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F-2019-310

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In OCCA case No. F-2019-310, Kedrin Ray Dixon appealed his conviction for first-degree burglary, sexual battery, and possession of a controlled dangerous substance. In a published decision, the court decided to modify the sentence for sexual battery to ten years imprisonment, making it consecutive to the other sentence, and otherwise affirmed the convictions. One judge dissented regarding the modification of the sentence for sexual battery. Dixon was found guilty by a jury on multiple counts after a trial in the District Court of Washington County. The jury sentenced him to twenty years in prison for burglary and sexual battery, and one year for possession of a controlled substance. The trial judge ordered the sentences for burglary and sexual battery to be served back-to-back. Dixon then appealed, raising several points of error, including issues related to jury instructions and evidence. The first issue was about the trial judge not mentioning that he was presumed innocent in the instructions at the start of the trial. The court found this error was not significant since the final instructions did include the presumption of innocence. Next, Dixon claimed that the evidence was not strong enough for the first-degree burglary conviction. The court disagreed, stating that there was enough evidence for a reasonable jury to find him guilty. Dixon also argued that he should have been allowed to present evidence regarding his intoxication at the time of the crime. The court ruled that the trial judge had the right to refuse his request since the evidence did not clearly support intoxication as a defense. Another point of concern for Dixon was what he called evidentiary harpoons, which are when comments are made that suggest knowledge of other crimes. The court found that he did not object to these comments at the trial and they did not seriously affect the verdict. Dixon claimed that he was unfairly prevented from presenting a full defense regarding reports of his previous erratic behaviors. The court decided that these reports were not very relevant to his defense and that excluding them did not significantly harm his case. A notable issue was a mistake in how the jury was informed about the potential punishment for sexual battery. The trial judge incorrectly stated that it could be punished by twenty years, which was incorrect. The State agreed that this was an error. Instead of sending Dixon back for a new trial, the court decided to lower his sentence for sexual battery to ten years because of this error. Dixon stated that his total sentences were too harsh, but after reviewing the circumstances, the court determined that the sentences were acceptable even after the changes made to one of them. Lastly, Dixon argued that there were too many errors in the case that made it unfair for him. The court did acknowledge the instructional error but believed there were no other significant errors affecting the outcome of the trial. In summary, the court modified Dixon's sentence for sexual battery and kept the other parts of his conviction intact. The final decision still upheld his guilty verdicts on all counts.

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S-2020-79

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In OCCA case No. S-2020-79, Stricker appealed his conviction for First Degree Murder and Desecration of a Human Corpse. In an unpublished decision, the court decided to affirm the ruling of the District Court that dismissed the alternative charge of First Degree Felony Murder during the commission of a kidnapping. None dissented. On April 17, 2019, Stricker was charged with serious crimes including First Degree Murder in Kingfisher County. Later, he faced an amended charge stating he could be guilty of First Degree Premediated Murder or First Degree Felony Murder related to kidnapping. During a hearing, the judge decided to dismiss the kidnapping charge based on insufficient evidence, which led the State to appeal the decision. The State argued that the judge’s decision was incorrect because they believed there was enough evidence to show that a crime occurred and that Stricker was involved. They said that at a preliminary hearing, it's essential to prove that probably a crime was committed and that the person involved might have done it. The judge ruled that although Stricker was in a position to manage his victim, there wasn't enough proof to suggest he intended to kidnap her. The second argument from the State was about the timing of Stricker's motion to quash the charges. They claimed the judge should not have considered this motion because it was filed after he pleaded not guilty. However, the court found that the judge did have the authority to hear the motion, even though the prosecution thought otherwise. Ultimately, the court found no error in the District Court's decision to dismiss the charge of First Degree Felony Murder related to kidnapping and decided to uphold that dismissal.

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RE-2019-522

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In OCCA case No. RE-2019-522, Leslie Ford appealed his conviction for revocation of his suspended sentences. In an unpublished decision, the court decided to affirm the revocation of the suspended sentences in both cases but also instructed the lower court to correct a written order error regarding the duration of the revocation. One member of the court dissented. Leslie Ford had previously been sentenced in two cases for stalking, with each sentence being five years long but suspended, meaning he would not have to go to prison if he followed certain rules. However, he was accused of breaking these rules. The state said he didn’t pay the required fees, didn’t go to treatment for domestic abusers, drank alcohol, and even got in trouble for more offenses. At a hearing, the judge found that Leslie did indeed break the rules, leading to the full revocation of his sentences. Leslie then appealed the decision, bringing up several reasons why he thought the revocation was unfair. He argued about his mental fitness during the process and claimed there were time limit violations concerning the hearings. The court explained that they could only focus on whether the revocation was valid and that the evidence showed he broke the rules. They also found that a confusion on how long he was sentenced was a mistake, which they ordered to be fixed. Overall, Leslie did not manage to successfully argue for the reversal of his revocation, except for the correction regarding the error in the time of imprisonment mentioned in the written order.

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RE-2019-19

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In OCCA case No. RE-2019-19, Daniel Lee Hart appealed his conviction for revocation of a suspended sentence. In an unpublished decision, the court decided that revoking his suspended sentence without him being present was a violation of his right to due process, and therefore, the revocation was reversed. One judge dissented. Daniel Lee Hart originally pleaded guilty in 2009 to trying to manufacture a controlled substance. He was given a 20-year sentence, with 12 years of that being suspended, meaning he didn't have to serve that part of the time as long as he followed certain rules. One of those rules was that he had to stay clean from drugs and check in regularly with his probation officer. In 2017, the state said that Hart had broken the rules. They said he had used drugs, didn’t show up for meetings with his probation officer in both Oklahoma and Kansas, didn’t register as a drug offender in Kansas, didn’t pay fees for his probation, and hadn’t completed his GED as he was supposed to. Hart later agreed to these claims but was able to be released for drug treatment for a few months before being sentenced. When the time came for his sentencing, Hart did not show up. Because he was absent, the court revoked the suspended part of his sentence completely. This meant he would have to serve the full 20 years instead of just the 8 years that he had left to serve. Hart appealed this decision, saying it was unfair for the court to make such a serious decision without him being there. The court looked at whether Hart's absence affected his right to defend himself. They said that everyone has the right to be present when decisions are made about their punishment. The court noted that Hart had not willingly chosen to skip the sentencing and that his absence could have greatly impacted the outcome. Because of these reasons, the court said Hart deserved a new hearing where he could be present to possibly explain why he wasn’t there and defend himself more fully. The final decision was to send the case back for another hearing. They wanted to make sure Hart had a fair chance to be present when the consequences of his actions were discussed again. In summary, because Hart was missing during a very important hearing, the court agreed that this was a mistake. They reversed the earlier decision and ordered a new hearing where he could be present.

