Distribution

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 In an unpublished decision, the court decided to reverse the conviction and dismiss the case.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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C-2018-927

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SAHIB QUIETMAN HENDERSON,** **Petitioner,** **v.** **THE STATE OF OKLAHOMA,** **Respondent.** **Case No. C-2018-927** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **MAY 30, 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Sahib Quietman Henderson entered a blind plea of guilty to Distribution of a Controlled Dangerous Substance within 2,000 feet of a School in the District Court of Stephens County, Case No. CF-2016-393. The plea was accepted by the Honorable Ken J. Graham, District Judge, on April 30, 2018, with sentencing delayed until July 25, 2018. On that date, Petitioner was sentenced to thirty (30) years in prison, with the first fifteen (15) years to be served and the remaining fifteen (15) years suspended, alongside a fine of $2,500.00. On August 2, 2018, represented by counsel, Petitioner filed an Application to Withdraw Plea of Guilty. At hearings on August 20 and 22, 2018, Judge Graham denied the motion to withdraw. Petitioner appeals the denial and raises the following propositions of error: 1. Failure of the State and District Court to honor the promised consideration for Appellant's plea requires modification of his inflated sentence, or an opportunity to withdraw his plea. 2. The sentence is shockingly excessive given the circumstances of the case. 3. Ineffective assistance of counsel in identifying, presenting, and preserving issues for review. After thorough review of these propositions and the entirety of the record, including original record, transcripts, and briefs, we find that neither reversal nor modification is required. Our primary concern in evaluating the validity of a guilty plea is whether the plea was entered voluntarily and intelligently. Petitioner carries the burden of proving his plea was entered unadvisedly, through influence, or without deliberation. Voluntariness is assessed through the entire record. In **Proposition I**, Petitioner claims that the plea lacked a knowing and voluntary nature due to non-fulfillment of a promise that he would be sentenced as a first-time offender and because of purported drug buys by his wife reducing his sentence. Contrary to this argument, the record shows Petitioner was treated as a first-time offender, with the court considering the mitigating factors at sentencing. His dissatisfaction with the resulting sentence does not provide grounds for withdrawal of the plea. In **Proposition II**, Petitioner contends the sentence is excessive. However, as he did not raise this claim in his Application to Withdraw Guilty Plea to the trial court, it is waived on appeal. In **Proposition III**, Petitioner argues ineffective assistance of counsel during both the plea and withdrawal hearings. A claim for ineffective assistance of counsel is only established by showing that counsel's performance was deficient and that it resulted in prejudice to the defendant. The record does not support that withdrawal counsel's performance was deficient or that it affected the outcome—Petitioner maintained he did not wish to withdraw his plea but rather sought a sentence modification. **DECISION** The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon this decision. --- **APPEARANCES IN DISTRICT COURT:** Grant D. Shepherd 601 S.W. C Ave., Ste. 201 Lawton, OK 73501 Counsel for the Defense **APPEARANCES ON APPEAL:** Kimberly D. Heinze P.O. Box 926 Norman, OK 73070 Counsel for Petitioner at the Plea Hearing Ronald L. Williams P.O. Box 2095 Lawton, OK 73502 Counsel for the Defense at the Withdrawal Hearing Jason M. Hicks District Attorney Cortnie Siess & Greg Steward Assistant District Attorneys Stephens Co. Courthouse 101 S. 11th St., Duncan, OK 73533 Counsel for the State **OPINION BY:** LUMPKIN, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur --- [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-927_1734182885.pdf)

