Ineffective Assistance of Counsel

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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C-2017-1036

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MAY 23, 2019** **DANA MECHELE LANGLEY,** Petitioner, vs. **THE STATE OF OKLAHOMA,** Respondent. **Case No. C-2017-1036** **SUMMARY OPINION DENYING CERTIORARI** **HUDSON, JUDGE:** Petitioner Dana Mechele Langley was charged in the Tulsa County District Court with multiple counts, including **Lewd Molestation**, **Enabling Child Sexual Abuse**, and **Child Sexual Abuse**. Langley entered a blind plea of guilty to these charges on June 19, 2017. Following a hearing, Judge Sharon K. Holmes sentenced her to significant prison terms. On September 6, 2017, Langley, through her counsel, filed an application to withdraw her guilty plea, which led to the appointment of conflict counsel. After a hearing, her request was denied. Langley then sought a writ of certiorari, raising three propositions of error: 1. The trial court's denial of the motion to withdraw her guilty plea was plain error and an abuse of discretion due to an inadequate factual basis. 2. Denial of effective assistance of counsel during both the plea hearing and the plea withdrawal hearing. 3. The sentences imposed were excessive given the circumstances. **DECISION:** After reviewing the complete record, including transcripts and exhibits, the Court found no grounds for relief. **Proposition I:** The claim regarding the factual basis for the lewd molestation counts was not raised at the withdrawal hearing; thus, it was procedurally defective and not properly before the Court. **Proposition II:** The ineffective assistance claim was similarly waived as it was not included in her motion to withdraw. Furthermore, the Court found sufficient evidence supporting the factual basis of her pleas, dismissing claims about the inadequacy of representation. **Proposition III:** The sentences were consistent with statutory ranges and did not shock the conscience of the Court. **CONCLUSION:** The Petition for Writ of Certiorari is **DENIED**, and the judgment and sentence from the district court are **AFFIRMED**. **Pursuant to Rule 3.15, RULES OF THE OKLAHOMA COURT OF CRIMINAL APPEALS, the MANDATE is ORDERED issued upon delivery and filing of this decision.** --- **Click Here To Download PDF** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2017-1036-1_1733900854.pdf)

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F-2017-1029

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In OCCA case No. F-2017-1029, Timothy Brian Bussell appealed his conviction for Rape in the First Degree - Victim Unconscious. In an unpublished decision, the court decided to affirm the judgment and sentence against him. One judge dissented. Bussell was found guilty by a jury and was sentenced to life imprisonment with the possibility of parole, even though the jury recommended life without parole. The case involved Bussell and a co-defendant, who filmed another co-defendant having sex with an unconscious victim. The jury believed there was enough evidence to show Bussell helped and encouraged the assault. Bussell raised ten arguments in his appeal, claiming errors during his trial. He argued that he did not get proper notice of the charges against him, that there was not enough evidence to convict him, and that the trial should have separated him from his co-defendant. He also claimed the victim's testimony was not credible, the prosecution made unfair statements, and that his lawyer did not do a good job. The court reviewed the evidence and found it sufficient for a conviction. They determined there were no significant errors that would affect his rights. The court emphasized that someone's testimony alone could support a conviction, especially if it was backed by video evidence. They concluded that Bussell knew the accusations he was facing and did not show that he was prejudiced by any mistakes made during the trial. Ultimately, the court decided that Bussell's claims did not show any grounds for reversing his conviction. His serious involvement in the crime was evident. The sentence was upheld as appropriate based on the crime he committed, emphasizing the importance of the victim's mistreatment.

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F-2017-892

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In OCCA case No. F-2017-892, David Lee Seely appealed his conviction for Murder in the First Degree. In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. David Seely was found guilty of murdering Jackie Tyler Wesnidge during a fight that escalated in a car. Seely and Misty Dawn Benefield had left the house they were staying in after an argument between Wesnidge and Benefield. Seely, who had previously expressed strong feelings for Benefield, ended up stabbing Wesnidge seventeen times after a confrontation in the car. After the murder, Seely and Benefield crashed the car and tried to escape on foot. They were eventually found by the police. Seely claimed several errors during his trial, including the trial court's failure to instruct the jury on certain defenses, the exclusion of evidence he wanted to present, the admission of graphic photographs, and issues of prosecutorial misconduct. He also argued that he received ineffective assistance of counsel. The court reviewed Seely's arguments and found that the trial court did not err in failing to instruct the jury on defenses like defense of another or voluntary intoxication, as there was no sufficient evidence to support those claims. It also determined that the evidence excluded by the court was not necessary for understanding the case, and that the photographs admitted were relevant to the crime. Prosecutorial misconduct claims were examined, yet the court concluded these did not significantly harm Seely's right to a fair trial. Finally, it ruled that his counsel performed adequately, and there were no grounds for claiming he received ineffective representation. The court affirmed Seely's conviction, finding all claims of error were without merit.

