Consecutive Sentences

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 In an unpublished decision, the court decided to reverse and remand Count 1 (accessory to burglary) with instructions to dismiss the charge, while affirming Count 2 (carrying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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F-2021-49

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In OCCA case No. F-2021-49, the Appellant appealed his conviction for using a vehicle to facilitate intentional discharge of a weapon, assault and battery with a deadly weapon, and feloniously pointing a firearm. In a published decision, the court decided to affirm the conviction for using a vehicle to facilitate the discharge of a firearm and for pointing a firearm but reversed and remanded the conviction for assault and battery with a deadly weapon with instructions to dismiss. One judge dissented regarding the interpretation of the statutes involved.

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F-2021-636

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In OCCA case No. F-2021-636, the appellant appealed his conviction for possession of explosives, possession of a stolen vehicle, using a security camera or system while committing a felony, and possession of a firearm after a former conviction of a felony. In an unpublished decision, the court decided to reverse and remand for a new trial on the charge of using a security camera while committing a felony. The court affirmed the judgment on all other counts. One judge dissented. Eric Casey Zeiset was found guilty after the jury trial in Grady County. He was sentenced to a total of 620 years in prison for multiple offenses, including possession of explosives and firearms. Zeiset challenged several aspects of the trial, specifically arguing there was not enough proof of his intent or possession of the explosives. He also claimed the trial court made mistakes in jury instructions and that his long sentence was excessive. The court examined the evidence presented during the trial. Four improvised explosive devices were found in Zeiset's home. Experts testified that the way the explosives were packaged suggested they were intended to be used harmfully. The court noted that Zeiset had a history of being armed and had surveillance cameras around his house, which supported the jury's decision on his intent to use the explosives for illegal purposes. The court addressed errors in jury instruction regarding one of the charges, ruling that the absence of required instructions on using a security camera was a significant mistake that needed to be corrected. However, the other convictions, including possession of explosives, were upheld based on the evidence provided. Overall, the court found that while there were significant points raised in the appeal, the conviction for possession of explosives was supported by enough evidence. The decision emphasized the importance of appropriate jury instructions for fair trials.

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F-2020-818

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In OCCA case No. F-2020-818, the appellant appealed his conviction for child sexual abuse and other related offenses. In an unpublished decision, the court decided that the State of Oklahoma did not have jurisdiction to prosecute the appellant. One judge dissented. The case involved Joseph Scott Bennett, who was convicted of several crimes, including child sexual abuse and possessing a firearm after a felony conviction. The jury sentenced him to life in prison without parole for the most serious crimes and additional years for firearm possession. Bennett argued that the State didn't have the right to prosecute him because the crimes took place on lands that are part of the Cherokee Nation, and he is recognized as a member of the Cherokee Nation. During the trial, Bennett tried to dismiss the charges based on the argument that the state court did not have jurisdiction because of a Supreme Court case known as McGirt v. Oklahoma. This case stated that some crimes committed by Native Americans on certain lands could only be prosecuted in federal court rather than state court. The trial court did not agree with Bennett's argument but allowed the issue to be reviewed later on appeal. The appeals court found that, following McGirt, it was established that the area where the crimes occurred was indeed a Cherokee Reservation, and since Bennett proved he was a member of the tribe, the state courts should not have held the trial. As a result, the court vacated Bennett's judgment and sentence, which meant that his convictions were canceled, and they instructed that the matter be dismissed. The case shows how legal rulings can change depending on new interpretations of jurisdiction and tribal rights under U.S. law.

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F-2019-115

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In OCCA case No. F-2019-115, Beck appealed his conviction for multiple serious crimes, including First Degree Burglary and Assault with a Dangerous Weapon. In a published decision, the court decided that the State of Oklahoma did not have the authority to prosecute him because he is recognized as an Indian and the crimes occurred in what is considered Indian Country. The result was that Beck's convictions were overturned, and the case was sent back with instructions to dismiss the charges. There was a dissenting opinion regarding the application of the law.

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F-2018-830

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In OCCA case No. F-2018-830, Charles Michael Cooper appealed his conviction for First Degree Murder, First Degree Arson, First Degree Burglary, and Second Degree Rape by Instrumentation. In an unpublished decision, the court decided that the State of Oklahoma did not have jurisdiction to prosecute Cooper because he is an enrolled member of the Chickasaw Nation and the crimes occurred within the boundaries of the Chickasaw Nation Reservation. The judgment and sentence were vacated, and the matter was remanded with instructions to dismiss the case. A Judge dissented regarding the conclusion about the Chickasaw Reservation's status.