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F-2012-168

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In OCCA case No. F-2012-168, Tommie Joe Moore appealed his conviction for Distribution of a Controlled Dangerous Substance, Possession of a Controlled Dangerous Substance, and Trafficking in Illegal Drugs. In a published decision, the court decided to affirm Moore's convictions but modified his fine on one count. One judge dissented. Moore was found guilty after a jury trial and received a sentence of twenty years for Distribution and a $25,000 fine, ten years for Possession and a $7,500 fine, and twenty-five years for Trafficking with another $25,000 fine. The sentences for the Distribution and Possession counts were ordered to be served at the same time, but the Trafficking sentence was to be served afterward. Moore raised several points in his appeal. He argued that the fine for the Distribution count was too high and that it should be corrected. He claimed that the jury should have been instructed about a lesser charge related to Possession and that he did not get a fair trial because of mistakes made during the trial, including some comments made by the prosecution. He also stated that the sentences he received were too harsh and should not have been served one after another, but at the same time. After reviewing all the evidence and arguments, the court agreed that the fine for the Distribution count was indeed too high and changed it to $10,000. However, the court found that there was no need for a lesser charge instruction, and that the prosecution's actions did not affect the fairness of Moore's trial. The sentences given to Moore were within legal limits, and the court did not think they were excessively harsh. In the end, the court affirmed Moore's convictions but made a change to reduce the fine in one of the counts. This meant that while the convictions stood, Moore would not have to pay the original high fine, and he could continue to serve his sentences as ordered.

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F-2007-1253

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In OCCA case No. F-2007-1253, L. V. Drennon, III, appealed his conviction for distribution of a controlled dangerous substance (CDS) within 2000 feet of a school and conspiracy to commit a felony. In a published decision, the court decided to affirm the conviction but modify the sentence. One judge dissented. Drennon was found guilty of having marijuana and methamphetamine with the intention to distribute, as well as taking part in a conspiracy to distribute these drugs. He was sentenced to 40 years for each of these charges, which would be served at the same time. Drennon argued that he did not receive good help from his lawyer and that his punishment was too harsh. The court looked carefully at Drennon's claims and the evidence surrounding the case, including courtroom records and transcripts. They found that Drennon's lawyer had provided him with reasonable help. Regarding the punishment, the court discovered that the jury had been given wrong information about the length of the possible sentences for the crimes. They had been wrongly told that Drennon faced a longer-term sentence than what was actually correct. The correct rules allow for a shorter minimum sentence of 6 years for possession with intent to distribute and a minimum of 4 years for conspiracy after previous felony convictions. Because of this mistake, the court decided that the jury's punishment was too extreme. As a result, they changed Drennon's sentences to 20 years for each charge, to be served at the same time. In summary, the court agreed with the conviction but changed the length of Drennon’s sentence due to the mistakes made about punishment options.

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F-2004-527

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In OCCA case No. F-2004-527, Christopher Dwayne McGee appealed his conviction for distribution of a controlled substance and conspiracy to distribute a controlled dangerous drug. In a published decision, the court decided to reverse the conviction for conspiracy and dismiss that count due to insufficient evidence, while affirming the conviction for distribution. One judge dissented on certain issues. McGee was found guilty in the District Court of Stephens County for distributing a controlled substance and conspiring to distribute another. He received a twenty-year sentence and a fine for each count. He appealed his convictions based on five main arguments. First, McGee claimed there was not enough evidence to support his conspiracy conviction. The court agreed with this claim, stating that for a conspiracy to exist, there must be two parties who agreed to commit the crime. Since there was no evidence showing that another person was involved in the agreement with McGee, the conspiracy charge was dismissed. Second, McGee argued he was denied his right to present mitigating evidence to the jury. The court noted that character evidence is generally not allowed in non-capital cases, therefore finding his claim without merit. Third, McGee said he was denied the right to represent himself in court. However, the court found that he had withdrawn his request to act as his own attorney, so this claim was also dismissed. Fourth, he argued that he did not receive effective assistance from his attorney. The court concluded that McGee's lawyer had successfully achieved the dismissal of two other charges against him and did not fail in his responsibilities. Finally, McGee felt that he had been wrongly made to defend against his past convictions during the trial. The court explained that after a previous plea deal was canceled, his case was reset as if no plea had happened, and thus, he was not unfairly treated by needing to defend against prior offenses. In summary, the court affirmed McGee's conviction for distribution but reversed and dismissed the conspiracy conviction due to a lack of evidence.

