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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA BENNIE JAY EDWARDS, JR., ) ) NOT FOR PUBLICATION Appellant, ) V. ) Case No. F 2002-869 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA JUL 2 9 2003 SUMMARY OPINION MICHAEL S. RICHIE JOHNSON, PRESIDING JUDGE: CLERK Appellant, Bennie Jay Edwards, Jr., was convicted in Oklahoma County District Court, Case No. Case No. CF 2001-5881, of Concealing Stolen Property, in violation of 21 O.S.2001, § 1713, after former conviction of two or more felonies (Count 1) and of Breaking and Entering, in violation of 21 O.S. 2001, § 1483(B) (Count 2). Jury trial was held May 6th and 7th, 2002, before the Honorable Tammy Bass-Jones, District Judge. The jury found Appellant guilty of both counts and set punishment at thirty (30) years imprisonment on Count 1 and one year imprisonment on Count 2 with a Five Hundred Dollar ($500.00) fine. Judgment and Sentence was imposed on July 9th, 2002, in accordance with the jury’s verdicts and Judge Bass-Jones ordered the sentences to be served concurrently. Thereafter, Appellant filed this appeal. Appellant raises two propositions of error: 1. Trial errors and prosecutorial misconduct, cumulatively, denied Mr. Edwards due process and a fundamentally fair trial on Count 1, or alternatively, resulted in an excessive sentence; and 2. The trial court’s failure to instruct the jury on the proper range of punishment on count 1 was plain error that violated Mr. Edwards’ right to due process and a fundamentally fair trial and requires a sentence modification. After thorough consideration of the propositions raised, including the Original Record, transcripts, and briefs and arguments of the parties, we have determined that the convictions should be affirmed, but the sentence imposed on Count 1 modified for the reasons set forth below. The alleged prosecutorial errors and alleged trial errors did not deprive Appellant of a fair trial Count 1 and reversal is not warranted. Matthews v. State, 2002 OK CR 16, I 38, 45 P.3d 907, 920. However, we find merit in Appellant’s second proposition as the trial court did not instruct the jury on the correct range of punishment. At the time Appellant committed the offenses, the proper punishment for Concealing Stolen Property, after former conviction of two or more felonies, was “four (4) years to life imprisonment,” see 21 O.S.2001, § 51.1(C), but the jury was instructed the range of punishment was “for a term of not less than twenty years.” The failure of the trial judge to properly instruct on the range of punishment was plain error.¹ Taylor U. State, 2002 OK CR 13, I 3, 45 P.3d 103, 105. Therefore, we hereby modify the sentence imposed on Count 1 to ten (10) years imprisonment. DECISION The Judgments of the trial court in Oklahoma County District Court, Case No. CF 2001-5881, are hereby AFFIRMED, but the sentence imposed in Count 1 is hereby MODIFIED to Ten (10) years imprisonment. 1 The State conceded in its brief that the trial court erred in its instruction. 2 APPEARANCES AT TRIAL APPEARANCES ON APPEAL JANET COX WENDELL SUTTON ASST. PUBLIC DEFENDER ASST. PUBLIC DEFENDER 320 ROBERT S. KERR, ROOM 611 320 ROBERT S. KERR, ROOM 611 OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73102 ATTORNEY FOR DEFENDANT ATTORNEY FOR APPELLANT RICHARD WINTORY W.A. DREW EDMONDSON DIANE BOX ATTORNEY GENERAL OF OKLAHOMA ASST. DISTRICT ATTORNEYS NANCY E. CONNALLY OKLAHOMA COUNTY COURTHOUSE ASSISTANT ATTORNEY GENERAL 320 ROBERT S. KERR, SUITE 505 112 STATE CAPITOL BUILDING OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73105 ATTORNEYS FOR THE STATE ATTORNEYS FOR STATE OPINION BY: JOHNSON, P.J. LILE, V.P.J. : CONCUR LUMPKIN, J.: CONCUR CHAPEL, J.: CONCUR STRUBHAR, J.: CONCUR 3

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