Burden of Proof

F-2021-554

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In OCCA case No. F-2021-554, Robert Willie Wilson, Jr. appealed his conviction for accessory to burglary in the second degree and carrying weapons. In an unpublished decision, the court decided to reverse and remand Count 1 (accessory to burglary) with instructions to dismiss the charge, while affirming Count 2 (carrying weapons). One member of the court dissented. The case revolved around Wilson's alleged involvement in a burglary at a laundromat. The jury found him guilty of being an accessory rather than guilty of the burglary itself. They sentenced him to twenty years for the accessory charge and thirty days for carrying a weapon, to be served at the same time as his other sentence. Wilson challenged his conviction, arguing that the evidence was not enough to prove he was an accessory to the burglary. He claimed that the State failed to show he actively concealed or helped another person, named Justin White, who committed the burglary. The law requires that to be an accessory, someone must help the offender escape arrest or punishment after the crime. During the trial, the evidence suggested that while Wilson was present in the vehicle during the time of the burglary, there was no proof that he helped White in any way after the crime. The court pointed out that Wilson's mere presence did not make him guilty. It highlighted that the State only showed he knew about the burglary, which was not enough to convict him as an accessory. Ultimately, the court concluded that the evidence did not support a conviction for accessory to burglary beyond a reasonable doubt. Therefore, they reversed Wilson's conviction for that charge, but they did maintain the conviction for carrying a weapon. The remaining claims in Wilson's appeal were no longer necessary to consider due to this decision.

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RE-2021-1202

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In OCCA case No. RE-2021-1202, Jimmy Dale Jackson, Jr. appealed his conviction for violating the terms of his probation. In a published decision, the court decided to modify the revocation of his suspended sentence to six months instead of a longer term. One judge dissented. Here’s a summary of the case: Jimmy Dale Jackson, Jr. had a suspended sentence from a previous conviction for Lewd Molestation, which means he was not in prison but had to follow certain rules. In 2021, the State of Oklahoma accused him of breaking those rules. They said he did many things wrong, such as driving with a gun, using drugs, not paying the fees he needed to, and talking to a girl who was a minor, which he was told not to do. When Jackson went to the court for a hearing, the judge decided that he had indeed broken the rules, and as a result, revoked his suspended sentence completely. Jackson then appealed this decision. He argued that the judge's decision was too harsh and that he should not have been punished so severely for what he called technical violations. He also claimed that the judge improperly used the results of a lie detector test (polygraph) against him during the hearing. The court had to consider whether the judge had made a real mistake. They found out that Jackson's violations were mostly technical, meaning they were not serious crimes but rather rule-breaking issues. According to Oklahoma law, if a person on probation has technical violations for the first time, the judge can only revoke their suspended sentence for up to six months. The court decided that Jackson's violations did not include breaking any serious laws because he had never been told to follow specialized rules for sex offenders, which would have been more serious. They noted he was only accused of violating standard probation rules. Since the judge revoked his sentence for a period longer than what the law allows for technical violations, the court agreed that was a mistake. Regarding the polygraph results, Jackson's team had talked about them first, so the court said that Jackson could not complain about that now. They concluded that even without the polygraph, there were enough other reasons to revoke his probation. In the end, the court said Jackson's sentenced revocation would be adjusted to six months, meaning he would have to follow the suspension rules for just that amount of time instead of facing a longer prison term. The court emphasized that everyone must understand the rules when they are on probation and that following proper legal steps is important to ensure fairness. So, in summary, the court reduced Jackson's punishment because they found he was not given proper notice about the rules he had to follow and that he should not have been penalized so harshly for technical violations alone.

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F-2017-991

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In OCCA case No. F-2017-991, Laurie Jean Martin appealed her conviction for Misdemeanor Manslaughter in the First Degree. In an unpublished decision, the court decided that the State of Oklahoma did not have jurisdiction to prosecute her because she is a member of the Choctaw Nation and the crime occurred within the boundaries of the Chickasaw Reservation. The court reversed Martin’s conviction and remanded the case with instructions to dismiss it.

