Clarence Edward Reed v The State Of Oklahoma

F-2003-405

Filed: Apr. 20, 2004

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Clarence Edward Reed appealed his conviction for Unlawful Possession of Controlled Drug. Conviction and sentence were modified to six (6) years in prison. Judge Lumpkin dissented.

Decision

Reed's CONVICTION for Unlawful Possession of Controlled Drug, After Former Conviction of Two or more Felonies, is AFFIRMED, but his SENTENCE is MODIFIED to imprisonment for six (6) years.

Issues

• Was there an error in the jury instructions regarding the consideration of prior convictions for sentencing?
• Did the trial court properly limit the number of prior convictions that could be considered in sentencing?
• Is the sentence imposed against Mr. Reed excessive and in need of modification?
• Should Reed's sentence be reduced from eight years to six years based on improper jury instructions?

Findings

• The court erred in allowing the jury to consider all six prior convictions for sentencing.
• The evidence was sufficient to support Reed's conviction for Unlawful Possession of Controlled Drug.
• The sentence was excessive and should be modified.
• The sentence is modified to imprisonment for six (6) years.

F-2003-405

Apr. 20, 2004

Clarence Edward Reed

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Clarence Edward Reed was tried by jury for the crime of Unlawful Possession of Controlled Drug with Intent to Distribute, After Former Conviction of Two or More Felonies, under 63 O.S.Supp.2002, § 2-401, in Tulsa County, Case No. CF-2002-2477. Reed was convicted of the lesser offense of Unlawful Possession of Controlled Drug, After Former Conviction of Two or more Felonies, under 63 O.S.2001, § 2-402.1 In accordance with the jury’s recommendation, the Honorable Jefferson D. Sellers sentenced Reed to imprisonment for eight (8) years. Reed appeals this sentence.

Reed raises the following proposition of error: The sentence imposed against Mr. Reed is excessive and should be favorably modified. This Court finds that because Reed’s jury was wrongly instructed that it could consider Reed’s six prior convictions in the determination of his sentence, after the trial court specifically ruled that Reed could be sentenced based upon only three of these prior convictions-because the others were transactional- Reed’s sentence should be modified to imprisonment for six (6) years. After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that although reversal of Reed’s conviction is not required by the law and evidence, his sentence should be modified.

Decision
Reed’s CONVICTION for Unlawful Possession of Controlled Drug, After Former Conviction of Two or more Felonies, is AFFIRMED, but his SENTENCE is MODIFIED to imprisonment for six (6) years.

ATTORNEYS AT TRIAL

JAMES GOODWIN
ATTORNEY AT LAW
P.O. BOX 3267
TULSA, OKLAHOMA 74101-3267
ATTORNEY FOR DEFENDANT

SEAN BAKER
ASSISTANT DISTRICT ATTORNEY
ROOM 406
TULSA COUNTY COURTHOUSE
500 SOUTH DENVER AVE.
TULSA, OKLAHOMA 74103
ATTORNEY FOR THE STATE

ATTORNEYS ON APPEAL

ANDREAS T. PITSIRI
APPELLATE DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JENNIFER B. MILLER
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

1 Reed was also charged, in CF-2002-2477, with the misdemeanor offense of Improper Use of Lane, under 47 O.S.2001, § 11-307. He was convicted by the trial court of this offense and sentenced to a fine of $20. Reed does not appeal this conviction or sentence.

2 See 22 O.S.2001, § 1066.

2 OPINION BY: CHAPEL, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: CONCUR IN RESULTS
LUMPKIN, J.: CONCUR IN PART/DISSENT IN PART
STRUBHAR, J.: CONCUR

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Footnotes:

1. 63 O.S.Supp.2002, § 2-401
2. 63 O.S.2001, § 2-402
3. 47 O.S.2001, § 11-307
4. 22 O.S.2001, § 1066

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 - Unlawful Possession of Controlled Drug with Intent to Distribute
• Okla. Stat. tit. 63 § 2-402 - Unlawful Possession of Controlled Drug
• Okla. Stat. tit. 47 § 11-307 - Improper Use of Lane
• Okla. Stat. tit. 22 § 1066 - Sentencing Procedures

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• No case citations found