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S-2019-242

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In OCCA case No. S-2019-242, the State of Oklahoma appealed Wesley Warren Peritt Weaver, II's conviction for Sexual Abuse of a Child Under 12. In an unpublished decision, the court decided to affirm the trial court's ruling that denied the State's request to introduce evidence of the defendant's prior sexual offenses as propensity evidence. One judge dissented. This case started on January 5, 2017, when the defendant, Weaver, was charged with sexually abusing his daughter, A.W., from 2011 to 2016. During a preliminary hearing, A.W. claimed that her father abused her and shared this information with her mother. The case involved testimonies from both A.W.'s mother and a forensic interviewer who assessed A.W. The State later sought to present evidence of previous sexual offenses allegedly committed by Weaver against another child, A.A., to demonstrate a pattern of behavior. A.A. testified that Weaver had molested her several years earlier. However, during a hearing, the trial court decided not to allow this evidence, stating that its probative value was less than the potential for unfair prejudice against Weaver. The State of Oklahoma appealed this ruling. They argued that the trial court made an error in not permitting the sexual propensity evidence, which could provide context for Weaver's behavior in the current case. The appellate court looked closely at the details of the case and the rules surrounding the admissibility of such evidence. Ultimately, the appellate court ruled to affirm the trial court's decision, meaning that the prior offense evidence would not be allowed during the trial against Weaver. The court concluded that the trial court's decision was reasonable and did not abuse its discretion. They found solid reasoning in the trial court's assessment of the evidence's relevance versus its potential negative impact on the jury's perception. One judge disagreed with the majority opinion, believing that the trial court had not fully considered the nuances of the sexual propensity laws and had conflated different types of evidentiary standards. This dissenting opinion emphasized the importance of acknowledging the differences between types of evidence when it comes to sexual offenses. In short, the case involved serious allegations against Weaver regarding his daughter, and while the State attempted to build a strong case by including prior incidents, the court ultimately felt that allowing such evidence would not be appropriate during the trial.

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F-2019-224

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOSEPH EUGENE DEAN,** **Appellant,** **V.** **STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2019-224** --- **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant, Joseph Eugene Dean, was tried and convicted by a jury in Muskogee County District Court, Case No. CF-2017-1030, of Endangering Others While Eluding or Attempting to Elude Police Officer, After Former Conviction of Two or More Felonies (Count 2), in violation of 21 O.S.2011, § 540(B). The jury recommended a sentence of twenty years imprisonment and a $2,500.00 fine. The Honorable Bret A. Smith, District Judge, presided at trial and sentenced Dean in accordance with the jury's verdict, including various costs and fees. The jury acquitted Appellant of Count 1 - Possession of a Stolen Vehicle. Dean appeals, raising the following proposition of error: **I. APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. II, §§ 7, AND 20, OF THE OKLAHOMA CONSTITUTION.** After thorough consideration of the record, including transcripts and the parties' briefs, we find that no relief is warranted. **Proposition I:** Dean asserts that defense counsel was ineffective for failing to request a cautionary eyewitness identification instruction (OUJI-CR (2d) 9-19). However, Dean fails to provide relevant authority or argument supporting his claim, thus forgoing appellate review of the issue as per Rule 3.5(C)(6) of the Oklahoma Court of Criminal Appeals. Moreover, we alternatively reject Dean's ineffectiveness claim on its merits. To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced his defense (Strickland v. Washington, 466 U.S. 668, 687 (1984)). In this case, a cautionary eyewitness identification instruction was unwarranted as no serious question exist[ed] concerning the reliability of the [eyewitness's] identification[s] (Robinson v. State, 1995 OK CR 25, ¶ 56, 900 P.2d 389, 404). Counsel’s failure to request such instruction, therefore, was not ineffective since there was no merit to such a request (Logan v. State, 2013 OK CR 2, ¶ 11, 293 P.3d 969, 975). **DECISION** The Judgment and Sentence of the District Court is AFFIRMED. **MANDATE** is ORDERED issued upon the delivery and filing of this decision, pursuant to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals. --- **APPEARANCES:** **AT TRIAL:** LARRY VICKERS 600 Emporia, Suite B Muskogee, OK 74401 COUNSEL FOR DEFENDANT **ON APPEAL:** DERECK J. HURT Oklahoma Indigent Defense System P.O. Box 926 Norman, OK 73070 COUNSEL FOR APPELLANT SEAN WATERS Asst. District Attorney Muskogee District Attorney's Office 220 State Street Muskogee, OK 74401 COUNSEL FOR THE STATE **OPINION BY:** HUDSON, J. LEWIS, P.J.: CONCUR KUEHN, V.P.J.: CONCUR LUMPKIN, J.: CONCUR ROWLAND, J.: CONCUR --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2019-224_1734779625.pdf)

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F-2018-1004

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SHANNON SHEREE JOHNSON,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-1004** **FILED FEB 13, 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** On April 18, 2017, Appellant Shannon Sheree Johnson entered a plea of guilty in Oklahoma County District Case No. CF-2015-8771. The trial court delayed her sentencing in this case and suspended the probation requirements for her prior cases—CF-2013-2846, CF-2014-1596, and CM-2015-1832—pending successful completion of the Oklahoma County Mental Health Court program. According to the plea agreement, if Appellant did not successfully complete the Mental Health Court, the trial court would revoke her suspended sentences in Case Nos. CF-2013-2846 and CF-2014-1596, convert her deferred sentences to convictions with a one-year prison sentence in Case No. CM-2015-1832, and impose concurrent ten-year sentences for Counts 1 and 2 in Case No. CF-2015-8771. The State filed a motion to terminate Appellant’s participation in the Mental Health Court, alleging her non-compliance with the program, including failure to follow court rules, lack of progress, unauthorized departure from inpatient treatment, and not graduating from treatment. After a hearing, Special Judge Geary Walke terminated her participation in Mental Health Court and sentenced her in accordance with her plea agreement. Appellant contends that the termination was an abuse of discretion, arguing that the judge should have considered intermediate sanctions before imposing the sentences. She cites her period of sobriety prior to the hearing as a reason for less severe punishment options. However, evidence presented at the hearing indicated that Appellant had consistently missed meetings, court appearances, and drug tests, and had not made adequate efforts to complete her treatment. Appellant's counsel argues that Judge Walke should have recognized relapses as part of the rehabilitation process under 22 O.S.Supp.2014, § 472(F). This section allows for discretion in determining whether conduct justifies revocation of a participant from the program. The record does not support Appellant's position that Judge Walke acted unreasonably or arbitrarily in the face of substantial evidence demonstrating her failure to comply with the program. As Appellant has not shown that the trial court's decision was contrary to law or the facts of the case, we conclude that there was no abuse of discretion. **DECISION** The termination of Appellant's participation in the Mental Health Court program is AFFIRMED. The mandate is ordered to be issued upon the filing of this decision. --- **APPEARANCES** **ON APPEAL** Melissa French, Counsel for Defendant Andrea Digilio Miller, Counsel for Appellant Heather Coyle, Assistant District Attorney Mike Hunter, Oklahoma Attorney General Tessa Henry, Assistant Attorney General **OPINION BY:** KUEHN, V.P.J. LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR