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F-2018-289

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In OCCA case No. F-2018-289, Anthony Douglass Crisel, Jr., appealed his conviction for Lewd or Indecent Acts with a Child. In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. Anthony Douglass Crisel, Jr. was found guilty by a jury for engaging in inappropriate conduct with a child. The jury decided that he should spend six years in prison, and he has to serve 85% of that time before he can ask for parole. Crisel claimed that his lawyer did not help him properly during the trial, which he believed went against his rights. He said his attorney made mistakes in three important areas: not opposing a witness’s testimony, not bringing in a witness who was related to the victim, and not challenging the qualifications of an expert witness who testified against him. The court looked closely at these claims and the complete record of what happened during the trial. They explained that to show his lawyer was ineffective, Crisel needed to prove that his lawyer didn’t do their job well and that this affected the outcome of the case. The judges noted that there is a strong assumption that a lawyer’s actions are based on good judgment. For the first claim, Crisel argued his lawyer should have stopped a witness from talking about some old accusations against him. However, the court found that the information the witness shared was already given to the jury through other evidence. Therefore, the lawyer's choice to not object was a reasonable decision. For the second claim, Crisel wanted his brother to testify but did not show how having his brother's testimony would have helped him win the case. The court stated that the lawyer's decision to not call the brother was likely a strategic choice and they won’t question that. Lastly, regarding the expert witness, the court found that the lawyer did question the qualifications of this expert, and since many lawyers might handle this differently, having a different strategy does not necessarily mean the lawyer did a bad job. After reviewing everything, the court concluded that Crisel’s lawyer did not act ineffectively. The judges affirmed the decision of the lower court, and the request for more evidence or hearing on this issue was denied.

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F-2018-202

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In OCCA case No. F-2018-202, the appellant appealed her conviction for robbery with a dangerous weapon, possession of a firearm in the commission of a felony, conspiracy to commit a felony, kidnapping, and possession of a controlled dangerous substance. In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. The case involved Katherine Marie Houser, who was found guilty by a jury for several serious crimes. The jury gave her a variety of sentences, including five years for robbery, two years for possession of a firearm during a felony, and six months for kidnapping. Some of these sentences were set to run at the same time, which is called concurrent sentences. Katherine argued that her lawyer did not represent her well, especially by not challenging one of the counts against her (the possession of a firearm). Although this count was eventually dismissed by the state, she felt that just being tried for it affected the jury’s decisions on other counts. The court looked at this claim and decided that even if the lawyer made a mistake, it wouldn’t have changed the outcome. The evidence against her for the other charges was strong, and the jurors weren’t likely swayed by having one extra charge against her. In her second argument, Katherine said that a fine imposed on her should not count because the judge did not mention it during the sentencing, even though she hadn’t complained about it at that time. The court found that since she didn’t raise an issue at the right time, she had a harder time proving there was an error worth correcting. Ultimately, both of Katherine's arguments were denied, and the court decided to uphold her convictions and sentences.

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F-2018-15

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In OCCA case No. F-2018-15, the appellant appealed his conviction for driving under the influence of drugs causing great bodily injury, felony eluding, running a roadblock, and assault with a dangerous weapon. In a published decision, the court decided to affirm his convictions. One judge dissented. The case involved Marcus Ray Smith, who was found guilty in a non-jury trial of several serious offenses related to a high-speed police chase. The judge sentenced Smith to ten years for some crimes and thirty years for others, but with some time suspended, allowing for parole. Smith appealed for multiple reasons. He argued that he was being punished too harshly for actions that were part of one event. According to the law, people usually can't be punished multiple times for the same act. However, the court found that the crimes he committed were separate incidents. For example, running a roadblock is recognized as a distinct crime, and his actions while fleeing from the police qualified as two separate acts that endangered others. Smith also claimed that there wasn't enough evidence to prove he had intended to cause harm with his vehicle when he drove recklessly towards others. The court disagreed and stated that the way he drove clearly showed that he intended to hurt someone. Lastly, Smith said his lawyer didn't do a good job by not arguing about the double punishment issue during the trial. However, the court found that since his double punishment claim was not valid, there was no failure on his lawyer's part. In conclusion, the court upheld Smith's convictions, deciding he had received a fair trial and that his legal arguments were not strong enough to change the outcome.

