Kelsey Danielle Dodson v The State of Oklahoma

F 2010-422

Filed: Jun. 21, 2011

Not for publication

Prevailing Party: Kelsey Danielle Dodson

Summary

Kelsey Danielle Dodson appealed her conviction for child neglect. Conviction and sentence were affirmed with a 20-year prison term. Lumpkin dissented.

Decision

The Judgment and Sentence of the District Court is MODIFIED to reflect that the imposition of a fine is stricken; the term of imprisonment is AFFIRMED. Appellant's $1,000.00 Victim's Compensation Assessment is vacated and the matter is remanded to the District Court for a hearing in which all of the required factors will be considered in assessing a Victim's Compensation Assessment in this matter. Further, the order for Appellant to pay $500.00 into the court fund is vacated. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was Appellant's sentence of 20 years' imprisonment excessive under the facts and circumstances of her case and should it be modified by the Court?
• Did the trial court violate Appellant's jury trial and due process rights by imposing a $500 fine against her as punishment beyond that prescribed by her jury's verdict?
• Did the district court violate Appellant's due process rights by arbitrarily ordering her to pay a $1,000 victim compensation assessment without first considering the mandatory statutory factors?
• Did the trial court abuse its discretion by imposing a "court fund" assessment which is not authorized by law?

Findings

• The court did not err in affirming the sentence of 20 years' imprisonment.
• The court erred in imposing a $500 fine against Appellant beyond the jury's verdict.
• The court erred by vacating the $1,000 Victim's Compensation Assessment due to the trial court not considering the necessary factors.
• The trial court exceeded its authority in requiring a $500 court fund payment and this assessment was vacated.

F 2010-422

Jun. 21, 2011

Kelsey Danielle Dodson

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, VICE PRESIDING JUDGE:

Kelsey Danielle Dodson, Appellant, was tried by jury for the crimes of, count one, child abuse by injury in violation of 10 O.S.Supp.2008, § 7115(A) and, count two, child neglect in violation of 10 O.S.Supp.2008, § 7115(B), in Tulsa County District Court case number CF-2008-3936, before the Honorable P. Thomas Thornbrugh, District Judge. Appellant was acquitted on count one but convicted of count two. The jury set punishment at twenty (20) years imprisonment, and the trial court sentenced Appellant in accordance with the jury verdict.¹

Appellant perfected an appeal to this Court, raising the following propositions of error.
1. Appellant’s sentence of 20 years’ imprisonment is excessive under the facts and circumstances of her case and should be modified by this Court.²
² Appellant will be required to serve eighty-five percent (85%) of her sentence before becoming eligible for parole. 21 O.S.Supp.2007, § 13.1(14)
2. The trial court violated Appellant’s jury trial and due process rights under the 6th and 14th Amendments and Art. II, §§ 7 and 20 of the Oklahoma Constitution by imposing a $500 fine against her as punishment beyond that prescribed by her jury’s verdict.
3. The district court violated Appellant’s due process rights by arbitrarily ordering her to pay a $1,000 victim compensation assessment without first considering the mandatory statutory factors prerequisite to this assessment.
4. The trial court abused its discretion in violation of Appellant’s due process rights by imposing a court fund assessment which is not authorized by law.

After thorough consideration of Appellant’s propositions of error and the entire record before us on appeal, including the original record, exhibits, transcripts, and briefs, we have determined that the imprisonment outlined in the Judgment and Sentence shall be affirmed, but the fine is vacated. Certain assessments are addressed below, with directions to the trial court.

In proposition one, we find that the twenty years’ imprisonment was within the range of punishment for this offense, and the sentence does not shock this Court’s conscience. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149.

In proposition two, we find that the assessment of a non-mandatory fine by the trial court was in contravention of the clear and unambiguous verdict of the jury, thus the fine should be stricken. Luker v. State, 1976 OK CR 135, ¶ 12, 552 P.2d 715, 719.

In proposition three, we find that the record does not reflect that the trial court considered the factors spelled out in 21 O.S.2001, § 142.18, before assessing the victim compensation assessment (VCA). Although there was no objection to the assessment, the VCA in this case must be vacated, and the matter remanded so that the trial court can make a proper record and consider the factors before assessing the VCA. See Walters v. State, 1993 OK CR 4, ¶ 17, 848 P.2d 20, 25.

In proposition four, we find that the trial court exceeded its authority in requiring a $500.00 payment to the court fund. There was no objection to the assessment, but the assessment constitutes plain error. The State argues that 22 O.S.Supp.2008, § 991a(A)(1)(k), allows such order. We find, however, that § 991a(A)(1) applies only to conditions of a suspended sentence, and, as Appellant did not receive a suspended sentence, the payment is not authorized. See Nevious v. State, 1989 OK CR 13, ¶ 6, 774 P.2d 1070, 1071.

DECISION

The Judgment and Sentence of the District Court is MODIFIED to reflect that the imposition of a fine is stricken; the term of imprisonment is AFFIRMED. Appellant’s $1,000.00 Victim’s Compensation Assessment is vacated and the matter is remanded to the District Court for a hearing in which all of the required factors will be considered in assessing a Victim’s Compensation Assessment in this matter. Further, the order for Appellant to pay $500.00 into the court fund is vacated.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 10 O.S.Supp.2008, § 7115(A)
2. 10 O.S.Supp.2008, § 7115(B)
3. 21 O.S.Supp.2007, § 13.1(14)
4. Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149.
5. Luker v. State, 1976 OK CR 135, I 12, 552 P.2d 715, 719.
6. 21 O.S.2001, § 142.18
7. Walters v. State, 1993 OK CR 4, II 17, 848 P.2d 20, 25.
8. 22 O.S.Supp.2008, § 991a(A)(1)(k)
9. Nevious v. State, 1989 OK CR 13, I 6, 774 P.2d 1070, 1071.
10. 22 O.S.Supp.2002, § 982
11. 21 O.S.Supp.2009, § 142.18(A)
12. Simpson v. State, 1994 OK CR 40, I 11, 876 P.2d 690, 694.
13. Fite v. State, 1993 OK CR 58, 919 2-3, 873 P.2d 293, 298.

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115(A) - Child abuse by injury
• Okla. Stat. tit. 10 § 7115(B) - Child neglect
• Okla. Stat. tit. 21 § 13.1(14) - Sentencing
• Okla. Stat. tit. 21 § 142.18 - Victim compensation assessment
• Okla. Stat. tit. 22 § 991a(A)(1)(k) - Conditions of a suspended sentence
• Okla. Stat. tit. 22 § 982 - Pre-sentence investigation report

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:

• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149.
• Luker v. State, 1976 OK CR 135, I 12, 552 P.2d 715, 719.
• Walters v. State, 1993 OK CR 4, II 17, 848 P.2d 20, 25.
• Nevious v. State, 1989 OK CR 13, I 6, 774 P.2d 1070, 1071.
• Simpson v. State, 1994 OK CR 40, I 11, 876 P.2d 690, 694.
• Fite v. State, 1993 OK CR 58, 919 2-3, 873 P.2d 293, 298.
• Petty v. State, unpub. disp., F-2009-438, p. 4 n.2 (Okl.Cr.June 26, 2009).
• Tiger v. State, unpub. dispo., F-2010-223 (Okl.Cr.February 16, 2011).