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F-2018-901

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-901** **NAJEE JAMALL COX, Appellant,** **vs.** **THE STATE OF OKLAHOMA, Appellee.** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Appellant, Najee Jamall Cox, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2014-5486 in Oklahoma County, presided over by Judge Ray C. Elliott. On January 30, 2017, Cox entered a guilty plea to Burglary in the First Degree, and his judgment and sentencing were deferred for seven years, with probation conditions effective until January 29, 2024. On March 20, 2018, the State filed an application to accelerate the deferred sentence, citing multiple violations, including new criminal charges and failure to pay court costs. At the hearing on August 14, 2018, Judge Elliott denied Cox's request for a continuance to allow his co-defendant to testify, after which the hearing proceeded with the State's presentation of evidence from probation officers and law enforcement. **FINDINGS:** 1. **Evidence of Possession**: The court found sufficient evidence supporting that Cox had constructive possession of marijuana and related paraphernalia based on the circumstances surrounding the traffic stop and subsequent findings in his vehicle. 2. **Right to Present Testimony**: Cox was given the opportunity to present a defense but failed to secure the presence of his co-defendant through proper procedural channels. His claim of due process violation was denied due to lack of shown prejudice. 3. **Notice of Reimbursement Fee**: Sufficient evidence demonstrated that Cox was aware of his obligation to pay the District Attorney's fees. 4. **Judicial Notice**: The court's reference to Cox's counsel's reputation did not negatively impact his rights, as the violation found was supported by sufficient evidence regardless. 5. **Ineffective Assistance of Counsel**: Cox did not demonstrate that his counsel's performance was deficient enough to have affected the outcome. Based on the analysis of these propositions, the order of acceleration issued by the District Court is **AFFIRMED**. **CONCLUSION**: The mandate will be issued upon the filing of this decision. --- **Representatives:** - **Counsel for Appellant**: Matthew Tate Wise - **Counsel for State**: Kirk Martin, Mike Hunter **Decision by**: LEWIS, Presiding Judge **Concurrences**: KUEHN, V.P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [Click here to download the full PDF of the opinion.](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-901_1735118825.pdf)

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RE-2018-1287

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Here is a summary of the Court of Criminal Appeals decision regarding Darryn Lamar Chandler, Jr.: **Case Summary:** - Appellant: Darryn Lamar Chandler, Jr. - Appellee: The State of Oklahoma - Case Numbers: CF-2015-2683 and CF-2016-534 - Date of Decision: February 6, 2020 - Judge: Honorable Glenn Jones **Background:** - Chandler was previously convicted in two separate cases involving serious crimes: 1. Case No. CF-2015-2683: Guilt for possession of a controlled substance with intent to distribute, possession of an offensive weapon during a felony, and possession of an imitation controlled substance. 2. Case No. CF-2016-534: Guilt for robbery with a firearm and conspiracy to commit robbery with a firearm. - Sentences: In both cases, he received suspended sentences with the first year of incarceration. **Allegations of Violation:** - On September 21, 2018, the State filed to revoke Chandler’s suspended sentences due to new charges related to his involvement in a violent robbery while on probation. **Revocation Hearing:** - The hearing began on November 27, 2018, where evidence was presented by the State indicating Chandler's direct involvement in the robbery of a loan business, during which he threatened employees with a firearm. - Chandler did not present any evidence in his defense. - The judge found Chandler in violation of probation, leading to the revocation of his suspended sentences. **Sentencing Hearing:** - A presentence investigation report was requested and filed before the sentencing hearing, which took place on December 20, 2018. - The State argued for full revocation based on the violent nature of the robbery, while Chandler's counsel argued for a more lenient approach citing Chandler's background and potential for rehabilitation. **Court's Decision:** - The Court upheld the trial court's decision to revoke the suspended sentences in full, emphasizing that Chandler committed a violent crime in direct violation of the conditions of his probation, which warranted no abuse of judicial discretion. **Conclusion:** - The Court affirmed the revocation of Chandler's suspended sentences, noting the trial court’s discretion in making its determination based on the evidence of Chandler’s actions while on probation. **Final Note**: For more detailed information, there is a downloadable PDF available [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1287_1734352969.pdf).

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RE-2019-57

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In the Court of Criminal Appeals of the State of Oklahoma, Toni Lynn Cook appeals the revocation of her suspended sentence from the McIntosh County District Court. Cook had originally pled guilty to the charge of Obstructing an Officer. Following her guilty plea, the State filed a Motion to Revoke her suspended sentence, claiming she committed new crimes while on probation, which included multiple counts of Assault and Battery on a Police Officer and Indecent Exposure. The revocation hearing saw evidence presented, including testimonies from jailers detailing that Cook had exposed herself and physically resisted their attempts to move her to a solitary cell, leading to injuries to the officers involved. The trial court found that the State met its burden to show by a preponderance of the evidence that Cook had violated her probation. Cook raised several propositions on appeal: 1. **Insufficient Evidence**: Cook argued that the evidence presented was insufficient to prove the alleged probation violations. However, the court found that the evidence sufficient and credible, affirming that the trial judge did not abuse his discretion. 2. **Waiver of Hearing Within Twenty Days**: Cook contended that her waiver of the right to a hearing within twenty days was not valid. The court ruled that Cook had waived this right knowingly, as she had not requested an early hearing and did not provide evidence that she was unaware of this right. 3. **Excessiveness of Revocation**: Cook argued the revocation was excessive. The court noted that revocation is a matter of grace, and since Cook committed multiple new offenses while on probation, the trial judge's decision to revoke her sentence in full was not an abuse of discretion. In conclusion, the Court of Criminal Appeals affirmed the trial court’s decision to revoke Cook's suspended sentence, finding no merit in her claims. The mandate was ordered to be issued upon filing the decision.

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F-2019-99

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **WILLIAM ALVIN WIMBLEY,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2019-99** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN 30 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** On April 30, 2018, Appellant entered pleas of guilty in McCurtain County District Court to the following charges: Possession of a Controlled Dangerous Substance (Count 1, Case No. CF-2016-103) and multiple counts in Case No. CF-2017-147, including another charge of Possession of a Controlled Dangerous Substance (Count 1), Possession of a Firearm After Conviction of a Felony (Count 2), and another Possession of a Controlled Dangerous Substance (Count 3). As part of a plea agreement, Appellant was admitted to the McCurtain County Drug Court Program, which stipulated that successful completion would lead to the dismissal of charges, while termination would result in a twenty-year imprisonment sentence for all four counts, served concurrently. Subsequently, on October 3, 2018, the State filed an Application to Revoke from Drug Court, citing numerous violations of the program's terms by Appellant despite receiving multiple graduated sanctions. A hearing was conducted, resulting in the Honorable Walter Hamilton, Special Judge, determining the defendant had indeed violated his performance contract, leading to his termination from the drug court program and imposition of the agreed twenty-year sentence. Appellant's sole proposition for appeal is grounded in an assertion of ineffective assistance of termination counsel, based on comments made by Judge Hamilton during the hearing regarding the sentencing implications of the termination and potential reversal by this Court. Under the legal framework established by *Strickland v. Washington*, 466 U.S. 668 (1984), to succeed on a claim of ineffective assistance, an appellant must demonstrate (1) deficient performance by counsel and (2) resulting prejudice. Appellant's claim does not find support in the record, as he fails to establish that his counsel's performance was deficient under *Strickland*'s rigorous standards. Termination of drug court participation, as outlined by Oklahoma law, requires a factual determination by the trial court regarding violations of the performance contract and the sufficiency of disciplinary sanctions. Judge Hamilton's determination hinged on whether any violations were proven by a preponderance of the evidence, rather than any alleged bias from his statements. Ultimately, Appellant has not demonstrated that Judge Hamilton abused his discretion in terminating his drug court participation. **DECISION** The termination of Appellant's participation in the McCurtain County District Court Drug Court in Case Nos. CF-2016-103 and CF-2017-147 is **AFFIRMED**. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the **MANDATE** is ordered to be issued upon the filing of this decision. **TERM OF THE COURT:** **Affirmed.** **OPINION BY:** LEWIS, P.J. **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur *Counsel in trial and on appeal: Hugh Hood (Appellant's Counsel), Mark Uptegrove, and others representing the State.*

