Staff, Author at OCCA Opinions

C-2019-227

Post author:Staff
Post published:October 31, 2019
Post category:C

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CYNTHIA ROWSHELL GAY,** Petitioner, **V.** **THE STATE OF OKLAHOMA,** Respondent. **Case No. C-2019-227** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **OCT 31 2019** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** **SUMMARY OPINION DENYING CERTIORARI** Petitioner Cynthia Rowshell Gay, represented by counsel, entered guilty pleas as part of a plea agreement with the State to the charges of Count 1, Driving While Under the Influence, a violation of 47 O.S.2011, § 11-902, and Count 2, Driving While Under Suspension, a violation of 47 O.S.2011, § 6-303(B), in the District Court of Oklahoma County, Case No. CF-2019-369. The Honorable Kathryn R. Savage, Special Judge, accepted the pleas on February 19, 2019. The plea agreement included a five-year sentence on Count 1, with all but the first thirty days suspended, and a one-year suspended sentence on Count 2, with the sentences running concurrently. On March 1, 2019, Petitioner filed an Application to Withdraw Guilty Plea, and a hearing was held on March 21, 2019, which resulted in the denial of her application. Petitioner claims the following error: Ms. Gay did not knowingly and voluntarily enter her plea of guilty, and thus the District Court erred when it denied her Application to Withdraw her Guilty plea. Upon thorough review of the record, including original documents, transcripts, and briefs, we find no need for reversal or modification. Our evaluation of a guilty plea focuses on its voluntary and intelligent nature (Boykin v. Alabama, 395 U.S. 238, 242-43, 1969; Ocampo v. State, 1989 OK CR 38, ¶ 3). We review the denial of a petitioner's motion to withdraw a plea for an abuse of discretion (Lewis v. State, 2009 OK CR 30, ¶ 5). Petitioner acknowledged signing the Plea of Guilty Summary of Facts form, which reflected her voluntary decision to plead guilty and accept a suspended sentence. With prior felony convictions, she was familiar with the process. Her motivations for signing the plea agreement, including a desire to expedite her release from jail, do not render the plea involuntary (United States v. Webb, 433 F.2d 400, 404 (1st Cir. 1970)). Petitioner’s change of heart after consulting relatives does not provide grounds for withdrawal, nor does disappointment with her sentence (Miles v. U.S., 385 F.2d 541, 544 (10th Cir. 1967); Lozoya v. State, 1996 OK CR 55, ¶ 44). The trial court found her plea was entered knowingly and voluntarily, and its findings during the hearing on the application to withdraw were credible. The record shows that Petitioner was fully informed of and understood the consequences of her plea. Her later claim regarding misunderstanding the conditions of her suspended sentence was deemed incredible by the trial court. We find no abuse of discretion in the denial of the motion to withdraw the guilty plea. Therefore, the proposition is denied. **DECISION:** The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. **Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED to be issued upon the delivery and filing of this decision.** **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE KATHRYN R. SAVAGE, SPECIAL JUDGE** **APPEARANCES IN DISTRICT COURT:** NICOLE BURNS, ASST. PUBLIC DEFENDER HALLIE E. BOVOS, ASST. PUBLIC DEFENDER 320 ROBERT S. KERR, #400 OKLAHOMA CITY, OK 73102 COUNSEL FOR THE DEFENSE **APPEARANCES ON APPEAL:** RICKY LUTZ, ASST. DISTRICT ATTORNEY 320 ROBERT S. KERR, #505 OKLAHOMA CITY, OK 73102 COUNSEL FOR THE STATE **NO RESPONSE NECESSARY** **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.: Concur** **KUEHN, V.P.J.: Concur** **HUDSON, J.: Concur** **ROWLAND, J.: Concur** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2019-227_1734232520.pdf)

C-2019-132

Post author:Staff
Post published:October 31, 2019
Post category:C

In OCCA case No. C 2019 132, Brown appealed his conviction for Domestic Assault and Battery with a Dangerous Weapon. In a published decision, the court denied his petition for certiorari, stating his plea was voluntary and intelligent. One judge dissented. [occa_caption]

C-2018-1174

Post author:Staff
Post published:October 31, 2019
Post category:C

### IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA **Case No. C-2018-1174** **OCT 31, 2019** **STEVEN JOSEPH BEATY, Petitioner, v. THE STATE OF OKLAHOMA, Respondent.** **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Steven Joseph Beaty entered guilty pleas to the following charges in the District Court of Grady County, Case No. CF-2018-115: **Count I** - Felony Domestic Assault and Battery, After Former Conviction of Two or More Felonies (21 O.S.Supp.2014, § 644 (C)); **Count II** - Misdemeanor Violation of Protective Order (22 O.S.Supp.2012, § 60.6); **Count III** - Obstructing An Officer (21 O.S.Supp.2015, § 540). The Honorable Kory Kirkland accepted the pleas on October 16, 2018. The sentences imposed included the following: **Count I** - ten (10) years imprisonment with the last seven (7) years suspended and a $500.00 fine; **Count II** - one year imprisonment and a $200.00 fine; **Count III** - one year imprisonment and a $100.00 fine, with all sentences served concurrently and additional requirements such as costs, victim compensation assessments, and referral to the Batterer's Intervention Program. On October 25, 2018, Petitioner filed a motion to withdraw his guilty pleas. After a hearing on November 13, 2018, Judge Kirkland denied the motion. Petitioner now appeals this denial and raises the following propositions of error: 1. The lack of a factual basis for the plea renders it involuntary due to not being served with the Protective Order. 2. The trial judge failed to consider Petitioner’s ability to pay the victim compensation fee. 3. Petitioner was denied effective assistance of counsel during both the plea hearing and at the plea withdrawal hearing. **Analysis:** After thorough review of the petitions, records, and transcripts, the court finds no abuse of discretion in denying the motion to withdraw the guilty plea. A plea is evaluated based on whether it was voluntary and intelligent, requiring the Petitioner to show it was entered inadvertently or without consideration. In his first two propositions, Petitioner alleges he should have been allowed to withdraw his plea due to inadequate factual basis and failure to inquire about ability to pay the compensation fee. However, these claims were not raised in the motion to withdraw nor in the certiorari petition, waiving their consideration on appeal. In Proposition III, relating to ineffective assistance of counsel at the withdrawal hearing, Petitioner has not shown a reasonable probability that such deficiencies would have altered the outcome. The court affirms that the plea was knowing, voluntary, and not coerced. The claim about the court’s failure to record considerations for the victim compensation assessment is acknowledged; thus, that part of the assessment is vacated, and the case is remanded for a hearing to address this requirement properly. **Conclusion:** The Petition for a Writ of Certiorari is **DENIED**. The Judgment of the District Court is **AFFIRMED**. The current victim compensation assessments are **VACATED**, and the case is **REMANDED TO THE DISTRICT COURT** to consider all necessary factors for assessment under 22 O.S.2011, § 142.18(A). **OPINION BY**: LUMPKIN, J. **CONCUR**: LEWIS, P.J.; KUEHN, V.P.J.; HUDSON, J.; ROWLAND, J. **COUNSEL FOR DEFENSE AT THE PLEA HEARING**: Bill Smith, P.O. Box 926, Norman, OK 73070 **COUNSEL FOR PETITIONER ON APPEAL**: Danny Joseph, Oklahoma City, OK **COUNSEL FOR THE STATE**: Jason M. Hicks, District Attorney, Kara Bacon, Assistant District Attorney, Chickasha, OK. [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-1174_1734227971.pdf)

