Appeal Archives - Page 5 of 17

RE-2017-801

Post author:Staff
Post published:April 18, 2019
Post category:RE

**Court of Criminal Appeals of the State of Oklahoma** **Case Summary** **Appellant:** Donald Antwan Mayberry **Appellee:** State of Oklahoma **Case No:** RE-2017-801 **Judges:** John D. Hudson (Chief Judge), Lewis, Kuehn (Vice Chief Judge), Lumpkin, Rowland (Judges) **Date Filed:** April 18, 2019 **Overview:** Donald Antwan Mayberry appealed the full revocation of his ten-year suspended sentences imposed by the District Court of Oklahoma County, presided over by Judge Timothy R. Henderson. Mayberry had previously pleaded guilty to two counts of Assault and Battery with a Dangerous Weapon, which resulted in concurrent ten-year suspended sentences under probation. **Revocation Proceedings:** The State filed an application to revoke Mayberry's suspended sentences, alleging several violations, including: 1. Committing new crimes (including Manufacturing or Possessing an Explosive Device). 2. Using methamphetamine while on probation. 3. Failing to pay probation fees. 4. Driving while his license was suspended. At the revocation hearing, the State presented evidence from law enforcement officers and Mayberry’s probation officer. Notable testimony included: - Sergeant Anthony Lee described a traffic stop of Mayberry's vehicle, where he discovered drugs and an ammo box containing bomb components. - Scott Dawson, a bomb technician, testified about the nature of the device found, indicating it could function as an improvised explosive device (IED). - Probation officer Brooke LeFlore reported Mayberry’s positive drug test for methamphetamine. Mayberry did not present any evidence in his defense. Judge Henderson concluded that Mayberry violated probation terms by committing the new crimes and using drugs, leading to the full revocation of his suspended sentences. **Propositions of Error:** 1. **Insufficient Evidence for Manufacturing an Explosive Device:** - Mayberry argued that the State failed to establish his intent to use the bomb or to send it to another person, as required by statute. - The court held that the evidence presented was sufficient to infer intent to intimidate or unlawfully damage property, and that one proven violation of probation was enough to justify revocation. 2. **Abuse of Discretion in Revocation Decision:** - Mayberry contended that the trial court abused its discretion by revoking his sentence in full, arguing that the punishment was excessive. - The court maintained that the presence of bomb-making materials and other violations substantiated the revocation decision. **Conclusion:** The Court affirmed the trial court's decision to revoke Mayberry's ten-year concurrent suspended sentences in full, finding that the evidence was adequate to support the conclusions of the trial judge. **Final Order:** Appellant's revocation of suspended sentences is **AFFIRMED**. The mandate is ordered to be issued. **Counsel for Appellant:** Pierce Winters, Marva A. Banks (Oklahoma County Public Defender’s Office) **Counsel for Appellee:** Kelly Collins, Mike Hunter (assistant district attorneys); Theodore M. Peeper (assistant attorney general) **Opinion Issued By:** Judge Hudson **Concurrences:** Judges Lewis, Kuehn, Lumpkin, and Rowland each concurred with the decision. [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-801_1734709994.pdf)

F-2017-1042

Post author:Staff
Post published:April 18, 2019
Post category:F

In OCCA case No. F-2017-1042, Vincent Ray Perosi appealed his conviction for First Degree Murder and Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. The case began when Perosi, who had recently divorced, was ordered to leave the house he had been living in by January 1, 2016. After that date, his ex-wife, Pamela Perosi, returned to the house with two friends to change the locks because he had not moved out. This led to a confrontation. Perosi shot and killed Pamela and another friend, Buddy Weber, while wounding Karen Priest, who was also present. Perosi claimed he shot in self-defense, saying he was scared of Weber. However, evidence showed that he had a history of threats against his ex-wife and evidence contradicted his version of events. The court ruled that he did not qualify for immunity under the Stand Your Ground law and denied his request for related jury instructions. In reviewing the evidence, the court found sufficient proof to support the convictions, rejecting Perosi's claims of self-defense and that shooting Pamela was accidental. Further, his videotaped confession was admitted as evidence, despite defense claims it was coerced; the court found it was voluntary. In addition, the court allowed testimony about Perosi's bad character and a victim impact statement from Pamela’s family. Ultimately, the court upheld the trial’s decisions and affirmed the conviction, denying any errors raised in the appeal.

