Judgment and Sentence

F-2018-954

  • Post author:
  • Post category:F

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

Continue ReadingF-2018-954

F-2018-690

  • Post author:
  • Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DANIEL ROSS DAGE,** **Appellant,** **vs.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-690** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Daniel Ross Dage was convicted of Possession of Juvenile Pornography in violation of 21 O.S.2011, § 1021.2, in the District Court of Comanche County, under the Honorable Gerald Neuwirth. He was sentenced to twenty (20) years imprisonment, with eight (8) years suspended, and a fine of $5,000.00. Additionally, he is subject to sex offender registration and two years of post-imprisonment supervision during his suspended sentence. Dage appeals his conviction and sentence, raising three propositions of error. I. The record does not sufficiently demonstrate that Appellant knowingly and voluntarily waived his right to a jury trial. II. The State's evidence was insufficient to prove beyond a reasonable doubt that Mr. Dage knowingly possessed videos of juvenile pornography. III. A sentence of 20 years is excessive under the circumstances, violating the United States and Oklahoma constitutions. After thorough review of the record, including transcripts and briefs, we find that the case must be reversed and remanded for a jury trial. Proposition I is granted. The State concedes this issue. While defendants can waive their constitutional right to a jury trial, such a waiver must be competent, knowing, intelligent, and on the record, as established in *Hinsley v. State*, 2012 OK CR 11; *Valega v. City of Oklahoma City*, 1988 OK CR 101. Record evidence must show that both the State and the court consented to the waiver. The requirements for a valid waiver include an advisement of rights and a court minute reflecting the waiver, with signatures from the defendant and counsel. The record does not provide evidence of a waiver or party consent; there are no advisements regarding jury trial rights, nor discussions recorded in the trial transcript concerning the waiver. Thus, we conclude that the record fails to show Appellant validly waived his right to a jury trial. Proposition II, concerning the sufficiency of evidence, is briefly addressed. The State needed to demonstrate Dage knowingly possessed child pornography according to 21 O.S.2011, § 1021.2. Although Dage argues against the sufficiency of evidence, we find that the evidence reasonably infers Dage was aware of the prohibited nature of the material, and no other individual had reasonable access to the USB drives. Therefore, this proposition is denied. Given our decision regarding Proposition I, Proposition III concerning sentencing is rendered moot. **DECISION** The Judgment and Sentence of the District Court of Comanche County is REVERSED, and the case is REMANDED for a jury trial. 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. **AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY** **THE HONORABLE GERALD NEUWIRTH, DISTRICT JUDGE** **ATTORNEYS AT TRIAL** LARRY CORRALES P.O. BOX 2095 LAWTON, OK 73502 COUNSEL FOR DEFENDANT **ATTORNEYS ON APPEAL** NANCY WALKER-JOHNSON P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **COUNSEL FOR THE STATE** CHRISTINE GALBRAITH ASST. DISTRICT ATTORNEY COMANCHE CO. COURTHOUSE 315 SW 5TH ST., RM 502 LAWTON, OK 73501-4360 **MIKE HUNTER** ATTORNEY GENERAL OF OKLA. DIANE L. SLAYTON ASST. ATTORNEY GENERAL 313 NE 21 ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE **OPINION BY KUEHN, V.P.J.** LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-690_1735220870.pdf)

Continue ReadingF-2018-690

F 2017-1055

  • Post author:
  • Post category:F

In OCCA case No. F 2017-1055, William Singleton Wall, III, appealed his conviction for Possession of Controlled Dangerous Substance (Oxycodone). In an unpublished decision, the court decided to affirm the termination of Appellant from the Pontotoc County Drug Court Program. One judge dissented. William was charged in 2014 and entered a plea for the Drug Court program, where if he succeeded, his case would be dismissed. However, if he failed, he faced a ten-year prison sentence. In April 2017, the State filed to terminate him from the program because he tested positive for THC, which is a substance found in marijuana. During the termination hearing, the judge decided that the State had enough evidence to terminate William from the program. He was given a ten-year prison sentence with credit for time already served. William argued that he should not have been terminated because he did not receive proper notice of the program's rules and because the State filed its motion after the allowed time for his participation in the Drug Court expired. The court explained that the decision to terminate a participant from Drug Court is at the judge's discretion. William did not object when the evidence of his drug use was presented at the hearing. Furthermore, the records showed that William had understood the terms of the Drug Court when he entered. The court also found that although the approval for his Drug Court participation had a time limit, he was still under the court's jurisdiction until he was properly sentenced. The court ruled that they did not see any errors in how the trial court acted. They affirmed the decision to terminate William, meaning he would serve his ten-year sentence for not following the rules of the Drug Court program.