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F-2004-268

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In OCCA case No. F-2004-268, Martin Roy Romero appealed his conviction for drug-related crimes. In an unpublished decision, the court decided to reverse one of his convictions but upheld the rest. A judge dissented in part. Romero was found guilty by a jury in Stephens County for three charges: Conspiracy to Traffic in Methamphetamine, Trafficking in Methamphetamine, and Using a Minor to Distribute Methamphetamine. He was sentenced to several years in prison and significant fines. Romero raised several issues on appeal. He claimed that the prosecutor's actions during the trial were unfair and affected his chances for a fair trial. He also argued that he should not have been punished for both conspiracy and trafficking crimes because they stemmed from the same act, saying it was a violation of his rights against double punishment. He thought that the evidence used to convict him of conspiracy was not enough. Lastly, he felt that it was wrong to convict him of using a minor for trafficking and trafficking itself, again arguing it was related to the same act. After reviewing the case, the court found that one of the convictions for trafficking was indeed improperly counted and reversed that decision. They decided that his actions did not violate the rule against double punishment for the other charges. The court concluded that there was enough evidence to support the conspiracy charge. However, the conviction for trafficking was reversed because the same act could not support two different charges. In summary, the court agreed with Romero about the double punishment issue regarding trafficking, but upheld the other convictions. The final decision reversed and remanded the trafficking charge while affirming the rest.

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F-2003-717

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In OCCA case No. F-2003-717, Paul Delmer Morgan appealed his conviction for Distribution of a Controlled Dangerous Substance (Cocaine). In an unpublished decision, the court decided to affirm Morgan's conviction but modified his sentence. One judge dissented. Morgan was found guilty and sentenced to life in prison and a $100,000 fine. He challenged his conviction by claiming there were six main problems with the trial. First, he argued that there was evidence shown to the jury about other crimes he committed, which he felt was unfair. Second, he said the judge should have told the jury how to use statements from a witness who had changed his story. Third, he thought the judge did not properly warn the jury about trusting the informant’s testimony. Fourth, he believed the fine he received was too high because of how the judge gave instructions to the jury. Fifth, Morgan thought that his sentence was too harsh. Lastly, he claimed that taken together, these errors made it impossible for him to have a fair trial. After reviewing everything, the court found that the evidence about the other crimes was closely connected to his current case, so it could be allowed. They also noted that Morgan did not object to it during the trial, which meant he could not easily argue against it now. Regarding the witness’s inconsistent statements, the court agreed that the judge should have explained this to the jury, but they ruled that it did not hurt Morgan's case. The informant's testimony was supported by other evidence, so the lack of instruction on that wasn't a problem. They also decided that the fine imposed on Morgan was too high. Instead of $100,000, they lowered it to the maximum allowed by law, which was $10,000. Finally, the court felt that a life sentence for selling a small amount of cocaine was too extreme, even with Morgan’s prior criminal record. They changed his sentence to 20 years in prison instead. In conclusion, while the court confirmed Morgan's conviction, they modified his sentence to 20 years and a $10,000 fine. However, one judge disagreed with modifying the sentence, believing that the jury had made the right decision based on the evidence they had.

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F-2002-808

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In OCCA case No. F-2002-808, Milton Veran Williams appealed his conviction for distribution and possession of crack cocaine. In an unpublished decision, the court decided that his convictions for possession with intent to distribute and maintaining a place for selling drugs were reversed and dismissed, but his conviction for distribution was affirmed with a reduced fine. One judge dissented, believing the entry into Williams' home was justified under exigent circumstances.