F-2017-1189

Post author:Staff
Post published:April 11, 2019
Post category:F

In OCCA case No. F-2017-1189, Lawrence Raymond Silver, Jr. appealed his conviction for Solicitation for First Degree Murder. In a published decision, the court decided to affirm the judgment and sentence from the district court. One judge dissented. The case started when Silver was tried and found guilty of trying to get someone to commit murder. The jury decided he should go to prison for thirty-seven years. During the trial, Silver raised several issues on appeal. First, he argued that the prosecutor said some unfair things that hurt his chances for a fair trial. However, the court found that these comments were not serious enough to make the trial unfair, and there was no error. Silver also thought that he should not have received three years of supervision after leaving prison since the law said this only applied to specific crimes. The court agreed that there was an error, but the trial judge later fixed it, reducing the supervision time to nine months to a year. Because this was corrected, Silver did not need any more relief on this issue. Additionally, Silver claimed that his lawyer did not help him well enough during the trial. The court explained that to show his lawyer was ineffective, Silver needed to prove that if the lawyer had done better, the result of the trial would have been different. Since the court didn't find any of the previous claims valid, they decided that his lawyer's work couldn't be judged as ineffective. Finally, Silver said that even if no single issue mattered on its own, the overall mistakes during the trial combined to deny him a fair trial. The court ruled that without any valid individual mistakes, his claim for cumulative errors was groundless. In conclusion, the court upheld the original judgment and sentence against Silver, and his request for further testing of his lawyer's assistance was denied.

F-2017-1104

Post author:Staff
Post published:April 11, 2019
Post category:F

In OCCA case No. F-2017-1104, Joseph Johnson appealed his conviction for first degree murder. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Joseph Johnson was found guilty of killing Quavis Trae Cato during an argument over a car. The jury sentenced Johnson to life in prison without parole. The incident happened on October 10, 2016, when Johnson shot Cato 14 times, after a dispute over a stolen car. Witnesses testified that Johnson was armed with two guns and returned to the argument after briefly leaving the scene. During the trial, Johnson's defense argued for instructions on lesser charges of manslaughter, claiming he acted in the heat of passion or self-defense. However, the court found no evidence that Cato provoked Johnson sufficiently to warrant such instructions. The judges decided that Johnson escalated the situation by bringing guns into the argument and that simply being angry or upset does not justify the use of deadly force. Johnson also claimed that the prosecutor's closing arguments contained misconduct, asserting that they misled the jury about the facts and the law of self-defense, but the court found no errors that affected the fairness of the trial. Finally, Johnson’s defense argued that his lawyer didn't perform adequately by not presenting expert testimony about psychological conditions that might have affected his perception of the situation. However, the court concluded that even if the lawyer's performance was deficient, it wouldn't have changed the outcome of the trial because Johnson had initiated the conflict while armed. In summary, the court upheld the conviction for murder, concluding that Johnson acted with intent and malice when he killed Cato. The judges agreed that there was no basis for a lesser charge or for claims of ineffective counsel. Overall, the ruling was in favor of maintaining the original sentence.

RE-2017-484

Post author:Staff
Post published:April 4, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JERMAINE THRASH,** Appellant, **VS** **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2017-484** **Filed April 4, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Jermaine Thrash, appeals from the revocation of his ten-year suspended sentence in Case No. CF-2005-4341 in the District Court of Oklahoma County, by the Honorable Michelle D. McElwee, District Judge. On October 11, 2005, Appellant entered a plea of guilty to Count 1 - Rape in the First Degree; and Count 2 - Forcible Oral Sodomy. He was sentenced to fifteen years for each count with the first five years to be served and the remaining ten years suspended, with the sentences running concurrently. On September 29, 2015, the State filed an application to revoke Appellant's suspended sentence, alleging multiple violations of probation: testing positive for illegal drugs, failure to pay supervision fees, failure to participate in a sex offender treatment program, and possession of pornographic material. Appellant waived the twenty-day hearing requirement, and the hearings were subsequently continued several times to allow him to comply with probation requirements. The revocation hearing took place on May 1, 2017, before Judge McElwee. The State's witness, Megan Hicks, Appellant's probation officer, testified about Appellant's consistent failures to complete his probation requirements. She noted his non-participation in court-ordered sex offender treatment and multiple positive drug tests, including methamphetamines and cocaine, spanning over several months between 2015 and 2017. Notably, Appellant admitted to using drugs even shortly before the hearing. Appellant offered mitigation, arguing that he used drugs to cope with his circumstances as a convicted felon and sex offender. However, the court found that his continued drug use and failure to adhere to his probation terms constituted substantial violations. On appeal, Appellant asserts that his violations were merely technical and therefore do not justify the full revocation of his sentence. However, the ruling emphasizes that continued drug use while on probation is not merely a technical violation. The court noted that Appellant had numerous opportunities to comply with the probation requirements, and the trial judge's discretion in revoking the suspended sentence was upheld. **DECISION:** The order of the District Court of Oklahoma County revoking Appellant's ten-year suspended sentence in Case No. CF-2005-4341 is AFFIRMED. The MANDATE is ORDERED issued upon the filing of this decision. **APPEARANCES:** **FOR APPELLANT:** Kenda H. McIntosh Andrea Digilio Miller Oklahoma County Public Defender **FOR THE STATE:** Merydith Easter Mike Hunter Oklahoma County District Attorney Jennifer Miller Assistant Attorney General **OPINION BY:** KUEHN, V.P.J. **CONCUR:** LEWIS, P.J., LUMPKIN, J., HUDSON, J., ROWLAND, J. [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-484_1734711166.pdf)