Continue ReadingF 2017-1055

M-2018-1055

  • Post author:
  • Post category:M

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SADE DEANN McKNIGHT, Appellant,** **V.** **THE STATE OF OKLAHOMA, Appellee.** **Case No. M-2018-1055** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA OCT - 3 2019** **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Sade Deann McKnight seeks to appeal her Judgment and Sentence from the District Court of Payne County, Case No. CM-2016-1491, for her misdemeanor convictions of Obstructing an Officer, 21 O.S.Supp.2015, § 540 (Count 1) and Resisting an Officer, 21 O.S.1991, § 268 (Count 2). The Honorable R.L. Hert, Special Judge, presided over the jury trial, where McKnight was sentenced to a $500.00 fine for Count 1 and six weeks confinement in the county jail along with a $500.00 fine for Count 2. **FACTS** On September 9, 2016, during severe weather, Appellant lost control of her vehicle on Interstate 35, resulting in a collision. Upon the Oklahoma Highway Patrol's arrival, Trooper Ryan Long found McKnight and her three small children in an ambulance nearby. Initially cooperative, McKnight became argumentative upon learning she would be ticketed for driving too fast for conditions. As tensions increased, McKnight attempted to leave the ambulance and re-enter her car despite Trooper Long's directives to stay. Following her non-compliance, Trooper Long attempted to escort her back, which led to her striking him and resisting arrest. Subsequently, she was charged with obstructing and resisting an officer. **ANALYSIS** 1. **Sufficiency of Evidence for Obstruction** Appellant argues that evidence was insufficient to support her conviction for obstruction. The jury instruction required proof that McKnight willfully obstructed an Oklahoma Highway Patrolman in the discharge of his duties. Long's testimony confirmed the nature of his duties and her non-compliance. Viewing the evidence favorably for the prosecution, we conclude a rational jury could find McKnight guilty beyond a reasonable doubt. 2. **Resisting Unlawful Arrest** McKnight contends her conviction for resisting an officer should be reversed due to an unlawful arrest. This argument, raised for the first time on appeal, is examined for plain error. However, because Long had probable cause to arrest McKnight for obstruction as evidenced by her behavior, the arrest was lawful, negating her claim. 3. **Excessiveness of Sentences** Finally, Appellant challenges the sentences as excessive. However, both sentences fall within statutory limits, and we find they do not shock the conscience. **DECISION** The Judgment and Sentence of the District Court is AFFIRMED. **MANDATE** Pursuant to Rule 3.15 of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon filing of this decision. --- **COUNSEL** **At Trial:** Stephen Cale, Tulsa, OK **On Appeal:** Ariel Parry, Norman, OK; Rodrigo Carrillo, Stillwater, OK **For the State:** Mike Hunter, Oklahoma City, OK **OPINION BY:** ROWLAND, J. **Concur:** LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J. (concur in results); HUDSON, J. [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/M-2018-1055_1734357754.pdf)

Continue ReadingM-2018-1055

F-2018-624

  • Post author:
  • Post category:F

**Case Summary: Bryon Lynd Gordon v. The State of Oklahoma** **Court:** Oklahoma Court of Criminal Appeals **Case No.:** F-2018-624 **Date Filed:** October 3, 2019 **Judges:** Lumpkin (Majority Opinion), Lewis (Partial Concurrence and Dissent), Kuehn (Partial Concurrence and Dissent) **Background:** Bryon Lynd Gordon was convicted by a jury in the District Court of Bryan County for Forcible Oral Sodomy (Count 1), and the jury recommended a ten-year prison sentence. Gordon appealed the conviction, raising several points of error relating to the trial proceedings. **Key Propositions Raised on Appeal:** 1. **Competency of Witness:** Gordon argued the trial court abused its discretion by ruling the alleged victim, R.S., competent to testify without an inquiry into his ability to distinguish between truth and fiction. The court found that R.S. demonstrated competency and the ruling was not an abuse of discretion. 2. **Preliminary Hearing Testimony:** Gordon contended that the magistrate abused discretion by allowing R.S. to testify at the preliminary hearing without confirming his competency. However, the court ruled that the failure to file a motion to quash before trial waived this claim. 3. **Admission of Hearsay Evidence:** Gordon claimed that the trial court erred by admitting unreliable hearsay statements made by R.S. without a required reliability hearing. The court recognized the error but deemed it harmless, asserting that the statements were inherently trustworthy based on available evidence. 4. **Sufficiency of Evidence:** Gordon argued that R.S.’s testimony was inconsistent and required corroboration. The court ruled that the victim's testimony was sufficient to sustain the conviction without the need for corroboration as the testimony was clear and coherent regarding the acts committed. 5. **Jury Instructions:** Gordon contended that the jury should have been instructed on how to handle R.S.’s prior inconsistent statements. The court found this omission did not affect the outcome of the trial. 6. **Vouching for Credibility:** Gordon argued that a witness, Palmore, impermissibly vouched for R.S.’s credibility. The court acknowledged this was error but did not rise to the level of plain error as it did not affect the trial's outcome. 7. **Ineffective Assistance of Counsel:** Gordon claimed his counsel failed to request certain jury instructions and did not object to Palmore's testimony. The court found no basis for an ineffective assistance claim as Gordon failed to show a reasonable probability that the trial outcome would have been different with better representation. 8. **Cumulative Errors:** Gordon finally argued that the accumulation of errors deprived him of a fair trial. The court concluded that since the individual errors were found to be harmless, their cumulative effect did not warrant relief. **Decision:** The Oklahoma Court of Criminal Appeals affirmed the judgment and sentence of the trial court, stating that after reviewing the entire record, no reversible errors were found that affected Gordon's substantial rights. **Outcome:** Judgment and sentence affirmed. **Dissenting Opinions:** Judges Lewis and Kuehn provided partial dissent regarding the handling of preliminary hearing procedures and the application of plain error review, suggesting that certain errors and the lack of timely objections should still be considered under principles of fairness and justice. For the full opinion, you can [download the PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-624_1735226692.pdf).

