Clerical Error

F-2019-912

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In OCCA case No. F-2019-912, Charles Issac Jacobs appealed his conviction for Aggravated Assault and Battery. In an unpublished decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Jacobs was charged in McCurtain County after a jury found him guilty and sentenced him to two years in prison. During his appeal, he raised several points: 1. **Jurisdiction**: Jacobs argued that the State did not have authority to prosecute him because the victim was an Indian, and the crime happened in Indian Country. The trial court found that Jacobs was not an Indian according to legal standards, while the victim was. The court also determined that the crime took place within the boundaries of the Choctaw Reservation, meaning the State had the jurisdiction to proceed with the case. 2. **Self-Defense**: Jacobs claimed that he acted in self-defense when he assaulted the victim. The court noted that self-defense is a legal reason for actions that would typically be considered crimes. However, the court found there was enough evidence to show that Jacobs did not have a reasonable belief that he was in danger when he attacked the victim. 3. **Jury Instructions**: Jacobs requested that the jury be given a specific instruction about standing your ground during the trial. The court stated that whether to give specific jury instructions is up to the trial judge. They found that Jacobs did not meet the legal requirements for this instruction because there wasn’t enough evidence showing he was in a situation where he could lawfully defend himself. 4. **Monetary Fine**: At sentencing, the jury did not impose a fine, but the court record incorrectly showed a fine of $500 was imposed. The State and Jacobs both agreed that this was a mistake. The court instructed that this clerical error should be corrected. The main decision reached by the court was that Jacobs' conviction was upheld. They affirmed that the State had the right to prosecute him, and there was sufficient evidence to support his conviction. However, the court also ordered that the punishment record should be corrected to show that no fine was actually imposed.

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F-2018-269

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In OCCA case No. F-2018-269, David Anthony Tofflemire appealed his conviction for Possession of Child Pornography. In an unpublished decision, the court decided to affirm his conviction. One member of the court dissented. Tofflemire was found guilty at a trial without a jury and received a sentence of sixteen years in prison, with eight of those years suspended. He argued that there was not enough evidence against him, that he did not understand his waiver of the jury trial, and that there was an error in taxing him with an attorney fee even though he had his own lawyer. The court reviewed the case carefully and found that the evidence presented was sufficient for a reasonable person to conclude that Tofflemire knowingly possessed child pornography on his cell phone. They stated that the prosecution provided enough proof to support the conviction. Regarding the waiver of his jury trial, Tofflemire claimed he did not fully understand what he was doing. However, the court noted that he had signed a form waiving his right to a jury trial and that his lawyer acknowledged this waiver on the record. Since there was no evidence of coercion or misunderstanding, the court decided Tofflemire's waiver was valid. Finally, concerning the attorney fee, the court recognized that Tofflemire had hired his own lawyer but also that a fee for a court-appointed lawyer was mentioned in the court documents by mistake. Therefore, the court decided to remand the case back to the district court to correct this clerical error. In conclusion, Tofflemire's conviction was upheld, but the court took action to ensure the records reflected the correct information concerning the attorney fee.

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RE-2018-155

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **VESTER VON DOWNUM,** **Appellant,** **v.** **STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-155** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MAY 23, 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** On June 15, 2015, Appellant Vester Von Downum, represented by counsel, was convicted of Planning/Conspiring/Endeavoring to Perform an Act of Violence in Muskogee County, Case No. CF-2014-656. He was sentenced to ten (10) years, with all but the first two (2) years suspended, subject to rules and conditions of probation. On December 6, 2017, the State filed an Application to Revoke Downum's suspended sentence, alleging he violated the terms of probation by violating a protective order issued in PO-2014-218. At the hearing on February 7, 2018, the District Court of Muskogee County, presided by the Honorable Norman D. Thygesen, revoked the remainder of Downum's suspended sentence. Downum now appeals, presenting the following propositions of error: 1. The State failed to prove by a preponderance of the evidence that Mr. Downum violated the terms of his probation by committing the new crime of violating a protective order; 2. The order of revocation is excessive based on the circumstances; 3. There exists a clerical error in the order revoking the suspended sentence that should be corrected by an order nunc pro tunc. **DECISION:** The revocation of Downum's suspended sentence is AFFIRMED. The scope of review in revocation appeals is limited to the validity of the revocation order. We examine the factual determination and consider whether the court abused its discretion. The trial court's findings will not be disturbed on appeal if there is evidence reasonably supporting them. Downum alleges the State did not prove he violated the protective order. In probation revocations, the State must prove violations by a preponderance of the evidence, and conflicting testimony was presented at the revocation hearing. The victim, T.H., claimed Downum contacted her on Facebook shortly after his release, which she found threatening due to their history. Downum testified the contact was accidental. Given the conflicting evidence, the court found sufficient grounds to support the violation, and we find no abuse of discretion in the decision to revoke Downum's sentence. As to Downum's claim of excessive punishment, we note that violation of even one condition of probation justifies full revocation, especially in this case where the violation occurred less than two weeks after his release. Regarding the clerical error in the Judgment filed February 9, 2018, it correctly reflects the need for a nunc pro tunc order to clarify that Downum was found guilty after a jury trial and not via a guilty plea. **CONCLUSION:** The order of the District Court of Muskogee County revoking Downum's suspended sentence in Case No. CF-2014-656 is AFFIRMED. The matter is REMANDED for entry of an order nunc pro tunc to correct the clerical error. **OPINION BY: LEWIS, P.J.:** **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **[Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-155_1734703626.pdf)**