F-2017-1103

Post author:Staff
Post published:April 4, 2019
Post category:F

In OCCA case No. F-2017-1103, the appellant appealed his conviction for first degree murder. In a published decision, the court decided to affirm the judgment and sentence. One justice dissented. Jose Jonathan Rivera-Chavez was convicted of killing Wanda Cooper at a hotel. On December 27, 2016, Cooper went to the hotel office pleading for help while covered in blood. She collapsed shortly after and died from her injuries. Witnesses saw Rivera-Chavez trying to open car doors nearby after the incident. The police found him on the run and apprehended him with help from a police dog. Evidence showed blood on his clothes matched Cooper's. During the trial, Rivera-Chavez claimed he was under the influence of drugs and did not intend to kill Cooper. He admitted to stabbing her multiple times with a knife after becoming paranoid during a drug high. Despite his defense, the court noted that his actions and demeanor suggested he was not severely intoxicated. One key issue in the appeal was whether the court allowed evidence of Rivera-Chavez's silence after being read his rights, which he claimed violated his rights. The court found that this evidence was used properly to address his claim of voluntary intoxication and did not unfairly suggest guilt. The court concluded that even if there had been some error in admitting the evidence, it was harmless because ample evidence showed Rivera-Chavez's intent to kill. The judgment and sentence were ultimately upheld.

M-2017-137

Post author:Staff
Post published:February 28, 2019
Post category:M

In OCCA case No. M-2017-137, Jerrad Sterling Nunamaker appealed his conviction for possession of a controlled dangerous substance, unlawful possession of drug paraphernalia, and speeding in excess of the lawful limit. In an unpublished decision, the court decided to modify Nunamaker's fine for speeding to $20.00 and vacated the victim compensation assessment for that offense. One member of the court dissented.

JS 2018-0917

Post author:Staff
Post published:January 3, 2019
Post category:JS

In OCCA case No. JS 2018-0917, M. W. appealed his conviction for Rape, First Degree, and Sexual Battery. In a published decision, the court decided to affirm the ruling that allowed him to be treated as a Juvenile instead of as an adult. One judge dissented.

C-2018-441

Post author:Staff
Post published:December 20, 2018
Post category:C

In OCCA case No. C-2018-441, Clinton Lee Myers appealed his conviction for trafficking in illegal drugs and possession of a controlled substance with intent to distribute near a school. In an unpublished decision, the court decided to deny his appeal. One judge dissented. Clinton Lee Myers entered a plea of guilty to two serious charges. He was sentenced to a long time in prison and had to pay a large fine. After he was sentenced, he wanted to withdraw his guilty plea, but the court said no after listening to evidence in a hearing. Myers complained that his punishment was too harsh and that the prosecutor shouldn't have talked about his past crimes during the sentencing. He felt this information was unfair and should not have been used against him. However, the court explained that this type of information can be considered at sentencing. They also decided that his sentence was within legal limits and did not shock their conscience, so they would not change it. Additionally, Myers believed that there was a mistake in the written records of his sentence regarding the amount of the fine. The court found that there was, in fact, a clerical error in the documents about the fine amount. They agreed that the error should be corrected to match what the judge said during the sentencing. In conclusion, the court denied Myers' request to change his sentence, but they agreed to correct the written record to reflect the right fine amount.