C-2018-1040

Post author:Staff
Post published:October 31, 2019
Post category:C

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** *Case No. C-2018-1040* **ROLLO ROY WERLINE, IV,** *Petitioner,* *vs.* **THE STATE OF OKLAHOMA,** *Respondent.* **FILED** *IN COURT OF CRIMINAL APPEALS* *OCT 31 2019* *JOHN D. HADDEN, CLERK* **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Rolla Roy Werline, IV, represented by counsel, entered pleas of guilty to First Degree Manslaughter (Count I), Leaving the Scene of a Fatality Accident (Count II), and Failure to Maintain Insurance (Count III) in the District Court of Ottawa County, Case No. CF-2017-164. The pleas were accepted by the Honorable Robert G. Haney on April 19, 2018. On June 12, 2018, Petitioner was sentenced to twenty (20) years imprisonment for Count I, five (5) years imprisonment in Count II (suspended), and a $250.00 fine for Count III. On June 15, 2018, Petitioner filed a Motion to Withdraw Guilty Plea, which was denied at a hearing on June 26, 2018. Petitioner appeals this denial, raising two propositions of error: 1. Petitioner should be allowed to withdraw his plea as it was not entered knowingly and intelligently, given he did not understand the consequences of entering a blind plea. 2. The imposed fines and costs were excessive. **Proposition I:** Petitioner contends that his plea was not entered voluntarily and was the result of being misadvised regarding the plea process. The trial court reviewed this issue during the motion to withdraw hearing. Assessing whether the plea was entered voluntarily and intelligently is key. The record indicates the plea was knowing and voluntary, highlighting that the petitioner understood the court would determine punishment and could impose a sentence within statutory limits. The trial court's denial of the motion to withdraw is upheld. **Proposition II:** Petitioner claims his sentence is excessive, particularly citing a victim impact statement that contained a sentence recommendation, which he argues improperly influenced the court's decision. While acknowledging that victim impact statements may be considered during sentencing, those statements should not contain sentence recommendations. Any potential error here was harmless, as the overall sentence is seen as reasonable and within statutory limits. It was also noted that the issue of a $250.00 Victim Compensation Assessment in Count III was not raised previously and is thus waived for appeal. **DECISION:** The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. **OPINION BY:** **LUMPKIN, J.** *LEWIS, P.J.: Concur* *KUEHN, V.P.J.: Concur* *HUDSON, J.: Concur* *ROWLAND, J.: Concur* **Click Here To Download PDF** [Link to PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-1040_1734225145.pdf)

C-2018-415

Post author:Staff
Post published:October 31, 2019
Post category:C

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **TALISA NICOLE BANKS, Petitioner,** **v.** **STATE OF OKLAHOMA, Respondent.** **Case No. C-2018-415** **October 31, 2019** **SUMMARY OPINION GRANTING CERTIORARI** Judge Hudson presiding: On November 8, 2016, Talisa Nicole Banks entered blind pleas of guilty to the following charges: Count 1 - Distribution of Controlled Dangerous Substance - Marijuana; Count 2 - Unlawful Possession of Controlled Drug, Marijuana, With Intent to Distribute; and Count 3 - Possession of Controlled Dangerous Substance - Methamphetamine in the District Court of Texas County, Case No. CF-2016-64. Sentencing occurred on February 28, 2018, resulting in a combined fifteen-year sentence with conditions on Counts 1, 2, and 3. After sentencing, on March 7, 2018, Banks filed a motion to withdraw her guilty pleas, which was supported by an additional pro se letter outlining her reasons. A hearing on this motion was held on April 4, 2018, but was denied by the Honorable Jon Parsley, District Judge. Banks appealed, arguing she faced multiple forms of conflict regarding her legal representation, which adversely affected her ability to receive effective assistance during her plea withdrawal hearing. This Court has previously established the right to effective counsel at plea withdrawal hearings. The arguments presented by Banks indicated an actual conflict of interest, as her counsel simultaneously represented conflicting interests regarding claims made against his own effectiveness. The evidence suggests Banks was denied the opportunity for conflict-free representation, and thus a new hearing is warranted for the motion to withdraw her guilty pleas. **DECISION** The Petition for Writ of Certiorari is GRANTED. The case is REMANDED to the District Court for the appointment of new counsel for Banks’ motion to withdraw her guilty pleas and to conduct a new hearing regarding that motion. **Parties Appeared Below** - **Defense Counsel**: Robert H. Jaques - **Respondent Counsel**: Assistant District Attorney Buddy Leach; Oklahoma Attorney General Mike Hunter **OPINION BY**: HUDSON, J. **CONCUR**: LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. **[Download Full Decision](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-415_1734109426.pdf)**

F-2017-1306

Post author:Staff
Post published:October 24, 2019
Post category:F

In OCCA case No. F-2017-1306, Rebecca Faith Clark appealed her conviction for four counts of Child Abuse by Injury and one count of First Degree Child Abuse Murder. In an unpublished decision, the court decided to affirm her convictions and sentences. One judge dissented. The case involves serious allegations against the appellant and her husband, who adopted two boys after they were removed from their biological parents due to neglect. The abuse came to light after the younger boy, Colton, went missing in 2006. An extensive search was conducted, but he was never found. During this time, the older brother, T.J.S., raised concerns about the treatment he and Colton were receiving at home. He reported incidents of physical abuse, including being beaten and isolated by the appellants. After several years, T.J.S. contacted law enforcement about the mistreatment and his brother's disappearance, which led to reopening Colton's case. The trial revealed chilling details about the life of the brothers in the appellants' care. T.J.S. provided testimony about the physical and emotional abuse they suffered, including beatings, emotional manipulation, and the traumatic events surrounding Colton's disappearance. In her defense, the appellant denied any wrongdoing and argued that the boys were troubled and often acted out. She claimed T.J.S. was the source of the injuries he reported, and she maintained that Colton had run away rather than suggesting any harm had come to him. The court examined various claims raised by the appellant, including ineffective assistance of counsel and improper admission of evidence. Ultimately, the court upheld the conviction, indicating that the overwhelming evidence against the appellant affirmed the decision of the jury. The opinion emphasized the role of the older brother's testimony and the psychological and physical marks left from the alleged abusive environment. It highlighted the principles of joint representation and the appellant's decisions during the trial process. Given these factors, the appellate court found no compelling reason to reverse the lower court's decision. Overall, the OCCA concluded that the appellant received a fair trial, despite her arguments to the contrary, and affirmed the judgment and sentence. The dissenting opinion focused on specific aspects of the trial proceedings but ultimately shared the conclusion regarding the affirmance of the convictions.