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RE-2017-1128

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**OKLAHOMA COURT OF CRIMINAL APPEALS** **Case No. RE-2017-1128** **Elizabeth Kay Sears, Appellant,** **v.** **The State of Oklahoma, Appellee.** **FILED: MAY 16, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** **¶1** This matter is an appeal from the revocation of Appellant Elizabeth Kay Sears' suspended sentence in Logan County District Court Case No. CF-2013-295, presided over by the Honorable Louis A. Duel, Associate District Judge. **¶2** On January 14, 2014, Appellant entered a plea of guilty to two counts of Child Neglect (21 O.S.2011, § 843.5(C)) and one count of Harboring a Fugitive (21 O.S.2011, § 440). She was sentenced to eight years imprisonment for each count, with the first three years of each sentence to be served, while the remaining years were suspended. On October 3, 2014, the District Judge modified Appellant's sentence to five years imprisonment for each count, all suspended, to be served concurrently. **¶3** The State filed a 2nd Amended Motion to Revoke Suspended Sentence on December 29, 2016, citing several probation violations, including new charges of Second Degree Burglary and Possession of Paraphernalia, arising from Logan County District Court Case No. CF-2016-404. **¶4** Appellant was arraigned on January 26, 2017, entered a plea of not guilty, and subsequently requested a continuance for her revocation hearing, which was ultimately heard on October 25, 2017. The court revoked Appellant's five-year suspended sentences in full after considering the evidence and arguments presented. **¶5** In her first proposition of error, Appellant contends that the revocation order should be reversed and dismissed. She argues that there was no valid waiver of the required twenty-day hearing period following her plea of not guilty, as stipulated in 22 O.S.Supp.2016, § 991b(A). She maintains that the record does not sufficiently show she was informed of this requirement; thus, the motion to revoke should be dismissed. **¶6** However, Appellant's request for a continuance of her revocation hearing undermines her argument. The legal precedent established in *Grimes v. State*, 2011 OK CR 16, clearly states that a defendant who acquiesces in or seeks a continuance cannot later claim entitlement to relief based on noncompliance with the twenty-day requirement. Moreover, Appellant does not claim ineffective assistance of counsel regarding this issue, and it is presumed that her attorney acted competently. **¶7** In her second proposition of error, Appellant seeks clarification of the trial court's revocation order, specifically, concerning the credit for time served. Although the State acknowledges a potential misstatement by the trial court about the duration of time credited, Appellant did not raise this issue for correction in the trial court before bringing it to this Court. Typically, we do not intervene without a preliminary determination by the District Court. **¶8** However, we will modify the procedural requirement that previously necessitated an appellant to file a separate motion to address this issue. In the absence of clear clerical error, we remand this matter back to the District Court of Logan County to allow Appellant to seek an order nunc pro tunc regarding the time served, as outlined in her second proposition of error. **DECISION** The revocation of Appellant's suspended sentence in Logan County District Court Case No. CF-2013-295 is AFFIRMED. This case is REMANDED for proceedings consistent with this opinion. A mandate will be issued following the filing of this decision. **APPEARANCES** **Counsel for Defendant:** Lisbeth L. McCarty, Oklahoma City, OK **Counsel for Appellant:** Lane Fitz, Norman, OK **Counsel for State:** Emily Kirkpatrick, Asst. District Attorney, Guthrie, OK **Counsel for Appellee:** Mike Hunter, Oklahoma Attorney General, Oklahoma City, OK **OPINION BY:** KUEHN, V.P.J. **CONCUR:** LEWIS, P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-1128_1734708375.pdf)

