Phil Davonne Hoffman v State Of Oklahoma

F-2009-1

Filed: Mar. 15, 2010

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Phil Davonne Hoffman appealed his conviction for three counts of Unlawful Distribution of a Controlled Substance. The original conviction and sentence were fifteen years in prison for each count, making it a total of forty-five years! However, the court decided to change (or modify) his sentence to ten years for each count instead. Judge Chapel disagreed and thought the sentences should be served at the same time instead of one after the other.

Decision

The Judgment is AFFIRMED, and the Sentence is MODIFIED TO TEN (10) YEARS IMPRISONMENT IN EACH COUNT. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there improper introduction of details regarding Appellant's legal history to the jury?
• Did the admission of Exhibit 19, which included unredacted information about a prior conviction, constitute plain error?
• Was the prosecutor’s cross-examination about Appellant’s prior probation and revocation improper?
• Was the prosecutor's closing argument about how many chances Appellant should receive inappropriate?
• Is Appellant's sentence excessive and should it be modified?

Findings

• the court erred in the admission of improper details of Appellant's legal history
• the sentence was modified to the minimum ten (10) years in each count
• Appellant's claim of excessive sentence is moot based on the modification

F-2009-1

Mar. 15, 2010

Phil Davonne Hoffman

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Phil Davonne Hoffman was tried by jury and convicted of three (3) counts of Unlawful Distribution of a Controlled Substance, After Former Conviction of a Felony (63 O.S.Supp.2005, § 2-401(B)(1)), Case No. CF-2008-21, in the District Court of Stephens County. The jury recommended as punishment fifteen (15) years imprisonment in each count. The trial court sentenced accordingly, ordering the sentences to run consecutively. It is from this judgment and sentence that Appellant appeals.

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

I. The prejudice of improper details of Appellant’s legal history inappropriately introduced to the jury through the State’s exhibit and examination resulted in an inflated sentence.

II. Under the facts of the case, Appellant’s sentence is excessive and should be modified.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined under the law and the evidence that reversal is not warranted but the sentence should be modified.

In this case, State’s Exhibit 19 included an unredacted certified copy of a Judgment and Sentence for a 2002 conviction showing that Appellant was sentenced to three years, suspended, and a copy of a docket sheet for the 2002 case showing the suspended sentence was revoked in full. We find plain error in the admission of this exhibit. See Hunter v. State, 2009 OK CR 17, I 9, 208 P.3d 931, 933 (explicitly telling jurors that the defendant had previously received suspended sentences was error). This error was compounded by the prosecutor’s inquiry of Appellant on cross-examination specifically asking whether Appellant had received probation, been revoked and served out the sentence in his prior conviction. The prosecutor’s references in closing argument concerning how many chances Appellant should get was also improper. Any inquiry by a prosecutor into the time actually served by a defendant on a prior conviction is highly improper. Gourley v. State, 1989 OK CR 28, I 8, 777 P.2d 1345, 1349. See also Stringfellow v. State, 1987 OK CR 233, I 5, 744 P.2d 1277, 1279-1280 (prosecutor’s comment improper as it advised the jury that the appellant had not actually served his full term of imprisonment for his prior conviction).

Therefore, Appellant’s sentence is modified to the minimum ten (10) years in each count. Appellant’s claim of excessive sentence in Proposition II is moot based upon our modification of his sentence.

DECISION

The Judgment is AFFIRMED, and the Sentence is MODIFIED TO TEN (10) YEARS IMPRISONMENT IN EACH COUNT. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY

THE HONORABLE JOE H. ENOS, DISTRICT JUDGE

APPEARANCES AT TRIAL
ROBERT B. CARTER
28 ROBERT S. KERR, STE. 910
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL
RICKI J. WALTERSCHEID
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

BRET T. BURNS
DISTRICT ATTORNEY

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

RYAN HOWARD
JENNIFER BLAKENEY WELCH
ASSISTANT DISTRICT ATTORNEY
STEPHENS COUNTY COURTHOUSE
313 N.E. 21ST ST.
DUNCAN, OK 73533
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.

C. JOHNSON, P.J.: CONCUR

A. JOHNSON, V.P.J.: CONCUR

CHAPEL, J.: CONCUR

LEWIS, J.: CONCUR

RB

CHAPEL, JUDGE, CONCURS IN PART/DISSENTS IN PART: I concur in affirming the convictions and in the modification. However, I would also order the sentences to be served concurrently.

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Footnotes:

1. 63 O.S.Supp.2005, § 2-401(B)(1)
2. Hunter v. State, 2009 OK CR 17, I 9, 208 P.3d 931, 933
3. Gourley v. State, 1989 OK CR 28, I 8, 777 P.2d 1345, 1349
4. Stringfellow v. State, 1987 OK CR 233, I 5, 744 P.2d 1277, 1279-1280
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2005) - Unlawful Distribution of a Controlled Substance
• Okla. Stat. tit. 22 § 3.15 (2008) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing
• Okla. Stat. tit. 21 § 701.10 (2011) - Sentences for 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:

• Hunter v. State, 2009 OK CR 17, I 9, 208 P.3d 931, 933
• Gourley v. State, 1989 OK CR 28, I 8, 777 P.2d 1345, 1349
• Stringfellow v. State, 1987 OK CR 233, I 5, 744 P.2d 1277, 1279-1280