Judicial Bias

C-2018-977

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BRADLEY WAYNE CHERRY,** **Petitioner,** **v.** **THE STATE OF OKLAHOMA,** **Respondent.** **Case No. C-2018-977** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA AUG 29 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Bradley Wayne Cherry entered guilty pleas in the District Court of Oklahoma County to charges of Second Degree Burglary under Case Nos. CF-2017-4883 and CF-2017-5420. These pleas were accepted by the Honorable Ray C. Elliott on November 15, 2017, as part of a plea agreement allowing Petitioner to enter the RID Program, with the potential for a more favorable sentence upon successful completion. His sentencing, set for September 19, 2018, was postponed to allow for completion of the program. Petitioner failed the RID Program and was charged with additional burglaries in Case No. CF-2018-2594. Pleas and sentencing for the three cases culminated on August 22, 2018, resulting in seven years imprisonment per case, ordered to run consecutively. Petitioner subsequently filed a pro se Motion to Withdraw Guilty Plea, which the trial court denied after a hearing. **Propositions of Error Raised by Petitioner:** 1. **Excessive Sentencing:** Petitioner claims the imposed sentences are shockingly excessive and not proportional to the crimes. The court finds this argument unpersuasive as the legislature defines punishment ranges for offenses. Given the nature of multiple burglaries, including home invasions, the maximum sentences were deemed appropriate. 2. **Restitution Order:** The claim regarding the trial court’s adherence to statutory procedures for restitution was waived, as it was not raised in the motion to withdraw the plea. 3. **Plea Agreement Not Honored:** Petitioner argues the trial court did not adhere to the plea agreement in CF-2018-2594. The court determined there was no formal plea agreement regarding concurrent sentencing; hence, the claim fails. 4. **Voluntariness of Pleas:** Petitioner asserts his pleas were not knowingly entered due to an alleged lack of understanding about possible sentencing. The court determined Petitioner was adequately informed about his potential sentencing and the implications of a blind plea. 5. **Bias of the Trial Court:** Petitioner claims bias during the proceedings; however, this issue was not preserved for appeal as it was not included in the withdrawal motion or addressed at the hearing. 6. **Ineffective Assistance of Counsel:** Petitioner asserts his appellate and trial counsel were ineffective, but these claims were not explicitly raised during the motion to withdraw. Concerning the effectiveness of conflict counsel at the withdrawal hearing, Petitioner failed to demonstrate any resulting prejudice. **DECISION:** The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the District Court is AFFIRMED. A mandate is ordered to be issued upon delivery and filing of this decision. **APPEARANCES:** - **For Petitioner at the Plea Hearing:** - Mark Hartshorn (Oklahoma City, OK) - **For Defense at Withdrawal Hearing:** - Thomas Hurley (Oklahoma City, OK) - **For the State:** - Dan Pond (Oklahoma City, OK) **OPINION BY:** LUMPKIN, J. **Concurred by:** LEWIS, P.J.; KUEHN, V.P.J.; HUDSON, J.; ROWLAND, J. --- **[Download PDF of Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-977_1734186380.pdf)**

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F-2017-68

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This text appears to be a legal opinion from the Court of Criminal Appeals of the State of Oklahoma regarding the case of Jonathan D. McKee, who was convicted of Child Abuse. The judgment affirms the conviction and address various propositions raised by the appellant concerning the conviction and the trial process. The summary of the opinion includes analysis of the following propositions: 1. **Sufficiency of Evidence**: The court concluded that there was sufficient evidence for a rational juror to convict McKee of child abuse based on medical expert testimony. 2. **Evidentiary Rulings**: The court reviewed multiple evidentiary rulings that McKee argued were erroneous. They concluded that while McKee's refusal to speak with authorities could raise Fifth Amendment concerns, it did not constitute plain error affecting the trial’s outcome. Additionally, evidence concerning drug paraphernalia was found relevant to the case. 3. **Judicial Bias**: Appellant’s claim of judicial bias was rejected as the court found no evidence of actual bias or any violations affecting due process. 4. **Cumulative Error**: The court stated that because none of the individual propositions were sustained, the cumulative error argument had no merit. The opinion also includes concurring opinions from Judges Kuehn and Rowland. Judge Kuehn expressed some reservations about the relevance of mentions of a request for legal counsel, while Judge Rowland emphasized that McKee's conduct and refusal to speak were relevant in assessing guilty knowledge, even though they did not implicate any constitutional violations. The final decision affirmed the judgment and sentence, with the court ordering the mandate issued upon delivery and filing of this decision. For further details, one may refer to the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2017-68_1734271673.pdf).