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F-2017-1098

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In OCCA case No. F-2017-1098, Rodger Dale Stevens appealed his conviction for performing a lewd act in the presence of a minor. In an unpublished decision, the court decided to affirm Stevens' conviction and sentence. One judge dissented. Stevens was found guilty of a serious crime because he masturbated in front of a seven-year-old boy. The court looked closely at the evidence to see if it proved Stevens was doing this for sexual gratification. The victim testified and provided strong evidence that Stevens derived satisfaction from what he did. Even though Stevens argued that he was just trying to help the boy feel comfortable with his body, the jury did not believe him. Stevens also argued that his punishment was too harsh. Since he had previous felony convictions, his sentence was enhanced under a specific law that allows for harsher penalties for repeat offenders. Stevens said the law was applied wrongly and that he should have received a lighter sentence, but the court found that the jury was correctly instructed on the range of punishment. He raised several other issues, including claims that irrelevant and prejudicial evidence was admitted, and that his lawyer did not defend him properly. However, the court upheld that the lawyer's actions did not negatively impact the trial's outcome. Stevens argued that the life sentence he received was excessive, even claiming the situation was not severe enough for such a strong punishment. The court disagreed, noting the nature and seriousness of the crime and confirming that the sentence was within legal limits and did not shock the conscience. In summary, the court affirmed the conviction and sentence, ruling that the evidence supported the jury's decision and that the legal procedures followed were appropriate.

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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-2017-1240

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In OCCA case No. F-2017-1240, Kevin Eugene Fowler appealed his conviction for five counts of Child Neglect. In an unpublished decision, the court decided to affirm his convictions and sentences. One judge dissented. Kevin Eugene Fowler was found guilty by a jury of neglecting his children, which included not providing them enough food and medical care. The jury recommended that he be sentenced to 30 years in prison for four of the counts and 10 years for the last count, with all sentences to be served one after the other, totaling 130 years. Fowler was required to serve 85% of his sentences before being eligible for parole. Fowler raised several points during his appeal, arguing that there were issues with how evidence was presented in court. He claimed that comments made by a police officer were unfair and that he did not receive a fair trial because of them. However, the court found that these comments were relevant and did not harm his case. Fowler also argued that he was wrongly punished multiple times for the same actions regarding his children, but the court ruled that his separate actions of failing to provide food and medical care could be treated as different crimes. He accused the State of misconduct during the trial, but the court concluded that the comments made were either allowed within the context of the trial or did not unfairly influence the jury. Another point raised was about his attorney not doing a good job. Fowler claimed his lawyer failed to object to improper arguments and was not sufficiently prepared. The court found that his lawyer's actions were not deficient and that there was no actual conflict of interest in defending both him and his co-defendant. Fowler believed that his lengthy sentences were excessive. Yet, the court determined that the sentences fell within the legal limits, and the trial judge had considered all relevant facts before deciding to make the sentences consecutive. Lastly, Fowler argued that all these issues combined made it impossible for him to get a fair trial, but since the court did not find any individual errors significant, they ruled against this claim as well. Overall, the court affirmed Fowler's multiple convictions and sentences, concluding that no errors were made that would warrant a new trial or a change in sentencing.

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F-2016-375

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This document is the opinion of the Oklahoma Court of Criminal Appeals regarding the appeal of James Stanford Poore from his convictions of four counts of First Degree Murder and two counts of Robbery with a Firearm, which occurred in Tulsa County District Court. The jury recommended sentences of life imprisonment without the possibility of parole for the murder convictions and life imprisonment for the robbery charges. The opinion outlines the factual background of the case, including the brutal murders of four victims during a robbery and the subsequent evidence linking Appellant Poore and his brother Cedric Poore to the crime. Key pieces of evidence included witness testimonies, DNA analysis, and ballistic evidence connecting the Poores to both the murders and an earlier robbery. The appellate court addressed several propositions raised by Poore, reviewing the admission of expert testimony, the exclusion of certain third-party perpetrator evidence, the relevance of other crimes evidence, the legality of the search warrant executed at Poore's mother's residence, and claims of ineffective assistance of counsel. After careful consideration, the court concluded that the trial court did not abuse its discretion in admitting the evidence or denying Poore's requests for different evidence and upheld the sufficiency of the search warrant. The court affirmed the judgment and sentence imposed by the district court, providing a detailed legal rationale for its decisions. The final decision includes an order for the mandate to be issued upon the filing of this opinion. The judgment for both the defendant and the state was documented, with all judges concurring in the decision. For those interested in viewing or downloading the original document, a link is provided at the end of the summary.

