Robert William Perry, II v The State Of Oklahoma
F-2020-46
Filed: Apr. 1, 2021
Not for publication
Prevailing Party: Robert William Perry, II
Summary
Robert William Perry, II appealed his conviction for five counts of sexual abuse of a child under 12. Conviction and sentence were reversed and remanded with instructions to dismiss. Judge Hudson specially concurred.
Decision
The judgment and sentence of the District Court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. 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 sufficient evidence to support the claim of Perry's Indian status?
- Did the crimes occur within the boundaries of the Muscogee (Creek) Nation Reservation?
- Did the District Court of Tulsa County have subject matter jurisdiction to prosecute Perry?
Findings
- the court erred in the jurisdictional challenge
- the District Court of Tulsa County did not have jurisdiction to prosecute Perry
- the case should be dismissed
F-2020-46
Apr. 1, 2021
Robert William Perry, II
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
JOHN D. HADDEN
LEWIS, JUDGE: Robert William Perry, II, Appellant, was tried by jury and found guilty of five counts of sexual abuse of a child under 12, in violation of 21 O.S.Supp.2014, 843.5 (counts 1, 2, and 4-6 of the information) in the District Court of Tulsa County, Case No. CF-2018-3720, before the Honorable Kelly Greenough, District Judge. The jury set punishment at, count one, thirty-five years, count two, forty years, and counts four, five, and six, life imprisonment on each count. Judge Greenough sentenced accordingly ordering that the sentences for counts one, four, five, and six be served concurrently to each other and that count two be served consecutively with those counts.
Perry filed a direct appeal and, thereafter, a supplemental brief and motion for evidentiary hearing arguing that the State of Oklahoma did not have subject matter jurisdiction to prosecute him. We find relief is required on Perry’s jurisdictional challenge. Perry’s claim is supported by 18 U.S.C. § 1153 and McGirt v. Oklahoma, 591 U.S. , 140 S.Ct. 2452 (2020). Because there was insufficient evidence in the original record and Perry raised sufficient proof in his motion for evidentiary hearing, this Court remanded this case to the District Court of Tulsa County on October 7, 2020, for an evidentiary hearing.
The District Court was directed to make findings of fact and conclusions of law on two issues: (a) Perry’s status as an Indian; and (b) whether the crimes occurred within the boundaries of the Muscogee (Creek) Nation Reservation. Our order provided that, if the parties agreed upon evidentiary matters supporting the questions raised, the parties could enter into a written stipulation setting forth those facts.
The parties appeared at the Tulsa County District Court before the Honorable Tracy L. Priddy, District Judge, on November 5, 2020, and made the following stipulations regarding question one, (1) that evidence would show that Perry became a registered citizen of the Muscogee (Creek) Nation on November 10, 2011, and was registered at the time of the commission of these crimes; (2) that evidence would show that Perry has a 1/128 quantum of Creek blood; and finally (3) evidence would show that the Muscogee (Creek) Nation is a federally recognized tribe.
Regarding question two, the parties stipulated that the evidence would show that the location of the crimes were within the historical boundaries of the Muscogee (Creek) Nation Reservation. The trial court filed its findings of fact and conclusions of law on November 16, 2020. The District Court found the facts recited above in accordance with the stipulation. The District Court concluded that Perry is an Indian under law and that the crimes occurred within the boundaries of the Muscogee (Creek) Nation Reservation. The District Court’s findings are supported by the record. The ruling in McGirt governs the case and requires us to find the District Court of Tulsa County did not have jurisdiction to prosecute Perry. Accordingly, we hold that Perry’s jurisdictional challenge is supported and this case should be dismissed.
DECISION
The judgment and sentence of the District Court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. 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.
APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE KELLY GREENOUGH, DISTRICT JUDGE
APPEARANCES AT TRIAL
NICK SOUTHERLAND
423 S. BOULDER AVE., STE. 300
TULSA, OK 74103
ATTORNEY FOR DEFENDANT
APPEARANCES ON APPEAL
ADAM BARNETT
LINDSEY HOLGUIN
STUART SOUTHERLAND
423 S. BOULDER AVE., STE. 300
TULSA, OK 74103
ATTORNEYS FOR APPELLANT
KATIE KOLJACK
MIKE HUNTER
ASST. DISTRICT ATTORNEY
ATTORNEY GENERAL
500 S. DENVER, STE. 900
TULSA, OK 74103
JENNIFER CRABB
JULIE PITTMAN
RANDALL YOUNG
ASST. ATTORNEY GENERAL
313 N.E. 21 ST STREET
OKLAHOMA CITY, OK 73105
JAMES DUNN
ASST. DISTRICT ATTORNEY
500 S. DENVER, STE. 900
TULSA, OK 74103
ATTORNEYS FOR APPELLEE
OPINION BY: LEWIS, J.
KUEHN, P.J.: Concur
ROWLAND, V.P.J.: Concur in Results
LUMPKIN, J.: Concur in Results
HUDSON, J.: Specially Concur
ROWLAND, VICE PRESIDING JUDGE, CONCURRING IN RESULTS: I concur in the result of today’s opinion. However, consistent with my separate opinion in Bosse v. State, 2021 OK CR 3, – 3d . I would find that the State lacked territorial jurisdiction and not subject matter jurisdiction.
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’ 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 in response to the Commissioner’s speech that in Oklahoma, he did not think we could look forward to building up huge reservations such as we have granted to the Indians in the past. In 1940, in the Foreword to Felix S. Cohen, Handbook of Federal Indian Law (1942), Secretary of the Interior Harold Ickes wrote in support of the IRA, [t]he continued application of the allotment laws, under which Indian wards have lost more than two-thirds of their reservation lands, while the costs of Federal administration of these lands have steadily mounted, must be terminated.
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.
HUDSON, J., SPECIALLY CONCURS: Today’s decision dismisses five separate convictions for sexual abuse of a child under 12 from the District Court of Tulsa County based on the Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). This decision is unquestionably correct as a matter of stare decisis based on the Indian status of Appellant and the occurrence of the crimes on the Creek Reservation. Under McGirt, the State has no jurisdiction to prosecute Appellant for the child sexual abuse in this case. Instead, Appellant must be prosecuted in federal court. I therefore, as a matter of stare decisis, fully concur in today’s decision. Further, I maintain my previously expressed views on the significance of McGirt, its far-reaching impact on the criminal justice system in Oklahoma, and the need for a practical solution by Congress.
Footnotes:
- 18 U.S.C. § 1153
- McGirt v. Oklahoma, 591 U.S. , 140 S.Ct. 2452 (2020)
- 21 O.S.Supp.2014, 843.5
- 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) (unpublished)
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 843.5 - Sexual abuse of a child
- Okla. Stat. tit. 18 § 1153 - Offenses committed in Indian country
Oklahoma Administrative Rules citations:
No Oklahoma administrative rules found.
U.S. Code citations:
- 18 U.S.C. § 1153 - Offenses committed within Indian country
Other citations:
No other rule citations found.
Case citations:
- McGirt v. Oklahoma, 591 U.S. , 140 S. Ct. 2452 (2020)
- Bosse v. State, 2021 OK CR 3
- Hogner v. State, 2021 OK CR 4
- Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021)