Continue ReadingF-2018-624

F-2018-12

  • Post author:
  • Post category:F

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

Continue ReadingF-2018-12

F-2018-269

  • Post author:
  • Post category:F

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

Continue ReadingF-2018-269

D-2014-153

  • Post author:
  • Post category:D

In OCCA case No. N 2014-153, Harris appealed his conviction for First Degree Murder. In a published decision, the court affirmed the death sentence, finding sufficient evidence of his crime and rejecting claims of an incomplete trial record. One judge dissented. [occa_caption]

Continue ReadingD-2014-153

RE-2018-348

  • Post author:
  • Post category:RE

In the case of Darrin Wayne Culley v. The State of Oklahoma, the Court of Criminal Appeals reviewed the appellant's appeal from the partial revocation of his suspended sentence. Culley had initially entered a plea of nolo contendere to a charge of Child Abuse and was sentenced to fifteen years imprisonment, which was suspended. However, after a motion to revoke his suspended sentence was filed due to new charges of Domestic Abuse, Culley stipulated to the allegations against him and accepted a plea agreement. Culley raised two main propositions of error in his appeal: 1. He argued that the revocation hearing violated his due process rights because his stipulation was not made knowingly and voluntarily. He claimed that he felt rushed and pressured into making his stipulation and that he had not been adequately informed about potential defenses to the allegations against him. 2. He contended that he received ineffective assistance of counsel, resulting in a poor decision to stipulate to the State's revocation application. The court addressed both propositions together. They noted that Culley did not claim that he was deprived of the minimum due process rights established in Morrissey v. Brewer but instead argued that counsel’s actions made his stipulation invalid. The court emphasized that the trial judge had thoroughly questioned Culley regarding his stipulation, confirming that he was acting voluntarily and understood the implications of his decision. The court concluded that his stipulation was indeed made knowingly and voluntarily. Regarding the claim of ineffective assistance, the court applied the Strickland v. Washington standard, which requires showing that the lawyer's performance was deficient and that this deficiency prejudiced the defendant. The court found that Culley did not establish that his counsel's performance was objectively unreasonable or that he was prejudiced by his representation. Ultimately, the Court affirmed the partial revocation of Culley's suspended sentence, finding no merit in his claims. The ruling highlights the importance of thorough questioning and confirmation by the court to ensure that a defendant's rights are protected during such proceedings.

Continue ReadingRE-2018-348

F-2018-964

  • Post author:
  • Post category:F

In the case of Robert Paul Lockner, Sr. v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals reviewed Lockner's conviction for assault and battery against police officers. Lockner was sentenced to four years in prison for each of the two counts, to be served consecutively. He raised several arguments on appeal, which the court addressed. 1. **Self-Defense Instruction**: Lockner contended that the trial court erred by not providing a jury instruction on self-defense. However, the court upheld that the trial court acted within its discretion, asserting that Lockner did not demonstrate entitlement to such an instruction as per the law governing use of force by police officers in effecting an arrest. 2. **Other Crimes Evidence**: Lockner argued that the introduction of evidence showing methamphetamine in his system at the time of arrest was improper because the state failed to notify him beforehand. The court found that this evidence was part of the res gestae of the charged offense, meaning it was closely connected to the events of the crime. Therefore, it was not subject to the notice requirement. They ruled that the evidence’s probative value outweighed any prejudicial effect. 3. **Cumulative Error Doctrine**: Lockner claimed that the combined effect of multiple alleged errors warranted a new trial. The court determined that since no individual error was sustained, there was no basis for a cumulative error claim. Ultimately, the court affirmed the judgment and sentence of the district court, concluding that Lockner's rights had not been violated and he had not demonstrated any errors that would warrant reversal of his conviction. In a special concurrence, Judge Kuehn elaborated on the inadmissibility of the drug test results in the state’s case-in-chief, but agreed that their eventual admission did not affect Lockner’s substantial rights due to the potential for impeachment in his own testimony. The decision from the Oklahoma Court of Criminal Appeals ensures that Lockner's conviction stands, as all claims for relief were denied.