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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-2017-998

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In OCCA case No. C-2017-998, Arnold Dean Howell appealed his conviction for First Degree Murder and First Degree Robbery. In an unpublished decision, the court decided to vacate Howell's convictions and remanded the case with instructions to dismiss it. One judge dissented. Howell had pleaded guilty to the charges in the District Court of Creek County and was sentenced to life imprisonment without the possibility of parole for the murder conviction and twenty-five years for the robbery conviction, with both sentences served one after the other. After the guilty plea, Howell filed a motion to withdraw it, which the district court denied. Howell then raised several issues in his appeal, questioning the state's authority to prosecute him, his competency to plead guilty, if his plea was made knowingly and voluntarily, whether he received good legal help, and if his sentence was too harsh. The important part of the appeal was Howell's claim regarding jurisdiction. He argued that the state did not have the right to prosecute him because he is considered an Indian under federal laws and the crimes happened within the Muscogee Creek Nation Reservation. This argument was based on a specific legal case called McGirt v. Oklahoma, which changed how certain cases with Indian individuals should be treated. In response to Howell's appeal, the court ordered a review of his case to determine if he was an Indian and if the crimes occurred on the reservation. During this review, both sides agreed on a few facts: Howell has Indian blood, is a registered citizen of the Muscogee Creek Nation, and the crimes did occur within the reservation. The district court accepted these facts. Following this information, the court concluded that Howell is legally an Indian and that the state did not have authority over the case. As a result, the court decided Howell's conviction could not stand, and they vacated the lower court's judgment and ordered the case to be dismissed. In conclusion, Howell's legal challenges about how his case was handled were significant enough to require a reversal of his convictions based on the jurisdictional issues brought up by the McGirt decision. This decision demonstrates how important it is to understand the laws regarding tribal lands and individual rights within the legal system.

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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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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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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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F-2018-975

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MICKEY JOE EDWARD RICHARDSON,** **Appellant,** **VS.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-975** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JAN 30 2020** --- **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Mickey Joe Edward Richardson, was convicted by a jury in Haskell County District Court, Case No. CF-2016-91, of several crimes, receiving the following sentences: - **Assault and Battery on a Police Officer**, After Conviction of a Felony (Count 1) - **5 years** - **Larceny of an Automobile**, After Conviction of a Felony (Count 2) - **20 years** - **Feloniously Pointing a Firearm**, After Conviction of a Felony (Count 4) - **30 years** - **Felon in Possession of a Firearm**, After Conviction of a Felony (Count 5) - **Life** - **Escape from Detention** (Count 8) - **1 year** On September 11, 2018, the trial court, presided by the Honorable Brian C. Henderson, Associate District Judge, imposed the jury-recommended sentences to be served consecutively. This appeal followed. Appellant raises six propositions of error: 1. **Misinstruction on Sentencing Range** for Possession of a Firearm After Conviction of a Felony. 2. **Violation of Fourteenth Amendment Due Process** regarding jury instructions. 3. **Improper Victim Impact Statements** affecting the fairness of the sentencing hearing. 4. **Abuse of Discretion** with respect to the policy of consecutive sentencing. 5. **Ineffective Assistance of Trial Counsel** violating constitutional rights. 6. **Cumulative Errors** affecting the fairness of the proceedings. After thorough consideration of the propositions, briefs, and the entire record, we affirm. Appellant was convicted after attacking a sheriff’s deputy, stealing a patrol car, and attempting to evade other officers. ### Analysis of Propositions: **Proposition I: Misinstruction on Sentencing Range** Appellant claims misinstruction regarding the sentencing range for Count 5, asserting it should be one to ten years under 21 O.S. 2011, § 1284. However, the jury was properly instructed on the sentencing range pursuant to 21 O.S.2011, §§ 51.1(A)(2) and 1284. **Proposition II: Jury Instruction on Statement Voluntariness** Appellant argues the trial court erred by not instructing the jury on the voluntariness of his statement to police. As Appellant testified and did not claim the statements were involuntary, this contention lacks merit. **Proposition III: Victim Impact Statements** Appellant objected to victim impact statements, claiming they were inadmissible since the crimes were not violent. However, one conviction (Pointing a Firearm) was classified as a violent crime, making the inclusion of the statements appropriate. **Proposition IV: Consecutive Sentencing Policy** Appellant alleges the trial court enforced a policy of consecutive sentencing for defendants who exercise their right to a jury trial. The record indicates the trial court exercised discretion properly, adhering to the statutory default for consecutive sentences. **Proposition V: Ineffective Assistance of Counsel** Appellant contends his trial counsel was ineffective for not objecting to previous claims. As we found those claims meritless, trial counsel cannot be faulted for failing to raise meritless objections. **Proposition VI: Cumulative Errors** No errors were identified in prior propositions, thus, there are no cumulative errors to evaluate. ### Decision The Judgment and Sentence of the District Court of Haskell County is **AFFIRMED**. Pursuant to Rule 3.15, the MANDATE is ordered issued upon the delivery and filing of this decision. --- **Appeal from the District Court of Haskell County** **The Honorable BRIAN C. HENDERSON, Associate District Judge** **Attorneys for Appellant: ROGER HILFIGER, SARAH MACNIVEN** **Attorneys for Appellee: CHRISTINA BURNS, MIKE HUNTER, ASHLEY L. WILLIS** **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-975_1734872271.pdf)