S-2018-6

Post author:Staff
Post published:November 15, 2018
Post category:S

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** Court Case No: S-2018-51 and S-2018-6 **STATE OF OKLAHOMA,** Appellant, **V.** **SHELLEY MARIE BRADLEY,** Appellee. **STATE OF OKLAHOMA,** Appellant, **V.** **DYLAN THOMAS BRODIE,** Appellee. **SUMMARY OPINION** **ROWLAND, JUDGE:** 1. The State of Oklahoma, Appellant, appeals from an order affirming the ruling of the magistrate, sustaining the defendants' demurrers to evidence on Counts 1 and 2, and denying the State's request to amend the Informations, in Case Nos. CF-2017-445 and CF-2017-446 in the District Court of Wagoner County. **STATEMENT OF THE CASE** 2. Appellees, Shelley Marie Bradley and Dylan Thomas Brodie, were charged with intimidation of a witness and conspiracy to commit a felony. The magistrate sustained the demurrers to the evidence and denied amendments to include additional charges. 3. The matter was assigned to Judge Mark L. Dobbins as the reviewing judge, who affirmed the magistrate's ruling. 4. The State appealed; on August 9, 2018, this Court held oral arguments, after which the ruling was reversed. **SUMMARY OF FACTS** 5. The Appellees are related to Jacob Ode, charged with several offenses following a police pursuit. Hawkins, a relative of the Appellees, was a passenger and initially provided a statement implicating Ode. 6. Later, Hawkins was approached by the Appellees and persuaded to change her statement to indicate Ode was not the driver during the pursuit. 7. The magistrate found no evidence demonstrating that Hawkins was threatened or coerced into altering her testimony. **ANALYSIS** ### I. Intimidation of Witness 8. The State argued sufficient evidence existed for the charge of witness intimidation. However, the records demonstrated no evidence of Hawkins being prevented from testifying or coerced through force or fear. 9. The judges did not err in finding there wasn’t enough evidence to support the claim of intimidation. ### II. Conspiracy to Commit Intimidation 10. The State similarly could not provide sufficient evidence to show any conspiracy between the Appellees to intimidate Hawkins, as no threats or coercion were substantiated. ### III. Conspiracy to Commit Perjury by Subornation 11. The State argued it presented sufficient evidence to show a conspiracy to commit perjury by subornation. The appellate judges found sufficient cause to remand for the trial on this charge. ### IV. False Preparation of Exhibits 12. The evidence presented indicated that Hawkins’ second statement was prepared under the Appellees' guidance with the intent to be submitted as evidence. 13. The failure to include this evidence as a charge of False Preparation of Exhibits was deemed an error by the appellate judges. **DECISION** 14. The order of the District Court sustaining the magistrate's decisions is REVERSED. The case is remanded to the District Court with instructions to proceed to trial for the charges of Conspiracy to Commit Perjury by Subornation and False Preparation of Exhibits. **APPEARANCES** - **For the State:** Douglas G. Dry, Assistant District Attorney - **For the Appellees:** Michon Hastings Hughes & Clinton C. Hastings, Attorneys at Law **OPINION BY: ROWLAND, J.** - LUMPKIN, P.J., LEWIS, V.P.J., HUDSON, J., and KUEHN, J., concur. --- **[Download PDF of Full Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/S-2018-6_1734333945.pdf)**

C-2017-1050

Post author:Staff
Post published:November 8, 2018
Post category:C

**Court of Criminal Appeals of Oklahoma Summary Opinion** **David Neil Dunn v. The State of Oklahoma** **Case No. C-2017-1050** **Filed November 8, 2018** **Summary:** The Oklahoma Court of Criminal Appeals reviewed the case of David Neil Dunn, who sought to withdraw his no contest plea for various serious charges. Dunn appealed on the basis that he was denied his due process right to be present during the evidentiary hearing on his motion to withdraw the plea, and claimed ineffective assistance of counsel. **Key Points:** 1. **Charges and Plea**: Dunn was charged with multiple felonies, including First Degree Robbery and Burglary. He entered a blind plea of no contest, which resulted in significant prison sentences. 2. **Motion to Withdraw Plea**: Dunn filed a motion to withdraw his plea shortly after sentencing, claiming various legal grounds, including concerns about the validity of his plea. An evidentiary hearing was held, but Dunn was not present as he had been transported to the Department of Corrections. 3. **Court's Ruling**: The Court found that Dunn had a due process right to be present during this critical stage of the proceedings. The absence of Dunn hindered a fair and just hearing, particularly concerning his claims about the voluntariness of his plea. 4. **Counsel’s Role**: The court clarified that defense counsel's belief that Dunn's presence was unnecessary does not equate to a valid waiver of his right to be present. The decision emphasized that Dunn's testimony was crucial for effectively contesting the plea's validity. 5. **Outcome**: The Court granted Dunn's petition for certiorari and remanded the case back to the District Court for a proper evidentiary hearing on his motion to withdraw the plea, ensuring he would be present. 6. **Dissenting Opinion**: One judge dissented, arguing that the absence of Dunn did not constitute a violation of his rights, noting that his counsel had effectively represented him at the hearing. It was contended that the procedural complexities of representation should not be interpreted as waivers of due process. **Conclusion**: The Court ruled in favor of Dunn, stressing the importance of a defendant's presence in legal proceedings, particularly when their rights and pleas are being challenged, which underscores the principles of fairness and due process within the judicial system. For a detailed reading, [click here to download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2017-1050_1733996496.pdf).