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RE-2017-113

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In the case of Ruben Geraldo Velasquez v. The State of Oklahoma, the appellant appealed the revocation of his suspended sentences across multiple cases in the Caddo County District Court. The appeals were addressed by the Oklahoma Court of Criminal Appeals. The appellant had pleaded guilty to multiple charges, including possession of a firearm after conviction, driving under the influence, and domestic assault. His sentences were imposed with significant portions suspended, and he was placed on probation. However, the State filed a petition to revoke his suspended sentences citing several violations, including failure to pay fees, failure to report, changes in address, and new criminal offenses. The trial court revoked the appellant's suspended sentences in full after a hearing, and the appellant raised several propositions of error on appeal. The court determined that the first two propositions, which challenged the validity of the original sentences, were not properly resolved through this appeal and needed to follow certiorari procedures instead. The court found that the amendment to the revocation order, which removed post-imprisonment supervision, rendered one of the propositions moot. Regarding claims of ineffective assistance of counsel, the court concluded that the appellant had not demonstrated any deficiency in counsel's performance nor shown any resulting prejudice. The appellant's argument that the trial court abused its discretion by denying credit for time served was found to have no supporting legal authority, as the court indicated that there is no statutory requirement for such credit to be granted. Lastly, the court rejected the appellant's assertion that the revocation was excessive. The evidence presented to the trial court satisfied the standard necessary to revoke the suspended sentences, affirming that the burden of proof for violations is preponderance of the evidence, and that the decision to revoke is within the discretionary power of the trial court. Ultimately, the Oklahoma Court of Criminal Appeals affirmed the trial court’s decision to revoke the appellant's suspended sentences across all cited cases, concluding that there was no abuse of discretion in the revocation. The mandates for this decision were ordered to be issued following the filing of the opinion. The decision is summarized as follows: **The revocation of Ruben Geraldo Velasquez's suspended sentences is AFFIRMED.**

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F-2017-639

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In OCCA case No. F-2017-639, Christopher Lantz Wildman appealed his conviction for First Degree Manslaughter. In a published decision, the court decided that his conviction would be upheld. One judge dissented. Christopher Wildman was found guilty by a jury of killing someone and was sentenced to 12 years in prison. He was awarded credit for the time he served before the trial. Wildman argued several points in his appeal, claiming that his rights were violated during the trial. First, he said the evidence didn’t prove he wasn’t acting in self-defense, which is an important legal argument in these cases. He believed that if the evidence did not convince the jury beyond a reasonable doubt that he acted with wrongful intent, he should not have been convicted. However, the court found that there was enough evidence suggesting he did not act in self-defense. Wildman also claimed that his trial was unfair because some evidence showed bad character, and that the trial court did not properly instruct the jury on how to consider that evidence. The court reviewed this point and decided that the evidence presented was not overly prejudicial, so it allowed the trial to continue without a limiting instruction. He argued prosecutorial misconduct, which means he felt the prosecutor acted inappropriately during the trial. Wildman argued that remarks made by the prosecutor affected his right to a fair trial. The court noted that comments made by the prosecutor were not serious enough to change the outcome of the trial and were in response to claims made by Wildman. Wildman believed that his attorney did not perform well and that he should have had a better defense. The court examined this claim closely. It stated that for someone to prove their lawyer was ineffective, they need to show that their lawyer's performance was very poor and that it influenced the trial's outcome. The court found that Wildman's lawyer did not make serious mistakes. Additionally, he felt that some evidence about the victim’s habits was improperly allowed into the trial. However, since he did not object to this evidence during the trial, it made it harder for him to appeal this point later. Finally, Wildman argued that all these errors combined led to an unfair trial. The court did not find any significant errors, so they upheld the conviction. In conclusion, the court affirmed Wildman's conviction and sentence, stating that the original trial was fair and proper according to the evidence and legal standards.

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F-2017-1214

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In OCCA case No. F-2017-1214, Marco Antonio Hernandez appealed his conviction for Trafficking in Illegal Drugs (Methamphetamine) and Unlawful Possession of a Controlled Drug with Intent to Distribute (Marijuana & Cocaine). In an unpublished decision, the court decided to affirm the convictions and sentences as they were presented. A dissenting opinion noted disagreement with the majority's conclusions regarding lesser included offenses and related jurisprudence. Here’s a summary of the case events: Marco Hernandez was found guilty of serious drug offenses after police searched his motel room and discovered illegal drugs and paraphernalia. Specifically, the officers found marijuana, methamphetamine, cocaine, and various drug-related items. The police execution of the search warrant included forcing entry into his room when no one answered the door. During their search, they also found evidence suggesting Hernandez had been dealing drugs for a long time. Hernandez was sentenced to life in prison, with fines associated with his offenses. Throughout the trial, Hernandez confessed to drug possession and selling drugs, but he also tried to shift some of the blame to his girlfriend. The court faced challenges regarding whether the jury was correctly instructed on lesser included offenses, which could provide alternative verdict options for the jury beyond the heavier charges they faced. Hernandez’s appeals focused on the court's jury instructions and his attorney's effectiveness during the trial. The majority opinion found that the trial court did not err in not giving instructions about lesser included offenses since there was not sufficient evidence to support these lesser charges. Ultimately, the appeals court agreed with the trial court's decisions and upheld the convictions, despite dissenting opinions that argued for a need to reconsider how lesser offenses were treated in this case. The judgment and sentence were thus affirmed, meaning Hernandez's convictions and sentences stood as delivered by the lower court.