Continue ReadingF-2018-964

F-2018-629

  • Post author:
  • Post category:F

**IN THE COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **BRIAN KEITH FULLERTON,** Appellant, vs. **THE STATE OF OKLAHOMA,** Appellee. **No. F-2018-629** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA SEP 26 2019** **SUMMARY OPINION** **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Brian Keith Fullerton, was convicted by a jury in Oklahoma County District Court, Case No. CF-2016-4430, of four counts of Lewd Acts with a Child Under Sixteen. The Honorable Bill Graves, District Judge, sentenced him in accordance with the jury's recommendation to life imprisonment on each count, with the sentences to be served as follows: two pairs of life terms to run concurrently, with one pair served consecutively to the other. Appellant must serve 85% of each sentence before being considered for parole. Appellant raises four propositions of error in support of his appeal: **PROPOSITION I:** The evidence is insufficient to sustain a conviction for both Count 1 and Count 2 Lewd Acts with a Child Under the Age of Sixteen because the State failed to prove Mr. Fullerton touched L.D. on the vagina more than once. **PROPOSITION II:** The information filed in this case was insufficient as it failed to apprize Mr. Fullerton of what he was charged with and was not specific enough to allow him to plead former jeopardy should the State seek to file other charges, in violation of the due process clauses of the Federal and State Constitutions. **PROPOSITION III:** The prosecutors invoked improper sympathy toward the victim, L.D., and appealed to the jury's emotions, violating Mr. Fullerton's right to a fair trial. **PROPOSITION IV:** Trial errors, when considered in an accumulative fashion, warrant a new trial. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. **Analysis of Propositions:** 1. **Proposition I:** Appellant claims the victim's statements were too vague for the jury to reasonably find he committed the acts described in Counts 1 and 2 more than once. However, the Court found the victim's consistent statements to family, the forensic interviewer, and her anatomical drawing support the conviction on both counts. The evidence was deemed sufficient as per precedent. 2. **Proposition II:** The Court noted that since Appellant did not challenge the specificity of the Information at trial, this complaint was waived except for plain error. The factual allegations of the Information were sufficient for Appellant to prepare a defense and to advance a plea of former jeopardy for similar subsequent charges. No error was found. 3. **Proposition III:** Appellant argued that the prosecutor's closing remarks improperly invoked sympathy for the victim. With no objection raised at the time of the closing argument, the Court reviewed for plain error and found no basis for relief, as the comments were grounded in the evidence presented at trial. 4. **Proposition IV:** The Court determined that since no errors were identified in the prior propositions, there could not be cumulative error. **DECISION:** The Judgment and Sentence of the District Court of Oklahoma County 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 the delivery and filing of this decision. --- **APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE BILL GRAVES, DISTRICT JUDGE** **ATTORNEYS AT TRIAL** KENDA MCINTOSH MELTEM KARLA TANKUT ASST. PUBLIC DEFENDER OKLAHOMA COUNTY **ATTORNEYS ON APPEAL** HALLIE ELIZABETH BOVOS ASST. PUBLIC DEFENDER OKLAHOMA COUNTY **COUNSEL FOR DEFENDANT** **COUNSEL FOR APPELLEE** MEREDITH EASTER MIKE HUNTER MCKENZIE MCMAHAN ASST. DISTRICT ATTORNEYS OKLAHOMA COUNTY --- **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR IN RESULTS** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR**