C-2017-1311

Post author:Staff
Post published:October 4, 2018
Post category:C

In OCCA case No. C-2017-1311, Heath Justin Wright appealed his conviction for multiple charges, including Second Degree Burglary, Knowingly Concealing Stolen Property, and Unlawful Possession of a Controlled Dangerous Substance. In an unpublished decision, the court decided to grant relief to Wright, allowing him to withdraw his guilty plea and proceed to trial. One judge dissented. Wright entered a negotiated plea without legal counsel and was accepted into the Pontotoc County Drug Court program. His plea agreement stated that if he successfully completed the program, his charges would be dismissed. However, if he failed, he would receive a lengthy prison sentence for each charge. After the State sought to terminate him from the drug court program, Wright tried to withdraw his plea. The court denied his request and sentenced him to the agreed-upon prison terms. Wright claimed his attorney did not assist him properly. He argued that he was not warned about the risks of representing himself in court. The court found that this lack of advice affected his decision to plead guilty. Since it was clear that Wright’s attorney did not address this issue, the court decided he should be allowed to withdraw his plea and face trial for the charges. The ruling concluded that because the initial plea was handled improperly, Wright should get another chance to defend himself in court.

J-2018-402

Post author:Staff
Post published:July 12, 2018
Post category:J

In OCCA case No. J-2018-402, M. T. G. appealed his conviction for Trafficking in Illegal Drugs. In an unpublished decision, the court decided to reverse the order that sentenced him as an adult and remanded the case back to the District Court. One judge dissented. M. T. G. was charged as a juvenile for Trafficking illegal drugs when he was 17 years and 9 months old. The State, however, filed a motion to treat him as an adult. The court found that M. T. G. should have been charged as a youthful offender instead of a juvenile, which was the basis for the reversal.

F-2017-189

Post author:Staff
Post published:May 24, 2018
Post category:F

In OCCA case No. F-2017-189, William Todd Lewallen appealed his conviction for Child Neglect, After Former Conviction of Two or More Felonies. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court. A dissenting opinion was not recorded. Lewallen was found guilty in a previous trial and sentenced to twenty-three years in prison. He appealed this sentence, and the court decided to change the sentence to fourteen years during a resentencing trial. Lewallen wanted to testify during this resentencing but was not allowed to do so by the trial court. This decision led to Lewallen's appeal. Lewallen claimed that not allowing him to testify was a serious mistake called structural error, which means it affected the fairness of the entire trial process. However, the court explained that most errors in trials can be harmless unless they are structural errors. The court ultimately found that Lewallen's case did not involve what would be classified as structural error. The court noted that while everyone has the right to present a defense and testify, this right has limits and must follow the rules of court. In Lewallen's case, his request to testify was denied because the court believed it didn't relate to the sentencing phase of his case. The court held that his testimony would not change the outcome of the sentencing because it was not relevant to the issues that the jury was deciding at that time. The decision emphasized that the resentencing was not a chance to revisit the guilt or innocence of Lewallen, as he was already found guilty. The new jury was only tasked with deciding how long his punishment should be based on what they learned from the original trial. In summary, the court affirmed Lewallen's new sentence and ruled that there were no errors that would affect the outcome of the case, including the denial of his request to testify.

S-2015-771

Post author:Staff
Post published:May 8, 2018
Post category:S

In OCCA case No. S-2015-771, the defendant appealed his conviction for Possession of Marijuana with Intent to Distribute. In an unpublished decision, the court decided to affirm the lower courts' rulings. One judge dissented. Carl Edward Prince, also known as Carl Edward Harper, was arrested for having marijuana and other related charges. He was charged with three main offenses regarding drug possession and use of a police radio. During the early stages of the trial, a magistrate judge decided there wasn't enough evidence for one of the charges, which was about maintaining a place used for selling drugs. The prosecution believed that this decision was wrong and appealed it. The appeal against the magistrate's decision went to another judge who agreed with the first judge, stating that the evidence given by the prosecution was not strong enough to prove that Prince had maintained a location where marijuana was kept with the intent to distribute it. Because of this, they could not prove that there was a pattern or habit of drug use or sales at the location. The case was taken to the Oklahoma Court of Criminal Appeals. The main issues raised by the prosecution were about whether the requirement for a pattern of activity (habitualness) should be considered a fact that needed to be proven and whether there was enough evidence to bring the case to a jury. The Appeals Court decided that the past decisions regarding drug cases required proof of more than just a single event of drug possession. They reasoned that a location must show a pattern of illegal drug activity or use before a person can be convicted under this law. The court looked carefully at what evidence was presented while considering the arguments from both sides. They concluded that there were no clear mistakes made by the lower courts. The evidence didn’t meet the standard needed to prove that Prince’s home was used primarily for drug activity. They upheld the decisions of the lower courts, which means that Prince was not found guilty of that charge. One judge disagreed with this final decision, feeling that the lower courts made a mistake in throwing out the charge about maintaining a place for drugs. This dissenting opinion argued that the law should allow for flexibility and not just rely on showing repeated actions or habits to prove the case. The dissenting judge expressed that the current interpretation of the law was too strict and made it difficult to prosecute based on the evidence presented. In summary, the Appeal Court confirmed that there wasn’t enough evidence to charge Prince with maintaining a place for drug distribution, leading to the upholding of his preliminary ruling.