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C-2018-489

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**SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Mario Donsheau Cherry entered blind pleas of guilty to multiple charges including First Degree Manslaughter, Causing an Accident Resulting in Great Bodily Injury, and Leaving the Scene of an Accident, among others, in the District Court of Oklahoma County. His pleas were accepted by the Honorable Bill Graves on February 23, 2018. After a sentencing hearing on April 5, 2018, Cherry was sentenced to life in prison on some counts, with additional sentences for other counts that ran concurrently. On April 12, 2018, he filed an application to withdraw his plea, which was denied on May 4, 2018. Cherry appeals this denial, raising the following issues: 1. **Denial of Withdrawal of Plea:** Cherry argues he should have been allowed to withdraw his guilty plea, claiming it was not entered knowingly and voluntarily partly because he was not adequately informed about waiving his right to appeal. 2. **Ineffective Assistance of Counsel:** He claims his counsel did not sufficiently inform him about the consequences of waiving his appeal rights through his plea. 3. **Excessive Sentence:** Cherry contends that the imposed sentences are excessive and shock the conscience. After reviewing the case, including the original record and briefs, the court concluded that the trial court did not abuse its discretion in denying Cherry's motion to withdraw his plea. The court cited that the plea was determined to be knowing and voluntary as Cherry acknowledged understanding of the consequences including the nature and severity of the charges and the rights he was waiving. Regarding ineffective assistance, the court noted that this claim was not raised in the initial application to withdraw the plea or in the petition for certiorari, resulting in a waiver for appellate review. On the issue of sentencing, the court confirmed that the sentences were within statutory guidelines and that running some counts consecutively was within the trial court’s discretion. The court found no excessive or shocking elements in the imposed sentence in light of Cherry's guilty admissions and prior felony history. **DECISION** The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. The MANDATE is ORDERED issued upon the delivery and filing of this decision.

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F-2017-758

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In OCCA case No. F-2017-758, Shawn Conrad Freeman appealed his conviction for multiple serious crimes, including Kidnapping, Forcible Sodomy, Rape in the First Degree, and Robbery in the First Degree. In an unpublished decision, the court decided to affirm the judgment and sentence of the District Court. The court did, however, instruct the District Court to correct a clerical error regarding the fine for one of the robbery counts. Freeman was tried by jury and was found guilty on multiple counts involving four separate women. The jury sentenced him to long prison terms and significant fines. The trial court followed the jury's recommendations for sentencing. Freeman raised several arguments on appeal. He argued that having multiple convictions for crimes like Kidnapping, Rape, and Forcible Sodomy at once was unfair and violated laws against double punishment. However, the court found that the crimes were separate and showed that each act occurred at different times, meaning he could be punished for all of them. He also claimed that trying all fourteen counts together was wrong because it might have led the jury to convict him based on the total evidence rather than on proof for each individual charge. The court determined that the offenses were connected enough to be tried together and that no error occurred. Another point of contention was that one of the victims couldn't testify in court, and the jury was allowed to hear her previously recorded testimony instead. The court upheld this decision, stating that Freeman had previously had the chance to question her during an earlier hearing. Freeman argued that the evidence was not enough to support his robbery conviction. The court disagreed, stating that the evidence clearly showed he unlawfully took property from a victim. He raised questions about misconduct by the prosecutor, ineffective assistance of counsel, and that his sentences were too harsh. The court found no evidence to support his claims of improper actions or ineffective counsel. It ruled that his sentences were not excessively severe given the nature of the crimes he was convicted for. Finally, Freeman claimed that the combined issues during the trial denied him a fair trial. However, the court noted that it found no individual errors that would warrant a new trial. In conclusion, the court affirmed Freeman's convictions and sentences but ordered a correction to a minor error in the judgment regarding the fine imposed for one count of robbery. There was a dissenting opinion from one of the judges.

