Rodney Dennis Evans v The State Of Oklahoma

F-2008-1066

Filed: Mar. 11, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Rodney Dennis Evans appealed his conviction for robbery in the first degree. His conviction and sentence were initially set at thirteen years in prison. The court found that there was a mistake in how the jury was told about the minimum sentence for the crime, which should be five years instead of ten. As a result, his sentence was changed to eight years in prison. One judge disagreed with this decision.

Decision

The judgment of conviction is AFFIRMED. The sentence is MODIFIED to eight (8) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an improper instruction to the jury regarding the range of punishment for robbery in the first degree?
• Did the trial court err by imposing judgment and sentence without first ordering the preparation of a pre-sentence investigation report?

Findings

• the court erred by instructing the jury that the minimum sentence was ten years
• the sentence is modified to eight years imprisonment
• the appellant waived his right to a pre-sentence investigation report
• Proposition Two is denied
• the judgment of conviction is affirmed

F-2008-1066

Mar. 11, 2010

Rodney Dennis Evans

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Rodney Dennis Evans, Appellant was tried by jury and convicted of robbery in the first degree, in violation of 21 O.S.2001, § 797, in the District Court of Oklahoma County, Case No. CF-2007-5967. The jury sentenced Appellant to thirteen (13) years imprisonment. The Hon. Jerry D. Bass, District Judge, imposed judgment and sentence accordingly. Appellant raises the following propositions of error on appeal:

1. The Trial Court’s Improper Instruction To The Jury As To The Range Of Punishment For Robbery In The First Degree Led To Mr. Evans Receiving An Excessive Sentence.
2. The Trial Court Erred By Imposing Judgment And Sentence Without First Ordering The Preparation Of A Pre-Sentence Investigation Report As Required By Okla. Stat. Tit. 22 § 982

In Proposition One, we find that the District Court erred by instructing the jury that the minimum sentence was ten (10) years. In Meschew v. State, 97 Okla. Crim. 352, 264 P.2d 391, this Court held that the ten (10) year minimum sentence for robbery in the first degree provided in Title 21, section 798, was repealed by implication with the passage of Title 21, sections 800 and 801, setting the minimum punishments for conjoint robbery and robbery with a dangerous weapon at five (5) years imprisonment. Since Meschew, the minimum sentence for robbery in the first degree has been five (5) years imprisonment. In Watts v. State, 2008 OK CR 27, 17, 194 P.3d 133, 136, this Court held: Where a sentence is infirm due to instructional error on punishment, this Court may modify within the range of punishment, modify to the minimum punishment allowable by law, or remand to the trial court for re-sentencing. Id., citing Scott v. State, 1991 OK CR 31, 14, 808 P.2d 73, 77. After considering the facts and circumstances of Appellant’s crime, this Court concludes that Appellant’s sentence should be modified to eight (8) years imprisonment.

In Proposition Two, we find that Appellant waived his right to a pre-sentence investigation report. A pre-sentence investigation report may be waived upon written waiver by the district attorney and the defendant and upon approval by the court. 22 O.S. Supp. 2002, § 982(E). (emphasis added). Appellant and his counsel failed to timely request a pre-sentence investigation report prior to or at formal sentencing, a failure which is further memorialized by the failure to affirmatively respond to Question Nine of the Sentencing After Jury Trial Summary of Facts form. This is sufficient for a written waiver under the requirements of this statute. Proposition Two is denied.

DECISION

The judgment of conviction is AFFIRMED. The sentence is MODIFIED to eight (8) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT TRIAL
JANICE HOWARD-CROFT
ASSISTANT PUBLIC DEFENDER
320 ROBERT S. KERR, STE. 600
OKLAHOMA CITY, OK 73102
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
MARVA BANKS
ASSISTANT PUBLIC DEFENDER
320 ROBERT S. KERR, STE. 600
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

ASHLEY ALTSHULER
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL
JARED ADEN LOOPER
ASSISTANT ATTORNEY GENERAL
313 NE 21ST STREET
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: LEWIS, J.

C. JOHNSON, P.J.: Concurs
A. JOHNSON, V.P.J.: Concurs in Results
LUMPKIN, J.: Concurs in Results
CHAPEL, J.: Specially Concur

Click Here To Download PDF

Footnotes:

1. 21 O.S.2001, § 797
2. Okla. Stat. Tit. 22 § 982
3. 21 O.S.Supp.2003, § 13.1
4. 22 O.S. Supp. 2002, $982(E)
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 797 (2001) - Robbery in the First Degree
• Okla. Stat. tit. 22 § 982 (2002) - Pre-Sentence Investigation Report
• Okla. Stat. tit. 21 § 13.1 (Supp. 2003) - Sentencing for Certain Crimes
• Okla. Stat. tit. 21 § 798 (2003) - Minimum Punishment for Robbery
• Okla. Stat. tit. 21 § 800 (2003) - Minimum Punishment for Conjoint Robbery
• Okla. Stat. tit. 21 § 801 (2003) - Minimum Punishment for Robbery with a Dangerous Weapon

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:

• Meschew v. State, 97 Okla. Crim. 352, 264 P.2d 391
• Watts v. State, 2008 OK CR 27, I 7, 194 P.3d 133, 136
• Scott v. State, 1991 OK CR 31, 1 14, 808 P.2d 73, 77