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F-2017-1294

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In OCCA case No. F-2017-1294, #1 appealed his conviction for #2. In an unpublished decision, the court decided #3. #4 dissented. The case involved Terrance Lucas Cottingham, who was found guilty of robbery with a dangerous weapon after having been previously convicted of two or more felonies. The conviction took place in the District Court of Washington County, where he was sentenced to 25 years in prison. He would have to serve 85% of his sentence before being eligible for parole. Cottingham argued that the court did not have the right to prosecute him because of his status as a member of the Osage Nation and because the crime occurred in what he believed to be Indian Country, specifically the Cherokee Nation's boundaries. He cited a federal law and a Supreme Court decision, McGirt v. Oklahoma, to support his argument. The Oklahoma Court of Criminal Appeals decided to send Cottingham's case back to the lower court for a hearing to examine his Indian status and the location of the robbery. They said that Cottingham needed to show that he had Indian blood and was recognized as an Indian by the tribe or by the federal government. If he could prove this, then it would be up to the state to show that it had jurisdiction to prosecute him. During the hearing, Cottingham and the Cherokee Nation agreed on certain facts. They confirmed that he had a degree of Indian blood and was a member of the Osage Nation at the time of the robbery. They also agreed that the robbery happened within the geographic area defined by treaties establishing the Cherokee Nation. The court found that Cottingham was indeed a member of the Osage Nation and that the robbery occurred in Indian Country based on their analysis of the law and treaties. This evidence showed that the state of Oklahoma did not have the legal right to prosecute Cottingham for the crime. The appeals court ultimately agreed with the findings of the lower court and concluded that Oklahoma did not have jurisdiction over the case. Therefore, they reversed Cottingham's conviction and instructed the District Court to dismiss the case. In summary, Cottingham's conviction was undone because it was determined that he was an Indian and that the crime took place in Indian Country. Consequently, the state court did not have the authority to prosecute him.

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F-2019-196

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In OCCA case No. F-2019-196, Dakota Shay Fox appealed his conviction for Murder in the First Degree. In a published decision, the court decided that the State of Oklahoma did not have jurisdiction to prosecute Fox, and therefore, the case was reversed and remanded with instructions to dismiss. One judge dissented.

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F-2017-1245

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In OCCA case No. F-2017-1245, Jeffery Arch Jones appealed his conviction for five counts of Sexual Abuse-Child Under 12. In an unpublished decision, the court decided that the State of Oklahoma did not have jurisdiction to prosecute him because he is a member of the Cherokee Nation, and the crimes occurred within the boundaries of the Creek Reservation. The conviction and sentence were reversed, and the case was remanded with instructions to dismiss. One judge dissented.

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F-2017-336

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In OCCA case No. F-2017-336, Bea Ann Epperson appealed her conviction for two counts of Embezzlement of Building Trust. In an unpublished decision, the court decided to reverse her convictions and remand the case with instructions to dismiss. One judge dissented. Bea Ann Epperson was found guilty in a trial without a jury for embezzling money related to a building trust. She was sentenced to five years in prison for each count, but her sentences were suspended, meaning she wouldn’t serve time unless she violated certain conditions. Epperson believed that the court did not have the right to try her case because she is a member of the Cherokee Nation, and the victims might be part of the Creek Nation, with the crimes happening on Creek Reservation land. This argument was connected to a U.S. Supreme Court decision called McGirt v. Oklahoma, which deals with whether certain areas are considered Indian Country. The questions involved were Epperson's Indian status, the status of the victims, and the location of the crimes. Because these questions needed more fact-finding, the case was sent back to the District Court. At a hearing to gather more details, it was determined that Epperson had some Indian blood (3/64th degree) and was recognized as a member of the Cherokee Nation. It was also confirmed that the crimes took place within the boundaries of the Creek Reservation. The court accepted these agreements made by both sides regarding what the evidence would show. In a later brief, the State supported the District Court’s findings, but wanted time to consider whether to file new charges against Epperson. After reviewing everything, the court agreed Epperson had shown she was an Indian and that the crimes happened in Indian Country, thus the State of Oklahoma did not have the right to try her. The court reversed the judgment of Epperson's convictions and sent the case back to be dismissed, meaning she wouldn't face charges for the embezzlement anymore.

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F-2017-889

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In OCCA case No. F-2017-889, Joseph Stanley Harjo appealed his conviction for Child Sexual Abuse. In a published decision, the court decided to reverse the conviction and remand the case to the District Court of Muskogee County with instructions to dismiss. One judge dissented. Harjo was convicted in a trial where the jury sentenced him to life imprisonment. He argued that the court did not have the right to try him because he is a member of the Creek Nation, and the crime occurred within the Creek Reservation. This raised important questions about whether he is legally recognized as an Indian and if the crime took place on tribal land. The case was sent back to the District Court for a fact-finding hearing, where it was determined that Harjo is 1/4 Indian blood, a member of the Muscogee (Creek) Nation, and that the crime took place within the jurisdiction of the tribe. Both parties agreed on these facts, leading the District Court to conclude that the state did not have the authority to prosecute Harjo. After careful review of the case and the findings from the evidentiary hearing, the court determined that Harjo was indeed an Indian under federal law, and the crime occurred in Indian Country. Therefore, the state had no jurisdiction over the case. The court reversed the judgment and sent the case back to be dismissed.