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F-2017-994

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In OCCA case No. F-2017-994, Holly Tegan Zuniga-Griffin appealed her conviction for Enabling Child Abuse. In an unpublished decision, the court decided to affirm her conviction. One judge dissented. The case involved Holly Tegan Zuniga-Griffin, who was found guilty of enabling the abuse of her three-year-old son. The jury in Muskogee County decided she was guilty of this crime based on the evidence presented during the trial. She was sentenced to ten years in prison, following the jury's recommendation. Zuniga-Griffin raised several issues in her appeal. First, she argued that the law regarding child abuse was unclear and vague. However, the court found no reason to change its previous decisions on this issue and denied her claim. Next, she claimed there wasn't enough evidence to prove she understood her child was in danger when she left him with her 17-year-old boyfriend. The court disagreed, stating there was enough evidence to show she should have known her child was at risk. Zuniga-Griffin had made inconsistent statements about how her son got hurt, and medical evidence indicated he had been physically abused. She also said she was denied a fair trial because the judge didn't instruct the jury properly. The court acknowledged that some jury instructions could have been appropriate, but overall, they did not think this affected the trial's fairness. Another point she raised was about a nurse giving an opinion in court when she didn't have the right qualifications. The court found that the nurse did have enough training and experience to testify about the injuries on the child, so they disagreed with Zuniga-Griffin's claim. Zuniga-Griffin contended that the prosecution failed to provide important evidence that could have helped her case. However, the court concluded that she was aware of the photos in question during the trial and did not attempt to use them, dismissing her argument. She also claimed her lawyer did not do a good job representing her, which negatively impacted her trial. But the court found her lawyer's decisions were reasonable and did not affect the outcome. Zuniga-Griffin then argued that her ten-year sentence was excessively harsh. The court noted that her son had suffered serious injuries, and her sentence was within what the law allowed, so they did not find it shocking. Finally, she stated that all the errors combined during the trial made it unfair. The court determined that the errors she identified did not, either separately or together, undermine her right to a fair trial. In the end, the decision of the trial court was upheld, meaning Zuniga-Griffin would serve her sentence as originally decided.

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C-2017-1311

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In OCCA case No. C-2017-1311, Heath Justin Wright appealed his conviction for multiple charges, including Second Degree Burglary, Knowingly Concealing Stolen Property, and Unlawful Possession of a Controlled Dangerous Substance. In an unpublished decision, the court decided to grant relief to Wright, allowing him to withdraw his guilty plea and proceed to trial. One judge dissented. Wright entered a negotiated plea without legal counsel and was accepted into the Pontotoc County Drug Court program. His plea agreement stated that if he successfully completed the program, his charges would be dismissed. However, if he failed, he would receive a lengthy prison sentence for each charge. After the State sought to terminate him from the drug court program, Wright tried to withdraw his plea. The court denied his request and sentenced him to the agreed-upon prison terms. Wright claimed his attorney did not assist him properly. He argued that he was not warned about the risks of representing himself in court. The court found that this lack of advice affected his decision to plead guilty. Since it was clear that Wright’s attorney did not address this issue, the court decided he should be allowed to withdraw his plea and face trial for the charges. The ruling concluded that because the initial plea was handled improperly, Wright should get another chance to defend himself in court.

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C-2017-33

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In OCCA case No. C-2017-33, a person appealed his conviction for manslaughter. In a published decision, the court decided to modify his sentence to run concurrently with another sentence. One judge dissented. In this case, the person, who we'll refer to as the appellant, had entered a guilty plea to first degree manslaughter. He ended up being sentenced to twenty-three years in prison. After some time, the appellant decided he wanted to take back his guilty plea. He claimed he didn't fully understand the consequences of his plea when he entered it, and he felt he was pressured into making that choice. The court held three hearings to talk about the appellant’s request to withdraw his guilty plea. Ultimately, the judge denied his request, finding that his plea was made voluntarily and knowingly. The appellant raised two main arguments in his appeal. First, he argued that his plea was not given voluntarily or knowingly. Second, he said he did not get proper legal help from his attorney, which affected his case. The court looked closely at the entire record, including the hearings and the agreements made during the plea process. They found that even though the appellant felt he was pressured, he actually understood what he was doing when he entered his plea. They decided that the plea was valid and should not be withdrawn. However, the court also recognized that the state did not follow the agreement regarding a related case. The state had promised not to seek a revocation of the appellant's other suspended sentence, but after the appellant filed to withdraw his plea, the state moved to revoke that sentence anyway. The court determined that this was a significant breach of the plea agreement, which affected the fairness of the situation. Since the appellant was also facing the loss of additional years in prison because of the state's actions, the court decided to modify his sentence. Instead of having the two sentences run one after the other, the court ordered them to run at the same time. This way, the appellant would not be unfairly punished because of the state’s breach of their agreement. In conclusion, the court agreed the appellant’s plea was valid and was made knowingly and voluntarily. However, to correct the mistake made by the state regarding the plea agreement, they modified his sentence to ensure fairness. One judge disagreed with some parts of the decision.

