Dewayne Shomo v State Of Oklahoma

F-2020-510

Filed: Jan. 13, 2022

Not for publication

Prevailing Party: Dewayne Shomo

Summary

Dewayne Shomo appealed his conviction for possession of a firearm after being previously convicted of two felonies. His conviction and sentence were for eighteen months in prison. The court decided to overturn his conviction.

Decision

The JUDGMENT and SENTENCE 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 sufficient evidence to establish Appellant's status as Indian for jurisdictional purposes?
• did the appellate court find that the crime occurred within the boundaries of the Choctaw Reservation?
• did the State of Oklahoma have jurisdiction to prosecute Appellant based on the ruling in McGirt v. Oklahoma?
• was the judgment and sentence of the District Court properly reversed and remanded for dismissal?

Findings

• the State of Oklahoma lacked jurisdiction to prosecute Appellant
• the District Court did not abuse its discretion
• the findings are supported by the parties' agreed stipulation
• Appellant has met his burden of establishing his status as Indian
• the charged crime occurred within the Choctaw Nation Reservation
• the Judgment and Sentence is reversed and the case remanded to the District Court with instructions to dismiss

F-2020-510

Jan. 13, 2022

Dewayne Shomo

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:1 Appellant Dewayne Shomo was convicted in a non-jury trial before the Honorable Gary Brock, Special Judge, of Possession of a Firearm, After Former Conviction of Two or More Felonies (21 O.S.Supp.2014, § 1283(A), in the District Court of McCurtain County, Case No. CF-2018-189. Appellant was sentenced to eighteen (18) months in prison. Appellant appeals from this conviction and sentence.

In Proposition I of his appellate brief, Appellant claims the State of Oklahoma lacked jurisdiction to prosecute him pursuant to McGirt v. Oklahoma, 140 S.Ct. 2542 (2020) because he is a member of the Choctaw Nation and the crime occurred within the boundaries of the Choctaw Reservation. On April 19, 2021, this Court ordered the case remanded to the District Court of McCurtain County pursuant to McGirt, for an evidentiary hearing to determine Appellant’s status as Indian and the location of the crime as within the Choctaw Reservation. On October 20, 2021, the District Court filed a Findings of Fact with this Court stating in part that the parties had entered into agreed stipulations regarding Appellant’s status as Indian and the location of the crime as within the Choctaw Reservation. The District Court approved the stipulations, making the following findings of facts and conclusions as set out in the parties’ stipulation.

1. Dewayne Shomo, Appellant, holds an assigned Choctaw Nation Number (#CN134046) and a verified Certificate of Degree of Indian Blood (CDIB). Appellant was an enrolled member of the Choctaw Nation of Oklahoma at the time of the charged offenses; the Choctaw Nation of Oklahoma is an Indian Tribal Entity recognized by the federal government. Accordingly, Appellant is an Indian for purposes of criminal jurisdiction. See Bosse v. State, 2021 OK CR 3, 17, 484 P.3d 286.
2. The Choctaw Nation of Oklahoma is a federally recognized Indian Tribe. 85 F.R. 5465 (2020).
3. The alleged act charged against Appellant occurred at 3298 North Central Avenue in Idabel, McCurtain County, Oklahoma.
4. The above listed location falls within the boundaries set forth in the Treaty of Dancing Rabbit Creek in 1830, 7 Stat. 333, as modified by the Treaty of Washington, June 22, 1855, 11 Stat. 611, the Treaty of Doaksville, 11 Stat. 573, and the Treaty of Washington, April 28, 1866, 14 Stat. 769.

The State filed a supplemental brief after remand recognizing this Court is bound by McGirt and that this Court has applied McGirt to hold that the Choctaw Nation has a reservation. See Sizemore v. State, 2021 OK CR 6, 10-16, 485 P.3d 867, 871. The State argues that it disagrees with the McGirt decision and preserves the right to ask the Supreme Court to review its decision. Thus, for preservation purposes, the State contends that the crime in this case was not committed within Indian Country as defined by 18 U.S.C. § 1151(a).

The State further argues that should this Court find Appellant is entitled to relief, this Court should stay any order reversing the conviction for twenty (20) days to allow the United States Attorney’s Office for the Eastern District of Oklahoma to secure custody of Appellant. Cf. 22 O.S. 2011, § 846.