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F-2018-1161

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **KENNETH ALLEN DAY,** Appellant, **V.** **STATE OF OKLAHOMA,** Appellee. Case No. F-2018-1161 **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant Kenneth Allen Day was tried and convicted by a jury in the District Court of Oklahoma County (Case No. CF-2017-2586) of: 1. **Count 1:** Sexual Battery (21 O.S.Supp.2015, § 1123(B)) 2. **Counts 2 and 3:** Indecent Exposure (21 O.S.2011, § 1021) The jury recommended a sentence of 30 days imprisonment on Count 1, and 1 year imprisonment each on Counts 2 and 3. The Honorable Timothy R. Henderson, District Judge, presided over the trial and executed the sentences as per the jury's recommendations, ordering them to run consecutively and consecutively to Oklahoma County Case No. CF-16-6470. Day was granted credit for 177 days served and was subject to various costs and fees. Day appeals, raising the following proposition of error: **I. THE TRIAL COURT INCORRECTLY INTERPRETED OKLA. STAT. TIT. 57, § 138(G) BY REFUSING TO GRANT MR. DAY CREDIT FOR ALL TIME SERVED WHILE AWAITING TRIAL AND SENTENCING, CLAIMING THAT THE STATUTE WAS DISCRETIONARY AND NOT MANDATORY.** Upon a thorough review of the entire record including transcripts, exhibits, and the parties' briefs, we find no legal error necessitating relief. Therefore, Day's judgments and sentences are AFFIRMED. **Proposition I:** Day's claim pertains to the nature of credit for time served—whether it is mandatory or discretionary. Citing *Loyd v. State*, 1981 OK CR 5, 624 P.2d 74, Day contends that 57 O.S.Supp.2015, § 138(G) mandates credit for all time served prior to judgment and sentence. However, as recently discussed and clarified in *Luna-Gonzales v. State*, 2019 OK CR 11, this argument has been rejected. This Court noted that *Loyd* is inconsistent with the majority of case law on this subject and that the Oklahoma Legislature has amended § 138 multiple times since 1980, which indicates a legislative intent to modify the ruling in *Loyd*. The current statute indicates that defendants automatically receive credit for jail time served only post-judgment and sentencing. Significantly, *Loyd* is overruled to the extent it conflicts with this interpretation. We also recognize that the district court exercised its discretion appropriately in awarding Day partial credit for time served, which aligns with previous ruling in *Luna-Gonzales* that grants sentencing judges discretion regarding credit for pre-sentencing incarceration. Thus, Day's argument is rejected, and his assertion is firmly denied. **DECISION** The judgments and sentences of the District Court are AFFIRMED. According to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals, the MANDATE shall be issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE** **APPEARANCES AT TRIAL** RICHARD HULL (Counsel for Appellant) HALLIE ELIZABETH BOVOS KRISTEN MESSINA, ASST. PUBLIC DEFENDER **APPEARANCES ON APPEAL** LORI MCCONNELL MIKE HUNTER RACHEL SMITH JULIE PITTMAN, ASST. ATTORNEY GENERAL, (Counsel for Appellee) **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR For further details and access to full judgment, [Click Here to Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1161_1734786325.pdf)

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RE-2018-932

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ANTHONY CURTIS CREEK,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2018-932** **SUMMARY OPINION** **Filed January 23, 2020** ROWLAND, JUDGE: Anthony Curtis Creek, Appellant, entered a guilty plea on March 16, 2015, in Garfield County District Court Case No. CF-2013-393, to Count 1 - Possession of a Controlled Dangerous Substance, a misdemeanor, and Count 2 - Unlawful Possession of Drug Paraphernalia, a misdemeanor. He received a sentence of one year in the County Jail on Count 1, with 90 days to be served and the remainder suspended; Count 2 was sentenced to one year suspended, with penalties running consecutively. He was also fined $500.00. On January 20, 2017, the State applied for the revocation of Appellant's suspended sentence on Count 2, alleging violations: (1) possession or consumption of alcohol; (2) DUI-A, a misdemeanor; and (3) Defective Equipment, a misdemeanor, in Oklahoma County Case No. CM-2016-2776. During the revocation hearing on June 2, 2017, Appellant admitted to the first allegation. The trial judge, Honorable Dennis Hladik, determined that the State proved the other allegations and revoked six months of Appellant's suspended sentence. Appellant appeals this decision, raising several propositions of error: 1. **Abuse of Discretion:** The trial court allegedly utilized a strict liability standard, resulting in a cruel and excessive sentence. 2. **Prosecutorial Misconduct:** Claiming that Appellant was deprived of a fundamentally fair proceeding due to misconduct. 3. **Plain Error:** The trial court's finding on the State's evidence and the standard of proof was erroneous. 4. **Equal Protection Violation:** Appellant asserts he was denied equal protection under the law. 5. **Cumulative Error:** The accumulation of errors deprived Appellant of due process. Upon review, the Court affirms the District Court's order revoking six months of Appellant's suspended sentence. 1. The decision to revoke a suspended sentence is within the substantial discretion of the trial court and will not be disturbed absent a clear abuse of discretion. The evidence supported Judge Hladik’s decision to revoke only part of the sentence after considering a stipulation and witness testimonies. 2. The Court agrees with Appellant's counsel that prosecutorial misconduct is more appropriate for post-conviction matters. The record does not support claims of misleading behavior by the prosecutors. 3. The standard of proof for such violations is a preponderance of the evidence, adequately satisfied in Appellant's case. Revocation is valid with any proven violation. 4. The trial court's exclusion of evidence does not equate to an equal protection violation. The ruling was consistent and reasonable. 5. As there were no individual errors identified, the argument for cumulative error also fails. **DECISION** The revocation of Appellant's suspended sentence in Garfield County District Court Case No. CF-2013-393 is **AFFIRMED**. The mandate is ordered to be issued upon the filing of this decision. **APPEARANCES ON APPEAL:** **David J. Batton** Counsel for Defendant **Tallena Hart** Carter Jennings Assistant District Attorney Counsel for the State **OPINION BY: ROWLAND, J:** **LEWIS, P.J.: Concur** **KUEHN, V.P.J.: Concur** **LUMPKIN, J: Concur** **HUDSON, J.: Concur** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-932_1734358983.pdf)