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F-2017-008

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In OCCA case No. F-2017-08, John Kyle Crandall appealed his conviction for first degree murder, concealing stolen property, and possession of a firearm after a felony conviction. In a published decision, the court decided to affirm the conviction for first degree murder and possession of a firearm but reversed the conviction for concealing stolen property. One judge dissented.

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RE-2018-357

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CASE NO. RE-2018-357** **JAMES MONROE JONES, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** --- **SUMMARY OPINION** **LUMPKIN, JUDGE:** James Monroe Jones (Appellant) appeals from the revocation of his suspended sentences in Case Nos. CF-2008-7440, CF-2010-130, CF-2010-290, and CF-2013-6519, adjudicated by the Honorable Timothy R. Henderson, District Judge, in the District Court of Oklahoma County. On June 16, 2010, Appellant pled guilty in Cases CF-2008-7440, CF-2010-130, and CF-2010-290, receiving concurrent sentences with significant portions suspended. Specifically, in CF-2008-7440, he was convicted of two counts of Concealing Stolen Property and sentenced to fifteen years on each count, with the first five years served. Similar sentences were imposed for offenses stemming from the other cases. On May 1, 2015, Appellant entered a negotiated nolo contendere plea in CF-2013-6519 for an amended count of Concealing Stolen Property, resulting in a ten-year sentence with the first year served. On August 26, 2016, the State filed applications to revoke Appellant's suspended sentences due to reported violations, including failure to report, change of address, and new criminal activity related to Domestic Assault and Battery. Enhanced allegations were added on March 7, 2018, encompassing additional crimes attributed to Appellant. A hearing was conducted on April 2, 2018. Appellant's counsel objected to the State's evidence, citing inadequate discovery. The trial court, however, noted Appellant had received relevant documents previously, and dismissed the objections after reviewing the evidence. Judge Henderson ultimately found Appellant had violated his probation through specific new criminal conduct and revoked his suspended sentences in full. Appellant presents two propositions of error on appeal: **PROPOSITION I:** The trial court violated Jones's right to due process and a fair trial under the Fourteenth Amendment and Article II § 7 of the Oklahoma State Constitution. **PROPOSITION II:** Defense counsel failed to prepare adequately for trial, resulting in ineffective assistance of counsel. **ANALYSIS** In addressing Proposition I, Appellant contends that the overruling of his objections regarding discovery violations deprived him of due process. It is established that defendants have minimal due process rights in revocation hearings, including evidence disclosure. However, since Appellant’s counsel did not request discovery prior to the hearing, the burden falls on them for preparation. The trial court did not deny Appellant the opportunity to defend—therefore, Proposition I is denied. Regarding Proposition II, Appellant asserts his counsel's ineffectiveness based on a lack of preparedness stemming from unrequested discovery. The Strickland standard evaluates ineffective assistance claims through performance deficiency and resultant prejudice. Appellant has not substantiated claims that better-prepared counsel would have altered the outcome, as evidence showed several violations were confirmed. Thus, Proposition II is also denied. **DECISION** The order from the District Court of Oklahoma County revoking Appellant's suspended sentences in Case Nos. CF-2008-7440, CF-2010-130, CF-2010-290, and CF-2013-6519 is **AFFIRMED**. --- **APPEARANCES:** **AT TRIAL** Katie Samples, Assistant Public Defender Marva A. Banks, Assistant Public Defender **ON APPEAL** David Nichols, Assistant District Attorney Mike Hunter, Attorney General Keeley L. Miller, Assistant Attorney General **OPINION BY:** LUMPKIN, J. **CONCUR:** LEWIS, P.J.; KUEHN, V.P.J.; HUDSON, J.; ROWLAND, J. **[Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-357_1734695459.pdf)**

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RE 2016-1019

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In OCCA case No. RE 2016-1019, Jerry Lynn Clemons appealed his conviction for Home Repair Fraud and Robbery By Force of Fear. In a published decision, the court decided to affirm the revocation of his suspended sentences but remanded the case to the District Court to modify its revocation orders to ensure that the sentences are served concurrently. One judge dissented. Clemons had pleaded guilty to several charges and was given suspended sentences with specific rules to follow. However, he later failed to report to his probation officer and changed his address without notifying them, which led the State to apply for the revocation of his suspended sentences. During the revocation hearing, the judge revoked Clemons' suspended sentences. Clemons appealed the revocation, arguing that he did not receive proper notice of the allegations against him, the State did not provide enough evidence for revocation, and that he was sentenced incorrectly for his misdemeanor charge. The court found that the State did indeed provide enough evidence to revoke the sentences and noted that some charges had already been corrected in an amended ruling regarding the length of his sentence for the misdemeanor. Moreover, the court determined that the revocation orders did not align with the original sentence where counts were meant to be served concurrently. Therefore, they directed the District Court to correct this mistake. In conclusion, while the revocation of Clemons' suspended sentences was largely upheld, the court required modifications to ensure that his sentences would run concurrently as originally intended. This led to a decision that balanced the need for imposed penalties with the requirement for proper procedure.

