Patrick Wayne Olive v The State of Oklahoma

F-2019-496

Filed: Sep. 30, 2021

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Patrick Wayne Olive appealed his conviction for trafficking in illegal drugs, speeding in a posted zone, and possession of contraband in a penal institution. His conviction and sentence were for thirty-two years in prison for the drug trafficking charge, a $35 fine for speeding, and one year in county jail for the contraband charge. The sentences were to be served at the same time. Olive argued that the State of Oklahoma did not have the right to prosecute him because he is a member of the Cherokee Nation, and the crimes happened within the borders of the Muscogee (Creek) Nation Reservation. The court agreed that based on a previous decision (McGirt v. Oklahoma), the State did not have jurisdiction in this case, and therefore Olive's convictions were vacated. The court instructed to dismiss the case since it was clear that Olive's rights were not respected due to the jurisdiction issue. Judge Hudson dissented, agreeing with the decision but expressing concern about the implications of these rulings on the justice system in Oklahoma.

Decision

The Judgment and Sentence of the District Court is VACATED. The matter is REMANDED WITH INSTRUCTIONS TO DISMISS. Any related motions not previously ruled upon are DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED to issue in twenty (20) days from the delivery and filing of this decision.

Issues

• Was there a challenge to the State's jurisdiction based on the McGirt decision regarding crimes committed by Indians within the boundaries of the Muscogee (Creek) Reservation?
• Did the court find that Olive has some Indian blood and was an enrolled member of the Cherokee Nation at the time of the charged offenses?
• Did the court determine that the crimes occurred within the boundaries of the Muscogee (Creek) Reservation?
• Was the State's acknowledgment that Olive's jurisdictional claim has merit relevant to the decision?
• Did the State provide any grounds to hold differently despite the existing law as established by McGirt?
• Was the judgment and sentence of the District Court vacated and the case remanded with instructions to dismiss?

Findings

• the District Court of Muskogee County did not have jurisdiction to prosecute Olive
• The Judgment and Sentence of the District Court is VACATED
• The matter is REMANDED WITH INSTRUCTIONS TO DISMISS
• Any related motions not previously ruled upon are DENIED

F-2019-496

Sep. 30, 2021

Patrick Wayne Olive

Appellant

v

The State of Oklahoma

Appellee

OPINION

ROWLAND, PRESIDING JUDGE: Patrick Wayne Olive appeals his convictions and sentences for Trafficking in Illegal Drugs, in violation of 63 O.S.Supp.2018, § 2-415 (Count 1), Speeding – Posted Zone, in violation of 47 O.S.2011, § 11-802 (Count 2), and Possession of Contraband in a Penal Institution, in violation of 57 O.S.Supp.2015, § 21(D), in the District Court of Muskogee County, Case No. CF-2018-187. In accordance with the jury’s recommendation, the Honorable Thomas Alford sentenced Olive to thirty-two years imprisonment on Count 1, a fine of $35.00 on Count 2, and one year in county jail on Count 3. The sentences were ordered to be served concurrently.

Olive filed his brief in chief on September 29, 2020, along with an application to supplement the record or for an evidentiary hearing on his Sixth Amendment claims. Olive challenges the State’s jurisdiction pursuant to the Supreme Court’s decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), finding that the Muscogee (Creek) Reservation was not disestablished, and that the State of Oklahoma does not have jurisdiction over crimes committed by Indians within the borders of the reservation. Olive claims that he is an enrolled member of the Cherokee Nation and that the crimes were committed within the boundaries of the Muscogee (Creek) Nation Reservation and he sought to supplement the record with documentation supporting these assertions. On January 27, 2021, the State tendered for filing an application to supplement the record on appeal.

The State did not dispute Olive’s claims but rather moved to supplement the record with documentation showing that Olive has some degree of Indian blood, was an enrolled member of the Cherokee Nation at the time that the crimes were committed, and with documentation showing that the crimes occurred within the boundaries of the Muscogee (Creek) Reservation. On July 28, 2021, this Court issued an order granting the State’s motion to supplement and directing the Clerk of this Court to file the same, granting Olive’s motion to supplement, and directing the State to show cause why Olive’s convictions should not be vacated. As directed, the State filed its response to the show cause order on August 23, 2021. The State, again, did not dispute any of the facts underlying Olive’s jurisdictional claim. The State also acknowledged that under the current state of the law, Olive’s jurisdictional claim has merit. However, the State noted that it asked the United States Supreme Court to grant certiorari review in Oklahoma U. Bosse, Case No. 21-186, and overturn its own decision in McGirt. Thus, it argued that this Court should stay and abate the proceedings in this case immediately, to conserve judicial resources, pending the outcome of Bosse.

On August 31, 2021, this Court issued an order vacating its grant of post-conviction relief in Bosse U. State, 2021 OK CR 3, 484 P.3d 286, and withdrawing the opinion from publication. That case is no longer at issue as the parties in Bosse filed a joint stipulation to dismiss the case at the Supreme Court on September 3, 2021. While the State may well seek and receive certiorari review in the United States Supreme Court on another case in which it is asked to revisit the McGirt decision, we follow the law as it exists today. In doing so, we find, on the record before this Court, that Olive has some Indian blood, was an enrolled member of the Cherokee Nation on the date of the charged offenses, and that the Cherokee Nation is a federally recognized tribe. We also find, on the record, that the land upon which the parties agree Olive allegedly committed the crimes is within the boundaries of the Muscogee (Creek) Reservation. The ruling in McGirt governs this case and requires us to find the District Court of Muskogee County did not have jurisdiction to prosecute Olive. The State has failed to show good cause why we should hold differently.

DECISION

The Judgment and Sentence of the District Court is VACATED. The matter is REMANDED WITH INSTRUCTIONS TO DISMISS. Any related motions not previously ruled upon are DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED to issue in twenty (20) days from the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-415
2. Okla. Stat. tit. 47 § 11-802
3. Okla. Stat. tit. 57 § 21(D)
4. Okla. Stat. tit. 22, Ch. 18, App. (2021)
5. McGirt v. Oklahoma, 140 S.Ct. 2452 (2020)
6. Rogers v. United States, 45 U.S. 567, 572-573 (1846)
7. Goforth v. State, 1982 OK CR 48, 6, 644 P.2d 114, 116
8. United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012)
9. Roth v. State, 2021 OK CR 27
10. Sizemore v. State, 2021 OK CR 6, 485 P.3d 867 (Hudson, J., Concur in Results)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (2018) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 47 § 11-802 (2011) - Speeding - Posted Zone
• Okla. Stat. tit. 57 § 21(D) (2015) - Possession of Contraband in a Penal Institution

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
• Rogers v. United States, 45 U.S. 567, 572-573 (1846)
• Goforth v. State, 1982 OK CR 48, I 6, 644 P.2d 114, 116
• United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012)
• Roth v. State, 2021 OK CR 27, __P.3d__
• Sizemore v. State, 2021 OK CR 6, 485 P.3d 867
• Bosse U. State, 2021 OK CR 3, 484 P.3d 286
• Bosse U. State, 2021 OK CR 23, P.3d