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C-2018-1018

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**Summary Opinion Denying Certiorari** **Case:** Spencer Joe Cuccaro v. State **Judging Authority:** Judge Hudson **Background:** Spencer Joe Cuccaro appealed from a ruling by the District Court of Kay County, where Judge David Bandy denied his application to withdraw pleas entered in three criminal cases. Cuccaro had participated in the Kay County Drug Court program and entered no contest pleas in various counts related to drug possession and other offenses, with a plea agreement tied to his performance in Drug Court. Cuccaro was allegedly coerced into his plea by a law enforcement officer and claimed to be unaware of the severe penalties he would face if he was unsuccessful in completing the Drug Court program. After being terminated from Drug Court for failing to meet its requirements and committing new crimes, Cuccaro received significant prison sentences. **Propositions of Error:** 1. Cuccaro argued that his no contest pleas were entered due to coercion and therefore were not knowing or voluntary. 2. He claimed he did not fully understand the severe consequences of failing the Drug Court program. **Court Findings:** - The Court reviews denials of motions to withdraw guilty pleas for abuse of discretion, primarily assessing if pleas were made knowingly and voluntarily. - Cuccaro's challenge regarding coercion lacked evidence, and testimony at the hearing supported the conclusion that his plea was made with an understanding of the consequences. - Regarding the claim about the punishment understanding, the court noted that fully detailed documentation outlined the potential life sentence in the event of failure in Drug Court, which Cuccaro was aware of before entering his plea. **Conclusion:** The court denied Cuccaro’s petition for a writ of certiorari, affirmed the lower court's judgment, and ruled that there was no abuse of discretion in denying the plea withdrawal. The case exemplifies the requirement for defendants to understand the implications of their plea agreements and the importance of voluntary and informed consent in legal proceedings.

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F-2018-835

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ANTHONY BRUCE HENSON, SR.,** Appellant, **V.** **THE STATE OF OKLAHOMA,** Appellee. Case No. F-2018-835 Summary Opinion FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JAN - 9 2020 **OPINION** *LEWIS, PRESIDING JUDGE:* Anthony Bruce Henson, Sr., Appellant, was tried by jury and found guilty on Counts 1 through 6 for sexual abuse of a child under twelve (12) years, violating 21 O.S.Supp.2014, § 843.5(F); and Count 7 for child abuse, violating 21 O.S.Supp.2014, § 843.5(A), in the District Court of Tulsa County, Case No. CF-2017-3127. The jury sentenced the Appellant to life imprisonment and a $1,000.00 fine for each of Counts 1 through 6, and six (6) years imprisonment for Count 7. The sentences were ordered to run consecutively, though the court did not impose the fines. The State dismissed Count 8, charging child abuse, prior to trial. The jury deadlocked on Counts 9 and 10, also charging sexual abuse of a child under twelve, leading the State to dismiss those counts. Mr. Henson raises the following propositions of error on appeal: 1. The District Court erred in admitting bad act evidence of pornography, violating provisions of the Oklahoma Evidence Code and denying due process and a fair trial under the Fourteenth Amendment. 2. The jury instruction concerning the other crimes evidence was erroneous, as it did not limit its admission purpose. 3. The consecutive life sentences are excessive and should be modified. 4. Appellant was denied effective assistance of counsel per the Sixth and Fourteenth Amendments. **Proposition One:** Appellant argues the trial court erred in admitting evidence of his possession of child pornography on a cell phone, which counsel did not object to at trial, waiving all but plain error. As established in *Simpson v. State*, Appellant must demonstrate that this plain error affected the trial's outcome. The Court finds no error in the admission of this evidence to show motive or intent for the charged crimes. **Proposition Two:** Appellant contends the trial court used an incorrect limiting instruction for the other crimes evidence of child pornography. The request for this instruction constituted a waiver of the standard error analysis. Although the court erred in using a modified instruction, it did not compromise the fairness or integrity of the judicial proceedings, thus, relief is unwarranted. **Proposition Three:** Appellant claims his six consecutive life sentences are excessive. The Court will not alter sentences within statutory limits unless they are so excessive that they shock the court’s conscience. The sentences here do not shock the conscience and are within legal limits. **Proposition Four:** The Appellant argues ineffective assistance of counsel for failing to object to inadmissible evidence and not requesting a proper limiting instruction. Following *Strickland v. Washington*, the Court finds no reasonable probability that the outcomes would have differed due to trial counsel's performance. **DECISION** The judgment and sentence are AFFIRMED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. --- **APPEARANCES** **AT TRIAL** Richard Koller, Attorney for Appellant Barbara Woltz **ON APPEAL** Nicole Dawn Herron, Attorneys for Defendant Katie Koljack, Mike Hunter, Mark Morgan, Asst. District Attorneys Sheri M. Johnson, Asst. Attorney General **OPINION BY:** Lewis, P.J. Kuehn, V.P.J.: Concur Lumpkin, J.: Concur in Results Hudson, J.: Concur Rowland, J.: Concur [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-835_1735212413.pdf)