Continue ReadingF-2018-629

F-2018-616

  • Post author:
  • Post category:F

**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **HEATHER SUZANNE BARBEE, Appellant,** **vs.** **THE STATE OF OKLAHOMA, Appellee.** **No. F-2018-616** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 26, 2019** SUMMARY OPINION **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Heather Suzanne Barbee, was convicted by a jury in Muskogee County District Court, Case No. F-2017-190, of Sexual Exploitation of a Child. On June 14, 2018, the Honorable Michael Norman, District Judge, sentenced her to thirty-three years imprisonment, in accordance with the jury's recommendation. She must serve 85% of her sentence before parole consideration. Appellant raises six propositions of error in support of her appeal: **PROPOSITION I:** THE TRIAL JUDGE ERRED BY HOLDING A TWO-STAGE TRIAL INSTEAD OF A ONE-STAGE TRIAL. **PROPOSITION II:** THE STATE'S DECISION TO PROCEED WITH A TWO-STAGE TRIAL WITHOUT ANY PROOF OF FORMER FELONIES CAUSED HARM TO Ms. BARBEE. **PROPOSITION III:** PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL. **PROPOSITION IV:** INEFFECTIVE ASSISTANCE OF COUNSEL DEPRIVED APPELLANT OF A FAIR TRIAL. **PROPOSITION V:** THE SENTENCE WAS EXCESSIVE. **PROPOSITION VI:** CUMULATIVE ERROR DEPRIVED Ms. BARBEE OF A FAIR TRIAL. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was charged with sexually exploiting her minor sister for financial gain. The State charged two counts, but the jury found her guilty of only one. As to Propositions I and II, the record indicates that (1) Appellant had prior convictions used to enhance the sentence on one of the two charges she faced; (2) the trial was bifurcated as to both charges; but (3) the jury acquitted Appellant of the enhanced count. Thus, the jury sentenced Appellant as a first offender on the remaining charge, and never heard about the prior convictions. The procedure used was entirely proper, and Appellant fails to show any prejudice from it. *Wisdom v. State*, 1996 OK CR 22, 99 17-20, 918 P.2d 384, 390; *Marshall v. State*, 2010 OK CR 8, I 58, 232 P.3d 467, 481. Propositions I and II are denied. In Proposition III, Appellant alleges six instances of prosecutorial misconduct. Because she did not object to these comments below, we review them only for plain error - an actual error, that is plain or obvious, and that affects a defendant's substantial rights and the outcome of the trial. *Bosse v. State*, 2017 OK CR 10, 9 82, 400 P.3d 834, 863. We find no error. First, the prosecutor did not impermissibly comment on Appellant's failure to testify simply by arguing that the jury had received absolutely nothing to contradict the testimony of the State's primary witnesses. Such general comments about the totality of the evidence (and lack of controverting evidence) differ from directly suggesting that the defendant must be guilty because she did not take the stand. *Id.*, 2017 OK CR 10, I 85, 400 P.3d at 863. The prosecutor never shirked her burden to prove all elements of the crime. Second, the prosecutor did not vouch for the credibility of complaining witnesses by pointing to their demeanor and the consistency in their accounts; these comments were properly based on evidence presented to the jury. *Taylor v. State*, 2011 OK CR 8, I 57, 248 P.3d 362, 379; *Bland v. State*, 2000 OK CR 11, I 97, 4 P.3d 702, 728. Third, the prosecutor's assessment of the defense strategy as smoke and mirrors and intellectually disingenuous, and her statement, Ladies and gentlemen, she is guilty, were also fair inferences from the evidence presented. *Harris v. State*, 2000 OK CR 20, I 35, 13 P.3d 489, 498. Fourth, assertions of the defendant's guilt are not improper if they are made with reference to the evidence presented. *Williams v. State*, 2008 OK CR 19, I 107, 188 P.3d 208, 228. Fifth, asking the jury to consider the long-term effects of the defendant's conduct on the victim when assessing the sentence was not plainly erroneous. *Carol v. State*, 1988 OK CR 114, I 10, 756 P.2d 614, 617. We note that the jury recommended a sentence less than the 40-year sentence requested by the prosecutor. Finally, the prosecutor's reference in the punishment stage to acquitted conduct (Count 2, the charge on which the jury found Appellant not guilty in the first stage of the trial) was not improper. The jury was still free to consider that conduct, because it was not an element the State had to prove beyond a reasonable doubt with regard to sentencing on Count 1. *See Dowling v. United States*, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). We find no error in the prosecutor's comments such as would warrant any relief. Proposition III is denied. In Proposition IV, Appellant faults trial counsel for not making objections to the issues raised in Propositions I, II, and III. To show trial counsel was ineffective, she must show both deficient performance and prejudice. *Strickland v. Washington*, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); *White v. State*, 2019 OK CR 2, I 23, 437 P.3d 1061, 1070. Because we found no merit to these substantive complaints, trial counsel was not ineffective. *Jackson v. State*, 2016 OK CR 5, I 13, 371 P.3d 1120, 1123. Proposition IV is denied. As to Proposition V, given Appellant's conduct in this case, the sentence recommended by the jury (less than what the prosecutor requested) was not shocking to the conscience, and the trial court's order that the sentence be served consecutively to Appellant's sentence in an unrelated case was not an abuse of discretion. *White*, 2019 OK CR 2, I 29, 437 P.3d at 1072. As to Proposition VI, because no error has been identified above, there can be no relief for cumulative error. *Engles v. State*, 2015 OK CR 17, I 13, 366 P.3d 311, 315. Proposition VI is denied. **DECISION** The Judgment and Sentence of the District Court of Muskogee County 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 the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY THE HONORABLE MICHAEL NORMAN, DISTRICT JUDGE **ATTORNEYS AT TRIAL** DAN MEDLOCK MEDLOCK LAW 620 WEST BROADWAY MUSKOGEE, OK 74401 **COUNSEL FOR DEFENDANT** **ATTORNEYS ON APPEAL** LISBETH L. MCCARTY INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR APPELLANT** NALANI CHING ASST. DISTRICT ATTORNEY DISTRICT ATTORNEY'S OFFICE KEELEY L. MILLER ASST. ATTORNEY GENERAL 220 STATE STREET MUSKOGEE, OK 74401 **COUNSEL FOR THE STATE** **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-616_1735230080.pdf)

Continue ReadingF-2018-616

F-2018-542

  • Post author:
  • Post category:F

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

Continue ReadingF-2018-542

F-2018-36

  • Post author:
  • Post category:F

In OCCA case No. F-2018-36, Robert Eugene Brewer appealed his conviction for Sexual Abuse of a Child Under 12. In a published decision, the court decided to affirm Brewer's conviction. One judge dissented. Brewer was tried in Tulsa County for sexually abusing a child under the age of 12. He was convicted by a jury and sentenced to seven years in prison. He was also ordered to serve three years of supervision after his prison term. Brewer appealed the decision, arguing that the trial court made a mistake by allowing evidence related to other crimes that he believed had not been proven. The court reviewed the evidence and arguments presented. The main issue was whether the trial court had the right to let in evidence that showed Brewer had a pattern of behavior related to sexual abuse. This type of evidence is sometimes called propensity evidence. Brewer argued that the trial court should have held a special hearing before allowing this evidence and should have required witnesses to testify in person. However, the court found that the trial judge had done a thorough job. The judge had held multiple hearings and considered the evidence carefully. The judge did not make a mistake by allowing the evidence because they had enough information to decide it was relevant and necessary for the case. Even though Brewer did not object to the evidence when it was presented during the trial, the court considered whether there was a serious mistake that affected the fairness of the trial. After reviewing everything, the court concluded that the trial judge acted correctly. In summary, the court believed that the evidence presented was acceptable and did not harm Brewer's case. Therefore, Brewer’s conviction was upheld, but the court also instructed the district court to make some corrections to its legal documents regarding the correct law that applied to Brewer's actions at the time of the crime. The decision was to keep Brewer's sentence in place while correcting the legal documentation properly.