M-2017-739

Post author:Staff
Post published:May 1, 2018
Post category:M

In OCCA case No. M-2017-739, Jeremy L. Garza appealed his conviction for Driving under the Influence of Intoxicating Substances. In an unpublished decision, the court decided that the trial court abused its discretion by allowing Garza to represent himself during the acceleration proceedings without him properly waiving his right to counsel. One judge dissented. Garza had initially entered a guilty plea to a DUI charge and was given eighteen months of probation. However, the State later accused him of not following the rules of his probation, such as failing to report and not paying fines. When Garza addressed the court without a lawyer during these acceleration proceedings, the court did not properly document that he understood his right to have a lawyer or that he chose to give up that right. The court's opinion stressed that anyone facing charges has the right to a lawyer and can only waive this right if they do so knowingly and intelligently. This means they need to understand the consequences of representing themselves. Since the court did not show that Garza waived his right to counsel properly, the decision to sentence him was reversed. The matter was sent back to the lower court, instructing them to vacate the judgment and hold further proceedings that follow this ruling.

RE-2018-357

Post author:Staff
Post published:April 2, 2018
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CASE NO. RE-2018-357** **JAMES MONROE JONES, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** --- **SUMMARY OPINION** **LUMPKIN, JUDGE:** James Monroe Jones (Appellant) appeals from the revocation of his suspended sentences in Case Nos. CF-2008-7440, CF-2010-130, CF-2010-290, and CF-2013-6519, adjudicated by the Honorable Timothy R. Henderson, District Judge, in the District Court of Oklahoma County. On June 16, 2010, Appellant pled guilty in Cases CF-2008-7440, CF-2010-130, and CF-2010-290, receiving concurrent sentences with significant portions suspended. Specifically, in CF-2008-7440, he was convicted of two counts of Concealing Stolen Property and sentenced to fifteen years on each count, with the first five years served. Similar sentences were imposed for offenses stemming from the other cases. On May 1, 2015, Appellant entered a negotiated nolo contendere plea in CF-2013-6519 for an amended count of Concealing Stolen Property, resulting in a ten-year sentence with the first year served. On August 26, 2016, the State filed applications to revoke Appellant's suspended sentences due to reported violations, including failure to report, change of address, and new criminal activity related to Domestic Assault and Battery. Enhanced allegations were added on March 7, 2018, encompassing additional crimes attributed to Appellant. A hearing was conducted on April 2, 2018. Appellant's counsel objected to the State's evidence, citing inadequate discovery. The trial court, however, noted Appellant had received relevant documents previously, and dismissed the objections after reviewing the evidence. Judge Henderson ultimately found Appellant had violated his probation through specific new criminal conduct and revoked his suspended sentences in full. Appellant presents two propositions of error on appeal: **PROPOSITION I:** The trial court violated Jones's right to due process and a fair trial under the Fourteenth Amendment and Article II § 7 of the Oklahoma State Constitution. **PROPOSITION II:** Defense counsel failed to prepare adequately for trial, resulting in ineffective assistance of counsel. **ANALYSIS** In addressing Proposition I, Appellant contends that the overruling of his objections regarding discovery violations deprived him of due process. It is established that defendants have minimal due process rights in revocation hearings, including evidence disclosure. However, since Appellant’s counsel did not request discovery prior to the hearing, the burden falls on them for preparation. The trial court did not deny Appellant the opportunity to defend—therefore, Proposition I is denied. Regarding Proposition II, Appellant asserts his counsel's ineffectiveness based on a lack of preparedness stemming from unrequested discovery. The Strickland standard evaluates ineffective assistance claims through performance deficiency and resultant prejudice. Appellant has not substantiated claims that better-prepared counsel would have altered the outcome, as evidence showed several violations were confirmed. Thus, Proposition II is also denied. **DECISION** The order from the District Court of Oklahoma County revoking Appellant's suspended sentences in Case Nos. CF-2008-7440, CF-2010-130, CF-2010-290, and CF-2013-6519 is **AFFIRMED**. --- **APPEARANCES:** **AT TRIAL** Katie Samples, Assistant Public Defender Marva A. Banks, Assistant Public Defender **ON APPEAL** David Nichols, Assistant District Attorney Mike Hunter, Attorney General Keeley L. Miller, Assistant Attorney General **OPINION BY:** LUMPKIN, J. **CONCUR:** LEWIS, P.J.; KUEHN, V.P.J.; HUDSON, J.; ROWLAND, J. **[Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-357_1734695459.pdf)**