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C-2019-263

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In OCCA case No. C-2019-263, Floyd Joseph Ball, Jr. appealed his conviction for Rape in the First Degree and Kidnapping. In an unpublished decision, the court decided that the State of Oklahoma did not have the right to prosecute Ball because he is considered an Indian under federal law, and the crimes occurred in Indian Country. The judgment and sentence were reversed, and the case was remanded to the District Court with orders to dismiss it. One judge dissented from this decision.

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C-2017-1027

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In OCCA case No. C-2017-1027, Matthew Steven Janson appealed his conviction for aggravated possession and distribution of child pornography. In an unpublished decision, the court decided to reverse the conviction and dismiss the case. One judge dissented. Matthew Steven Janson was charged with two serious offenses related to child pornography in Tulsa County. He entered a plea on February 27, 2017, and was sentenced to ten years in prison with some of his time suspended. Later, Janson filed to withdraw his plea, but the judge denied his request. Janson argued that the court did not have the right to accept his plea because he is a citizen of the Cherokee Nation and the crimes were said to have occurred on the Creek Reservation. This question about jurisdiction went back to the District Court to gather more facts about his Indian status and the crime's location. After looking at the needed evidence, the District Court found that Janson has Cherokee blood and is recognized as an Indian. It also agreed that the crimes took place on land considered to be Indian Country. With these facts, the court concluded that the State of Oklahoma did not have the right to prosecute him. In the end, the court granted Janson's request and reversed his conviction, stating that the case should be dismissed.

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F-2019-588

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In OCCA case No. F-2019-588, Ricky Eugene Spencer appealed his conviction for two counts of Shooting with Intent to Kill. In an unpublished decision, the court decided to vacate the judgment and sentence and remand the case for a new trial. One judge dissented. Ricky Eugene Spencer was found guilty of shooting at two people, which led to his conviction. The trial took place in Muskogee County, where the jury decided on a twenty-year sentence for each count. However, the judge allowed for some of that time to be suspended and had conditions for probation. During his appeal, Spencer raised several issues, but one stood out: the jury was given the wrong instructions about transferred intent. This is a legal concept that says if someone means to hurt one person but accidentally hurts someone else, the intent to harm can still apply to the actual victim. The court found there was indeed an error in how the jury was instructed. Spencer did not challenge the instruction during the trial, so the court reviewed the mistake under plain error, meaning it was an obvious error that affected the fairness of the trial. The judge explained that the jury was incorrectly told they could find Spencer guilty of intent to kill based on a lesser intention to injure or scare someone else. This meant they could convict him without the proof needed for a serious crime like shooting with intent to kill. The prosecution argued that Spencer aimed to kill one person and mistakenly shot two bystanders. However, the trial's instructions could have allowed the jury to convict him based on weaker proof than required. During discussions, the jury showed they weren't completely convinced, asking questions that suggested they were unsure. The prosecutor's arguments during the trial also emphasized the wrong aspects of the law, pushing the jury toward an improper conclusion. Overall, the court could not be sure that the jury understood what they needed to prove. Therefore, they ruled that the error affected Spencer's rights significantly, requiring a new trial to ensure fairness. The decision means that Spencer would get another chance to defend himself in court, as the guidelines for convicting him were not properly explained the first time.