Continue ReadingF-2018-36

F-2018-446

  • Post author:
  • Post category:F

In OCCA case No. F-2018-446, Byron Craig Herd appealed his conviction for First Degree Burglary. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. Byron Craig Herd was found guilty by a jury for breaking into someone's home. The court sentenced him to life in prison because he had a history of other convictions. During the trial, Herd's defense claimed that the prosecutor acted unfairly, which made it hard for him to get a fair trial. Herd argued two main points in his appeal. First, he said the prosecutor made the trial unfair by trying to make the jury feel sorry for the victims. The prosecutor did this by asking the jury about their feelings as potential victims of a burglary, which led to emotional comments during the trial. Secondly, Herd believed his life sentence was too harsh. The court looked carefully at the trial and the evidence. They noted that while some of the prosecutor's comments may have been too emotional, the evidence against Herd was very strong. There were recordings of him inside the victims' house, and he was caught shortly after the crime. The court concluded that, despite some mistakes made by the prosecutor, these did not significantly affect the fairness of the trial because the evidence of guilt was overwhelming. They also determined that Herd's sentence was appropriate given his past crimes and the seriousness of his current crime. In the end, the court denied Herd’s appeal, meaning he would stay in prison for life.

Continue ReadingF-2018-446

F-2018-401

  • Post author:
  • Post category:F

In OCCA case No. F-2018-401, Collins appealed his conviction for Felon in Possession of a Firearm. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Martino L. Collins was found guilty of having a gun even though he had previous felony convictions. He was sentenced to fourteen years in prison. Collins claimed that the trial was unfair because there was too much evidence about a shooting that he was not charged with, that certain expert testimony was wrong, and that he deserved credit for time spent in jail before the trial. The court looked at the evidence and decided that the shooting information was important for understanding why Collins was found with a gun. The jurors needed all the facts to make a fair decision. They found that there wasn't a mistake made by the trial court and that no one was unfairly harmed by this information. Collins also argued against certain things that witnesses said in court, but he didn't object to most of it during the trial, which meant he couldn’t complain about it later. Even when the court looked into the testimony by a ballistic expert, they found that it was okay for the expert to talk about his own findings. Lastly, the court said the law didn’t allow him credit for time he spent in jail before the trial began. Overall, after looking closely at everything, the court found no issues that would change Collins's conviction or sentence, so they kept the original decision.

Continue ReadingF-2018-401

F-2018-241

  • Post author:
  • Post category:F

In OCCA case No. F-2018-241, Mario Darrington appealed his conviction for Trafficking in Illegal Drugs (Marijuana and Methamphetamine) and related drug charges. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court. One judge dissented. Darrington was arrested after police executed a search warrant at a home in Tulsa. Officers found a large quantity of marijuana and methamphetamine in the house. Darrington was linked to this evidence through various items found at the scene, including drugs located in a suit pocket with his name on prescription bottles and documents. He was charged with trafficking and other felonies due to having a prior criminal record. During his trial, Darrington requested that evidence obtained from the search be suppressed, arguing that the search warrant was not valid. He believed that the warrant did not show enough information to justify the search. The court reviewed his claim and determined that the affidavit supporting the search warrant provided sufficient evidence for a judge to find probable cause. The police officer had personal observations and corroborated information that indicated illegal drug activity was happening at the residence. The court also found that the timing of the information was relevant and not too old to be dismissed. Additionally, Darrington sought to know the name of an unnamed informant who provided information to the police for the search. The court ruled that this informant was not a material witness, meaning their identity did not significantly affect Darrington's case. As a result, the court affirmed Darrington's conviction and upheld the district court's decisions regarding the suppression of the search evidence and the request for the informant's identity.

Continue ReadingF-2018-241

F 2018-0812

  • Post author:
  • Post category:F

In OCCA case No. F 2018-0812, Cesar Jurado appealed his conviction for various drug-related offenses and weapon possession. In an unpublished decision, the court decided to affirm the trial court's decision to accelerate Jurado's deferred sentences; he had previously entered guilty pleas to several felony charges. The State had applied to accelerate his deferred sentences based on new serious crimes he was alleged to have committed. Jurado argued that the evidence used to support this decision was based on unreliable testimony from a witness who did not appear in person. He claimed this was an abuse of discretion. The court found that the trial court acted within its rights and that there was enough evidence to support the acceleration of Jurado's sentences. It concluded that Jurado did not prove that there was any improper action taken by the trial court. Therefore, his appeal was denied, and the acceleration of his sentences was upheld. One justice dissented from this opinion.

Continue ReadingF 2018-0812

F-2018-313

  • Post author:
  • Post category:F

In OCCA case No. F-2018-313, Juan Jose Nava-Guerra appealed his conviction for Aggravated Trafficking in Illegal Drugs and Conspiracy to Commit Aggravated Trafficking in Illegal Drugs. In an unpublished decision, the court decided to affirm the judgment and sentence but modified it to lower the fees assessed. One judge dissented. Nava-Guerra was found guilty by a jury and sentenced to a total of 105 years in prison for each count, which would run at the same time. He argued that his rights were violated during the trial due to several reasons. First, he claimed the trial court allowed hearsay statements that should not have been presented as evidence. However, the court found that since Nava-Guerra himself had introduced similar evidence in his defense, he could not claim there was an error in allowing the State's evidence. Second, he argued that the search of the vehicle he was in was unlawful, claiming that the officer did not have a valid reason to stop the car. The court reviewed the details of the stop and found that there was a valid reason based on the car following too closely behind another vehicle, which justified the officer's actions. Third, he contested the admission of a specific exhibit, which was a transcription of audio from the car. The court decided that, like the first issue, since he used nearly the same exhibit in his defense, he could not argue it was wrong for the State to use it. Finally, Nava-Guerra challenged the fee for his defense attorney, saying it was too high. The court agreed that the fee assessed was higher than allowed by law and modified it to the correct amount. In summary, the court found no significant errors in the trial except for the fees, which needed to be reduced. The final decision was to uphold the conviction but change the fees owed.