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F-2018-989

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ARNULFO CAMPOS GONZALES, Appellant,** **V.** **THE STATE OF OKLAHOMA, Appellee.** **Case No. F-2018-989** **File Date: January 2020** **OPINION BY: ROWLAND, JUDGE** Appellant Arnulfo Campos Gonzales appeals his Judgment and Sentence from the District Court of Haskell County, Case No. CF-2017-197. He was convicted for Trafficking in Illegal Drugs, Conspiracy to Traffic Methamphetamine, and Conspiracy to Distribute Methamphetamine. His sentences included twenty-five years imprisonment for Count 1 and ten years each for Counts 2 and 3, ordered to be served consecutively. Gonzales raises several issues on appeal: 1. Denial of effective assistance of counsel due to a conflict of interest. 2. Double punishment for Counts 2 and 3. 3. Violation of the Fourth Amendment regarding the search of his car. 4. Deficient jury instructions on conspiracy. 5. Ineffective assistance of counsel due to failure to suppress and object to instructions. 6. Abuse of discretion in consecutive sentencing. **1. Conflict of Interest** Gonzales argues that he was denied his Sixth Amendment right to effective assistance of counsel due to defense counsel’s prior representation of a co-defendant, Samantha Johnson, who testified against him. The court examined whether an actual conflict arose during representation, determining that Gonzales failed to demonstrate that the former representation affected counsel's performance. The court found that Johnson’s testimony largely did not implicate Gonzales and that counsel's representation was sufficient. **2. Multiple Punishment** Gonzales contends that sentencing him for conspiracy to traffic and conspiracy to distribute methamphetamine violates the prohibition against multiple punishments for the same act. The court found both counts stemmed from a single agreement concerning the same methamphetamine and that the convictions constituted a violation of Section 11. The court remanded the case for dismissal of Count 3. **3. Fourth Amendment** Gonzales did not properly contest the legality of the search of his car and thus the court reviewed this claim for plain error. The court concluded that Gonzales had not demonstrated that the timeline of events during the traffic stop violated his rights, as he consented to the search prior to its execution. **4. Jury Instructions** Gonzales argued that jury instructions were insufficient as they failed to name the conspirators. However, the court determined the instructions, when read as a whole, properly conveyed the necessary information. Gonzales did not establish any plain error regarding jury instructions. **5. Ineffective Assistance of Counsel** This claim was evaluated under the standard set by Strickland v. Washington. The court found no prejudice affecting the outcome as Gonzales could not demonstrate ineffective assistance. **6. Consecutive Sentences** Gonzales claims the district court abused its discretion in imposing consecutive sentences. The prosecutor’s remark about a presumed policy did not demonstrate that the district court failed to exercise discretion. The court affirmed its decision as the record supported the imposition of consecutive sentences. **DECISION** The Judgment and Sentence is AFFIRMED for Counts 1 and 2. Count 3 is DISMISSED. Gonzales’s Application for Evidentiary Hearing is DENIED. **APPEARANCES** *AT TRIAL* Roger Hilfiger, Counsel for Defendant *ON APPEAL* Ariel Parry, Appellate Counsel Christina Burns, Assistant District Attorney Mike Hunter, Attorney General of Oklahoma **OPINION BY: ROWLAND, J.** **LEWIS, P.J., KUEHN, V.P.J., LUMPKIN, J., HUDSON, J.:** Concur. [PDF Download Link](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-989_1734871593.pdf)

