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FILED IN COURT CF CRIMINAL APPEALS STATE OF OKLAHOMA APR 2 0 2004 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MICHAEL S. RICHIE CLERK CLARENCE EDWARD REED, ) ) Appellant, ) NOT FOR PUBLICATION V. ) Case No. F-2003-405 ) THE STATE OF OKLAHOMA, ) ) Appellee.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 ATTORNEYS ON APPEAL JAMES GOODWIN ANDREAS T. PITSIRI ATTORNEY AT LAW APPELLATE DEFENSE COUNSEL P.O. BOX 3267 P.O. BOX 926 TULSA, OKLAHOMA 74101-3267 NORMAN, OKLAHOMA 73070 ATTORNEY FOR DEFENDANT ATTORNEY FOR APPELLANT SEAN BAKER W.A. DREW EDMONDSON ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA ROOM 406 JENNIFER B. MILLER TULSA COUNTY COURTHOUSE ASSISTANT ATTORNEY GENERAL 500 SOUTH DENVER AVE. 112 STATE CAPITOL BUILDING TULSA, OKLAHOMA 74103 OKLAHOMA CITY, OKLAHOMA 73105 ATTORNEY FOR THE STATE 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 3

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