Bennie Jay Edwards, Jr. v The State Of Oklahoma

F 2002-869

Filed: Jul. 29, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bennie Jay Edwards, Jr. appealed his conviction for Concealing Stolen Property and Breaking and Entering. Conviction and sentence were affirmed, but the sentence for Concealing Stolen Property was modified to ten years. Judge Lumpkin dissented from the opinion.

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.

Issues

• was there a violation of due process and a fundamentally fair trial due to trial errors and prosecutorial misconduct regarding Count 1?
• did the trial court's failure to instruct the jury on the proper range of punishment constitute plain error and violate the defendant's right to due process and a fundamentally fair trial?

Findings

• the trial court did not deprive Appellant of a fair trial on Count 1
• the trial court erred in its instruction on the range of punishment for Count 1
• the sentence imposed on Count 1 is modified to ten (10) years imprisonment

F 2002-869

Jul. 29, 2003

Bennie Jay Edwards, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. JOHNSON, PRESIDING JUDGE:

Appellant, Bennie Jay Edwards, Jr., was convicted in Oklahoma County District Court, 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 on 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.

APPEARANCES AT TRIAL

JANET COX
ASST. PUBLIC DEFENDER
320 ROBERT S. KERR, ROOM 611
OKLAHOMA CITY, OK 73102
ATTORNEY FOR DEFENDANT

WENDELL SUTTON
ASST. PUBLIC DEFENDER
320 ROBERT S. KERR, ROOM 611
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

RICHARD WINTORY
DIANE BOX
NANCY E. CONNALLY
OKLAHOMA COUNTY COURTHOUSE
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102
ATTORNEY GENERAL OF OKLAHOMA
ASST. DISTRICT ATTORNEYS

W.A. DREW EDMONDSON
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY: JOHNSON, P.J.
LILE, V.P.J. : CONCUR
LUMPKIN, J.: CONCUR
CHAPEL, J.: CONCUR
STRUBHAR, J.: CONCUR

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Footnotes:

1. See 21 O.S.2001, § 51.1(C).
2. Matthews v. State, 2002 OK CR 16, I 38, 45 P.3d 907, 920.
3. Taylor U. State, 2002 OK CR 13, I 3, 45 P.3d 103, 105.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1713 (2001) - Concealing Stolen Property
• Okla. Stat. tit. 21 § 1483(B) (2001) - Breaking and Entering
• Okla. Stat. tit. 21 § 51.1(C) (2001) - Sentencing for Violent Crimes

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:

• Matthews v. State, 2002 OK CR 16, I 38, 45 P.3d 907, 920.
• Taylor v. State, 2002 OK CR 13, I 3, 45 P.3d 103, 105.