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F-2018-1023

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CAMERON LEE SCHEMMER,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-1023** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN 23 2020** **SUMMARY OPINION** **JOHN D. HADDEN** **CLERK** **LUMPKIN, JUDGE:** Appellant, Cameron Lee Schemmer, was tried by the court and convicted of Count 1, Forcible Sodomy, in violation of 21 O.S.2011, § 888, and Counts 2-4, Lewd Molestation, in violation of 21 O.S.2011, § 1123, in Kingfisher County District Court, Case No. CF-2017-96. The trial court sentenced Appellant to twenty years imprisonment with all but the last five years suspended for Count 1. For Counts 2-4, the court sentenced him to twenty-five years imprisonment on each count, to run concurrently to one another but consecutively to the sentence for Count 1. As a result, Appellant will be required to serve 85% of his sentences before becoming eligible for parole, as per 21 O.S.Supp.2015, § 13.1. From this judgment and sentence, Appellant appeals, raising the following propositions of error: **I.** The record in this case does not sufficiently demonstrate that Appellant knowingly and voluntarily waived his right to a jury trial. **II.** Mr. Schemmer received an excessive sentence when the trial court followed the wrong sentencing statute. Upon thorough consideration of these propositions and the entire record, including the original record, transcripts, and briefs of the parties, we find no relief is warranted under the law and evidence presented. **Proposition I:** Appellant argues that the record is insufficient to support a finding that he knowingly and voluntarily waived his right to a jury trial. Since he did not object before the non-jury trial, we review this claim for plain error, as established in *Simpson v. State*, 1994 OK CR 40, 876 P.2d 690. Plain error requires that Appellant demonstrate an actual error that is plain or obvious and affects substantial rights. A defendant may waive their right to a jury trial, but the waiver must be knowingly, competently, and intelligently made. The record shows that prior to trial, the court engaged in a colloquy with Appellant regarding his jury trial waiver. Appellant confirmed his satisfaction with his attorney and expressly indicated his desire to waive the jury trial right. This established a knowing and intelligent waiver by Appellant. Therefore, we deny this proposition as the trial court's assessment was in compliance with the law. **Proposition II:** Appellant contends his sentence is illegal because the Information alleged that R.N. was a child under sixteen, not under twelve. Thus, Appellant argues that the sentencing range should have been from one or three years to twenty years instead of a minimum of twenty-five years, as required when the child is under the age of twelve. Since Appellant failed to object at sentencing, we again look for plain error. The Information indicated that R.N. was under the age of sixteen at the time of the offenses, and the evidence revealed she was ten years old when the abuse began and eleven when it ceased. Appellant was charged under 21 O.S.2011, § 1123(A), which necessitates a minimum of twenty-five years imprisonment when the child is under twelve years of age. A court in a non-jury trial retains the presumption of knowing the law correctly. The facts show that R.N. was indeed under twelve when the offenses occurred, and the court found this circumstance beyond a reasonable doubt. Therefore, the claim of an illegal sentence based on an erroneous application of the statute is without merit. **DECISION:** The **JUDGMENT and SENTENCE is AFFIRMED**. Pursuant to Rule 3.15, the **MANDATE is ORDERED issued** upon this ruling. **APPEARANCES:** **Trial Counsel:** Blayne Allsup **Appellate Counsel for Appellant:** Cindy Brown Danner **Counsel for State:** John Salmon, Assistant District Attorney, and Theodore M. Peepers, Assistant Attorney General. **OPINION BY:** LUMPKIN, J. **COUNSEL FOR THE STATE:** CONCURS **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur in Result **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **KUEHN, V.P.J., CONCURRING IN RESULT:** While I concur with the outcomes reached, I note a discrepancy in the standard of review applied to Proposition I. The burden rests with the State to prove any constitutional error harmless beyond a reasonable doubt, as highlighted in *Chadwell v. State* and *Chapman v. California*. The majority's application of the plain error standard does not recognize this shifting burden adequately. **[Document ends here]**

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F-2017-963

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In OCCA case No. F-2017-963, Randall Duane Throneberry appealed his conviction for Lewd Acts with a Child Under 16. In an unpublished decision, the court decided to affirm the conviction and the sentence of life imprisonment without the possibility of parole. One judge dissented. Randall Duane Throneberry was tried and found guilty in an Oklahoma court for lewd acts with an child under the age of 16. The jury recommended that he be sentenced to life in prison without any chance for parole because he had a prior conviction for a similar crime. The case began when a young girl named R.F. reported that Throneberry had molested her while she was sleeping on a couch. The events happened in August 2015 when R.F. and her mother were staying at a family friend's house, where Throneberry was also visiting. One night, while R.F. was sleeping, Throneberry was found standing too close to her and had his hand under her blanket. The next morning, R.F. woke up to find Throneberry touching her inappropriately. During the trial, Thorneberry argued that some testimonies regarding R.F.'s behavior after the incident should not have been allowed, claiming that it unfairly impacted the jury. However, the court ruled that this evidence was relevant to show the credibility of R.F.'s testimony. Throneberry also challenged the admission of testimony from another victim, D.W., who had been molested by him when she was seven years old. The court allowed this testimony as it demonstrated Throneberry's pattern of behavior. Despite Throneberry's claims, the court found that the testimony was relevant and important for the case. Throneberry's argument that his life sentence without parole was unconstitutional was also denied. The court stated that the sentence was not excessively harsh compared to the serious nature of the crime and Throneberry's history of similar offenses. The judge noted that sentencing is ultimately a matter for the legislature, and in these kinds of cases, severe punishments are justified. In summary, the court upheld Throneberry's conviction and life sentence, finding no errors in the trial or the evidence presented. The judgment was affirmed, with one judge expressing a different opinion.

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F-2018-1188

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In this case summary, Alfonzo Lamonse Vineyard was convicted of multiple charges in the District Court of Tulsa County, including Assault and Battery with a Deadly Weapon, First Degree Burglary, Possession of a Firearm After Former Conviction of a Felony, and several counts of Obstructing an Officer, among others. The jury found Vineyard guilty on all counts except one (Assault and Battery), and the court subsequently sentenced him to life imprisonment on the more serious counts, with concurrent and consecutive terms for other counts. Vineyard's appeal raised five main issues: 1. **Waiver of Right to Counsel**: The court found that Vineyard’s waiver of his right to counsel was voluntary, knowing, and intelligent. He was adequately informed of the risks associated with self-representation. 2. **Right to Confrontation**: Vineyard argued that his right to confront witnesses was violated when the court allowed the reading of the victim's preliminary hearing testimony, as she did not appear at trial. The court found that the state had made sufficient efforts to locate the victim and that her unavailability was justified, thus upholding the admission of her prior testimony. 3. **Sufficiency of Evidence**: Vineyard contended that the evidence was insufficient to support his conviction for Assault and Battery with a Deadly Weapon. The court determined that the evidence was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt. 4. **Lesser Included Offense Instruction**: Vineyard argued that the trial court erred by failing to instruct the jury on the lesser offense of Pointing a Firearm. While the court acknowledged that the lack of instruction was error, it did not affect the trial's outcome, and therefore did not warrant reversal. 5. **Cumulative Error**: Lastly, Vineyard claimed that the cumulative effect of errors warranted a new trial. The court found no individual errors that affected the trial's fairness, thus rejecting this claim. Ultimately, the Oklahoma Court of Criminal Appeals affirmed the district court's judgment and sentence, concluding that none of the raised issues warranted relief. The decision highlighted the adherence to established legal standards regarding self-representation, confrontation rights, evidentiary sufficiency, jury instructions, and cumulative error analysis. [Download the full opinion here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1188_1734784723.pdf).