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F-2018-136

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In OCCA case No. F-2018-136, Michael Emmanuel Ishman appealed his conviction for Murder in the First Degree, Robbery with a Dangerous Weapon, and Possession of a Firearm After Former Felony Conviction. In an unpublished decision, the court decided to affirm Ishman's conviction and sentencing. One judge dissented. The case involved Ishman who was trialed and convicted by a jury. He was sentenced to life imprisonment with the possibility of parole for each count, with all sentences running consecutively. Ishman raised several arguments in his appeal regarding the evidence presented, jury instructions, and the conduct of his trial. The court found that the evidence was sufficient to support the conviction for robbery and determined that the witness's corroboration was not required as she was not considered an accomplice. The court also addressed claims of instructional errors regarding the punishment range for firearm possession, finding that the errors were harmless because the jury recommended the maximum sentence. Moreover, the court dismissed claims about the introduction of evidence of other bad acts and the failure to instruct the jury on lesser offenses. The court determined that defense counsel performed adequately, stating that there was no evidence that any of the claimed errors affected the trial's outcome. The court summarized that the jury's recommendation of life sentences was appropriate given the circumstances of the case, and affirmed all judgments made by the trial court. Overall, the court did not find sufficient grounds for relief based on Ishman's claims and decided to uphold the conviction and sentencing.

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C-2019-25

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Filed December 12, 2019** **Conner E. Dover, Petitioner, Case No. C-2019-25** **v.** **The State of Oklahoma, Respondent.** **SUMMARY OPINION DENYING CERTIORARI** LEWIS, PRESIDING JUDGE: Conner E. Dover, Petitioner, pled guilty to Count 1, unauthorized use of a motor vehicle, in violation of 47 O.S.2011, § 4-402; and Count 2, aggravated attempting to elude a police officer, in violation of 21 O.S.2011, § 540(A)(B), in the District Court of Oklahoma County, Case No. CF-2018-610. The Honorable Ray C. Elliott, District Judge, accepted the plea and delayed sentencing pending Petitioner's completion of a Regimented Inmate Discipline program. Judge Elliott later sentenced Petitioner to five (5) years imprisonment for each count, to be served consecutively. Petitioner filed an application to withdraw the plea, which was denied. He now seeks a writ of certiorari, asserting the following proposition of error: The trial court abused its discretion by not allowing him to withdraw his guilty plea when the court did not intend to sentence him in accordance with the plea agreement. Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a court of competent jurisdiction (Weeks v. State, 2015 OK CR 16, ¶ 11, 362 P.3d 650, 654); whether the sentence is excessive (Whitaker v. State, 2015 OK CR 1, ¶ 9, 341 P.3d 87, 90); whether counsel was constitutionally effective (Lozoya v. State, 1996 OK CR 55, ¶ 27, 932 P.2d 22, 31); and whether the State has the authority to prosecute the defendant at all (Weeks, 2015 OK CR 16, ¶ 12, 362 P.3d at 654). A valid plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant (North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L.Ed.2d 162 (1970)). We review the denial of a motion to withdraw a plea for an abuse of discretion (Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998), unless it involves a question of statutory or constitutional interpretation, which we review de novo (Weeks, 2015 OK CR 16, ¶ 16, 362 P.3d at 654). We find that Petitioner's plea was knowingly and voluntarily entered. Petitioner’s dissatisfaction with the sentences he received does not provide sufficient grounds for withdrawal of a plea (Lozoya, 1996 OK CR 55, ¶ 44, 932 P.2d at 34; Estell v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380, 1383). The trial court did not abuse its discretion by denying Petitioner's motion to withdraw the plea. No relief is warranted. **DECISION** The petition for the writ of certiorari is DENIED. 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 delivery and filing of this decision. **APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE** **APPEARANCES AT TRIAL** ROBIN BRUNO ANDREA DIGILIO MILLER DANNY WHITE 320 ROBERT S. KERR # 611 OKLAHOMA CITY, OK 73102 ATTORNEY FOR APPELLANT (PLEA & SENTENCING) **APPEARANCES ON APPEAL** THOMAS P. HURLEY 320 ROBERT S. KERR # 611 OKLAHOMA CITY, OK 73102 (WITHDRAWAL) ATTORNEYS FOR DEFENDANT DAN POND ASST. DISTRICT ATTORNEY 320 ROBERT S. KERR # 505 OKLAHOMA CITY, OK 73102 ATTORNEY FOR THE STATE **OPINION BY:** LEWIS, P.J. **KUEHN, V.P.J.:** Concur in Results **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur For more details, [click here to download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2019-25_1733763771.pdf).