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F-2002-470

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In OCCA case No. F-2002-470, Dearel Oglesby appealed his conviction for Distribution of a Controlled Substance (Methamphetamine). In an unpublished decision, the court decided to affirm his conviction but modify his sentence to 20 years in prison with a $20,000 fine. One judge dissented. Dearel Oglesby was found guilty by a jury of selling methamphetamine. He was sentenced to life in prison, which he believed was too harsh. Oglesby raised four main issues in his appeal. First, he claimed that the trial allowed some evidence that should not have been included according to the state’s rules. The court found that even though one lab report was late, it was not a major issue since it didn't harm Oglesby’s case. Second, Oglesby argued that he did not get his right to a preliminary hearing, but the court found there was enough evidence to prove there might have been a crime. Third, he was concerned that the jury saw evidence about other drug sales he allegedly made, which he thought was unfair. The court noted that while some of this evidence was not really necessary, the prosecutor did not act on it inappropriately. Finally, Oglesby spoke about a witness being added during the trial, but the court felt that was handled correctly since it wasn’t a key part of the case. The judges found that Oglesby’s punishment was extreme considering the small amount of drugs involved, so they decided to reduce his sentence instead of just keeping the life sentence. This decision was met with some disagreement from one judge, who thought the evidence was relevant and that the original sentence should stay as is.

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F-2001-1338

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In OCCA case No. F-01-1338, Henderson appealed his conviction for Distribution of a Controlled Substance (Cocaine) and Conspiracy to Distribute a Controlled Dangerous Substance. In an unpublished decision, the court decided to affirm the conviction for Distribution of a Controlled Substance but dismissed the Conspiracy charge. One judge dissented. Henderson was found guilty by a jury of distributing cocaine and conspiracy to distribute it. The jury recommended a total sentence of thirty-five years for each count, to be served one after the other, along with a hefty fine. On appeal, Henderson raised several issues. He argued that his two convictions were unfair because they were based on the same act, leading to double punishment, which is not allowed. The court agreed with this point and dismissed the conspiracy conviction. The court noted that even though a conspiracy usually stands as a separate crime, in this case, the charges were very closely related and relied on the same actions. Because of this, the law was not followed correctly. While Henderson's other claims about the trial were considered, the judges found them to lack enough merit to change the outcome. The court concluded that enough evidence supported his conviction for distributing cocaine, so that part of the case remained in place, while the conspiracy charge was dropped. Overall, the final decision was that the court upheld the guilty verdict for distribution but reversed the conspiracy conviction.

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RE-2000-1566

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In OCCA case No. RE-2000-1566, the appellant appealed his conviction for unlawful possession and distribution of controlled drugs. In a published decision, the court decided to vacate the order that suspended the appellant's sentences and remanded the case for further proceedings. One judge dissented. The case began when the appellant was found guilty of possessing cocaine, methamphetamine, and distributing drugs to a minor. These offenses happened on January 30, 1994, and the appellant entered guilty pleas on March 27, 1995. As part of a plea agreement, the state recommended a fifteen-year sentence for each charge, which was to be served concurrently. The court accepted the pleas and suspended the sentences under probation conditions. In 1998, the state sought to revoke the suspended sentences because the appellant was allegedly found in possession of methamphetamine. During the revocation hearing, the judge ordered the sentences to be revoked in full based on the evidence presented. The appellant argued that the case should be sent back to the lower court, allowing him to withdraw his guilty plea, referencing a previous case for support. The court noted that the appellant had not previously disclosed several felony convictions before accepting his guilty plea, which raised questions about the validity of the initial suspended sentence. The court ruled that the suspensions were invalid due to legislative restrictions against suspending sentences for individuals with previous felony convictions. As a result, the court instructed the lower court to hold further proceedings consistent with the decision referenced in the previous case. Additionally, it was ordered that the appellant be given a chance to withdraw his guilty plea. If he chose to do so, the prior convictions would be vacated, allowing the state to prosecute him again if necessary. If he decided to keep the guilty plea, the sentences would be executed immediately, with credit given for the time already served. Ultimately, the court's decision led to the dismissal of remaining errors regarding the revocation orders, as they were deemed moot now that the suspension orders were vacated.

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