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J-2019-578

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** S.M.W.B., Appellant, v. No. J-2019-578 THE STATE OF OKLAHOMA, Appellee. **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JAN - 2 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant was charged as a youthful offender in Caddo County District Court Case No. YO-2019-1 on February 13, 2019, with five counts of Lewd or Indecent Acts to Child Under 12. On March 28, 2019, the State filed a Motion to Impose an Adult Sentence pursuant to 10A O.S.Supp.2018, § 2-5-208. On April 3, 2019, Appellant filed a Motion for Certification to the Juvenile Justice System pursuant to 10A O.S.Supp.2018, § 2-5-206. Following a hearing on these motions, Honorable David Stephens, Special Judge, denied Appellant's motion and granted the State's motion. From this order, Appellant appeals, raising the following issues: 1. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING CERTIFICATION OF S.M.W.B. AS A JUVENILE; and 2. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING APPELLEE'S MOTION TO CERTIFY AS AN ADULT. Pursuant to Rule 11.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), this appeal was automatically assigned to the accelerated docket of this Court. Oral argument was held on November 21, 2019. After a review of the record and the arguments presented, we find no merit to the propositions of error raised by Appellant. The key issue before this Court is whether the trial court abused its discretion in denying Appellant's motion for certification as a juvenile and granting the State's motion to impose adult sentencing. An abuse of discretion is defined as a clearly erroneous conclusion and judgment that contradicts the logic and effect of the facts. The trial court's decision must be supported by the evidence presented, and our review is limited to the record. Judge Stephens appropriately considered the criteria mandated by Sections 2-5-206 and 2-5-208 of Title 10A, leading us to conclude that the record supports his decision. **DECISION** The order of the District Court of Caddo County denying Appellant's motion for certification as a juvenile and granting the State’s motion for imposition of adult sentencing is **AFFIRMED**. The State's motion to file a properly verified response brief is **GRANTED**, and the Amended Response to Application for Accelerated Docket is ordered to be **FILED** by the Clerk of this Court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is **ORDERED** issued upon the filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY, THE HONORABLE DAVID STEPHENS, SPECIAL JUDGE** **APPEARANCES AT TRIAL** **MARK OSBY** P.O. BOX 850126 YUKON, OK 73085 COUNSEL FOR APPELLANT **APPEARANCES ON APPEAL** **ANDREW BENEDICT** CADDO CO. ASST. DIST. ATTY. 110 S.W. 2ND ST. ANADARKO, OK 73005 COUNSEL FOR THE STATE **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR IN RESULTS **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/J-2019-578_1734445561.pdf)

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RE-2018-1217

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DEXTER JEROME BIGLOW,** Appellant, **V.** **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2018-1217** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA DEC 19 2019** **JOHN D. HADDEN CLERK** **SUMMARY OPINION** KUEHN, VICE-PRESIDING JUDGE: Appellant Dexter Jerome Biglow appeals from the revocation of his suspended sentences in Oklahoma County District Court Case No. CF-2017-3262. On February 14, 2018, Appellant entered negotiated guilty pleas to Aggravated Attempting to Elude and Possession of a Controlled Dangerous Substance (marijuana). He was sentenced to five years of imprisonment on the eluding count and to one year of incarceration on the drug charge, to be served concurrently, with both sentences suspended. On November 6, 2018, the State filed an application to revoke the suspended sentences, alleging that Appellant had committed the new crimes of domestic abuse by strangulation and domestic abuse resulting in great bodily injury. A hearing on the application to revoke was held on November 27, 2018, before the Honorable Ray C. Elliott, District Judge, who granted the State's application and revoked Appellant's suspended sentences in full. On appeal, Appellant contends that the State failed to present sufficient evidence to prove the allegations contained in the application to revoke. We respectfully disagree. **ANALYSIS** At a revocation hearing, the focus is whether the terms of the suspension order have been violated, with the standard of proof being a preponderance of the evidence. The trial court's decision should not be overturned unless there is a clear abuse of discretion. In this case, both Officers Taylor and Mueggenborg testified at the hearing, having individually interviewed the alleged victim of the domestic abuse. The judge found their testimony had substantial guarantees of trustworthiness, which allowed the court to consider the victim's out-of-court statements. Notably, while the testimony was contradictory, the court did not abuse its discretion by finding the State adequately proved its case for revocation. The credibility of witnesses is a matter for the trial court, which may choose to believe or disbelieve any witness. **DECISION** The order of the District Court of Oklahoma County revoking Appellant's suspended judgments and sentences in Case No. CF-2017-3262 is therefore AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon delivery and filing of this decision. **APPEARANCES:** Thomas P. Hurley - Assistant Public Defender Marva A. Banks - Assistant Public Defender Danielle Connolly - Assistant District Attorney Mike Hunter - Oklahoma Attorney General Tessa L. Henry - Assistant Attorney General **OPINION BY:** KUEHN, V.P.J.: LEVIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR

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F-2018-1087

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This document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma, addressing the appeal of Spencer Joe Cuccaro regarding his termination from the Kay County Drug Court and subsequent sentencing. ### Key Points: 1. **Case Background**: - Appellant Spencer Joe Cuccaro was placed in the Kay County Drug Court program on June 22, 2017, following a plea agreement that stipulated the conditions of his sentencing based on his performance in the program. - Cuccaro was involved in multiple cases (CF-2016-561, CF-2011-74, CF-2008-353) linked to drug offenses and was under specific probationary requirements. 2. **Allegations Against Cuccaro**: - The State filed a petition to remove Cuccaro from Drug Court, citing new criminal charges (including trafficking in illegal drugs), non-compliance with counseling requirements, and outstanding fees. - Evidence presented included testimonies from law enforcement regarding drug possession during a traffic stop and at the jail. 3. **Termination Hearing**: - At the termination hearing, evidence presented indicated that Cuccaro had violated the terms of his drug court agreement by committing new offenses and failing to meet his counseling and payment obligations. - The trial judge, David R. Bandy, found sufficient evidence to terminate Cuccaro from the Drug Court program. 4. **Appeal Propositions**: - **Proposition I**: Cuccaro claimed his no contest pleas were coerced. - **Proposition II**: He alleged the trial court failed to follow mandatory Drug Court procedures. - **Proposition III**: He contended the trial judge abused discretion in terminating him. - **Proposition IV**: He argued that the sentencing was excessive. 5. **Court's Analysis**: - The court found that Proposition I was not a suitable subject for this appeal and should be addressed in a separate certiorari appeal regarding the plea. - Proposition II also fell outside the scope of the termination appeal, which is to assess the validity of the termination order. - For Proposition III, the court upheld that the decision to terminate Cuccaro was within the judge’s discretion, consistent with the evidence of non-compliance and new criminal activity. - Proposition IV regarding sentencing was similarly ruled to be outside the appeal context, advising Cuccaro to raise such claims in the separate certiorari appeal. 6. **Decision**: - The court affirmed the termination order, emphasizing the trial judge's proper authority and the sufficiency of the evidence for termination from Drug Court. ### Conclusion: The Court of Criminal Appeals affirmed the District Court's order to terminate Spencer Joe Cuccaro from Drug Court and advised him to pursue any excessive sentence claims separately. The decision reflects adherence to legal standards concerning plea agreements, drug court compliance, and the discretion exercised by trial judges in such matters. For more details, you can access the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1087_1734789881.pdf).