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C-2019-15

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In OCCA case No. C-2019-15, Nicholas Allan Daniel appealed his conviction for First Degree Felony Murder (Distribution of a Controlled Dangerous Substance) and Robbery with a Firearm. In an unpublished decision, the court decided to grant his request for a writ of certiorari, modifying his conviction for First Degree Felony Murder while reversing his conviction for Robbery with a Firearm. One judge dissented from this opinion. Nicholas Daniel faced serious charges after being accused of killing a man while trying to sell drugs and also robbing him. He pleaded guilty to these charges but later wanted to withdraw his plea. He felt that his lawyer did not help him enough during the process, and he raised several reasons for this claim. He argued that the lawyer had a conflict of interest, that he did not fully understand the consequences of his plea, that the plea lacked a good factual basis, and that he did not get effective help from his lawyer. The court carefully examined each of Daniel's arguments. In the first argument, the court found no real conflict of interest because Daniel’s dissatisfaction stemmed from the state’s evidence and the sentence, not from his lawyer's performance. In the second argument, it was decided that Daniel had entered the plea with a clear understanding that he would face sentencing and that it was done voluntarily. For the third argument, about the factual basis for his felony murder conviction, the court found that there were issues with how the charges were presented. It was determined that the way Daniel described the incident in his plea was inadequate to meet the legal requirements for felony murder because he was treated primarily as a buyer, not a seller of drugs. Thus, the combined crimes could not both stand. In terms of Daniel's claims against his lawyer's effectiveness, the court acknowledged that his lawyer could have done better. However, it ruled against some of Daniel's more serious arguments on the effectiveness of his lawyer, finding that he did not provide sufficient proof that his lawyer’s actions negatively affected his defense. In the final decision, the court adjusted Daniel's felony murder conviction based on the issues around how the charges were processed and reversed the robbery conviction, as it should not stand alongside the adjusted murder charge. Ultimately, the court confirmed Daniel's modified conviction for felony murder but sent the case back regarding the robbery count. One judge disagreed with parts of this conclusion, stating that the trial court had not made a mistake in the first place and therefore should not have granted the appeal. The judge argued that since Daniel's plea was expressed clearly and voluntarily, it should have been upheld without modification. The judge emphasized the importance of adhering to proper legal processes and rules when making such determinations. Thus, the outcome celebrated the importance of ensuring that legal principles and procedures are correctly applied, even as it affirmed Daniel’s conviction under modified circumstances.

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RE-2019-42

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In OCCA case No. CF-2012-206, the appellant appealed his conviction for violating the terms of his suspended sentence. In a published decision, the court affirmed the revocation of his suspended sentence. The appellant failed to pay restitution and supervision fees, and he was found guilty of a new crime, Domestic Assault and Battery by Strangulation. The trial court did not abuse its discretion in revoking the sentence based on these violations. One judge dissented, arguing that the appellant’s failure to pay was not willful and should have been considered.

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F-2018-1103

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BERT GLEN FRANKLIN,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-1103** **OPINION** LUMPKIN, JUDGE: Appellant, Bert Glen Franklin, was tried by jury and convicted in a consolidated trial of Count 1, First Degree Murder (Child Abuse), and of Count 2, Solicitation of First Degree Murder. The jury recommended punishment of life imprisonment without parole on Count 1 and life imprisonment on Count 2, with the sentences running consecutively. Appellant appeals from this judgment and sentence raising two propositions of error. **PROPOSITION I: Joinder of Charges** Appellant contends that his cases should not have been joined in one trial, asserting that this improper joinder resulted in prejudice. However, as Appellant failed to object at trial, we must review this for plain error, which requires an actual error that is plain or obvious and that affects the Appellant's substantial rights. The statute governing joinder of charges, 22 O.S.2011, § 438, permits the trial of two or more offenses together if they could have been joined in a single indictment. Our analysis is guided by reconciling the factors set forth in previous case law. 1. **Same Type of Offenses:** The charges of murder and solicitation reflect a common theme of violence directed towards individuals involved with the defendant, qualifying them as the same type of offenses. 2. **Proximity in Time:** While the offenses occurred approximately seventeen months apart, the delay was due to Appellant's incarceration. They are sufficiently related given the circumstances under which Appellant acted. 3. **Proximity in Location:** Both offenses were committed within Oklahoma County, suggesting a logical relationship between the two. 4. **Overlapping Proof:** Evidence supporting each charge would have been admissible in separate trials since they are intrinsically linked to Appellant’s actions and intent. Given these observations, we find that the joinder was proper, and Appellant suffered no prejudice; therefore, no error occurred. We deny Proposition I. **PROPOSITION II: Ineffective Assistance of Counsel** Appellant argues that his trial counsel was ineffective for not objecting to the joinder. Under the Strickland test, Appellant must demonstrate both that counsel's performance was deficient and that such performance prejudiced his case. Since we determined in Proposition I that the joinder was appropriate, Appellant cannot show that any failure to object prejudiced his case. As a result, we also deny Proposition II. **DECISION** The judgment and sentence are affirmed. The mandate is ordered issued upon the delivery and filing of this decision. --- **APPEARANCES:** **For Appellant:** R. Scott Adams Box 926 Norman, OK 73070 **For Appellee:** Mike Hunter Attorney General of Oklahoma Theodore M. Peeper, Asst. Attorney General 320 Robert S. Kerr, #505 Oklahoma City, OK 73102 --- **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.:** Concur in Result **KUEHN, V.P.J.:** Recuse **HUDSON, J.:** Concur **ROWLAND, J.:** Recuse --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1103_1734788162.pdf) This ruling affirms the conviction and sentences of Bert Glen Franklin and addresses the legal standards regarding the joinder of offenses and ineffective assistance of counsel.