Continue ReadingF-2018-313

F-2018-309

  • Post author:
  • Post category:F

In OCCA case No. F-2018-309, Adrian Escajeda appealed his conviction for Murder in the First Degree. In an unpublished decision, the court decided to affirm his conviction and sentence. One judge dissented. Adrian Escajeda was found guilty of first-degree murder by a jury and sentenced to life in prison. He was also convicted earlier of two drug possession charges, but those were not part of his appeal. During his trial, Escajeda claimed there were several errors that negatively impacted his case. First, he argued that it was wrong to have both his murder case and a separate child neglect case tried together in front of the same jury. He believed this made it hard for the jury to be fair. However, the court found that he didn't show how this joined trial actually harmed him because the jury had acquitted him of the child neglect charge. Additionally, the evidence against him for murder was very strong and unrelated to the child neglect, making the combined trial harmless. Escajeda also said his lawyer did not do a good job by not objecting to the charges being joined for trial. However, the court decided that his lawyer's performance wasn’t ineffective because there wasn’t any real prejudice; the outcome was not affected. The next point Escajeda raised was about some statements made during the trial. He believed hearsay was wrongly admitted, which violated his right to confront witnesses. The court looked into this and concluded that the statements in question were not hearsay, as they were used to explain the detective's investigation and did not assert the truth of those statements. Finally, Escajeda claimed that the prosecutor made unfair comments during the trial that made it hard for the jury to be impartial. The court examined these comments and found they were reasonable and based on the evidence presented. Since the comments did not create an unfair trial, the court dismissed this argument as well. In conclusion, the court reviewed all of Escajeda’s claims and found none of them warranted a change to his conviction or sentence. As a result, his conviction for first-degree murder remained in place, and he will serve the majority of his sentence in prison.

Continue ReadingF-2018-309

PC-2018-723

  • Post author:
  • Post category:PC

**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.

Continue ReadingPC-2018-723

F-2017-1176

  • Post author:
  • Post category:F

In OCCA case No. F-2017-1176, Anthony Dean Wilkerson, Jr., appealed his conviction for seven counts of Child Sexual Abuse. In an unpublished decision, the court decided to affirm the judgment and sentence given to him. One judge dissented. Wilkerson was convicted by a jury for serious crimes against a child. The jury decided on the punishments for each count, giving him long sentences, including life imprisonment for some of the counts. The trial court judge sentenced him to serve these sentences one after the other, meaning he would spend a long time in prison. Wilkerson raised several issues in his appeal, saying that his trial was not fair. He argued that he was punished too harshly for the same crime (double punishment), that the trial court made mistakes during the trial, and that the total effect of these mistakes made it unfair for him. The court looked at all the evidence and decided that Wilkerson's arguments were not strong enough to change the original decision. For his first point about double punishment, the court noted that the crimes were separate acts, so it was okay for him to be convicted on all counts without violating laws against multiple punishments. For his second and third points, the court said the trial judge was allowed to let the state ask questions that helped the young victim, J.W., remember her experiences better and to clarify her testimony about what happened to her. Regarding the length of his sentences and how they were administered (running consecutively), the court found no reason to change what the jury and trial judge decided. The punishments fell within legal limits, and the court didn't find that they were too harsh when considering the seriousness of the crimes. Wilkerson also claimed there was an error about a fine that was not mentioned at his sentencing. The court agreed that it was a simple mistake and ordered the lower court to correct this. Finally, the court did not find any combined errors that affected the fairness of the trial, so they rejected his last claim about cumulative error. In conclusion, the court upheld the original decision and confirmed Wilkerson's convictions, but instructed the lower court to fix the written sentencing document to remove the fine.

Continue ReadingF-2017-1176

RE-2018-662

  • Post author:
  • Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **RYAN MITCHELL CRONIC,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-662** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA AUG 29 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Ryan Mitchell Cronic, pleaded guilty to three felony counts of Concealing Stolen Property in Oklahoma County District Court Case No. CF-2013-2184. He was sentenced to five years suspended on each count and was ordered to pay restitution. Additionally, he pleaded guilty to one felony count of Concealing Stolen Property in Oklahoma County District Court Case No. CF-2015-580, which resulted in a five-year imprisonment sentence, also suspended in full and ordered to run concurrently with Case No. CF-2013-2184, with credit for time served. The State filed an Application to Revoke Suspended Sentence for each case, alleging Appellant failed to pay supervision fees and restitution. Appellant stipulated to these allegations and received a sentence of thirty days in the custody of the Oklahoma County Sheriff. The applications to revoke were later dismissed by the State's motion. A second Application to Revoke Suspended Sentence was filed alleging that Appellant again failed to pay supervision fees and restitution, as well as including new charges: Aggravated Attempting to Elude a Police Officer, Driving While Revoked, and Failure to Provide Proof of Security Verification. After a hearing, the Honorable Timothy R. Henderson, District Judge, ordered Appellant's suspended sentences revoked in full. Appellant appeals this revocation, claiming it was an abuse of discretion. We affirm the order of the District Court regarding the revocation of Appellant's suspended sentences. The decision to revoke suspended sentences lies within the trial court's discretion and will not be disturbed unless there is an abuse. An abuse of discretion is described by this Court as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Appellant has not demonstrated an abuse of discretion in the present case. However, there is a discrepancy in the record regarding Appellant's sentences. The Judgment and Sentence for both cases states Appellant was given a ten-year suspended sentence, while all other documents refer to a suspended sentence of five years. Consequently, we remand this matter to the District Court to address this inconsistency. **DECISION** The District Court's revocation of Appellant's suspended sentences in Oklahoma County District Court Case Nos. CF-2013-2184 and CF-2015-580 is **AFFIRMED**, but the case is **REMANDED** to the District Court for further proceedings consistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the **MANDATE is ORDERED** to 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 APPEAL REVOCATION HEARING** **RICHARD HULL** **COUNSEL FOR DEFENDANT** **HALLIE E. BOVOS** **611 COUNTY OFFICE BLDG.** **OKLAHOMA CITY, OK 73102** **COUNSEL FOR APPELLANT** **KELLY COLLINS** **OKLAHOMA COUNTY DISTRICT ATTORNEY** **MIKE HUNTER** **ATTORNEY GENERAL OF OKLA.** **COUNSEL FOR THE STATE** **OPINION BY:** KUEHN, V.P.J.: **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR**