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F-2018-1137

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This document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding the appeal of Parron Lavon Burrus. Burrus was convicted of conspiracy to distribute methamphetamine and possession of a controlled substance with intent to distribute, after being found guilty by a jury in the District Court of Caddo County. The court sentenced him to 30 years in prison for the first count and 25 years for the second, running consecutively. In the appeal, Burrus contended that the sentences were excessive and should be modified. He argued that the offenses were interconnected and that the trial court exhibited prejudice against him during sentencing, referencing the requirement for his testimony to be under oath and the judge's prior role in prosecuting him. However, the appellate court affirmed the trial court's judgment and sentence. The court noted that the sentences fell within the statutory range, that there is no constitutional right to concurrent sentences, and that Burrus did not demonstrate that the trial judge's actions or previous involvement in prior prosecutions caused an unfair sentencing outcome. The court concluded that there was no abuse of discretion in sentencing, emphasizing the separate nature of the offenses committed by Burrus. In essence, the appeal was denied, and the court's decision was upheld, confirming the sentences imposed on Burrus.

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F-2018-566

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This text is a legal opinion from the Oklahoma Court of Criminal Appeals regarding the case of Keenan Lynn Holcomb, who was convicted of multiple crimes including first degree murder, unlawful removal of a dead body, kidnapping, and forcible oral sodomy. The appeal discusses various propositions raised by the appellant, including issues with the admission of evidence, sufficiency of evidence for specific charges, claims of ineffective assistance of counsel, and concerns about the trial court's discretion regarding credit for jail time served. The court ultimately affirmed the convictions and sentences, concluding that the trial court did not abuse its discretion in its rulings, that the evidence was sufficient to support the convictions, and that claims of ineffective assistance and other errors did not merit relief. The opinion emphasizes the role of the jury in determining the facts of the case, as well as the importance of the defendant's right to confront witnesses and the sufficiency of prior cross-examination. For further reading or reference, a PDF of the full opinion is available through the provided link.

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F-2018-626

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In the case of Carl Douglas Crick, Jr. v. The State of Oklahoma, the Court of Criminal Appeals of Oklahoma reviewed Crick's appeal following a jury trial that found him guilty of multiple counts of sexual offenses, including first degree rape and lewd acts with a child. Crick received life sentences for certain counts, while others received lesser prison terms. The trial court ordered some sentences to run concurrently and others consecutively. Crick's main contention on appeal was that he received ineffective assistance of counsel, specifically citing his attorney's failure to present certain witnesses and to object to improper testimony from a prosecution witness that allegedly vouched for the credibility of the victim. The court applied the standard set forth in Strickland v. Washington, which requires the appellant to show that his counsel’s performance was deficient and that this deficiency prejudiced the outcome of the trial. The court determined that the evidence presented by Crick did not clearly demonstrate a strong possibility that counsel’s performance fell below constitutional standards. As such, Crick's request for an evidentiary hearing to further explore these claims was denied. The court also assessed the claim concerning the prosecution witness's testimony. It concluded that the alleged vouching was not comparable to previous cases that warranted reversal, thus affirming that counsel's choice not to object did not amount to deficiency. Ultimately, the Court of Criminal Appeals affirmed the judgment and sentence of the trial court, indicating that Crick had not established a violation of his right to effective counsel. The decision was issued with a note for the mandate to be ordered upon delivery and filing of the decision.

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F-2018-477

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In OCCA case No. F-2018-477, Gerald L. Taylor appealed his conviction for Robbery with a Firearm and Unlawful Possession of a Firearm by a Convicted Felon. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Gerald L. Taylor was found guilty of serious crimes, including robbery using a firearm and having a firearm when he was not allowed to have one due to past convictions. The trial took place in Oklahoma County, where the judge sentenced Taylor to a total of thirty-five years in prison. Taylor raised several issues on appeal. First, he argued that his incriminating statements should not have been allowed in court because he wanted to remain silent. The court looked at whether he had clearly stated this right. It found that even though he initially said he didn’t want to talk, he later chose to answer questions. Therefore, the court believed he willingly spoke to police after being informed of his rights and upheld the decision to admit his statements. Second, Taylor claimed that the trial judge made a mistake by not allowing the removal of a juror who he thought could not understand English well enough to participate in the trial. However, the judge questioned the juror and decided she was competent. Since Taylor had not properly objected to the juror's presence and even invited the situation, this issue was not considered a strong point for his appeal. Third, Taylor stated that his lawyer did not help him effectively, especially concerning the juror issue. However, the court found that despite any possible mistakes, the evidence against Taylor was very strong. His lawyer’s actions did not cause him to lose a fair trial. Lastly, Taylor claimed that even if no single error was enough to change his conviction, the overall combination of issues should lead to a new trial. The court ruled that there were no errors significant enough to warrant a new trial or change in his sentence. In conclusion, the court upheld the original judgment and Taylor's sentences, indicating that he received a fair trial despite his complaints.