F-2018-302

Post author:Staff
Post published:October 24, 2019
Post category:F

In OCCA case No. F-2018-302, Jorge R. Medina appealed his conviction for Lewd or Indecent Acts to a Child Under 16. In an unpublished decision, the court decided to affirm Medina's conviction and sentence. One judge dissented. The case involved Medina being found guilty by a jury of a serious crime against a young child. The court imposed a severe sentence of forty years imprisonment. Medina raised several arguments in his appeal, claiming he did not receive a fair trial due to prosecutorial misconduct, issues with his confession, introduction of evidence regarding his past behavior, and ineffective assistance of his attorney. First, Medina argued that the prosecutor made incorrect statements during the trial and suggested that the jury should assume certain things rather than find them to be true based on evidence. However, the court reviewed the prosecutor's comments and determined they did not misstate the law or unfairly influence the jury. Next, Medina claimed he did not fully understand his rights when he confessed, which should have meant that his confession was not valid. But the court found that Medina had waived this right and that the confession was given voluntarily after he understood his rights. Medina also contested the admission of evidence about his past bad acts. The court found that the prosecution had properly notified Medina of this evidence beforehand, so it was admissible. Regarding hearsay statements made by the victim, which were brought up as evidence at the trial, Medina’s team did not object to this during the trial. The court observed that since the defense had been aware of the basis for these statements and did not raise any objections, it affected their ability to contest them later. Moreover, Medina argued his attorney did not provide effective legal help because they did not object to issues during the trial. The court concluded that the alleged deficiencies of the attorney did not impact the outcome of the case due to the strength of the evidence against Medina. Finally, Medina claimed that the accumulation of errors throughout his trial added up to a denial of his rights. However, the court found that the trial did not have enough significant errors to justify this claim. In conclusion, the court upheld Medina's conviction and sentence, emphasizing that the errors he pointed out did not meet the threshold to alter the jury's decision.

S-2018-1173

Post author:Staff
Post published:October 24, 2019
Post category:S

In OCCA case No. F-2018-895, Ward appealed his conviction for possessing a firearm after felony convictions. In an unpublished decision, the court affirmed the conviction, finding no error in the arrest and evidence. One judge dissented. The ruling concluded that the evidence supported the conviction despite Ward's claims.

F-2018-780

Post author:Staff
Post published:October 17, 2019
Post category:F

In OCCA case No. F-2018-780, Rawson appealed his conviction for lewd or indecent acts to a child under 16. In an unpublished decision, the court decided to affirm the conviction and sentence. One judge dissented. Rawson was found guilty by a jury for multiple counts of lewd acts against a child. The jury recommended life imprisonment for each count, and the trial court imposed the sentences to run one after the other. Rawson challenged his conviction, claiming that the jury was not adequately instructed on the specific acts he allegedly committed. He did not argue that the law was incorrectly stated, just that the instructions should have outlined the acts in more detail. The court explained that instructions for juries are meant to accurately convey applicable law, and in this case, they properly followed the Oklahoma Uniform Jury Instructions. The trial court had provided sufficient instructions, describing the necessary elements that the prosecution needed to prove for each count. Even though Rawson's defense wanted more specificity in the instructions, the court found that the jury was clearly informed about the nature of the charges against him. Since he did not dispute the proof of the allegations or claim that the law was wrongly applied, the court decided that there was no abuse of discretion and upheld the original decision. In conclusion, the court affirmed Rawson's conviction, and the case was officially closed with no errors found in the trial process.

F-2018-563

Post author:Staff
Post published:October 17, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **OCT 17 2019** **JOHN D. HADDEN** **CLERK** --- **BOBBY DALE STOCKTON,** **Appellant,** **V.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-563** --- **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Bobby Dale Stockton appeals from the District Court of LeFlore County's order terminating him from Drug Court and sentencing him to seven years in prison, as per the Drug Court contract in Case No. CF-2016-380. On February 14, 2017, Appellant pled guilty to Count 1: Unlawful Possession of CDS - Methamphetamine after a former felony conviction, and Count 3: Resisting an Officer. He agreed to enter Drug Court with a conviction and sentencing of seven years on Count 1 and one year on Count 3, both running concurrently. Successful completion of Drug Court would lead to suspended sentences; failure would result in imprisonment. The State filed an application for termination on June 26, 2017, alleging Appellant's non-compliance—failing to report for intake, missing a urinalysis, and being absent without leave. During a hearing on September 26, 2017, evidence showed Appellant had not participated in the program. He explained his absence was due to caring for his ill mother. Although acknowledging he had not complied, he expressed a willingness to accept a strict ninety-day monitoring. However, Judge Fry found a violation of the Drug Court contract for non-appearance and initiated a no tolerance policy. Subsequently, on September 29, 2017, Appellant failed to attend Drug Court, resulting in an arrest warrant and bail revocation. The State filed a second termination application on April 30, 2018, citing similar violations. At the hearing on May 22, 2018, Appellant admitted to a third heart attack and acknowledged non-compliance without providing documentation on medical issues. Judge Fry noted past assurances of compliance had not been honored and ultimately terminated Appellant from the program, imposing the seven-year prison sentence. **PROPOSITION OF ERROR:** I. The trial court abused its discretion in terminating Mr. Stockton from Drug Court before he had the opportunity to work the program. **ANALYSIS:** Appellant contends hospitalization justified his failures to report. He further claims that, if drug issues were believed to have driven his failures, proper disciplinary measures should have been applied. The discretion to revoke or terminate participation in Drug Court rests with the trial court, and its decision will only be reversed upon a showing of abuse. Under Oklahoma law, judges may impose progressively increasing sanctions for relapses but can revoke participation if necessary. Appellant was given two opportunities to comply with the Program's requirements, both of which he failed. His second failure followed a promise to comply, and although medical conditions were noted, no evidence was presented to substantiate his claims. Therefore, termination was not an abuse of discretion. **DECISION:** The order of the District Court of LeFlore County, terminating Appellant from Drug Court and imposing a seven-year prison sentence, is AFFIRMED. **MANDATE:** Issued forthwith. --- **APPEARANCES:** **Matthew H. McBee** Counsel for Appellant P.O. Box 1303 Poteau, OK 74953 **Joe Watkins & Keeley L. Miller** Counsel for State Assistant District Attorney 100 S. Broadway St., Room 300 Poteau, OK 74953 Assistant Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105 **OPINION BY:** ROWLAND, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur

