, ¶ 34, 272 P.3d 270, 732; Hogan v. State, 2006 OK CR 19, ¶ 82, 139 P.3d 907, 934. Given the plain 
language of section 11-902, we follow our published precedent in this case and 
modify Newlun's felony DUI to a misdemeanor.
DECISION
¶12 The district court's Judgment on Count 1 is MODIFIED to 
misdemeanor aggravated driving under the influence and the Sentence is 
MODIFIED to one year in jail suspended. The Judgment and Sentence on 
Count 2 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma 
Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE 
is ORDERED issued upon delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTYTHE 
HONORABLE WILLIAM C. KELLOUGH, DISTRICT JUDGE
 
APPEARANCES AT 
TRIAL                                       
APPEARANCES ON APPEAL
 




GREGORY N. HOPE1825 E. 15TH STREETTULSA, OK 74104ATTORNEY 
      FOR DEFENDANT

E. ZACH SMITHGREGORY N. HOPE1825 E. 15TH STREETTULSA, OK 
      74104ATTORNEYS FOR APPELLANT


JAMES PFEFFERASSISTANT DISTRICT ATTORNEYTULSA COUNTY 
      COURTHOUSE500 S. DENVERTULSA, OK 74103ATTORNEY FOR 
STATE

E. SCOTT PRUITTOKLAHOMA ATTORNEY GENERALDIANE L. 
      SLAYTONASSISTANT ATTORNEY GENERAL313 N.E. 21ST STREETOKLAHOMA 
      CITY, OK 73105ATTORNEYS FOR APPELLEE

OPINION BY: JOHNSON, J.SMITH, P.J.: Concur in 
ResultsLUMPKIN, V.P.J.: ConcurLEWIS, J.: 
Concur

FOOTNOTES

1 At the 
time Kolberg was decided, section 11-902(C) provided that, "[a]ny person 
who, within ten (10) years after a previous conviction of a violation of 
this section . is convicted of a second offense . shall be deemed guilty of a 
felony." (emphasis added). This distinction from the current version of section 
11-902(C) is not consequential to the analysis in this case.

2 In 
support of its position, the State relies upon the unpublished case of Byrd 
v. State, F-2004-1080 (January 20, 2006). In Byrd, the defendant was 
convicted of DUI, third offense, after former conviction of a felony. Byrd had 
two prior felony DUI convictions. In finding that the two prior DUI convictions 
could be used to enhance Byrd's current DUI sentence, the Court noted first that 
under 47 O.S. 11-902(C)(2) any 
person who commits a second DUI within ten years of a previous DUI conviction is 
guilty of a felony. The Court went on to state that, "for a conviction on a 3rd 
or subsequent DUI, there is no time restriction or age requirement of the prior 
felony." The Court cited 47 O.S. 
11-902(C)(4) in support of this conclusion. We need not overrule the holding 
in Byrd as it is unpublished and has no precedential 
value.


Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


None Found.


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Court of Criminal Appeals Cases
 CiteNameLevel
 1991 OK CR 68, 816 P.2d 552, STATE v. DISTRICT COURT OF CLEVELAND CTY.Discussed
 1994 OK CR 67, 882 P.2d 1096, STATE v. DAYDiscussed
 1996 OK CR 41, 925 P.2d 66, KOLBERG v. STATEDiscussed
 2005 OK CR 13, 119 P.3d 203, BARNARD v. STATEDiscussed
 2006 OK CR 19, 139 P.3d 907, HOGAN v. STATEDiscussed
 2007 OK CR 39, 172 P.3d 199, STATE v. TRANDiscussed
 2008 OK CR 17, 188 P.3d 192, DURANT v. STATEDiscussed
 2011 OK CR 22, 260 P.3d 194, STATE v. DAVISDiscussed
 2012 OK CR 5, 272 P.3d 720, JOHNSON v. STATECited
 2013 OK CR 12, 308 P.3d 1053, JOHNSON v. STATEDiscussed at Length
 2014 OK CR 8, 335 P.3d 264, STATE v. IVENDiscussed
 2014 OK CR 17, 340 P.3d 7, STATE v. HURTCited
 1967 OK CR 37, 425 P.2d 479, MATTHEWS v. POWERSDiscussed
 1999 OK CR 14, 989 P.2d 949, 70 OBJ        1076, State v. YoungDiscussed
Title 47. Motor Vehicles
 CiteNameLevel
 47 O.S. 11-403, Vehicle Entering Stop or Yield IntersectionCited
 47 O.S. 11-902, Persons Under the Influence of Alcohol or Other Intoxicating Substance or Combination ThereofDiscussed at Length