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F-2018-341

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In OCCA case No. F-2018-341, Anthony Kejuan Day appealed his conviction for several charges. In a published decision, the court decided to affirm the judgment and sentence against him. One judge dissented. Mr. Day was convicted of assault and battery on a police officer, conspiracy to cause violence, possession of a firearm after a felony conviction, obstructing an officer, and resisting an officer. The trial court sentenced him to a total of twenty-five years for the first charge, with additional long sentences for the others. Mr. Day argued that the trial court made several mistakes. He claimed that the prosecution unfairly excluded African-American jurors, that changes to the charges against him were wrong, that he was punished too harshly for similar actions, and that his sentences should not have run one after the other but rather together. The court examined each argument. For the claim about jurors, it decided that the trial court acted properly and that there was no discrimination. Regarding the changes to the charges, the court found no clear mistakes that would have harmed Mr. Day's case. The court also rejected his argument about facing double punishment for similar offenses. Finally, it determined that the trial court was correct in allowing the sentences to be served consecutively. In conclusion, the court upheld the decision of the trial court and affirmed Mr. Day's convictions and sentences.

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F-2018-749

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **RALPH WILLIAM SISCO, JR.,** ) Appellant, ) vs. ) **THE STATE OF OKLAHOMA,** ) Appellee. ) **Case No. F-2018-749** ) **FILED** ) **IN COURT OF CRIMINAL APPEALS** STATE OF OKLAHOMA ) **SEP 19 2019** ) **SUMMARY OPINION** JOHN D. HADDEN CLERK ROWLAND, JUDGE: Appellant Ralph William Sisco, Jr. appeals his Judgment and Sentence from the District Court of Nowata County, Case No. CF-2017-123, for Lewd Molestation (Counts 1 and 2), in violation of 21 O.S.Supp.2015, § 1123. The Honorable Curtis L. DeLapp, District Judge, presided over Sisco's jury trial and sentenced him, in accordance with the jury's verdict, to twenty-five years imprisonment on each count, ordered to be served consecutively. The trial court also imposed three years of post-imprisonment supervision. Sisco raises several issues on appeal: 1. **Sufficiency of Evidence**: He questions whether the evidence presented was sufficient to convict him beyond a reasonable doubt for Lewd Molestation in Count 2. The court holds that the State proved each element of the crime beyond a reasonable doubt. 2. **Preliminary Hearing**: Sisco challenges his binding over at the preliminary hearing due to the introduction of hearsay evidence. The court finds he waived his right to challenge this by failing to object during the hearing. 3. **Admission of Other Crimes Evidence**: He contends that the trial court erred by allowing evidence of other crimes and bad acts. The court concludes that the evidence was part of the res gestae of the charged offenses and was properly admissible. 4. **Jury Instructions**: Sisco claims the court erred in not instructing the jury on lesser offenses, including child abuse. The court finds no error; the lack of evidence to support such an instruction means it was not warranted. 5. **Effective Assistance of Counsel**: He argues that he received ineffective assistance of counsel for various reasons, including failure to object to hearsay and other crimes evidence. The court holds that there were no deficiencies in counsel’s performance affecting the trial's outcome. 6. **Consecutive Sentences**: He contends the trial court abused its discretion in ordering his sentences to be served consecutively. The court finds no abuse of discretion in this decision. 7. **Cumulative Errors**: Sisco asserts cumulative errors warrant a new trial. The court finds no individual errors that, taken together, deprived him of a fair trial. **DECISION**: The Judgment and Sentence of the district court is **AFFIRMED**. **OPINION BY**: ROWLAND, J. **LEWIS, P.J.**: Concur **KUEHN, V.P.J.**: Specially Concur **LUMPKIN, J.**: Concur in Results **HUDSON, J.**: Concur **KUEHN, V.P.J., SPECIALLY CONCUR**: I agree that the convictions should be affirmed but note that as to Count II, the evidence does not support an instruction on a lesser offense due to the nature of the charge and the evidence presented. --- **[Full Text Document PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-749_1735218036.pdf)**