Continue ReadingRE-2018-662

F-2018-852

  • Post author:
  • Post category:F

This document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding the case of Donald Ray Morrow. The key points of the opinion are as follows: 1. **Case Background**: Donald Ray Morrow was convicted by a jury of first-degree burglary, second-degree burglary, and larceny of an automobile in Custer County. He received a concurrent sentencing of fifteen years for the first-degree burglary, four years for the second-degree burglary, and six years for larceny. 2. **Propositions of Error**: Morrow raised two main arguments on appeal: - **Proposition One**: He claimed the trial court erred by allowing a juror who had a social acquaintance with a prosecution witness to remain on the panel. Upon examination, the juror stated that she could set aside any prior knowledge and decide based solely on the evidence presented. The court found no actual bias or harm and denied the request for a mistrial. - **Proposition Two**: Morrow argued that his sentence did not properly reflect credit for time served. The court agreed that an order was necessary to ensure that the credit for time served is accurately recorded in the judgment. 3. **Decision**: The Court of Criminal Appeals affirmed Morrow's convictions but remanded the case to the trial court with instructions to correct the judgment to reflect that he is to receive credit for time served. 4. **Outcome**: The mandate was ordered to be issued upon the filing of the decision, and all participating judges concurred with the opinion. For those interested in the full legal document, a link to download the complete opinion in PDF format is provided.

Continue ReadingF-2018-852

F-2018-793

  • Post author:
  • Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **MARTIN OCHOA MEDINA,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. **Case No. F-2018-793** **FILED AUG 29 2019** JOHN D. HADDEN, CLERK --- **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Martin Ochoa Medina appeals his Judgment and Sentence from the District Court of Beckham County, Case No. CF-2017-275, for Assault and Battery with a Deadly Weapon, After Former Conviction of a Felony in violation of 21 O.S.2011, § 652. The Honorable Doug Haught, District Judge, presided over Medina's jury trial and sentenced him, in accordance with the jury's verdict, to life imprisonment. Medina raises a single issue on appeal: whether he was denied a fair sentencing proceeding because of prosecutorial misconduct throughout the second stage of his bifurcated trial. **1. Prosecutorial Misconduct Claim** Medina contends he was denied a fair sentencing proceeding due to prosecutorial misconduct during the second stage of his trial. He specifically argues that the prosecutor improperly introduced details of his prior conviction, appealed to sympathy for the victim, and wrongly commented on the potential for him to commit future crimes. However, Medina failed to object to these comments during the trial, waiving review of this claim for all but plain error. **Reviewing for plain error**, the Court finds that Medina has not shown that any alleged prosecutorial misconduct affected the outcome of the trial. Arguments made during closing are considered within the context of the entire trial. While the prosecutor did make improper comments regarding future crimes, reviewing the totality of the circumstances, such comments did not significantly impact the fairness of the sentencing proceeding. **DECISION** The Judgment and Sentence of the district court is **AFFIRMED**. --- **OPINION BY: ROWLAND, J.** **CONCURRING IN PART/DISSENTING IN PART:** **HUDSON, J.:** I write separately to dissent regarding the finding of plain error related to the prosecutor's comments about the potential for future offenses. The majority's reference to prior case law does not fully support their conclusion, as the prosecutor's comments were grounded in the evidence presented during trial and were relevant to the discussion of Medina's history and behavior. The prosecutor's arguments were appropriate and based on the evidence regarding Medina's prior violent acts, which warranted discussion in the context of sentencing. There was no misuse of the argument to stir societal alarm but rather a legitimate consideration of the defendant's recidivism. Recidivism has always been a recognized basis for enhanced sentencing, and the defendant's past conviction of a violent crime aligns with the evidence presented during this trial. Therefore, I believe the prosecutor's comments were within the permissible bounds and the majority has incorrectly labeled this as error. I concur with the denial of relief for the remaining arguments but dissent regarding the assessment of error concerning the comments about future conduct. --- For further details, you can [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-793_1735216324.pdf).

Continue ReadingF-2018-793