F-2018-626

Post author:Staff
Post published:October 17, 2019
Post category:F

In the case of Carl Douglas Crick, Jr. v. The State of Oklahoma, the Court of Criminal Appeals of Oklahoma reviewed Crick's appeal following a jury trial that found him guilty of multiple counts of sexual offenses, including first degree rape and lewd acts with a child. Crick received life sentences for certain counts, while others received lesser prison terms. The trial court ordered some sentences to run concurrently and others consecutively. Crick's main contention on appeal was that he received ineffective assistance of counsel, specifically citing his attorney's failure to present certain witnesses and to object to improper testimony from a prosecution witness that allegedly vouched for the credibility of the victim. The court applied the standard set forth in Strickland v. Washington, which requires the appellant to show that his counsel’s performance was deficient and that this deficiency prejudiced the outcome of the trial. The court determined that the evidence presented by Crick did not clearly demonstrate a strong possibility that counsel’s performance fell below constitutional standards. As such, Crick's request for an evidentiary hearing to further explore these claims was denied. The court also assessed the claim concerning the prosecution witness's testimony. It concluded that the alleged vouching was not comparable to previous cases that warranted reversal, thus affirming that counsel's choice not to object did not amount to deficiency. Ultimately, the Court of Criminal Appeals affirmed the judgment and sentence of the trial court, indicating that Crick had not established a violation of his right to effective counsel. The decision was issued with a note for the mandate to be ordered upon delivery and filing of the decision.

S-2018-952

Post author:Staff
Post published:October 17, 2019
Post category:S

### COURT OF CRIMINAL APPEALS ### STATE OF OKLAHOMA ### CASE NO. S-2018-952 **THE STATE OF OKLAHOMA** Appellant, v. **JOHN GLENN MORGAN** Appellee. **OPINION** *Rowland, J.:* The State of Oklahoma charged John Glenn Morgan with possession of a controlled drug, unlawful possession of drug paraphernalia, and unsafe lane change. Following a motion to suppress evidence obtained during a warrantless search of Morgan's vehicle during a traffic stop, the district court granted the motion, resulting in the dismissal of two felony counts against Morgan. The State appeals this decision, claiming errors in the district court's evaluation of the traffic stop's duration, Morgan's consent to a search, the justification for continued detention, and the applicability of an independent source doctrine. **BACKGROUND** On September 5, 2018, Owasso Police Officer Josua Goins stopped Morgan after witnessing reckless driving. During the stop, a drug dog was brought to screen the vehicle. After the dog alerted, officers found methamphetamine and drug paraphernalia. The district court later ruled that the extended detention to wait for the drug dog was not supported by reasonable suspicion after the initial traffic violation was addressed. ### DISCUSSION #### Proposition 1: Proper Evaluation of Duration of the Stop The court acknowledges that any motorist has the right to be free from unreasonable searches and seizures under both the United States and Oklahoma Constitutions. A traffic stop should be limited to its purpose, and any extended detention must be justified through reasonable suspicion. The district court considered the duration of the stop and determined that once Officer Goins had administered necessary tests and checks, he had no basis for further detention and should have issued a citation. #### Proposition 2: Consent to Search and Duration Requirements The State argues that Morgan's consent to search the trailer should extend the permissible duration of the stop. Still, the court finds that the time spent inspecting the trailer after the sober tests and inspection does not justify further detention without any additional reasonable suspicion of criminal activity. #### Proposition 3: Justification for Extended Detention The State failed to provide sufficient justification for extending the detention beyond investigating the traffic violation. The details already addressed during the stop contradicted the necessity for prolonged inquiry based on Morgan's logbook, a secondary issue due to the unavailability of a trooper to assist. #### Proposition 4: Independent Source Doctrine The State contended that any evidence obtained during the illegal extension could be justified under the independent source doctrine; however, the trial court found no separate basis for the initial stop's extension that would legitimize the evidence obtained afterward. ### DECISION The Court affirms the district court's ruling to grant Morgan's motion to suppress. The evidence obtained during the extended stop is inadmissible, reinforcing the importance of adhering to constitutional protections against unreasonable search and seizure during traffic stops. **Affirmed**. **Concurrences**: Lewis, Kuehn, Lumpkin, Hudson. [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/S-2018-952_1734278226.pdf)

F-2018-915

Post author:Staff
Post published:October 13, 2019
Post category:F

**Court of Criminal Appeals of the State of Oklahoma** **Case Summary: Trever Wayne Ford v. The State of Oklahoma** **Case No:** F-2018-915 **Filed:** October 13, 2019 **Summary:** Trever Wayne Ford was convicted of Assault and Battery by Means and Force Likely to Produce Death under 21 O.S.2011, § 652(C) in the District Court of Pontotoc County, Case No. CF-2017-20. Judge C. Steven Kessinger sentenced him to twenty-five years in prison. Ford appealed, arguing that his sentence was excessive. **Key Points:** 1. **Appellant's Argument**: Ford contends that his sentence is too harsh given the conflicting evidence about the incident, his injuries (possibly a concussion), lack of prior convictions, employment status, family responsibilities, and character in relation to this crime. 2. **Court’s Response**: The court reviewed the case and noted that the trial court had considered all the relevant information when imposing the sentence. The evidence indicated that Ford engaged in violent actions that caused severe injury to the victim. 3. **Conclusion**: The appellate court found that Ford's twenty-five-year sentence was within the statutory range and not excessive given the circumstances described. Consequently, the court affirmed the judgment and sentence. **Decision**: The judgment and sentence from the District Court of Pontotoc County are upheld. **Counsel Information**: - **For Appellant**: Shelley Levisay, Ricki J. Walterscheid, Carlos Henry. - **For Appellee**: Mike Hunter (Attorney General), Keeley L. Miller (Assistant Attorney General), Tara Portillo (Assistant District Attorney). **Judges**: Opinion delivered by Vice Presiding Judge Kuehn; Judges Lewis, Lumpkin, Hudson, and Rowland concurred. For the full decision, please refer to the provided [PDF link](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-915_1735118232.pdf).

