Floyd Joseph Ball, Jr. v State Of Oklahoma

C-2019-263

Filed: Apr. 1, 2021

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Floyd Joseph Ball, Jr. appealed his conviction for Rape in the First Degree and Kidnapping. Conviction and sentence were reversed and the case was remanded to dismiss. Judge Hudson dissented.

Decision

The Petition for Writ of Certiorari is GRANTED. The Judgment and Sentence of the District Court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The MANDATE is not to be issued until twenty (20) days from the delivery and filing of this decision.

Issues

• was there a lack of jurisdiction for the District Court to accept Petitioner's plea based on his Indian status and the location of the crimes?
• did the District Court properly determine Petitioner's legal status as an Indian and whether the crimes occurred in Indian Country?
• was the State required to prove that it had jurisdiction after Petitioner presented prima facie evidence of his Indian blood and the location of the crimes?
• did the District Court accept and adopt the parties' stipulations regarding Petitioner's Indian status and the location of the crimes?
• was the State of Oklahoma found to lack jurisdiction to prosecute Petitioner based on the findings regarding Indian Country?

Findings

• The court erred in accepting the plea due to lack of jurisdiction.
• The evidence was sufficient to establish Petitioner's status as an Indian.
• The evidence was sufficient to establish that the crimes occurred in Indian Country.
• The Judgment and Sentence of the District Court is reversed and remanded with instructions to dismiss.

C-2019-263

Apr. 1, 2021

Floyd Joseph Ball, Jr.

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN CLERK

HUDSON, JUDGE: Petitioner, Floyd Joseph Ball, Jr., entered a blind plea of guilty in McIntosh County District Court, Case No. CF-2018-89, to Count 1: Rape in the First Degree, in violation of 21 O.S.Supp.2017, § 1114(A)(5); and Count 2: Kidnapping, in violation of 21 O.S.Supp.2012, § 741. The Honorable Brendon Bridges, Associate District Judge, accepted Petitioner’s plea and sentenced Petitioner to twenty-four years imprisonment on Count 1 and twenty years imprisonment on Count 2 with credit for time served. Judge Bridges ordered these sentences to run consecutively. Petitioner must serve 85% of his Count 1 sentence before becoming eligible for parole consideration. Petitioner’s subsequent motion to withdraw his blind plea was denied and Petitioner now seeks a writ of certiorari.

In Proposition One, Petitioner claims the District Court lacked jurisdiction to accept his plea. Petitioner argues that he is a citizen of the Mississippi Choctaw Nation and the crimes occurred within the boundaries of the Creek Reservation. Pursuant to McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), Petitioner’s claim raises two separate questions: (a) his Indian status; and (b) whether the crimes occurred on the Creek Reservation. These issues require fact-finding. We therefore remanded this case to the District Court of McIntosh County for an evidentiary hearing. Recognizing the historical and specialized nature of this remand for evidentiary hearing, we requested the Attorney General and District Attorney work in coordination to effect uniformity and completeness in the hearing process.

Upon Petitioner’s presentation of prima facie evidence as to Petitioner’s legal status as an Indian and as to the location of the crime in Indian Country, the burden shifts to the State to prove it has jurisdiction. The District Court was ordered to determine whether Petitioner has some Indian blood and is recognized as an Indian by a tribe or the federal government. The District Court was further ordered to determine whether the crimes in this case occurred in Indian Country. In so doing, the District Court was directed to consider any evidence the parties provided, including but not limited to treaties, statutes, maps, and/or testimony. We also directed the District Court that in the event the parties agreed as to what the evidence would show with regard to the questions presented, the parties may enter into a written stipulation setting forth those facts upon which they agree and which answer the questions presented and provide the stipulation to the District Court. The District Court was also ordered to file written findings of facts and conclusions of law with this Court.

A status hearing was held in this case on September 23, 2020, before the Honorable Brendon Bridges, Associate District Judge. A written findings of fact and conclusions of law from that hearing was timely filed with this Court along with a transcript of the hearing. The record indicates that appearing before the District Court on this matter were attorneys from the Oklahoma Attorney General’s Office, the McIntosh County District Attorney’s Office and counsel for Petitioner. In its written findings of fact and conclusions of law, the District Court stated that the parties have jointly stipulated that the evidence will show Petitioner is 1/8th degree Indian blood of the Mississippi Choctaw Tribe; that Petitioner was an enrolled member of the Choctaw Nation of Oklahoma on the date of the charged crimes; that the Choctaw Nation of Oklahoma is an Indian Tribal Entity recognized by the federal government; and that the charged crimes in this case occurred within the Creek Reservation.

The District Court attached as Joint Exhibit 1 to its findings of facts and conclusions of law a document entitled Agreed Stipulation signed by all counsel reflecting these stipulations. The District Court accepted and adopted the stipulations made by the parties and concluded in its findings of fact and conclusions of law that Petitioner has some Indian blood, that he is also recognized as an Indian by a tribe and the federal government and therefore Petitioner is an Indian under federal law. Finally, the District Court accepted and adopted the stipulation of the parties that the crimes in this case occurred on the Creek Reservation.

On November 12, 2020, the State filed with this Court a supplemental brief after remand. In its brief, the State acknowledges the District Court accepted the parties’ stipulations as discussed above and the District Court’s findings. The State contends in its brief that should this Court find Petitioner is entitled to relief based on the District Court’s findings, this Court should stay any order reversing the convictions for thirty (30) days so that the appropriate authorities can review his case, determine whether it is appropriate to file charges and take custody of Petitioner. Cf. 22 O.S.2011, § 846.

After thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts and the briefs of the parties, we find that under the law and evidence relief is warranted. Based upon the record before us, the District Court’s findings of fact and conclusions of law are supported by the stipulations jointly made by the parties at the status hearing. We therefore find Petitioner has met his burden of establishing his status as an Indian, having 1/8th degree Indian blood of the Mississippi Choctaw Tribe and being a member of the Choctaw Nation of Oklahoma. We further find Petitioner met his burden of proving the crimes in this case occurred on the Creek Reservation and, thus, occurred in Indian Country. Pursuant to McGirt, we find the State of Oklahoma did not have jurisdiction to prosecute Petitioner in this matter.

The Judgment and Sentence in this case is hereby reversed and the case remanded to the District Court of McIntosh County with instructions to dismiss the case.

DECISION

The Petition for Writ of Certiorari is GRANTED. The Judgment and Sentence of the District Court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The MANDATE is not to be issued until twenty (20) days from the delivery and filing of this decision.

APPEARANCES AT TRIAL

CHAD JOHNSON
OKLA. INDIGENT DEF. SYSTEM
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL

LISBETH L. MCCARTY
GARRETT MARSHALL
OKLA. INDIGENT DEF. SYSTEM
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR PETITIONER

CAROL ISKI
MIKE HUNTER
DISTRICT ATTORNEY
OKLAHOMA
GREG STIDHAM
ASST. DISTRICT ATTORNEY
MCINTOSH COUNTY
110 NORTH 1ST ST.
EUFAULA, OK 74432
COUNSEL FOR THE STATE

MIKE HUNTER
ATTORNEY GENERAL OF OKLAHOMA
JOSHUA FANELLI
ASST. ATTORNEY GENERAL
313 N.E. 21 ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: HUDSON, J.

KUEHN, P.J.: CONCUR IN RESULTS
ROWLAND, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR IN RESULTS
LEWIS, J.: CONCUR IN RESULTS

LUMPKIN, JUDGE: CONCURRING IN RESULTS: Bound by my oath and the Federal-State relationships dictated by the U.S. Constitution, I must at a minimum concur in the results of this opinion. While our nation’s judicial structure requires me to apply the majority opinion in the 5-4 decision of the U.S. Supreme Court in McGirt v. Oklahoma, – U.S. -, 140 S. Ct. 2452 (2020), I do so reluctantly. Upon the first reading of the majority opinion in McGirt, I initially formed the belief that it was a result in search of an opinion to support it. Then upon reading the dissents by Chief Justice Roberts and Justice Thomas, I was forced to conclude the Majority had totally failed to follow the Court’s own precedents, but had cherry picked statutes and treaties, without giving historical context to them. The Majority then proceeded to do what an average citizen who had been fully informed of the law and facts as set out in the dissents would view as an exercise of raw judicial power to reach a decision which contravened not only the history leading to the disestablishment of the Indian reservations in Oklahoma, but also willfully disregarded and failed to apply the Court’s own precedents to the issue at hand.

My quandary is one of ethics and morality. One of the first things I was taught when I began my service in the Marine Corps was that I had a duty to follow lawful orders, and that same duty required me to resist unlawful orders. Chief Justice Roberts’s scholarly and judicially penned dissent, actually following the Court’s precedents and required analysis, vividly reveals the failure of the majority opinion to follow the rule of law and apply over a century of precedent and history, and to accept the fact that no Indian reservations remain in the State of Oklahoma.

The result seems to be some form of social justice created out of whole cloth rather than a continuation of the solid precedents the Court has established over the last 100 years or more. The question I see presented is should I blindly follow and apply the majority opinion or do I join with Chief Justice Roberts and the dissenters in McGirt and recognize the emperor has no clothes as to the adherence to following the rule of law in the application of the McGirt decision? My oath and adherence to the Federal-State relationship under the U.S. Constitution mandate that I fulfill my duties and apply the edict of the majority opinion in McGirt. However, I am not required to do so blindly and without noting the flaws of the opinion as set out in the dissents. Chief Justice Roberts and Justice Thomas eloquently show the Majority’s mischaracterization of Congress’s actions and history with the Indian reservations. Their dissents further demonstrate that at the time of Oklahoma Statehood in 1907, all parties accepted the fact that Indian reservations in the state had been disestablished and no longer existed. I take this position to adhere to my oath as a judge and lawyer without any disrespect to our Federal-State structure. I simply believe that when reasonable minds differ they must both be reviewing the totality of the law and facts.

LEWIS, JUDGE, CONCURRING IN RESULTS: Based on my special writings in Bosse v. State, 2021 OK CR 3, P.3d and Hogner v. State, 2021 OK CR 4, P.3d, I concur in the decision to dismiss this case for the lack of state jurisdiction.

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Footnotes:

1. Okla. Stat. tit. 21 § 1114(A)(5)
2. Okla. Stat. tit. 21 § 741
3. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
4. 22 O.S.2011 § 846
5. Bosse v. State, 2021 OK CR 3, P.3d
6. Hogner v. State, 2021 OK CR 4, P.3d
7. Id. at 145
8. Id. at 157

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114 (2017) - Rape in the First Degree
• Okla. Stat. tit. 21 § 741 (2012) - Kidnapping
• Okla. Stat. tit. 22 § 846 (2011) - Writ of Certiorari

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:

• McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
• Bosse v. State, 2021 OK CR 3, P.3d
• Hogner v. State, 2021 OK CR 4, P.3d
• Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021)