John Wesley Dickson v State Of Oklahoma

F-2001-1445

Filed: Nov. 5, 2002

Not for publication

Prevailing Party: John Wesley Dickson

Summary

John Wesley Dickson appealed his conviction for Possession of a Controlled Dangerous Substance. Conviction and sentence were modified to twenty years imprisonment. Lumpkin dissented.

Decision

The Judgment of the trial court is AFFIRMED and his Sentence is MODIFIED to twenty years imprisonment.

Issues

• Was the appellant's sentence excessive and unjustified by the facts and circumstances of the case?
• Should the appellant's sentence be modified to reflect the ameliorative amendment of the general sentence enhancement statute?
• Did the prosecutor's improper argument regarding the appropriate sentence influence the jury's decision?
• Was the appellant entitled to the law in effect at the time of the crime regarding sentence enhancement?

Findings

• The court affirmed the judgment of the trial court.
• The court modified the sentence from forty years to twenty years imprisonment.

F-2001-1445

Nov. 5, 2002

John Wesley Dickson

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Appellant, John Wesley Dickson, was convicted by a jury of Possession of a Controlled Dangerous Substance, After Former Conviction of a Felony, in the District Court of Custer County, Case No. CF-2001-43. The case was tried before the Honorable Jill C. Weeden. The jury assessed punishment at forty years imprisonment and the trial court sentenced Appellant accordingly.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm. In reaching our decision, we considered the following propositions of error and determined modification to be required under the law and the evidence:

I. Appellant’s sentence is excessive and should be modified, because the facts and circumstances of the case do not justify the severity of the sentence.

II. Appellant’s sentence should be modified to afford him the benefit of the ameliorative amendment of the general sentence enhancement statute.

It is true that this Court has consistently held that where a sentence is within statutory limits, the sentence imposed by the jury will not be modified unless under the facts and circumstances of the case it is so excessive as to shock the conscience of the Court. Perryman v. State, 990 P.2d 900, 905 (Okl.Cr.1999). It is also true, however, that this Court has repeatedly stated prosecutors should refrain from airing their personal opinions regarding the appropriate sentence. See Washington U. State, 989 P.2d 960, 979 (Okl.Cr.1999).

The sentence of forty years was within the statutory limits. However, this Court finds that the prosecutor’s improper argument stating his opinion of the appropriate sentence influenced the jury’s sentencing decision which, under the facts of this case, shocks the conscience of this Court. Appellant’s sentence should be modified to twenty years imprisonment. And finally, as there is no express indication that the legislature intended the amendment of the general enhancement statute to be applied retroactively, Appellant was entitled only to the law which was in effect at the time that he committed the crime. See State v. Watkins, 837 P.2d 477, 478 (Okl.Cr.1992).

DECISION

The Judgment of the trial court is AFFIRMED and his Sentence is MODIFIED to twenty years imprisonment.

APPEARANCES AT TRIAL

CHARLES TIM LAUGHLIN
INDIGENT DEFENSE SYSTEM
ATTORNEY FOR APPELLANT
823 FRISCIO
CLINTON, OKLAHOMA 73601

DANIEL C. JACOBSMA
ATTORNEY FOR APPELLANT
P.O. BOX 36
ARAPAHO, OKLAHOMA 73620

APPEARANCES ON APPEAL

S. GAIL GUNNING
ATTORNEY FOR APPELLANT
1623 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019

W.A. DREW EDMONDSON
ATTORNEY FOR THE STATE
ATTORNEY GENERAL OF OKLAHOMA

BRANT M. ELMORE
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105

ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART

JOHNSON, V.P.J.: CONCUR

CHAPEL, J.: CONCUR IN RESULTS

LILE, J.: CONCUR IN PART/DISSENT IN PART

LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the Court’s decision to affirm the judgment in this case. However, I must dissent to the modification of the sentence. A prosecutor is permitted to make recommendations as to punishment. In this case, the prosecutor’s recommendation was based on the evidence presented, i.e., the Appellant’s prior conviction and the fact this subsequent conviction deserved a harsher punishment. While the use of the word opinion was error, it was merely a passing comment and could not under any reading of the evidence in this case have impacted the sentence given by the jury. Any error is harmless and the judgment and sentence should be affirmed.

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Footnotes:

1. Okl. Stat. tit. 22 § 982a
2. Okl. Stat. tit. 21 § 1444
3. Perryman v. State, 990 P.2d 900, 905 (Okl.Cr.1999)
4. Washington U. State, 989 P.2d 960, 979 (Okl.Cr.1999)
5. State v. Watkins, 837 P.2d 477, 478 (Okl.Cr.1992)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2011) - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 51.1 (2011) - Enhancement of Penalties after Former Conviction
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing; Modifications

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:

• Perryman v. State, 990 P.2d 900, 905 (Okl.Cr.1999)
• Washington v. State, 989 P.2d 960, 979 (Okl.Cr.1999)
• State v. Watkins, 837 P.2d 477, 478 (Okl.Cr.1992)