F 2017-1055

Post author:Staff
Post published:October 10, 2019
Post category:F

In OCCA case No. F 2017-1055, William Singleton Wall, III, appealed his conviction for Possession of Controlled Dangerous Substance (Oxycodone). In an unpublished decision, the court decided to affirm the termination of Appellant from the Pontotoc County Drug Court Program. One judge dissented. William was charged in 2014 and entered a plea for the Drug Court program, where if he succeeded, his case would be dismissed. However, if he failed, he faced a ten-year prison sentence. In April 2017, the State filed to terminate him from the program because he tested positive for THC, which is a substance found in marijuana. During the termination hearing, the judge decided that the State had enough evidence to terminate William from the program. He was given a ten-year prison sentence with credit for time already served. William argued that he should not have been terminated because he did not receive proper notice of the program's rules and because the State filed its motion after the allowed time for his participation in the Drug Court expired. The court explained that the decision to terminate a participant from Drug Court is at the judge's discretion. William did not object when the evidence of his drug use was presented at the hearing. Furthermore, the records showed that William had understood the terms of the Drug Court when he entered. The court also found that although the approval for his Drug Court participation had a time limit, he was still under the court's jurisdiction until he was properly sentenced. The court ruled that they did not see any errors in how the trial court acted. They affirmed the decision to terminate William, meaning he would serve his ten-year sentence for not following the rules of the Drug Court program.

F-2018-690

Post author:Staff
Post published:October 10, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DANIEL ROSS DAGE,** **Appellant,** **vs.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-690** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Daniel Ross Dage was convicted of Possession of Juvenile Pornography in violation of 21 O.S.2011, § 1021.2, in the District Court of Comanche County, under the Honorable Gerald Neuwirth. He was sentenced to twenty (20) years imprisonment, with eight (8) years suspended, and a fine of $5,000.00. Additionally, he is subject to sex offender registration and two years of post-imprisonment supervision during his suspended sentence. Dage appeals his conviction and sentence, raising three propositions of error. I. The record does not sufficiently demonstrate that Appellant knowingly and voluntarily waived his right to a jury trial. II. The State's evidence was insufficient to prove beyond a reasonable doubt that Mr. Dage knowingly possessed videos of juvenile pornography. III. A sentence of 20 years is excessive under the circumstances, violating the United States and Oklahoma constitutions. After thorough review of the record, including transcripts and briefs, we find that the case must be reversed and remanded for a jury trial. Proposition I is granted. The State concedes this issue. While defendants can waive their constitutional right to a jury trial, such a waiver must be competent, knowing, intelligent, and on the record, as established in *Hinsley v. State*, 2012 OK CR 11; *Valega v. City of Oklahoma City*, 1988 OK CR 101. Record evidence must show that both the State and the court consented to the waiver. The requirements for a valid waiver include an advisement of rights and a court minute reflecting the waiver, with signatures from the defendant and counsel. The record does not provide evidence of a waiver or party consent; there are no advisements regarding jury trial rights, nor discussions recorded in the trial transcript concerning the waiver. Thus, we conclude that the record fails to show Appellant validly waived his right to a jury trial. Proposition II, concerning the sufficiency of evidence, is briefly addressed. The State needed to demonstrate Dage knowingly possessed child pornography according to 21 O.S.2011, § 1021.2. Although Dage argues against the sufficiency of evidence, we find that the evidence reasonably infers Dage was aware of the prohibited nature of the material, and no other individual had reasonable access to the USB drives. Therefore, this proposition is denied. Given our decision regarding Proposition I, Proposition III concerning sentencing is rendered moot. **DECISION** The Judgment and Sentence of the District Court of Comanche County is REVERSED, and the case is REMANDED for a jury trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY** **THE HONORABLE GERALD NEUWIRTH, DISTRICT JUDGE** **ATTORNEYS AT TRIAL** LARRY CORRALES P.O. BOX 2095 LAWTON, OK 73502 COUNSEL FOR DEFENDANT **ATTORNEYS ON APPEAL** NANCY WALKER-JOHNSON P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **COUNSEL FOR THE STATE** CHRISTINE GALBRAITH ASST. DISTRICT ATTORNEY COMANCHE CO. COURTHOUSE 315 SW 5TH ST., RM 502 LAWTON, OK 73501-4360 **MIKE HUNTER** ATTORNEY GENERAL OF OKLA. DIANE L. SLAYTON ASST. ATTORNEY GENERAL 313 NE 21 ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE **OPINION BY KUEHN, V.P.J.** LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-690_1735220870.pdf)

F-2018-954

Post author:Staff
Post published:October 10, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-954** --- **CHRISTIAN D. MOLINA-SOLORZANO, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** --- **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Christian D. Molina-Solorzano appeals his Judgment and Sentence from the District Court of Beckham County, Case No. CF-2017-259, for Aggravated Trafficking in Illegal Drugs, in violation of 63 O.S.Supp.2015, § 2-415. The Honorable F. Douglas Haught presided over the non-jury trial, found Molina-Solorzano guilty, and sentenced him to fifteen years imprisonment, $1,000.00 fine, and one year of post-imprisonment supervision. Molina-Solorzano raises the following issues: 1. Ineffective assistance of counsel for failing to challenge the basis for the traffic stop. 2. Ineffective assistance of counsel for failing to inform him of his rights under the Vienna Convention on Consular Relations (VCCR). 3. Entitlement to retroactive application of recent changes in law regarding parole eligibility for aggravated trafficking convictions. **DECISION:** After review, we find relief is not warranted and affirm the district court's Judgment and Sentence. **1. Ineffective Assistance of Counsel: Traffic Stop Challenge** Molina-Solorzano asserts that defense counsel was ineffective by not challenging the validity of the traffic stop, which he claims was based on race discrimination and an inadequate fog light infraction. To succeed on an ineffective assistance claim, Molina-Solorzano must demonstrate: - Counsel's performance was deficient. - The deficiency resulted in prejudice that affected the outcome of the trial. The Fourth Amendment prohibits unreasonable searches and seizures, and a traffic stop is valid if the officer had probable cause or reasonable suspicion of a traffic violation. The record, including video evidence from the traffic stop, supports that the stop was justified due to a fog light infraction. The trooper's testimony confirmed that visibility was over a mile, and thus the use of fog lights constituted a violation under Oklahoma law. Since the stop was justified, Molina-Solorzano cannot establish that counsel's failure to challenge it affected the trial's outcome, denying his ineffective assistance claim. **2. Ineffective Assistance of Counsel: VCCR Rights** Molina-Solorzano also contends that defense counsel failed to inform him of his rights under the VCCR, which would have allowed him to contact the Mexican consulate for assistance. To evaluate this claim, we consider: - Whether he was unaware of his right to contact his consulate. - Whether he would have utilized that right had he known. - Whether the consulate's assistance would have likely aided his defense. The record lacks evidence that Molina-Solorzano was unaware of his rights or that assistance from the consulate would have changed the trial's outcome. Appellate counsel's assertions do not suffice to demonstrate these conditions. Therefore, this claim is also denied. **3. Retroactive Application of Parole Changes** Molina-Solorzano argues that he should benefit from recent legislative proposals reducing parole eligibility terms for aggravated trafficking convictions. However, as legislation is not retroactive unless explicitly stated, and the referenced Senate Bill was never enacted, his claim is moot. **CONCLUSION:** The Judgment and Sentence of the district court is AFFIRMED. The MANDATE is ORDERED issued upon filing of this decision. **APPEARANCES** - Kenny R. Goza, Counsel for Defendant - Debra K. Hampton, Counsel for Appellant - Gina R. Webb, Counsel for State - Mike Hunter, Attorney General of Oklahoma - Joshua R. Fanelli, Assistant Attorney General **OPINION BY:** ROWLAND, J. **Concur in Results:** KUEHN, V.P.J. **Concur:** LUMPKIN, J. **Concur:** HUDSON, J. --- For the full decision, click here: [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-954_1734874505.pdf)