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RE 2018-1288

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In OCCA case No. RE 2018-1288, Jose Santiago Hernandez appealed his conviction for robbery with a firearm and conspiracy to commit a felony. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences. One judge dissented. Hernandez had pleaded guilty to robbery with a firearm and conspiracy in 2017, getting a ten-year sentence for each count, but only had to serve five years if he followed the rules set for his probation. The State accused him of perjury, claiming he lied during a court proceeding about his co-defendant's involvement in the crime. During a hearing in December 2018, the judge found enough evidence to revoke Hernandez’s suspended sentences because he did not truthfully testify. Hernandez argued that the State did not show he committed perjury, but the court explained that they only needed to prove the violation of his probation terms by presenting a greater weight of evidence. The court concluded that they had enough evidence to believe Hernandez had broken the rules. Ultimately, the court upheld the decision to revoke his suspended sentences, meaning he would have to serve the full ten years.

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RE-2018-1236

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Richard James Nunes, Appellant,** **-VS-** **The State of Oklahoma, Appellee.** **Case No. RE-2018-1236** **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant, Richard James Nunes, appeals from the revocation of his eight-year suspended sentence in Case No. CF-2014-450 by the Honorable George Butner, District Judge, in the District Court of Seminole County. **Background:** On March 12, 2015, Nunes entered a guilty plea to Possession of a Stolen Vehicle (felony) and Altering License Plate/Decal (misdemeanor). He was sentenced to ten years on the felony, with the first two years to be served and the remainder suspended, and one year on the misdemeanor to be served concurrently. On December 27, 2017, the State filed a motion to revoke Nunes' suspended sentence, alleging probation violations. An initial appearance occurred on January 23, 2018, followed by the appointment of counsel on February 2, 2018. Nunes was released on bond on February 8, 2018 but failed to appear for a scheduled hearing on February 15, 2018. A hearing was ultimately held on November 26, 2018, where the probation officer testified that Nunes never reported after his release and was considered an absconder. Despite Nunes' testimony providing varying explanations for his actions, Judge Butner concluded that he violated probation and revoked the suspended sentence in full. **Proposition of Error:** Nunes asserts the trial court abused its discretion in revoking his suspended sentence because the revocation hearing was not timely. **Analysis:** According to 22 O.S.Supp.2016, § 991b(A), a revocation hearing must be held within twenty days following a plea of not guilty to the motion to revoke, unless waived. Nunes contends he never entered a plea and thus the hearing was untimely. However, as acknowledged by the State and Nunes himself, he never formally entered a plea of not guilty, meaning the twenty-day timeframe was never initiated. Moreover, the delay in the revocation hearing was primarily due to Nunes absconding and not fulfilling his responsibilities, further complicating the matter. **Decision:** The order of the District Court of Seminole County revoking Nunes' eight-year suspended sentence is therefore AFFIRMED. **OPINION BY: HUDSON, J.** **CONCUR: LEWIS, P.J.; KUEHN, V.P.J. (CONCUR IN RESULTS); LUMPKIN, J.; ROWLAND, J.** --- For the full decision document, please visit the following link: [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1236_1734353731.pdf)

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F-2019-16

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOHNNY W. WARD,** Appellant, v. **STATE OF OKLAHOMA,** Appellee. **Case No. F-2019-16** **FILED DEC 12 2019** **IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** LUMPKIN, JUDGE: Appellant Johnny W. Ward was tried by jury and found guilty of Assault and Battery with a Deadly Weapon (Count I) (21 O.S.2011, § 652) and Possession of a Firearm (Count II) (21 O.S.Supp.2014, § 1283), both counts After Former Conviction of A Felony, in the District Court of Muskogee County, Case No. CF-2017-1155. The jury recommended as punishment imprisonment for thirty (30) years in Count I and ten (10) years in Count II. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentence that Appellant appeals. Appellant must serve 85% of his sentence in Count I before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. **Appellant raises the following propositions of error in support of his appeal:** 1. The eyewitness identification of Appellant was based upon an overly suggestive, one-man show-up that violated Appellant's rights to due process and a fair trial. 2. The State's evidence presented at trial was insufficient to establish beyond a reasonable doubt that Appellant committed the crimes of Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony Conviction and his convictions must therefore be reversed with instructions to dismiss. 3. Appellant's sentence is excessive and should be modified. After thorough consideration of these propositions and the entire record, we have determined that under the law and the evidence no relief is warranted. **Proposition I:** Appellant contends the trial court abused its discretion in denying his motion to suppress the in-court identification made by Ms. Davidson after an on-the-scene one person show-up. Appellant argues the pre-trial identification was unnecessarily suggestive and tainted the subsequent identification of Appellant at trial. A one man show-up is not necessarily unduly suggestive or improper. Young v. State, 2000 OK CR 17, ¶ 30, 12 P.3d 20, 34. Absent special elements of unfairness, prompt on-the-scene confrontations [between a victim and a suspect] do not entail due process violations.... Harrolle v. State, 1988 OK CR 223, ¶ 7, 763 P.2d 126, 128, quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969). The one person show-up in this case was not unduly suggestive or so improper as to create a substantial likelihood of irreparable misidentification. The trial court did not abuse its discretion in denying the motion to suppress the identification. However, even if the show-up was unduly suggestive, the same would not automatically invalidate the subsequent in-court identification if that identification can be established as independently reliable under the totality of the circumstances. Young, 2000 OK CR 17, ¶ 31, 12 P.3d at 34. Under the circumstances of this case, we find the in-court identification reliable. As the trial court did not abuse its discretion by allowing into evidence the in-court identification of Appellant, this proposition of error is denied. **Proposition II:** Appellant challenges the sufficiency of the evidence supporting his convictions for Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony. He argues the State failed to show he had anything to do with the alleged crimes. Appellant asserts that the State's evidence showed only that he was in the wrong place at the wrong time. However, evidence showed that Appellant shot his victim in the knee and buttock as the victim begged for his life. Appellant then ran away from the scene, discarding the gun he used and a hoodie he was wearing. Reviewing Appellant's challenge to the sufficiency of the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. Appellant's challenge to the sufficiency of the evidence is denied. **Proposition III:** Appellant argues that his sentence is excessive and should be modified. He asserts that while his sentence is technically within the range provided by law, it does not bear a direct relationship to the nature and circumstances of the offenses. However, Appellant's sentences were within the applicable statutory range (21 O.S.2011, §§ 652(A), 1284 and 51.1(C)). This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928. The evidence showed that despite having a prior robbery conviction, Appellant was in possession of a gun, which he used to shoot the victim multiple times as the victim begged for his life. Under these circumstances, the 30 year and 10 year sentences are not excessive. Therefore, modification of the sentences is not warranted and this proposition is denied. Accordingly, this appeal is denied. **DECISION** The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY** **THE HONORABLE THOMAS H. ALFORD, DISTRICT JUDGE** **APPEARANCES AT TRIAL** BRIAN WATTS 222 N. 4TH ST. MUSKOGEE, OK 74401 COUNSEL FOR THE DEFENSE **APPEARANCES ON APPEAL** NICOLLETTE BRANDT OKLA. INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **ORVIL LOGE** DISTRICT ATTORNEY TIM KING ASST. DISTRICT ATTORNEY MUSKOGEE CO. COURTHOUSE MUSKOGEE, OK 74401 COUNSEL FOR THE STATE **MIKE HUNTER** ATTORNEY GENERAL OF OKLAHOMA CAROLINE E.J. HUNT ASST. ATTORNEY GENERAL 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE **OPINION BY: LUMPKIN, J.** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2019-16_1734781599.pdf)