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S-2019-479

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This document is a summary opinion from the Oklahoma Court of Criminal Appeals regarding the case involving Chris Forte and Skyla Forte, who were charged with Child Abuse by Injury and Child Neglect. The order of the District Court, which quashed the child abuse charge due to insufficient evidence, has been reversed by the appellate court. Key points from the document include: 1. The appellate court held that the District Court abused its discretion in determining that the magistrate's bind-over order for Count 1 (Child Abuse by Injury) was not based on competent evidence. 2. The preliminary hearing established that the alleged victim, a six-year-old girl named K.K., suffered extensive bruising and malnourishment which were reported as a result of the conduct of the Appellees. 3. Evidence included testimony from a child abuse pediatrician whose findings indicated that the injuries were consistent with abuse rather than legitimate disciplinary actions. 4. The court stated that the determination of whether the force used was reasonable or excessive is typically a matter for a jury to decide. 5. Ultimately, the matter has been remanded to the District Court for further proceedings consistent with the appellate court's opinion. The case illustrates the legal standards for assessing probable cause during preliminary hearings and clarifies the threshold for determining whether the use of physical discipline may cross into abusive conduct under Oklahoma law.

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F-2018-562

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **AARON THOMAS BROCK,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-562** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Aaron Thomas Brock was convicted by jury of robbery with a dangerous weapon and conspiracy to commit a felony in Oklahoma County District Court, receiving a total sentence of thirty-five years imprisonment. He appeals with two propositions of error. **Proposition One: IAD Violation** Brock argues his rights under the Interstate Agreement on Detainers (IAD) were violated when the State did not bring him to trial within the mandated 180 days. The trial court ruled that no proper detainer was lodged against him as required by Article III of the IAD. Brock contends that a documentation was sent to the appropriate authorities, triggering the IAD timeline. The trial court determined that there was no evidence of a proper detainer because the Oklahoma County District Attorney's office and the Court Clerk's office had no record of receiving documentation from Brock. Notably, the trial court found a facsimile from the Sheriff's office did not constitute a proper detainer as defined by case law (Fex v. Michigan). The Court agreed with the trial court's findings, ruling that Brock failed to provide sufficient documentation and credible evidence to support his claims. **Proposition Two: Insufficient Evidence** In his second proposition, Brock asserts that the evidence was insufficient to uphold the conviction for robbery with a dangerous weapon. The standard for reviewing evidence requires this Court to determine if, viewing the evidence favorably to the prosecution, a rational jury could find guilt beyond a reasonable doubt. The facts presented included testimony that a knife was brandished toward a victim and that money was taken by a co-defendant and given to Brock. The Court found that this evidence met the elements for robbery with a dangerous weapon, reinforcing that the presence of fear in the victim suffices for conviction. **Decision** Both propositions of error raised by Brock are denied. The judgment and sentence are AFFIRMED. A mandate will issue upon filing this decision. **Appeal from the District Court of Oklahoma County** The Honorable Timothy R. Henderson, District Judge **Attorneys for Appellant**: Nick Southerland, Andrea Digilio Miller, Micah Sielert **Attorneys for Appellee**: Kelly Collins, Mike Hunter, Lori McConnell, Jennifer B. Miller **OPINION BY:** LEWIS, P.J. **CONCURRING:** KUEHN, V.P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [**Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-562_1735316443.pdf)

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C-2019-125

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In OCCA case No. N 2019-125, Blessing appealed his conviction for child abuse. In a published decision, the court upheld the denial of his motion to withdraw his no contest plea, stating the plea was entered properly and there was no ineffective assistance of counsel. One judge dissented. [occa_caption]