RE-2018-604

Post author:Staff
Post published:October 10, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LEROY ALEXANDER, JR.,** **Appellant,** **-VS-** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-604** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **OCT 10 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant Leroy Alexander, Jr., was sentenced to a total of fifteen years for the crime of Rape in the Second Degree, with all but the first year suspended. This appeal arises from the revocation of the remainder of his suspended sentence by the Honorable George W. Butner, District Judge of Seminole County. **Facts:** On April 5, 2018, the State of Oklahoma filed a motion to revoke Appellant's suspended sentence, alleging violations related to failure to attend sex offender treatment and failure to submit to required polygraph examinations. An amended motion on June 1, 2018, added allegations of inappropriate employment at a children's carnival ride during a festival. During the revocation hearing, the State's probation officer testified that Appellant had initially attended treatment sessions but was terminated for non-attendance. Appellant claimed his violations stemmed from financial hardship and lack of transportation. The Court ultimately found that Appellant had not made genuine efforts to comply with the terms of his probation. **Points of Error:** 1. **Proposition I:** Appellant argues that the trial court lacked authority to revoke more than the actual suspended portion of his sentence. He claims the written order incorrectly states that all of the fifteen years was revoked. However, the oral pronouncement during the hearing indicated the revocation was for the remainder of the suspended sentence. The court later issued an amendment to clarify the written judgment, aligning it with the oral ruling. 2. **Proposition II:** Appellant contends the full revocation of his suspended sentence was excessive, arguing that his violations were a result of indigence and lack of resources. The court's discretion in revoking a suspended sentence is established unless there is an abuse of discretion. Judge Butner found the violations were due to Appellant's lack of effort rather than financial difficulties, which was supported by evidence in the record. **Decision:** The order of the District Court of Seminole County revoking the remainder of Appellant's fifteen-year suspended sentence is AFFIRMED. The Mandate is ordered issued upon the filing of this decision. --- **ATTORNEYS:** - **ZACHARY L. PYRON** - **CHAD JOHNSON** (Appellate Defense Counsel) - **CHRISTOPHER G. ANDERSON** - **MIKE HUNTER** - **THEODORE M. PEEPER** (Assistant District Attorney / Attorney General of Oklahoma) **OPINION BY:** **KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-604_1734429602.pdf)

C-2018-1050

Post author:Staff
Post published:October 10, 2019
Post category:C

This document appears to be a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding James Michael Simmons, who sought a writ of certiorari after pleading nolo contendere to a misdemeanor charge of making threats by electronic device. ### Key Points of the Summary Opinion: 1. **Case Information**: - **Petitioner**: James Michael Simmons. - **Respondent**: The State of Oklahoma. - **Case Number**: C-2018-1050. - **Trial Court**: Mayes County, Case No. CF-2017-350. 2. **Background**: - Simmons pled nolo contendere (no contest) to the charge and was granted deferred judgment for one year under probation conditions. - He later filed a motion to withdraw the plea, which the trial court denied. 3. **Propositions of Error**: - **Proposition 1**: Failure to use the uniform guilty plea form. - The court found no prejudice from the omission of the uniform form since the record was adequate for review. - **Proposition 2**: Claim of not understanding the plea’s consequences. - The court determined that the trial court provided sufficient advice regarding the plea's nature and consequences. - **Proposition 3**: Insufficient factual basis for the plea. - The court concluded there was a sufficient factual basis for the plea, affirming that the plea was entered correctly. - **Proposition 4**: Denial of effective assistance of counsel for both the plea and withdrawal process. - The court found no deficient performance by counsel or resulting prejudice. 4. **Decision**: - The petition for a writ of certiorari was denied, and the judgment and sentence were affirmed. 5. **Appearance**: - Various attorneys represented Simmons throughout the trial and appeal processes. ### Conclusion: The Court of Criminal Appeals ultimately affirmed the lower court's decision, finding no basis for reversing the judgment based on the claims presented by Simmons. The opinion indicates that procedural and substantive requirements were satisfactorily met during the plea process.

F-2018-269

Post author:Staff
Post published:October 3, 2019
Post category:F

In OCCA case No. F-2018-269, David Anthony Tofflemire appealed his conviction for Possession of Child Pornography. In an unpublished decision, the court decided to affirm his conviction. One member of the court dissented. Tofflemire was found guilty at a trial without a jury and received a sentence of sixteen years in prison, with eight of those years suspended. He argued that there was not enough evidence against him, that he did not understand his waiver of the jury trial, and that there was an error in taxing him with an attorney fee even though he had his own lawyer. The court reviewed the case carefully and found that the evidence presented was sufficient for a reasonable person to conclude that Tofflemire knowingly possessed child pornography on his cell phone. They stated that the prosecution provided enough proof to support the conviction. Regarding the waiver of his jury trial, Tofflemire claimed he did not fully understand what he was doing. However, the court noted that he had signed a form waiving his right to a jury trial and that his lawyer acknowledged this waiver on the record. Since there was no evidence of coercion or misunderstanding, the court decided Tofflemire's waiver was valid. Finally, concerning the attorney fee, the court recognized that Tofflemire had hired his own lawyer but also that a fee for a court-appointed lawyer was mentioned in the court documents by mistake. Therefore, the court decided to remand the case back to the district court to correct this clerical error. In conclusion, Tofflemire's conviction was upheld, but the court took action to ensure the records reflected the correct information concerning the attorney fee.