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F-2018-760

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**Court of Criminal Appeals of the State of Oklahoma** **Case Summary: Monte Dean Perry v. The State of Oklahoma** **Case No.: F-2018-760** **Judgment Date: December 5, 2019** **Overview:** Monte Dean Perry was convicted by a jury on charges of assault and battery with a deadly weapon and endeavoring to perform an act of violence. The court sentenced him to 30 years for the first count and 5 years for the second, with both sentences to run concurrently. **Legal Issue:** Perry appealed the conviction, claiming that the evidence was insufficient to prove he assaulted the victim with a knife, arguing that the prosecution did not meet the burden of proof beyond a reasonable doubt. **Court's Review Standard:** The appellate court evaluated the evidence under the standard that favors the prosecution, determining if any rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt, as per *Spuehler v. State*. **Decision:** The court upheld the jury's conviction, finding that the evidence was indeed sufficient to support the verdict. Perry's proposition of error was denied, and the judgment and sentence were affirmed. **Additional Notes:** - Perry must serve 85% of his sentence for Count 1 before being eligible for parole consideration. - The opinion was delivered by Presiding Judge Lewis, with concurrence from Judges Kuehn, Lumpkin, Hudson, and Rowland. For full text or additional details, refer to the official opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-760_1735216916.pdf).

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F-2017-1215

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In OCCA case No. F-2017-1215, Ganey Marques Fairley appealed his conviction for Child Abuse by Injury and Child Neglect. In an unpublished decision, the court decided to affirm Fairley’s convictions but remanded the case for resentencing. One judge dissented. Fairley was found guilty of abusing a child and neglecting them. The trial took place in Tulsa County, where the jury gave Fairley a long sentence. Fairley's appeal brought up several concerns about how the trial was conducted, particularly pointing out that the prosecutor acted inappropriately. The first issue was about the prosecutor’s behavior during the trial, which Fairley claimed made it impossible for him to have a fair trial. He believed the prosecutor mentioned past abuse claims related to him when questioning an expert witness and kept bringing it up during her closing statements. Fairley argued that this made the jury think he was guilty of past actions instead of focusing on the current case. The court found that the way the prosecutor questioned the expert did indeed go too far and included too much information that shouldn’t have been brought to the jury's attention. They agreed that this could have influenced the jury's decision and may have negatively affected the fairness of the trial. While the court believed that the evidence against Fairley was strong enough to still call him guilty, they recognized that the prosecutor's actions had created an unfair situation, especially during the part where the jury decided on the punishment. In conclusion, the court decided they would keep Fairley’s guilty verdict but would send the case back to be resentenced, as they felt the previous sentencing might have been tainted by the improper actions of the prosecutor. The dissenting judge thought that if the prosecutor's behavior was indeed so wrong, it should affect the conviction itself, not just the sentence.

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F-2018-994

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **KATESHA CHRISTINE CHILDERS,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-994** **Filed: November 21, 2019** **SUMMARY OPINION** **JOHN D. HADDEN, JUDGE:** Appellant Katesha Christine Childers appeals her Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2017-3783, for First Degree Murder (Count 1) and Unlawful Possession of a Firearm by a Convicted Felon (Count 2). The Honorable Kelly Greenough presided at her jury trial and sentenced her to life imprisonment on Count 1 and one year on Count 2, to run concurrently with credit for time served. Childers raises several issues including: 1. Sufficiency of evidence for her first-degree murder conviction. 2. The trial court's failure to instruct on first degree heat-of-passion manslaughter. 3. Ineffective assistance of counsel for not requesting the above instruction. 4. Admission of lay witness testimony regarding her confession. 5. Admission of hearsay evidence violating her right to a fair trial. 6. Prosecutorial misconduct affecting her trial. 7. Cumulative error necessitating relief. **1. Sufficiency of Evidence for Conviction:** Childers argues insufficient evidence of malice aforethought. The court reviews evidence in the light most favorable to the state, concluding that a rational jury could find her guilt beyond a reasonable doubt. Evidence of a verbal altercation, her pursuit of the victim, and her admissions of guilt supported the jury's decision. Thus, this claim is denied. **2. Failure to Instruct on Heat-of-Passion Manslaughter:** Childers contends that the trial court erred by not issuing a heat-of-passion manslaughter instruction. Since no objection was raised at trial, review is for plain error. The court finds no evidence supporting such an instruction as Childers was the pursuer in the confrontation. Therefore, this claim is also denied. **3. Ineffective Assistance of Counsel:** Childers claims ineffective assistance because her counsel did not request the heat-of-passion manslaughter instruction. However, as she was not entitled to the instruction based on evidence, this claim fails. **4. Admission of Confession Testimony:** Childers asserts that her statements to lay witnesses were inadmissible due to lack of corroboration. The court adjudicates that there was substantial independent evidence corroborating her statements, thus denying this claim. **5. Admission of Hearsay Evidence:** Childers challenges various hearsay testimonies. Some were admitted without objection, so they are reviewed for plain error. The court finds that the admittance of testimony regarding the victim's fear of Childers is permissible under state-of-mind exceptions to hearsay. Consequently, this claim is denied. **6. Prosecutorial Misconduct:** Childers argues several instances of prosecutorial misconduct, including mention of her status as a convicted felon. Objections were made, and the trial court acted appropriately to mitigate potential prejudice against her. Based on the totality of circumstances, relief is not warranted, leading to a denial of this claim. **7. Cumulative Error:** Finally, Childers contends cumulative errors merit relief. As no individual errors warrant relief, this claim is denied. **CONCLUSION:** The Judgment and Sentence of the district court is AFFIRMED. **OPINION BY: ROWLAND, J.** **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **Download PDF:** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-994_1734870881.pdf)

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