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C-2018-1174

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### IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA **Case No. C-2018-1174** **OCT 31, 2019** **STEVEN JOSEPH BEATY, Petitioner, v. THE STATE OF OKLAHOMA, Respondent.** **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Steven Joseph Beaty entered guilty pleas to the following charges in the District Court of Grady County, Case No. CF-2018-115: **Count I** - Felony Domestic Assault and Battery, After Former Conviction of Two or More Felonies (21 O.S.Supp.2014, § 644 (C)); **Count II** - Misdemeanor Violation of Protective Order (22 O.S.Supp.2012, § 60.6); **Count III** - Obstructing An Officer (21 O.S.Supp.2015, § 540). The Honorable Kory Kirkland accepted the pleas on October 16, 2018. The sentences imposed included the following: **Count I** - ten (10) years imprisonment with the last seven (7) years suspended and a $500.00 fine; **Count II** - one year imprisonment and a $200.00 fine; **Count III** - one year imprisonment and a $100.00 fine, with all sentences served concurrently and additional requirements such as costs, victim compensation assessments, and referral to the Batterer's Intervention Program. On October 25, 2018, Petitioner filed a motion to withdraw his guilty pleas. After a hearing on November 13, 2018, Judge Kirkland denied the motion. Petitioner now appeals this denial and raises the following propositions of error: 1. The lack of a factual basis for the plea renders it involuntary due to not being served with the Protective Order. 2. The trial judge failed to consider Petitioner’s ability to pay the victim compensation fee. 3. Petitioner was denied effective assistance of counsel during both the plea hearing and at the plea withdrawal hearing. **Analysis:** After thorough review of the petitions, records, and transcripts, the court finds no abuse of discretion in denying the motion to withdraw the guilty plea. A plea is evaluated based on whether it was voluntary and intelligent, requiring the Petitioner to show it was entered inadvertently or without consideration. In his first two propositions, Petitioner alleges he should have been allowed to withdraw his plea due to inadequate factual basis and failure to inquire about ability to pay the compensation fee. However, these claims were not raised in the motion to withdraw nor in the certiorari petition, waiving their consideration on appeal. In Proposition III, relating to ineffective assistance of counsel at the withdrawal hearing, Petitioner has not shown a reasonable probability that such deficiencies would have altered the outcome. The court affirms that the plea was knowing, voluntary, and not coerced. The claim about the court’s failure to record considerations for the victim compensation assessment is acknowledged; thus, that part of the assessment is vacated, and the case is remanded for a hearing to address this requirement properly. **Conclusion:** The Petition for a Writ of Certiorari is **DENIED**. The Judgment of the District Court is **AFFIRMED**. The current victim compensation assessments are **VACATED**, and the case is **REMANDED TO THE DISTRICT COURT** to consider all necessary factors for assessment under 22 O.S.2011, § 142.18(A). **OPINION BY**: LUMPKIN, J. **CONCUR**: LEWIS, P.J.; KUEHN, V.P.J.; HUDSON, J.; ROWLAND, J. **COUNSEL FOR DEFENSE AT THE PLEA HEARING**: Bill Smith, P.O. Box 926, Norman, OK 73070 **COUNSEL FOR PETITIONER ON APPEAL**: Danny Joseph, Oklahoma City, OK **COUNSEL FOR THE STATE**: Jason M. Hicks, District Attorney, Kara Bacon, Assistant District Attorney, Chickasha, OK. [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-1174_1734227971.pdf)

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C-2019-132

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In OCCA case No. C 2019 132, Brown appealed his conviction for Domestic Assault and Battery with a Dangerous Weapon. In a published decision, the court denied his petition for certiorari, stating his plea was voluntary and intelligent. One judge dissented. [occa_caption]

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F-2018-349

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In OCCA case No. F-2018-349, John Albert Broomhall appealed his conviction for Assault and Battery with a Dangerous Weapon. In an unpublished decision, the court decided to affirm the conviction and sentence, but vacated the order of restitution and remanded the case for a restitution hearing. One judge dissented. Broomhall was found guilty by a jury, and he was sentenced to one year in jail and a fine of $5000. He raised several claims in his appeal. First, he argued that the State did not provide enough evidence to prove that he committed the crime, which involved using a baseball bat to hurt someone. The court found that the jury had enough evidence to believe he did commit the crime. Next, Broomhall claimed he acted in self-defense, but the court ruled that he did not meet the burden of proof needed to show that his actions were justified. He also accused the prosecutor of misconduct during the trial, but the court decided that nothing the prosecutor did affected the fairness of the trial. Broomhall argued that the jury was given incorrect instructions, but the court found the instructions were proper. He also believed that the trial court made a mistake in how it ordered restitution for the victim's losses. The court agreed that the restitution order was not done correctly and needed to be revisited. Broomhall claimed he had ineffective assistance from his attorney, but the court found no basis for this claim, stating that the actions of his counsel did not harm his case. Lastly, Broomhall contended that there were numerous errors that, together, made his trial unfair; however, the court concluded that the only issue needing correction was the restitution order. In summary, while the court upheld Broomhall's conviction, it sent the restitution issue back for further consideration.