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C-2018-225

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**COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. C-2018-225** **STATE OF OKLAHOMA** **Petitioner:** STEVEN LEON GRIMMETT **Respondent:** THE STATE OF OKLAHOMA **SUMMARY OPINION DENYING CERTIORARI** **Opinion by: LUMPKIN, JUDGE:** Steven Leon Grimmett (Petitioner) was charged with multiple felony counts and entered a blind plea of no contest. After sentencing, he sought to withdraw his plea, claiming coercion and misunderstandings regarding his sentence. His motion was denied, and he appealed the decision, raising several propositions of error. 1. **Coercion and Voluntariness of Plea**: Petitioner claimed his plea was coerced and involuntary. The court evaluated whether the plea was entered voluntarily and intelligently, emphasizing the importance of confirming that the plea was not the result of force or threats. The court concluded that evidence demonstrated the plea was voluntary. 2. **Advice on Sentencing Requirements**: The Petitioner contended he was not adequately informed about the 85% rule applicable to his sentence or the post-imprisonment supervision requirement. However, since these claims were not raised in his Motion to Withdraw Plea, the appellate court found he waived the right to contest these issues. 3. **Clerical Error Argument**: Petitioner argued there was a clerical error in the judgment regarding the requirement of post-imprisonment supervision. The court did not find this to be an obvious error but remanded the matter to the district court to address the claim. 4. **Effective Assistance of Counsel**: The court assessed his claims of ineffective assistance of both plea and withdrawal counsel using the Strickland test, which evaluates counsel's performance and whether any deficiencies prejudiced the defense. The court determined that Petitioner was sufficiently informed about his plea and that withdrawal counsel's performance did not constitute ineffective assistance. **DECISION**: The court affirmed the denial of the Motion to Withdraw Plea and remanded for the district court to address the clerical error regarding post-imprisonment supervision. **Counsel Information:** - **Counsel for Petitioner at Trial and Appeal**: Shelley Levisay, Kimberly D. Heinze - **Counsel for the State**: Adam Panter, Mike Hunter, David Hammer, Joshua Fanelli **Opinion filed: May 9, 2019** **Mandate ordered upon filing**. For full opinion documents, refer to [the PDF link here](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-225_1734103367.pdf).

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F-2013-1073

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In OCCA case No. F-2013-1073, George H. Pinkney appealed his conviction for possession of a controlled substance (marijuana) in the presence of a minor, among other charges. In a published decision, the court decided to modify his sentence for the first count to five years but upheld other convictions. One judge dissented regarding the sentence modification.

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C-2012-381

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In OCCA case No. C-2012-381, #1 appealed his conviction for #2. In a (published) decision, the court decided #3. #4 dissented. Gary Alan Stine took an Alford plea, which means he didn't admit guilt but accepted the punishment, to several serious crimes including indecent exposure and rape. He was sentenced to many years in prison, with some parts of his sentences running at the same time. Later, Stine tried to withdraw his guilty plea, claiming his sentence was unfair and that the participation of a guardian ad litem, who looks out for the interests of a child in court, negatively impacted his case. He believed this guardian acted too much like a prosecutor, which he thought was wrong. Stine also thought his lawyer did not help him properly during his case. The court looked carefully at everything, including the original records and what was said in court. They found that Stine's claims about both the guardian's role and his lawyer's performance were not valid. They noted that Stine had properly understood the charges against him and his sentence. Because of this, the court decided there wasn't enough reason to change Stine's plea or his sentence. They agreed that some parts of Stine's requests weren't even considered because they were not raised properly earlier. The court also found there was a mistake in the written document of his sentence that needed correcting, but that was just a small clerical issue, not a bigger problem with his case. In the end, the court denied Stine's petition to withdraw his plea and said they would correct the written sentence to match what was said in court.

