STATE v. BLACKSHER

SUMMARY OPINION LUMPKIN, Vice-Presiding Judge. T1 Appellee Kevin Dale Blacksher was charged in 'the District Court of Lincoln County with Driving Under the Influence (DUI)-Felony, After Former Conviction of Two or More Felonies (Count I) (47 0.8.8upp.2018, § 11-902(C)(2)); Driving with a Buspended License (Count II) (47 0.8.2011, § 6-303(B))(misdemeanor); Failure to Carry Insurance/Security Verification Form (Count IIID) (47 0,8.2011, § 7-602)(misdemeanor) and Speeding (Count IV) (47 0.8.2011, § 11-801(B)) (misdemeanor), Case No. CF-2014-264. The State filed a Second Page Supplemental Information alleging seven prior convictions. Two of these prior convictions were misdemeanor convictions for DUI and were used to increase the DUI charge to Felony DUI. The additional prior convictions were for Second Degree Burglary, Felony Possession of Marijuana-Second Offense, and three convictions for Knowingly Concealing Stolen Property. 'With these five prior convictions, the State sought to enhance the range of punishment for the felony DUI charge pursuant to 21 0.8.2011, § 51.1. 12 The defense filed a Motion to Quash the second page arguing that the five prior non-DUI related convictions could not be used to enhance punishment as they did not fall under Title 47 and only prior convictions under Title 47 eould be used to enhance the punishment for. the felony DUI charge. The State responded that the non-DUI related *1132 prior convictions could be used for enhancement purposes under Section 51, the general sentence enhancement provision of the Habitual Offender Act, 21 0.9.2011, § 51.1. After hearing arguments, the trial court ruled the non-DUI related prior convictions could not be used to enhance the punishment for the felony DUI and granted the Motion to Quash, striking the second page of the Information. ‘ .18 The State now appeals from the District Court's decision pursuant to 22 O.S. 2011, § 1058(1) and raises the following proposition of error: I. The trial court erred in dismissing the Supplemental Information, 14 After thorough consideration of this proposition of error and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we find the ruling of the District Court granting the Motion to Quash is revel sed and vacated and the matter is remanded to the District Court for proceedmgs consistent with this opinion. 15 In appeals brought to thls Court pursuant to 22 O.S.2011, § 1058, we review the: trial court's decision to determine if the trial court abused its discretion,. State v. Hooley, 2012 OK CR 3, ¶ 4, 269 P.3d 949, 950. 'An abuse of discretion is any unreason-gble or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one thatiis clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. T6 This Court has not resolved this precise issue in a published opinion. Pursuant to Rule 8.5(C)(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016),, Appellant has brought to our attention an unpublished opinion by Judge Chapel, VanWoundenberg v. State, F-2002-899 (not for publication, July 22, 2003) 1 Ap— pellant has affixed a copy of the unpublished opinion to its brief, and argues that it resolves the issue before us. We have reviewed the opinion and find it well reasoned and applicable to the issue at hand, We liberally quote from it in arriving at our decision herein. T7 In VanWoundenberg, the defendant had three prior felony convictions for DUI and three prior felony convictions for non-DUI related offenses. This Court held the State properly used one of the prior DUI convictions to enhance the charge from a misdemeanor to a felony and the non-DUI félony 'convictions to enhance the range of punishment under § 51. In arriving at this conclusion, the Court relied on Cooper v. State, 1991 OK CR 26, 806 P.2d 1136. T8 In Cooper, the defendant was charged with drug offenses committed under the Uniform Controlled Dangerous Substances Act but had both drug related and non-drug related prior convictions. He elaimed his sentence should have been enhanced only under the specific provisions found in the controlled dangerous substances statutes. We held that the prosecutor may elect enhancement under the general sentencing statute, § 51.1, or the specific drug statute, where a defendant had both drug-related and non-drug related prior convictions. Cooper, 1991 OK CR 26, ¶ 17, 806 P.2d at 1139, See also Novey v. State, 1985 OK CR 142, ¶ 14, 709 P.2d 696, 699-700 (where defendant has drug related and non-drug related prior convie-tions, prosecution may elect to enhance under either § 51 or the uniform controlled dangerous substance act, but not both); Hayes v. State, 1976 OK CR 118, ¶ 5, 550 P.2d 1344, 1848 (pumshment for a drug related offense could be properly enhanced pursuant to § 51 if the prior offense alleged was a non-drug related felony). T 9 The Appellant in VanWoundenberg and the Appellee in the present case assert this principle does not apply to the sentence enhancement of a DUI offense as this Court has noted the specific, controlling nature of *1133 the Title 47 DUI statutes citing Kolberg v. State, 1996. CR 41, 925, P.2d .66. In Kolberg, we said the specific provisions of Title 47 take precedence over the more general provisions of § 51. Despite this sweeping pronouncement, Kolberg does not interpret the sentence enhancement question as described in Cooper. Kolberg concerned the Title 47 requirement that a misdemeanor driving under the influence charge becomes a felony only where a defendant's prior conviction for driving under the influence is within ten years of the charged offense. This Court found that the explicit differing language in Title 47 specifically controlled over the general language of § 51, and held that a prior conviction under Title 47 must be within ten years, as the statute required. Kolberg, 1996 OK CR 41, €6, 925 P.2d at 68. This is a completely different issue from the case now before us and Kolberg does not apply to the issue of sentence enhancement for a DUI offense when a defendant has a variety of prior convictions. 10 The Appellee also dwects us to New-lun v. State, 2015 OK CR 7, 348 P.3d 209. That case concerned a conflict within Title 47 regarding whether a first offense aggravated driving under the influence charge should be treated as a misdemeanor or a felony. This Court held that due to the conflict of speclfic provisions, and as the more specific aggravated section applied, nothing in Title 47 precluded a conviction for misdemeanor DUI after a felony DUI conviction. 2015 OK CR 7, § 11, 848 P.8d at 212. Again, that is not the situation before us and Newlun is not applicable to the instant case. 1 11 While the charge in VanWoundenbery and this case is driving under the influence, rather than a coritrolled substance offense, we find the analysis in Cooper persuasive. In the absence of any authority prohibiting its application, we find the principle for enhancing the punishment of DUI related offenses to be the same as that for drug related crimes. Therefore, in the present case, the Appellee's sentence could not be , enhanced under § 51.1 if all of his prior convie-tions were for DUI related offenses under Title 47. See Broome v. State, 1968 OK CR 77, T8, 440 P.2d 761, 768. However, as he also had .prior convictions for non-DUI related felonies, those prior convictions could be used to enhance his sentence under the provisions of § 51.1. € 12 Therefore, the Dlstnct Court. abused its discretion in granting the Motion to Quash and striking the second page of the felony information. The order granting the Motion to Quash is reversed and vacated and the matter.is remanded to the District Court for proceedings consistent with this opinion. DECISION © 18 The ruling of the District Court granting the Motion to Quash is REVERSED AND VACATED and the case is REMANDED to the District Court for further proceedings consistent with this opinion. Pursuant to Rule 38.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision. SMITH, P.J., LEWIS, P.J., JOHNSON and HUDSON, JJ.: concur,. Footnotes [1] Rule 3. 5(C)(3) prov1des In all instances, an unpubhshed decision i is not binding on this Court. However, parties may cite and bring to the Court's attention the unpublished decisions of this Court provided counsel states that no published case would sérve as well the purpose for which counsel cites it, and provided further that counsel shall provide opposing counsel and the Court with a copy of the unpublished decision.