F-2018-12

Post author:Staff
Post published:October 3, 2019
Post category:F

In OCCA case No. F-2018-12, the appellant appealed his conviction for first-degree rape by instrumentation and misdemeanor assault and battery. In a published decision, the court decided to affirm his conviction and sentence of life imprisonment for the rape conviction. One judge dissented. The case involved Daniel Bryan Kelley, who was initially sentenced to twenty years for rape following a jury trial. He appealed that decision, and the Court agreed that there had been a mistake involving the use of a past out-of-state conviction for sentence enhancement. They sent the case back for a new sentencing trial. The second trial resulted in a life sentence. Kelley argued that he had ineffective assistance from his appellate lawyer because he was not informed about the risks of a longer sentence should he win the appeal. However, the court found no clear evidence that he would have chosen to do anything differently had he been fully informed beforehand. Kelley also wanted the court to limit his new sentence to twenty years, but the court explained that upon retrial or resentencing, the complete range of punishment is available. Therefore, they refused his request to cap the current sentence. Finally, Kelley claimed that the life sentence was excessive. The court considered the nature of his crime and his history, stating that the sentence was within the legal limit and justified based on the circumstances of the case. As a result, the court concluded that his life sentence did not shock the conscience and upheld the previous decisions regarding his case.

F-2018-624

Post author:Staff
Post published:October 3, 2019
Post category:F

**Case Summary: Bryon Lynd Gordon v. The State of Oklahoma** **Court:** Oklahoma Court of Criminal Appeals **Case No.:** F-2018-624 **Date Filed:** October 3, 2019 **Judges:** Lumpkin (Majority Opinion), Lewis (Partial Concurrence and Dissent), Kuehn (Partial Concurrence and Dissent) **Background:** Bryon Lynd Gordon was convicted by a jury in the District Court of Bryan County for Forcible Oral Sodomy (Count 1), and the jury recommended a ten-year prison sentence. Gordon appealed the conviction, raising several points of error relating to the trial proceedings. **Key Propositions Raised on Appeal:** 1. **Competency of Witness:** Gordon argued the trial court abused its discretion by ruling the alleged victim, R.S., competent to testify without an inquiry into his ability to distinguish between truth and fiction. The court found that R.S. demonstrated competency and the ruling was not an abuse of discretion. 2. **Preliminary Hearing Testimony:** Gordon contended that the magistrate abused discretion by allowing R.S. to testify at the preliminary hearing without confirming his competency. However, the court ruled that the failure to file a motion to quash before trial waived this claim. 3. **Admission of Hearsay Evidence:** Gordon claimed that the trial court erred by admitting unreliable hearsay statements made by R.S. without a required reliability hearing. The court recognized the error but deemed it harmless, asserting that the statements were inherently trustworthy based on available evidence. 4. **Sufficiency of Evidence:** Gordon argued that R.S.’s testimony was inconsistent and required corroboration. The court ruled that the victim's testimony was sufficient to sustain the conviction without the need for corroboration as the testimony was clear and coherent regarding the acts committed. 5. **Jury Instructions:** Gordon contended that the jury should have been instructed on how to handle R.S.’s prior inconsistent statements. The court found this omission did not affect the outcome of the trial. 6. **Vouching for Credibility:** Gordon argued that a witness, Palmore, impermissibly vouched for R.S.’s credibility. The court acknowledged this was error but did not rise to the level of plain error as it did not affect the trial's outcome. 7. **Ineffective Assistance of Counsel:** Gordon claimed his counsel failed to request certain jury instructions and did not object to Palmore's testimony. The court found no basis for an ineffective assistance claim as Gordon failed to show a reasonable probability that the trial outcome would have been different with better representation. 8. **Cumulative Errors:** Gordon finally argued that the accumulation of errors deprived him of a fair trial. The court concluded that since the individual errors were found to be harmless, their cumulative effect did not warrant relief. **Decision:** The Oklahoma Court of Criminal Appeals affirmed the judgment and sentence of the trial court, stating that after reviewing the entire record, no reversible errors were found that affected Gordon's substantial rights. **Outcome:** Judgment and sentence affirmed. **Dissenting Opinions:** Judges Lewis and Kuehn provided partial dissent regarding the handling of preliminary hearing procedures and the application of plain error review, suggesting that certain errors and the lack of timely objections should still be considered under principles of fairness and justice. For the full opinion, you can [download the PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-624_1735226692.pdf).

F-2018-814

Post author:Staff
Post published:October 3, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-814** **MELINDA GAYLE HENRY,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. --- **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** Appellant, Melinda Gayle Henry, was convicted by jury of Embezzlement, in violation of 21 O.S.Supp.2012, § 1451, in the District Court of Nowata County Case Number CF-2016-71. The jury recommended a punishment of five years imprisonment and a fine of $10,000.00, which the trial court imposed. Appellant now appeals this judgment and sentence. **Propositions of Error:** 1. **Ineffective Assistance of Counsel:** Appellant contends trial counsel was ineffective for failing to secure necessary discovery. 2. **Failure to Request Continuance:** Appellant also asserts counsel was ineffective for not seeking a continuance for trial. 3. **Plain Error:** Lastly, Appellant claims the trial court committed plain error by proceeding to trial with unprepared counsel. **Analysis:** **Propositions One and Two (Ineffective Assistance of Counsel):** Under the Strickland v. Washington framework, Appellant must show (1) that counsel's performance was deficient and (2) that the deficiency prejudiced the defense. There is a strong presumption that counsel's conduct falls within a range of reasonable professional assistance. In Proposition One, Appellant argues that her counsel did not obtain critical records from the victim, The Woodshed convenience store, potentially impacting her defense. Counsel did request the records but believed they were destroyed. The trial court found that the State had offered access to the records, which the defense did not utilize. Appellant's assertion lacks evidence that obtaining these records would have changed the outcome of her trial; thus, this claim is speculative and fails to demonstrate prejudice. In Proposition Two, Appellant claims counsel was ineffective for not requesting a continuance due to the lack of records. However, the trial court's history with the case and previous findings suggested a request for a continuance would have been denied. Therefore, counsel would not be ineffective for abandoning a baseless motion. **Proposition Three (Plain Error):** Appellant's final claim of plain error regarding the trial being held without sufficient preparation fails under Rule 3.5(A)(5) of the Oklahoma Court of Criminal Appeals, which requires specific citations to the record. This assertion is superficial and unsubstantiated, leading to its waiver from appellate review. **Decision:** The judgment and sentence are **AFFIRMED**. **Mandate Ordered.** --- **APPEARANCES:** **AT TRIAL:** - **Mark Kane, Counsel for Appellant** - **Mike Hunter, Attorney General of Oklahoma; Kevin Buchanan, Assistant District Attorney for the State** **ON APPEAL:** - **Kevin D. Adams, Counsel for Appellant** - **Katherine R. Morelli, Assistant Attorney General for the State** **OPINION BY:** **LUMPKIN, J.** **LEWIS, P.J., KUEHN, V.P.J., HUDSON, J., ROWLAND, J.:** Concur in Result [Download Full Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-814_1735213396.pdf)