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RE-2016-929

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In OCCA case No. RE 2016-1019, the appellant appealed his conviction for home repair fraud and robbery by force of fear. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences but required the district court to modify its orders to reflect that the sentences should run concurrently. One judge dissented. Jerry Lynn Clemons pleaded guilty to home repair fraud and robbery in Muskogee County. He was given suspended sentences, meaning he wouldn't go to jail if he followed certain rules, which included reporting to a probation officer and paying fines. However, the state said Clemons didn't follow these rules by not reporting and changing his address without telling his probation officer. This led to a revocation hearing where the judge decided to enforce his suspended sentences. Clemons argued that he wasn't properly informed about the reasons for revoking his sentence. He also raised concerns about not being given enough evidence of his alleged failures, and about a mistake in the length of his punishment for the misdemeanor charge. Ultimately, some of his arguments were accepted, especially regarding sentencing errors, but the court found enough evidence to support the revocation of his sentence based on his failure to report and violating other conditions. The court directed that the modified orders clarify that the sentences were to be served at the same time instead of one after the other. Clemons also claimed that his lawyer did not help him properly, which might have affected his defense. However, the court concluded that Clemons did not prove this claim sufficiently. In summary, while the court agreed to fix some mistakes in his sentencing, it still upheld the decision to revoke his suspended sentences due to the established violations.

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F-2015-937

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In OCCA case No. F-2015-937, Isaiah Jamil Walker appealed his conviction for first-degree felony murder, robbery, burglary, and possession of a firearm. In an unpublished decision, the court decided to affirm his convictions for first-degree felony murder, robbery, and possession of a firearm, but reversed the burglary conviction with instructions to dismiss. One member dissented. The case involved a jury trial where Walker was convicted of serious crimes after the jury found him guilty of all charges against him. The jury recommended severe penalties, including life imprisonment for the murder charge and additional years for the other charges. Walker raised multiple issues on appeal, claiming that the evidence was not strong enough to support his convictions and that his rights were violated during the trial. The court reviewed each of Walker's arguments carefully. It found that there was enough evidence to support his conviction for felony murder because the facts of the case showed he committed a burglary that led to the murder. They also believed the testimony from witnesses was sufficient to corroborate the co-defendants' accounts of the crimes. However, the court agreed with Walker's argument regarding double jeopardy. Since his felony murder charge was based on the burglary charge, convicting him of both was legally incorrect. Therefore, the burglary conviction was reversed and dismissed. In terms of the other claims Walker made, the court denied them, explaining that the trial was conducted fairly and following legal standards. The court mentioned that for some issues, like failing to instruct the jury on lesser offenses, Walker had not requested those instructions at his trial, so he could not raise that problem on appeal. Overall, the court concluded that most of Walker's convictions were valid and decided to uphold them while correcting the double jeopardy issue by dismissing the burglary charge.

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C-2016-877

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In OCCA case No. C-2016-877, Charles David Miller appealed his conviction for multiple charges including stalking and possession of a firearm during a felony. In an unpublished decision, the court decided to grant Miller’s petition in part. The court affirmed the judgments and sentences for some counts but reversed the sentence for Count 1 and dismissed Count 4 due to double punishment concerns. One judge dissented. The case began when Miller, facing serious charges, entered a guilty plea in December 2014, agreeing to certain terms. He was originally given deferred sentences, meaning he would not serve time in prison if he followed the terms of his probation. However, after a hearing in 2015, the court ruled to impose a harsher sentence because Miller did not comply with the terms, leading to his appeal. Throughout the appeal, Miller argued that his guilty plea should be withdrawn for several reasons. He claimed there was no factual reason for his plea, that he was not made aware of his rights, and expressed concerns about double punishment as well as the effectiveness of his lawyer. The court reviewed the details and concluded that Miller had not shown enough grounds for his claims because some issues were not raised earlier in court, making them not eligible for review. The court particularly focused on whether Miller's plea was voluntary and if he was properly informed. They found that while Miller's plea might have been motivated by a desire to get his car back, he did understand the consequences of his actions. The court upheld the judgment for some counts, but it noted that the sentence for Count 1 was illegal because it exceeded the maximum allowed by law. As a result, they ordered a new sentencing for that count and dismissed Count 4 entirely because of double punishment. In summary, the main points were that Miller wanted to reverse his guilty plea but the court found many of his arguments unsubstantiated. They decided to change his sentence on one charge while dismissing another, affirming the result on several others.

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