Anthony Joseph Frost v The State Of Oklahoma

F 2004-1305

Filed: May 18, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Anthony Joseph Frost appealed his conviction for aggravated attempting to elude a police officer and possession of drug paraphernalia. His conviction and sentence were thirty-three (40) years imprisonment for the eluding charge and one (1) year with a $1,000 fine for the drug paraphernalia charge. Vice-Presiding Judge Lumpkin dissented regarding the modification of Frost's sentence.

Decision

The judgment of the District Court and the sentence for count three shall be AFFIRMED; however, the sentence imposed for count two shall be MODIFIED to a term of twenty-five (25) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the trial court required to fully answer the jury's question concerning parole eligibility?
• Did the trial court err by not redacting references to the actual sentence imposed for prior convictions from the exhibits presented to the jury?
• Did the failure to redact prior sentencing information influence the jury's assessment of punishment?

Findings

• the trial court did not err in answering the jury's question concerning parole eligibility
• the trial court abused its discretion by failing to redact the sentencing information from the documents
• Frost's sentence for aggravated attempting to elude was modified to a term of twenty-five (25) years imprisonment
• the judgment of the District Court and the sentence for count three was affirmed

F 2004-1305

May 18, 2006

Anthony Joseph Frost

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Appellant, Anthony Joseph Frost, was tried by jury and convicted of, count two, Aggravated Attempting to Elude a Police Officer, 21 O.S.2001, § 540A(B), after former conviction of two felony convictions, and, count three, Possession of Drug Paraphernalia, 63 O.S.2001, § 2-405, in the District Court of Oklahoma County, Case No. CF-2004-214, before the Honorable Susan P. Caswell, District Judge. The jury set punishment at forty (40) years imprisonment for aggravated attempting to elude and one (1) year imprisonment and a $1,000 fine on the drug paraphernalia count. Judge Caswell sentenced Frost in accordance with the jury verdict, ordering that the sentences be served concurrently. From the Judgment and Sentence, Frost has perfected his appeal to this Court.

Frost raises the following propositions of error in support of his appeal:

I. The trial court should have fully answered the jury’s question concerning parole eligibility.

II. State’s exhibit 10 was not redacted to delete the reference to the actual sentence imposed.

After thorough consideration of Frost’s propositions of error and the entire record before us on appeal, including the original record, transcripts, and briefs, we have determined that the judgment of the District Court should be affirmed; however, due to the errors cited in Proposition II, the sentence for aggravated attempting to elude should be modified.

In reaching our decision, we find, in Proposition I, that alleged error raised in this proposition was not preserved by raising an objection to the answer given by the trial court. Therefore, we review for plain error only. Pickens v. State, 2001 OK CR 3, I 38, 19 P.3d 866, 879. Here the jury asked Does the law stipulate that he would be eligible for parole after a set number of years for each year of conviction? Is there a set guideline for parole? The trial court responded, You have all the law and evidence you are to consider. Here the jury is not asking the court to explain the parole system, but they are asking whether there is a parole system, which would allow early release. The trial court informed the jury to rely on the law and evidence given to them. We have held that this is correct. Harris v. State, 2004 OK CR 1, 84 P.3d 731, 757; Nguyen v. State, 1988 OK CR 240, 769 P.2d 167, 173.

In Proposition II, we review the trial court’s decision to excise references to the length of prior sentences served from documents proving prior convictions for an abuse of discretion. This Court has indicated that an abuse of discretion will be shown when there is a request for redaction and the documents indicate that a defendant was released early. Cooper v. State, 1991 OK CR 26, 806 P.2d 1136, 1139. Such information allows the jury to consider the possibility of parole. We have held that it is error for a prosecutor to ask a defendant about the length of a given sentence he was required to serve and to comment on the possibility of early release during closing argument. See Martin v. State, 1983 OK CR 168, 674 P.2d 37, 41-42 (asking a defendant about the number of years served on a sentence); Wooldridge v. State, 1983 OK CR 21, 917, 659 P.2d 943, 947-98 (This Court has held that such references to the parole system are grossly prejudicial to an accused and can serve no useful purpose beyond that of educating the jury as to the often disproportionate ratio between the sentence rendered and the time actually served.).

Our conclusion is that the trial court abused its discretion when it refused Frost’s request to have the information redacted or excised from the documents. The State should not be allowed, over objection, to get this information to the jury in this manner, when it would be error to do so in other ways. The prior Judgment and Sentences indicated that Frost received five (5) years in 1999 and fifteen (15) years in 2000.

In determining whether this abuse of discretion results in relief, we look to whether the information influenced the assessment of punishment. Bolton v. State, 1985 OK CR 75, 702 P.2d 1040, 1042-43. Here, we find that the forty (40) year punishment for aggravated attempting to elude was influenced by this information. The range of punishment for the aggravated attempting to elude offense with the two prior convictions is not less than four (4) nor more than life. Frost received forty (40) years. Here, the prosecutor informed the jury that whatever he got in this first conviction in 1999, it wasn’t enough, because he then was sentenced to another conviction in 2000. And that wasn’t enough either, because he’s now back before you again with another conviction. The prosecutor stated that anything less than 20 years would not be appropriate. We are convinced that the failure to redact the sentencing information, upon request, was an abuse of discretion in this case, and Frost’s sentence was affected by the error; thus, we find it necessary to order Frost’s sentence for aggravated attempting to elude modified to a term of twenty-five (25) years.

DECISION

The judgment of the District Court and the sentence for count three shall be AFFIRMED; however, the sentence imposed for count two shall be MODIFIED to a term of twenty-five (25) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 540A(B)
2. Okla. Stat. tit. 63 § 2-405
3. Pickens v. State, 2001 OK CR 3, 38, 19 P.3d 866, 879.
4. Harris v. State, 2004 OK CR 1, 84 P.3d 731, 757.
5. Nguyen v. State, 1988 OK CR 240, 769 P.2d 167, 173.
6. Cooper v. State, 1991 OK CR 26, 806 P.2d 1136, 1139.
7. Martin v. State, 1983 OK CR 168, 674 P.2d 37, 41-42.
8. Wooldridge v. State, 1983 OK CR 21, 17, 659 P.2d 943, 947-98.
9. Bolton v. State, 1985 OK CR 75, 702 P.2d 1040, 1042-43.
10. Anderson v. State, 2006 OK CR 6, 130 P.3d 273.
11. Okla. Stat. tit. 21 § 12.1
12. Jones v. State, 1976 OK CR 207, 554 P.2d 830, 836.
13. Smallwood v. State, 1988 OK CR 233, 763 P.2d 142.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 540A (2001) - Aggravated Attempting to Elude a Police Officer
• Okla. Stat. tit. 63 § 2-405 (2001) - Possession of Drug Paraphernalia
• Okla. Stat. tit. 21 § 12.1 (2001) - Truth in Sentencing for Certain 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:

• Pickens v. State, 2001 OK CR 3, 19 P.3d 866, 879
• Harris v. State, 2004 OK CR 1, 84 P.3d 731, 757
• Nguyen v. State, 1988 OK CR 240, 769 P.2d 167, 173
• Cooper v. State, 1991 OK CR 26, 806 P.2d 1136, 1139
• Martin v. State, 1983 OK CR 168, 674 P.2d 37, 41-42
• Wooldridge v. State, 1983 OK CR 21, 659 P.2d 943, 947-98
• Bolton v. State, 1985 OK CR 75, 702 P.2d 1040, 1042-43
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273
• Jones v. State, 1976 OK CR 207, 554 P.2d 830, 836
• Smallwood v. State, 1988 OK CR 233, 763 P.2d 142