After thorough consideration of the arguments and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we find that under the law and the evidence relief is warranted. Under the record before us, we find the District Court did not abuse its discretion and its findings are supported by the parties’ agreed stipulation. See State v. Delso, 2013 OK CR 5, 5, 298 P.3d 1192, 1194. We find Appellant has met his burden of establishing his status as Indian, having proof of his enrollment in the Choctaw Nation of Oklahoma on the date of the charged offense and that the charged crime occurred within the Choctaw Nation Reservation. Pursuant to McGirt, we find Congress established a reservation for the Choctaw Nation and has not taken steps to disestablish that reservation.

The ruling in McGirt governs this case and requires us to find that the State of Oklahoma did not have jurisdiction to prosecute Appellant in this matter. The Judgment and Sentence in this case is hereby reversed and the case remanded to the District Court of McCurtain County with instructions to dismiss the case.

DECISION

The JUDGMENT and SENTENCE 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.

AN APPEAL FROM THE DISTRICT COURT OF McCURTAIN COUNTY
THE HONORABLE GARY BROCK, SPECIAL JUDGE

APPEARANCES IN DISTRICT COURT
ALAN PERRY
108 W. DUKE ST.
HUGO, OK 74743
COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL
NICOLLETT BRANDT
OKLA. INDIGENT DEFENSE
P.O. BOX 845
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

MARK MATLOFF
DISTRICT ATTORNEY
108 N. CENTRAL
IDABEL, OK 74745

JOHN M. O’CONNER
ATTORNEY GENERAL
AMY SUART-BEAVER
ASST. ATTORNEY GENERAL
313 N.E. 21ST ST.
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.
ROWLAND, P.J.: Concur
HUDSON, V.P.J.: Specially Concur
LEWIS, J.: Concur in Result

HUDSON, VICE PRESIDING JUDGE: SPECIALLY CONCURS

Today’s decision dismisses a conviction for felonious possession of a firearm from the District Court of McCurtain 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. The record shows Appellant had some Indian blood and was recognized as an Indian by a tribe and/or the federal government at the time of the crime. The record further shows this crime took place within the historic boundaries of the Choctaw Reservation. Under McGirt, the State has no jurisdiction to prosecute Appellant for the crime in this case. Instead, Appellant must be prosecuted in federal court where the exclusive jurisdiction for this crime lies. See Roth v. State, 2021 OK CR 27, 499 P.3d 23. 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. See, e.g., State v. Lawhorn, 2021 OK CR 37, 499 P.3d 377 (Hudson, V.P.J., Specially Concurs); Sizemore v. State, 2021 OK CR 6, 485 P.3d 867 (Hudson, J., Concur in Results).

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Footnotes:

1. 21 O.S.Supp.2014, § 1283(A)
2. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
3. Bosse v. State, 2021 OK CR 3, 7, 484 P.3d 286.
4. 85 F.R. 5465 (2020)
5. Treaty of Dancing Rabbit Creek in 1830, 7 Stat. 333
6. Treaty of Washington, June 22, 1855, 11 Stat. 611
7. Treaty of Doaksville, 11 Stat. 573
8. Treaty of Washington, April 28, 1866, 14 Stat. 769
9. Sizemore v. State, 2021 OK CR 6, ¶ 10-16, 485 P.3d 867, 871.
10. 18 U.S.C. § 1151(a)
11. 22 O.S. 2011, § 846
12. State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192, 1194.
13. Roth v. State, 2021 OK CR 27, 499 P.3d 23.
14. State v. Lawhorn, 2021 OK CR 37, 499 P.3d 377.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1283(A) (2014) - Possession of a Firearm After Former Conviction of Two or More Felonies
• Okla. Stat. tit. 22 § 846 (2011) - Order to Stay Execution of Sentence
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing of Convicted Persons

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 18 U.S.C. § 1151(a) - Indian Country defined

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Sizemore v. State, 2021 OK CR 6, 485 P.3d 867
• Bosse v. State, 2021 OK CR 3, I 7, 484 P.3d 286
• State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
• McGirt v. Oklahoma, 140 S.Ct. 2452 (2020)
• Roth v. State, 2021 OK CR 27, 499 P.3d 23
• State v. Lawhorn, 2021 OK CR 37, 499 P.3d 377