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F-2018-954

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-954** --- **CHRISTIAN D. MOLINA-SOLORZANO, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** --- **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Christian D. Molina-Solorzano appeals his Judgment and Sentence from the District Court of Beckham County, Case No. CF-2017-259, for Aggravated Trafficking in Illegal Drugs, in violation of 63 O.S.Supp.2015, § 2-415. The Honorable F. Douglas Haught presided over the non-jury trial, found Molina-Solorzano guilty, and sentenced him to fifteen years imprisonment, $1,000.00 fine, and one year of post-imprisonment supervision. Molina-Solorzano raises the following issues: 1. Ineffective assistance of counsel for failing to challenge the basis for the traffic stop. 2. Ineffective assistance of counsel for failing to inform him of his rights under the Vienna Convention on Consular Relations (VCCR). 3. Entitlement to retroactive application of recent changes in law regarding parole eligibility for aggravated trafficking convictions. **DECISION:** After review, we find relief is not warranted and affirm the district court's Judgment and Sentence. **1. Ineffective Assistance of Counsel: Traffic Stop Challenge** Molina-Solorzano asserts that defense counsel was ineffective by not challenging the validity of the traffic stop, which he claims was based on race discrimination and an inadequate fog light infraction. To succeed on an ineffective assistance claim, Molina-Solorzano must demonstrate: - Counsel's performance was deficient. - The deficiency resulted in prejudice that affected the outcome of the trial. The Fourth Amendment prohibits unreasonable searches and seizures, and a traffic stop is valid if the officer had probable cause or reasonable suspicion of a traffic violation. The record, including video evidence from the traffic stop, supports that the stop was justified due to a fog light infraction. The trooper's testimony confirmed that visibility was over a mile, and thus the use of fog lights constituted a violation under Oklahoma law. Since the stop was justified, Molina-Solorzano cannot establish that counsel's failure to challenge it affected the trial's outcome, denying his ineffective assistance claim. **2. Ineffective Assistance of Counsel: VCCR Rights** Molina-Solorzano also contends that defense counsel failed to inform him of his rights under the VCCR, which would have allowed him to contact the Mexican consulate for assistance. To evaluate this claim, we consider: - Whether he was unaware of his right to contact his consulate. - Whether he would have utilized that right had he known. - Whether the consulate's assistance would have likely aided his defense. The record lacks evidence that Molina-Solorzano was unaware of his rights or that assistance from the consulate would have changed the trial's outcome. Appellate counsel's assertions do not suffice to demonstrate these conditions. Therefore, this claim is also denied. **3. Retroactive Application of Parole Changes** Molina-Solorzano argues that he should benefit from recent legislative proposals reducing parole eligibility terms for aggravated trafficking convictions. However, as legislation is not retroactive unless explicitly stated, and the referenced Senate Bill was never enacted, his claim is moot. **CONCLUSION:** The Judgment and Sentence of the district court is AFFIRMED. The MANDATE is ORDERED issued upon filing of this decision. **APPEARANCES** - Kenny R. Goza, Counsel for Defendant - Debra K. Hampton, Counsel for Appellant - Gina R. Webb, Counsel for State - Mike Hunter, Attorney General of Oklahoma - Joshua R. Fanelli, Assistant Attorney General **OPINION BY:** ROWLAND, J. **Concur in Results:** KUEHN, V.P.J. **Concur:** LUMPKIN, J. **Concur:** HUDSON, J. --- For the full decision, click here: [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-954_1734874505.pdf)

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F-2018-12

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In OCCA case No. F-2018-12, the appellant appealed his conviction for first-degree rape by instrumentation and misdemeanor assault and battery. In a published decision, the court decided to affirm his conviction and sentence of life imprisonment for the rape conviction. One judge dissented. The case involved Daniel Bryan Kelley, who was initially sentenced to twenty years for rape following a jury trial. He appealed that decision, and the Court agreed that there had been a mistake involving the use of a past out-of-state conviction for sentence enhancement. They sent the case back for a new sentencing trial. The second trial resulted in a life sentence. Kelley argued that he had ineffective assistance from his appellate lawyer because he was not informed about the risks of a longer sentence should he win the appeal. However, the court found no clear evidence that he would have chosen to do anything differently had he been fully informed beforehand. Kelley also wanted the court to limit his new sentence to twenty years, but the court explained that upon retrial or resentencing, the complete range of punishment is available. Therefore, they refused his request to cap the current sentence. Finally, Kelley claimed that the life sentence was excessive. The court considered the nature of his crime and his history, stating that the sentence was within the legal limit and justified based on the circumstances of the case. As a result, the court concluded that his life sentence did not shock the conscience and upheld the previous decisions regarding his case.

