Kelly Dallas Evans v The State Of Oklahoma
F-2004-110
Filed: Aug. 9, 2005
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Kelly Dallas Evans appealed his conviction for Burglary in the Second Degree and Possession of Burglary Tools. His conviction and sentence were affirmed, meaning he will serve life in prison for the burglary and one year in jail for the possession of tools, but the fine for the possession was reduced from $1,000 to $500. Judge A. Johnson dissented.
Decision
Evans' conviction for BURGLARY IN THE SECOND DEGREE After Former Conviction of Two or More Felonies and his sentence of life imprisonment for this crime are hereby AFFIRMED. Evans' conviction for POSSESSION OF BURGLARY TOOLS and his sentence of imprisonment in the county jail for one year for this offense, to run concurrently with his life sentence, are also AFFIRMED. His $1000 fine for this misdemeanor offense, however, is REVERSED and MODIFIED to a fine of $500. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was there a violation of Appellant's Fifth Amendment rights due to the prosecutor's references to his silence?
- Did the life sentence for a property crime constitute an excessive penalty that shocks the conscience of the court?
- Was the trial court's imposition of a fine in excess of the statutory maximum an error that warranted correction?
Findings
- the court erred regarding the prosecutor's comments on the appellant's silence, but there was no plain error
- the life sentence for the burglary conviction does not shock the conscience of the court
- the fine for the possession of burglary tools conviction was in excess of the statutory maximum and should be modified to $500
F-2004-110
Aug. 9, 2005
Kelly Dallas Evans
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
CHAPEL, PRESIDING JUDGE: Kelly Dallas Evans was tried by jury and convicted of one count of Burglary in the Second Degree, under 21 O.S.2001, § 1435, After Former Conviction of Two or More Felonies, in Washington County, Case No. CF-2003-5, and also one misdemeanor count of Possession of Burglary Tools, under 21 O.S.2001, § 1437, in Case No. CM-2003-10. In accordance with the jury’s recommendation, the Honorable Carl Gibson sentenced Evans to imprisonment for life on the burglary conviction, and to imprisonment in the county jail for one year and a fine of $1,000 on the possession of burglary tools conviction, to be run concurrently. Evans appeals his convictions and his sentences.
Evans raises the following propositions of error:
I. The prosecutor’s frequent references to Appellant’s silence violated Appellant’s Fifth Amendment rights and denied him a fair trial.
II. Under the facts and circumstances of this case, a life sentence for a property crime is so excessive that it should shock the conscience of this court.
III. The trial court’s imposition of a fine which was in excess of the statutory maximum was error which this Court must correct by modification of the amount imposed.
Regarding Proposition I, none of the challenged prosecutorial statements were objected to at trial. Thus they are reviewed only for plain error.¹ This Court has repeatedly recognized that both prosecutors and defense counsel are accorded a liberal freedom to argue the evidence and its logical inferences during closing arguments.² We have likewise recognized that in order for a prosecutor’s comment on a defendant’s failure to testify or decision to remain silent to constitute reversible error, the comment must directly and unequivocally call attention to that fact.³ This Court concludes that the complained-of prosecutorial arguments did not directly and unequivocally comment on Evans’ failure to testify or offer further explanation for his presence behind the school. Rather, the prosecutor’s argument constituted a proper criticism of the implausibility of the argument advanced by defense counsel—that Evans was totally uninvolved with the burglary, he was just taking an ill-timed potty break—which was based upon Evans’ own remark on the night of his arrest. There was certainly no plain error.