S-2016-1126

Post author:Staff
Post published:March 22, 2018
Post category:S

In OCCA case No. S-2016-1126, David James Miller appealed his conviction for Assault and Battery With a Deadly Weapon. In an unpublished decision, the court decided to dismiss the appeal. No one dissented. In this case, the State charged the defendant with a serious crime after an incident where he allegedly shot someone. The defendant argued that he acted in self-defense. He wanted the court to believe that he should not be punished for what he did because he was protecting himself. During a hearing, the defendant provided his explanation, while the State presented evidence to counter his claims. The court listened to both sides and eventually agreed with the defendant, deciding that he was immune from prosecution based on self-defense laws. This ruling meant that the case against him could not continue. The State did not agree with the court's decision and decided to appeal. They believed that the judge did not consider their evidence properly and that the ruling was unfair. However, when the appeal was reviewed, the court found that the State did not show clear legal reasons for their complaint. The judges noted that the lower court had allowed the State to present their evidence and arguments. In the end, the court concluded that this was not a matter they could reconsider as it had to do with factual evidence rather than legal issues. Because of this, the court dismissed the State's appeal.

F-2016-519

Post author:Staff
Post published:January 24, 2018
Post category:F

In OCCA case No. F-2016-519, Kevin Bernell Warrior appealed his conviction for first degree murder and possession of a firearm after a felony. In a published decision, the court decided to grant him a new trial due to newly discovered evidence that could change the outcome of the original trial. One judge dissented. Kevin Warrior was convicted of murder and sentenced to life in prison. The evidence used to convict him was mostly circumstantial, meaning it did not come from direct witnesses at the crime scene. At trial, it was believed that the weapon used in the murder was not found, and the state suggested that Warrior had a motive and opportunity to commit the crime, alongside some statements he made that seemed incriminating. After his conviction, Warrior learned while in jail that another man, Mikel Ball, had confessed to committing the murder during a robbery. This information came to Warrior from a fellow inmate, Marquez Goff, who had talked to Ball. Goff also found out that police had taken a gun from Ball shortly after his arrest, and that this gun matched the bullet from the murder victim. Warrior's lawyers filed a request for a new trial, arguing that this evidence was important and could not have been found before the trial. The court agreed that the evidence was new, could change the outcome of the first trial, and was not something that Warrior could have discovered in time for his original case. Thus, the court decided that Warrior should get a new trial because this new information showed a reasonable chance that he might not have been guilty of the crime he was convicted of.

F 2017-0031

Post author:Staff
Post published:January 11, 2018
Post category:F

In OCCA case No. F 2017-0031, Heath Saxon Ford appealed his conviction for driving a motor vehicle while under the influence of alcohol and unauthorized use of a vehicle, both felonies. In a published decision, the court decided to reverse his termination from the Drug Court Program and remand the case for reinstatement into a Drug Court program, preferably in another county. No one dissented. Heath Saxon Ford was charged with multiple offenses in McCurtain County. He pleaded guilty to two of them and entered a Drug Court Program, agreeing to specific conditions. If he didn’t follow these conditions, he could be sentenced to twelve years in prison. The state wanted to kick him out of the Drug Court Program, saying he violated his agreement by having a bad drug test. At a hearing, a witness said something about the drug test results, but she didn’t perform the test herself nor was the actual test introduced as evidence. Ford argued that this was not fair and that they used hearsay, which is when someone talks about what another person said instead of providing direct evidence. The court agreed that the hearsay could not be the only reason for terminating Ford from the program and that they didn’t show strong enough evidence to prove he violated the terms. There were also concerns about how the Drug Court was being run, suggesting possible impropriety. Because of these issues, the court decided to reverse the decision to end Ford's participation in the Drug Court Program and ordered that he be reinstated, possibly in a different county's program.

F-2016-994

Post author:Staff
Post published:January 11, 2018
Post category:F

In OCCA case No. F-2016-994, the appellant, Phillip Eric Winbush III, appealed his conviction for possession of a controlled dangerous substance (methamphetamine). In a published decision, the court decided to affirm Winbush's conviction, but modified the indigent defense fee to $1,000. No one dissented. Winbush had been convicted by a jury and was sentenced to eight years in prison due to his prior felony convictions. He raised several claims in his appeal. He first argued that there was prosecutorial misconduct during the trial, which he believed deprived him of a fair trial. However, the court found that while the prosecutor made comments during closing arguments that Winbush claimed were improper, they did not have enough impact to make the trial unfair. The prosecution's comments were taken in context, and the jury had strong evidence before it regarding Winbush's knowing possession of methamphetamine. Winbush also raised an issue about the indigent defense fee being too high. The law stated that the maximum fee should be $1,000, but the court had mistakenly assessed a $1,250 fee. The state acknowledged this error, and the court agreed to modify the fee to the correct amount. Lastly, Winbush claimed he did not receive effective assistance of counsel, but since the court already granted relief regarding the indigent defense fee, this argument was considered moot. In summary, the court upheld Winbush's conviction while correcting the fee he was charged for his defense, ensuring the amount was in line with the law.