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F-2018-194

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In OCCA case No. F-2018-194, the appellant appealed his conviction for sexual abuse of a child under twelve and child sexual abuse. In an unpublished decision, the court decided to affirm the convictions. One judge dissented. The appellant, William Harold Pittman, was convicted by a jury for serious crimes against children. The jury gave him a punishment of thirty years in prison for each crime, and both sentences were meant to be served one after the other. The judge who oversaw the trial also ordered the appellant to pay various costs and fees. Pittman appealed his conviction, claiming that the trial court made a mistake by allowing expert testimony about something called the Child Sexual Abuse Accommodation Syndrome (CSAAS). He argued that this evidence was not relevant and should not have been allowed, saying it was not proven to be reliable. The court explained that the decision to allow expert evidence is usually up to the trial judge. If a specific objection is made during the trial, then the appeal cannot rely on a different argument later. Pittman did not object during the trial to the CSAAS evidence based on its relevance or reliability, which made his chance for appeal more difficult. To win an appeal based on a plain error, the appellant needs to show three things: that there was a real error, that it was obvious, and that the error affected the case's outcome. The court found that Pittman could not prove any such errors in this case. The court stated that previously, CSAAS had been accepted as reliable evidence in prior cases. This evidence can help explain why some children might take a long time to talk about the abuse or might change their statements after initially making claims. In this case, the court confirmed that the CSAAS evidence was relevant to the victim's delay in talking about the abuse. Pittman also claimed that there wasn't enough data to prove CSAAS was reliable and asked the court to reconsider accepting it as reliable evidence. However, the court refused to change its stance, stating that it would not revisit this issue. Lastly, Pittman argued that the CSAAS testimony was too supportive of the victim's story and could not be considered harmless. The court pointed out that this evidence was permissible because it only served to support what the victim and other witnesses testified about. The court ultimately found no errors in the trial regarding the way CSAAS evidence was handled, and therefore affirmed the judgments and sentences against Pittman.

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PC-2018-723

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**Summary of Court Decision: Shawn A. Detwiler v. The State of Oklahoma** *Case Overview:* Shawn A. Detwiler sought post-conviction relief related to multiple convictions stemming from offenses committed as a juvenile, including armed robbery and shooting with intent to kill. After initially pleading guilty to several charges and receiving concurrent sentences, he argued that the combination of his consecutive sentences constituted a de facto life without parole sentence, violating his Eighth Amendment rights. *Key Points of Rulings:* 1. **Case Summation:** Detwiler was convicted on several counts involving crimes such as burglary, robbery, and assault. His sentences ranged from 5 years to life imprisonment, some being discharged over time. 2. **Legal Precedents Cited:** Detwiler's argument was heavily reliant on the legal interpretations established in *Graham v. Florida*, *Miller v. Alabama*, and *Montgomery v. Louisiana*, which emphasize that juvenile offenders should not be sentenced to life without parole for non-homicide crimes. 3. **District Court's Findings:** The District Court found that since Detwiler was not sentenced to life without parole or its functional equivalent, the Eighth Amendment protections cited in those cases did not apply. 4. **Aggregate Sentencing Argument:** Detwiler contended that his sentences, when viewed collectively, equated to a de facto life sentence. However, the court maintained that each sentence should be evaluated independently. 5. **Response to Tenth Circuit Precedent:** The Oklahoma Court of Criminal Appeals referred to a prior ruling (Martinez v. State) which rejected the idea of viewing multiple sentences in aggregate for Eighth Amendment analysis. 6. **Conclusion by the Court:** Detwiler's post-conviction relief was ultimately denied. The court established that he has the potential for parole consideration and has not received sentences that deal with him as if he was sentenced to life without parole as per the noted precedents. *Dissenting Opinions:* 1. Judge Lewis dissented, arguing that consecutive sentences for multiple serious offenses committed as a juvenile effectively mean a lifetime sentence without a realistic chance for release, which may constitute cruel and unusual punishment. 2. The dissent emphasized that juveniles should be given a chance to demonstrate maturity and rehabilitation, which the current sentencing practices do not permit. 3. It was asserted that the framework of Graham should extend to prevent the imposition of excessively punitive aggregated sentences for juveniles, thereby relieving them of permanent confinement without the chance for parole. *Final Notes:* The court's ruling underscores ongoing debates about sentencing juveniles, the interpretation of constitutional protections, and the lengths of sentences impacting juvenile offenders. The dissent highlights the critical need for opportunities for rehabilitation and review in cases involving young individuals.

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