Regarding Proposition II, Evans acknowledges that based upon his prior felony convictions, the proper sentencing range for his second-degree burglary I See Parker v. State, 1996 OK CR 19, ¶ 40, 917 P.2d 980, 988, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997). ² See, e.g., id. at ¶ 41, 917 P.2d at 989 (quoting Cheatham v. State, 1995 OK CR 32, ¶ 39, 900 P.2d 414, 425) (other citations omitted). ³ See Hansford v. State, 1988 OK CR 264, ¶ 7, 764 P.2d 910, 912; Mahorney v. State, 1983 OK CR 71, ¶ 12, 664 P.2d 1042, 1046.
conviction was six years to life imprisonment.⁴ While this Court recognizes that life imprisonment is a harsh sentence, particularly based upon the seemingly non-violent nature of Evans’ current burglary offense, the sentence does not shock the conscience of this Court.⁵
Regarding Proposition III, the State concedes that because the statute defining the crime of possession of burglary tools does not provide for a fine,⁶ the maximum fine for this misdemeanor offense was $500.⁷ Consequently, the fine on Evans’ conviction for possession of burglary tools should be modified to $500. After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Evans’ second-degree burglary conviction, after former conviction of two or more felonies, and his sentence of life imprisonment for this crime should be affirmed. In addition, Evans’ possession of burglary tools conviction and his sentence of imprisonment in the county jail for one year for this offense should also be affirmed; however, his fine of $1,000 for this offense should be modified to $500.
⁴ See 21 O.S.2001, § 1435; 21 O.S.Supp.2002, § 51.1(C). ⁵ See Sanders v. State, 2002 OK CR 42, ¶ 19, 60 P.3d 1048, 1051. ⁶ See 21 O.S.2001, § 1437.
Decision
Evans’ conviction for BURGLARY IN THE SECOND DEGREE After Former Conviction of Two or More Felonies and his sentence of life imprisonment for this crime are hereby AFFIRMED. Evans’ conviction for POSSESSION OF BURGLARY TOOLS and his sentence of imprisonment in the county jail for one year for this offense, to run concurrently with his life sentence, are also AFFIRMED. His $1,000 fine for this misdemeanor offense, however, is REVERSED and MODIFIED to a fine of $500. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
ATTORNEYS AT TRIAL
RHETT H. WILBURN
ATTORNEY AT LAW
4528 S. SHERIDAN, SUITE 220
TULSA, OKLAHOMA 74145
FREDRICK S. ESSER
DISTRICT ATTORNEY
WASHINGTON COUNTY COURTHOUSE
420 S. JOHNSTONE
BARTLESVILLE, OKLAHOMA 74003
ATTORNEYS ON APPEAL
MARK P. HOOVER
APPELLATE DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OK 73070
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE
OPINION BY: CHAPEL, P.J.
LUMPKIN, V.P.J.: CONCUR
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
Footnotes:
- ¹ See Parker v. State, 1996 OK CR 19, ¶ 40, 917 P.2d 980, 988, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997).
- ² See, e.g., id. at ¶ 41, 917 P.2d at 989 (quoting Cheatham v. State, 1995 OK CR 32, ¶ 39, 900 P.2d 414, 425) (other citations omitted).
- ³ See Hansford v. State, 1988 OK CR 264, ¶ 7, 764 P.2d 910, 912; Mahorney v. State, 1983 OK CR 71, ¶ 12, 664 P.2d 1042, 1046.
- ⁴ See 21 O.S.2001, § 1435; 21 O.S.Supp.2002, § 51.1(C).
- ⁵ See Sanders v. State, 2002 OK CR 42, ¶ 19, 60 P.3d 1048, 1051.
- ⁶ See 21 O.S.2001, § 1437.
- ⁷ See 21 O.S.2001, § 10.
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 1435 - Burglary in the Second Degree
- Okla. Stat. tit. 21 § 1437 - Possession of Burglary Tools
- Okla. Stat. tit. 21 § 10 - Fines
- Okla. Stat. tit. 21 § 51.1(C) - Sentencing after Former Conviction of Two or More Felonies
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:
- Parker v. State, 1996 OK CR 19, I 40, 917 P.2d 980, 988, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997).
- Cheatham v. State, 1995 OK CR 32, I 39, 900 P.2d 414, 425.
- Hansford v. State, 1988 OK CR 264, I 7, 764 P.2d 910, 912.
- Mahorney v. State, 1983 OK CR 71, I 12, 664 P.2d 1042, 1046.
- Sanders v. State, 2002 OK CR 42, I 19, 60 P.3d 1048, 1051.