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F-2018-542

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In OCCA case No. F-2018-542, Charles Henry Tarver, Jr. appealed his conviction for Possession of Controlled Dangerous Substance with Intent to Distribute and Unlawful Possession of Drug Paraphernalia. In an unpublished decision, the court decided that relief was required, and the case was remanded to the district court with instructions to dismiss. One judge dissented. Charles Henry Tarver, Jr. was tried by a jury and convicted of having illegal drugs with the intent to sell them and for having drug paraphernalia. He was given a long prison sentence and a fine. Tarver appealed this decision because he believed that the evidence used against him was obtained illegally when a police officer stopped him for a minor traffic violation. The events leading to Tarver's arrest happened on May 23, 2016. A deputy police officer stopped Tarver because the light on his truck’s license plate wasn’t working. During this stop, the officer noticed that Tarver was very anxious and had trouble staying still. Instead of quickly giving him a ticket and letting him go, the officer waited for backup and a dog trained to detect drugs. While waiting, the officer searched Tarver's truck, finding illegal drugs. Tarver argued that this search was not allowed under the law because it happened without enough reason to keep him there longer than necessary for the traffic stop. Initially, the judge at Tarver’s trial ruled that the stop was legal, but he did not consider whether the stop went on too long without proper reasons. This was an important mistake because the law says that once the reason for a stop is handled, the police cannot keep someone for longer without having a good reason to think that person is doing something illegal. The appeals court reviewed the case and found that the trial judge had incorrectly placed the burden of proving that the police action was legal on Tarver instead of where it should have been on the state. The appeals court agreed that the stop was carried out longer than necessary, and the police officer did not have enough solid reasons to justify keeping Tarver there longer than the original traffic issue. The court decided to reverse Tarver's convictions and told the district court to dismiss the charges against him because the search that found the drugs was not properly justified. One judge disagreed with this outcome, arguing that the police acted reasonably based on their experiences and knowledge about Tarver. This dissenting opinion held that the evidence might still be good enough to uphold the conviction. In the end, the decision meant that Tarver would not have to serve time for these charges, as the evidence against him was deemed to have been collected improperly.

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RE-2018-674

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LEON DESHAWN WRIGHT,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. RE-2018-674** **Filed July 18, 2019** **SUMMARY OPINION** **HUDSON, JUDGE:** This case involves an appeal by Appellant Leon Deshawn Wright from the revocation of his suspended sentence in Oklahoma County District Court, Case No. CF-2014-1676. **Background:** On April 30, 2015, Wright entered a guilty plea to Knowingly Concealing Stolen Property after a previous felony conviction, for which he was sentenced to five years of imprisonment, all suspended. The State filed an application to revoke this sentence on May 9, 2016, citing multiple violations, including failure to obtain a mental health assessment, failure to report to a drug rehabilitation program, failure to pay supervision fees, and possession of marijuana. A hearing was conducted on August 27, 2018, overseen by the Honorable Bill Graves, where the judge granted the State's application for revocation, leading to the current appeal. **Analysis:** At a revocation hearing, the court determines if the terms of the probation have been violated, which should be proven by a preponderance of the evidence. Revocation should not be overturned unless there's an abuse of discretion by the trial court. 1. **Possession of Marijuana:** Appellant argues insufficient evidence for this charge. The court agrees but finds sufficient evidence for the remaining violations. 2. **Failure to Pay Fees:** Appellant contends his failure to pay fees was not willful. The court finds it was Appellant's responsibility to demonstrate he was not willful in this failure. As Appellant did not provide evidence regarding his employment status or good-faith efforts to pay, the burden was not met. 3. **Full Revocation Justification:** Appellant argues that the violations do not justify full revocation. However, the court finds the failure to report alone is an adequate basis for revoking the suspended sentence. **Decision:** The Oklahoma Court of Criminal Appeals affirms the District Court's order revoking the suspended sentence in Case No. CF-2014-1676. **Judges’ Concurrence:** - **KUEHN, V.P.J.:** Concurred in part/dissented in part, stating that while he agreed some violations justified revocation, he dissented concerning the failure to pay fines, emphasizing that Appellant's evidence of homelessness and unemployment should have been considered. He finds the court should demonstrate more clarity on when failure to pay fines due to indigence suffices to avoid revocation. For further details and the full legal opinion, you can [download the PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-674_1734423903.pdf).

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