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F 2009-70

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In OCCA case No. F 2009-70, Phillip Ray Herndon appealed his conviction for Assault and Battery with a Dangerous Weapon. In an unpublished decision, the court decided to affirm the conviction and the sentence of twenty years imprisonment. One member of the court dissented. Phillip Ray Herndon was found guilty in the Ottawa County District Court. The jury decided on a sentence of twenty years for his crime, which was based on his history of previous felonies. After his conviction, he claimed that the trial had some issues. Herndon pointed out a few problems he believed affected his trial. First, he argued that the judge should have allowed the jury to consider a lesser crime: simple Assault and Battery instead of Assault and Battery with a Dangerous Weapon. He thought this was unfair and took away his rights to a fair trial. Second, he argued that the evidence against him wasn't strong enough to prove he had used a dangerous weapon. He said there was no clear proof that the object he used was actually a dangerous weapon or that it could hurt someone badly. Lastly, he mentioned that the official court documents didn’t show an order that his new sentence would run at the same time as a sentence from another case. He wanted this to be fixed, calling for a correction to the official records. The court reviewed all the facts and evidence presented in the trial and decided that the judge did not make a mistake when refusing the request for the lesser offense. They agreed that there was enough evidence for the jury to convict Herndon of the more serious charge. They also acknowledged that the judge had ordered his sentence to run concurrently with another but agreed that the paperwork needed to be corrected. In the end, the court upheld the sentence of twenty years but sent the case back to fix the clerical error about the sentence running concurrently with Herndon’s other case.

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RE-2006-1312

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In OCCA case No. RE-2006-1312, Ronnie Ray Shelton appealed his conviction for Robbery by Force. In a published decision, the court decided to affirm the revocation of Shelton's suspended sentence. One member of the court dissented. Here is what happened: Shelton had been sentenced to ten years in prison for robbing someone, but he only had to serve three years if he followed the rules of his probation. However, on July 3, 2006, the State of Oklahoma said he broke the rules by committing new crimes, including Domestic Assault and Battery, Possession of a Controlled Substance, and Unlawful Possession of Drug Paraphernalia. A hearing took place on December 18, 2006, where Shelton had a lawyer. The judge said Shelton did violate his probation by committing Domestic Assault and Battery, which led to the decision to take away his suspended sentence completely. Shelton was not happy with this decision and decided to appeal it. In court, the judges reviewed if the decision to revoke Shelton's sentence was fair. They explained that to revoke a suspended sentence, there only needs to be enough evidence showing he broke the rules. They found enough evidence that Shelton did commit the necessary crime. The judges decided that taking away Shelton's suspended sentence was the right choice and there was no abuse of discretion in the judge's decision. However, they noted that there was a mistake in the paperwork regarding how long Shelton's sentence was supposed to be. The court said this mistake should be corrected to show his correct sentence. Ultimately, they agreed with the lower court's decision to revoke Shelton's sentence but ordered them to fix the error in the paperwork.

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F-2002-899

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In OCCA case No. F-2002-899, Edward John VanWoundenberg appealed his conviction for Driving While Under the Influence (DUI) after having two or more previous convictions. In an unpublished decision, the court decided to affirm the conviction and sentence. One judge dissented. VanWoundenberg was found guilty of DUI in a trial where a jury sentenced him to twenty years in prison. He raised several arguments in his appeal. He argued there were mistakes in the jury instructions, his sentence should be changed, a clerical error needed to be fixed, and that the combined effect of all the mistakes denied him a fair trial. The court reviewed all the information from the trial. It decided that VanWoundenberg’s case did not need to be reversed or changed, but there was a clerical mistake in the court documents that had to be corrected. The court found that the evidence did not support giving the jury instructions about lesser charges, and so the trial court acted correctly by not providing those instructions. VanWoundenberg also argued that his felony DUI sentence should not have been increased under a general law since it had already been raised under a specific DUI law due to his previous offenses. The court explained that it was legal to enhance (or increase) his sentence using a general law because he had many previous different felony convictions within the required time. The court pointed out that one of VanWoundenberg's arguments was mistaken; the rules allowed for both the specific and general laws to apply in his case. Finally, the court amended the total costs listed in the original court documents to a lesser amount due to a fee that should not have been included. In the end, the court confirmed VanWoundenberg's conviction and corrected the clerical error, but found no other issues that needed to change the outcome of the case.

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F-2003-22

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In OCCA case No. F-2003-22, Desean Terrell Poore appealed his conviction for Accessory After the Fact to First Degree Murder and Accessory After the Fact to First Degree Manslaughter. In an unpublished decision, the court decided that the conviction for Accessory After the Fact to First Degree Manslaughter should be reversed and dismissed, as it was found to be double punishment for a single action. The court also ordered corrections to the judgment's wording concerning the prior felony conviction.

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