F-2018-973

Post author:Staff
Post published:October 3, 2019
Post category:F

In the case of Brian Scott Willess v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals addressed an appeal concerning the acceleration of Willess' deferred sentence for the crime of Stalking. The appeal was brought forth after the District Court of Cleveland County, under Judge Thad Balkman, found that Willess had violated the terms of his probation by not taking mandated mental health medication and committing a new stalking offense. **Background:** - On May 23, 2018, Willess entered a no contest plea to stalking, with sentencing deferred for five years, under probation terms. - The State later filed an Application to Accelerate Judgment, alleging violations of probation terms. A hearing was held on September 5, 2018, leading to the acceleration of Willess' sentence to five years imprisonment. **Propositions of Error:** Willess raised multiple arguments in his appeal: 1. **Ineffective Assistance of Counsel**: Claimed his counsel failed to argue for credit for time served prior to his plea. 2. **Jurisdiction Issues**: Argued that the district court lacked jurisdiction because there was no preliminary hearing held. 3. **Insufficient Evidence**: Contended that the State did not provide adequate evidence to prove a violation of probation terms. 4. **Due Process Concerns**: Suggested that he was not given adequate notice of the allegations against him and that hearsay evidence was improperly considered. 5. **Premature Acceleration**: Argued that the court should have considered intermediate sanctions instead of incarceration. **Court Opinion:** - The court affirmed the acceleration of Willess' deferred sentence, stating that the issues raised about ineffective counsel and jurisdiction were not valid in an acceleration appeal context. Proper processes for addressing these claims require filing a writ of certiorari. - On the sufficiency of evidence claim, the court found that the State had met its burden of proving violations by a preponderance of evidence, and the hearsay evidence presented had sufficient reliability. - Regarding due process, the court held that Willess had been duly notified of the allegations against him, and his hearsay concerns were addressed previously. - Finally, the court reiterated that even a single violation of probation conditions could warrant acceleration of the sentence, which was upheld in this case. The court's decision highlighted that procedural safeguards were followed and determined there was no abuse of discretion by the district court in accelerating Willess' sentence. In conclusion, the Oklahoma Court of Criminal Appeals ruled in favor of the State, affirming Willess' five-year sentence for the violations of probation.

M-2018-1055

Post author:Staff
Post published:October 3, 2019
Post category:M

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SADE DEANN McKNIGHT, Appellant,** **V.** **THE STATE OF OKLAHOMA, Appellee.** **Case No. M-2018-1055** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA OCT - 3 2019** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Sade Deann McKnight seeks to appeal her Judgment and Sentence from the District Court of Payne County, Case No. CM-2016-1491, for her misdemeanor convictions of Obstructing an Officer, 21 O.S.Supp.2015, § 540 (Count 1) and Resisting an Officer, 21 O.S.1991, § 268 (Count 2). The Honorable R.L. Hert, Special Judge, presided over the jury trial, where McKnight was sentenced to a $500.00 fine for Count 1 and six weeks confinement in the county jail along with a $500.00 fine for Count 2. **FACTS** On September 9, 2016, during severe weather, Appellant lost control of her vehicle on Interstate 35, resulting in a collision. Upon the Oklahoma Highway Patrol's arrival, Trooper Ryan Long found McKnight and her three small children in an ambulance nearby. Initially cooperative, McKnight became argumentative upon learning she would be ticketed for driving too fast for conditions. As tensions increased, McKnight attempted to leave the ambulance and re-enter her car despite Trooper Long's directives to stay. Following her non-compliance, Trooper Long attempted to escort her back, which led to her striking him and resisting arrest. Subsequently, she was charged with obstructing and resisting an officer. **ANALYSIS** 1. **Sufficiency of Evidence for Obstruction** Appellant argues that evidence was insufficient to support her conviction for obstruction. The jury instruction required proof that McKnight willfully obstructed an Oklahoma Highway Patrolman in the discharge of his duties. Long's testimony confirmed the nature of his duties and her non-compliance. Viewing the evidence favorably for the prosecution, we conclude a rational jury could find McKnight guilty beyond a reasonable doubt. 2. **Resisting Unlawful Arrest** McKnight contends her conviction for resisting an officer should be reversed due to an unlawful arrest. This argument, raised for the first time on appeal, is examined for plain error. However, because Long had probable cause to arrest McKnight for obstruction as evidenced by her behavior, the arrest was lawful, negating her claim. 3. **Excessiveness of Sentences** Finally, Appellant challenges the sentences as excessive. However, both sentences fall within statutory limits, and we find they do not shock the conscience. **DECISION** The Judgment and Sentence of the District Court is AFFIRMED. **MANDATE** Pursuant to Rule 3.15 of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon filing of this decision. --- **COUNSEL** **At Trial:** Stephen Cale, Tulsa, OK **On Appeal:** Ariel Parry, Norman, OK; Rodrigo Carrillo, Stillwater, OK **For the State:** Mike Hunter, Oklahoma City, OK **OPINION BY:** ROWLAND, J. **Concur:** LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J. (concur in results); HUDSON, J. [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/M-2018-1055_1734357754.pdf)

F-2018-36

Post author:Staff
Post published:September 26, 2019
Post category:F

In OCCA case No. F-2018-36, Robert Eugene Brewer appealed his conviction for Sexual Abuse of a Child Under 12. In a published decision, the court decided to affirm Brewer's conviction. One judge dissented. Brewer was tried in Tulsa County for sexually abusing a child under the age of 12. He was convicted by a jury and sentenced to seven years in prison. He was also ordered to serve three years of supervision after his prison term. Brewer appealed the decision, arguing that the trial court made a mistake by allowing evidence related to other crimes that he believed had not been proven. The court reviewed the evidence and arguments presented. The main issue was whether the trial court had the right to let in evidence that showed Brewer had a pattern of behavior related to sexual abuse. This type of evidence is sometimes called propensity evidence. Brewer argued that the trial court should have held a special hearing before allowing this evidence and should have required witnesses to testify in person. However, the court found that the trial judge had done a thorough job. The judge had held multiple hearings and considered the evidence carefully. The judge did not make a mistake by allowing the evidence because they had enough information to decide it was relevant and necessary for the case. Even though Brewer did not object to the evidence when it was presented during the trial, the court considered whether there was a serious mistake that affected the fairness of the trial. After reviewing everything, the court concluded that the trial judge acted correctly. In summary, the court believed that the evidence presented was acceptable and did not harm Brewer's case. Therefore, Brewer’s conviction was upheld, but the court also instructed the district court to make some corrections to its legal documents regarding the correct law that applied to Brewer's actions at the time of the crime. The decision was to keep Brewer's sentence in place while correcting the legal documentation properly.