F-2016-1181

Post author:Staff
Post published:December 14, 2017
Post category:F

In summary, Stephen Charles Swanson, Jr. appealed the revocation of his suspended sentence in the District Court of Ottawa County after he stipulated to allegations of violating the conditions of his probation. The trial court had found that he committed multiple violations, including new criminal charges, failure to report, absconding, and failure to pay fines. The Oklahoma Court of Criminal Appeals upheld the trial court’s decision, affirming that the revocation was not an abuse of discretion. The court noted that the revocation of a suspended sentence is at the discretion of the trial court and will only be reversed if there is a clear error in judgment against the evidence presented. The ruling was affirmed, and the mandate was ordered issued upon filing this decision.

C-2016-877

Post author:Staff
Post published:December 7, 2017
Post category:C

In OCCA case No. C-2016-877, Charles David Miller appealed his conviction for multiple charges including stalking and possession of a firearm during a felony. In an unpublished decision, the court decided to grant Miller’s petition in part. The court affirmed the judgments and sentences for some counts but reversed the sentence for Count 1 and dismissed Count 4 due to double punishment concerns. One judge dissented. The case began when Miller, facing serious charges, entered a guilty plea in December 2014, agreeing to certain terms. He was originally given deferred sentences, meaning he would not serve time in prison if he followed the terms of his probation. However, after a hearing in 2015, the court ruled to impose a harsher sentence because Miller did not comply with the terms, leading to his appeal. Throughout the appeal, Miller argued that his guilty plea should be withdrawn for several reasons. He claimed there was no factual reason for his plea, that he was not made aware of his rights, and expressed concerns about double punishment as well as the effectiveness of his lawyer. The court reviewed the details and concluded that Miller had not shown enough grounds for his claims because some issues were not raised earlier in court, making them not eligible for review. The court particularly focused on whether Miller's plea was voluntary and if he was properly informed. They found that while Miller's plea might have been motivated by a desire to get his car back, he did understand the consequences of his actions. The court upheld the judgment for some counts, but it noted that the sentence for Count 1 was illegal because it exceeded the maximum allowed by law. As a result, they ordered a new sentencing for that count and dismissed Count 4 entirely because of double punishment. In summary, the main points were that Miller wanted to reverse his guilty plea but the court found many of his arguments unsubstantiated. They decided to change his sentence on one charge while dismissing another, affirming the result on several others.

F-2016-562

Post author:Staff
Post published:October 12, 2017
Post category:F

In OCCA case No. F-2016-562, Kadrian Daniels appealed his conviction for Robbery with a Firearm and Possession of a Firearm After Former Conviction of a Felony. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court, except that the fine imposed on the Possession count was vacated. One judge dissented. Daniels was found guilty by a jury and received a thirty-year sentence for the robbery and an additional eight years and a $10,000 fine for the illegal firearm possession. Daniels raised several concerns on appeal. He argued that the trial court made mistakes that affected his right to a fair trial. First, Daniels objected to a question asked by the prosecutor to a detective about the number of robberies that happened in Tulsa during the past year. He felt that this question could alarm the jury. However, the court decided that the question was allowed because it was relevant to the case and didn’t unfairly sway the jury. Next, Daniels claimed that the prosecutor behaved improperly during the closing arguments, which made his trial unfair. Some of the comments made by the prosecutor were challenged, but the court ruled that those comments were acceptable and did not harm the fairness of the trial. Additionally, Daniels complained about the jury being instructed that a $10,000 fine was mandatory if they convicted him of the firearm charge. Since Daniels’ lawyer did not object to this instruction during the trial, the court reviewed this issue only for plain error. The court found that the instruction was incorrect because the law does not require such a fine. This error was significant enough that the court decided to remove the fine. Moreover, Daniels argued that his attorney did not provide effective help during the trial, especially for not calling out the errors made by the prosecution or the judge. The court considered this but concluded that the issues raised by Daniels were not serious enough to have changed the outcome of the trial. The final decision affirmed the conviction but removed the unnecessary fine, ensuring that the legal process remained fair despite the mistakes noted during the trial.

S-2016-1142

Post author:Staff
Post published:September 14, 2017
Post category:S

In OCCA case No. S-2016-1142, Cody Ray Lord appealed his conviction for Driving a Motor Vehicle Under the Influence of Drugs. In a published decision, the court decided to affirm the trial court's decision to suppress the blood test results. The trial court found that Lord was not capable of giving consent due to the effects of morphine he had received, which hindered his ability to make a decision regarding the blood test. The State had claimed there was no proof that Lord was unconscious and argued that the burden of proof should be on Lord, but the court found that sufficient evidence supported the trial court's conclusions. One judge dissented.