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F-2011-962

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In OCCA case No. F-2011-962, Jonas Alan Thornton appealed his conviction for Assault with a Dangerous Weapon. In an unpublished decision, the court decided to reverse Thornton's conviction and remand the case for a new trial due to concerns over the impartiality of the trial judge. One judge dissented. Thornton was convicted after a non-jury trial where the judge was someone he had previously consulted while looking for legal advice regarding the case against him. The incident occurred in January 2010 when Thornton allegedly fired a handgun into a house. After being arrested, he spoke with the judge, who was not in his judge role at that time. Later, the judge was elected and presided over Thornton’s trial. During the appeal, Thornton claimed that the judge should have recused himself because of their prior interaction, which could influence how the judge viewed the case. The court found that the judge failed to follow rules requiring him to step aside, which led to a decision that Thornton did not receive a fair trial. The court stated that even though Thornton did not directly ask for the judge to disqualify himself at the time, this did not eliminate the obligation for the judge to recognize a conflict of interest. The relationship between Thornton and the judge meant that the fairness of the trial could be doubted. As a result, the court ruled that Thornton's conviction needed to be reversed, and he would get a new trial. This decision effectively set aside the earlier trial's results and meant that any further claims Thornton made concerning his representation or other trial aspects were not addressed since the focus was on the impartiality of the judge.

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F-2008-579

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In OCCA case No. F-2008-579, Thomas Clinton Ledgerwood appealed his conviction for Maiming, Domestic Abuse Involving Great Bodily Injury, and Kidnapping. In an unpublished decision, the court decided to reverse Ledgerwood's conviction for Kidnapping and affirm the other convictions. One judge dissented.

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F-2005-1058

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In OCCA case No. F-2005-1058, Shaynathian Rashaud Hicks appealed his conviction for multiple charges including indecent exposure, attempted rape, injury to a minor child, and others. In an unpublished decision, the court decided to reverse the conviction for indecent exposure and remand it with instructions to dismiss. The remaining convictions were affirmed. One judge dissented regarding certain aspects of the opinion. To explain further, Hicks was tried and found guilty of several serious offenses. These included lewd acts like indecent exposure and attempted rape. The jury gave him a total of different sentences, with the most time for his attempted rape and injury to a minor child. Hicks felt that the evidence against him was not strong enough and presented several reasons why he thought he should win his appeal. He argued that there wasn't enough proof to show that his actions qualified as indecent exposure. The court agreed and reversed that conviction, saying the evidence didn’t show he acted in a lewd way. However, for the other charges like attempted rape and injury to a minor, the court found the evidence sufficient, so his convictions for those remained in place. Hicks also had a problem with the way the trial was conducted. He claimed that he wasn’t able to confront all the witnesses against him because some of their testimonies were taken without them being present at the trial. But the court decided the trial was fair and followed the rules. Hicks felt that mistakes were made in how the jury was instructed about the law and that the prosecutor acted unfairly during the trial. The court looked into these claims, but most were either waived or didn’t have a significant impact on the trial's outcome. In summary, while the court reversed his conviction for indecent exposure due to a lack of evidence, it upheld the other convictions because they found there was enough evidence for those offenses. Hicks’s overall arguments did not lead to a change in the other convictions, which means he must serve his sentences as determined by the jury.

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F-2005-440

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In OCCA case No. F-2005-440, Zachary Michael Hudson appealed his conviction for First Degree Manslaughter. In an unpublished decision, the court decided to affirm his conviction but modified his sentence. One judge dissented. Zachary Hudson was tried by a jury for First Degree Murder, but the jury found him guilty of the lesser offense of First Degree Manslaughter. They recommended a punishment of twenty years in prison and a $10,000 fine. The trial judge followed this recommendation when he sentenced Hudson. After the trial, Hudson raised several points of error in his appeal. He claimed he was not given a fair trial because he thought the court was too involved and was biased toward the State. However, the court found that the judge was simply ensuring that witnesses understood the questions and did not show any partiality. Hudson also argued that there wasn't enough evidence to support the conviction for manslaughter, and he believed the jury instructions were incorrect. The court found evidence that Hudson fought with the person who died, left, returned, and then ran over that person with his car. This evidence led the court to believe that the jury could find Hudson guilty, as they might think he acted out of anger or passion rather than by accident. Hudson’s last point was about not having the jury instructed on the 85% Rule, which explains how much of a sentence must be served before someone can be eligible for parole. The court agreed that the jury needed this information and decided to modify Hudson's sentence from twenty years to fifteen years in prison while keeping the $10,000 fine. In summary, the court affirmed the conviction but modified the sentence because they wanted to ensure that the jury had clear information about parole eligibility, which would help them make informed decisions.

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M-2002-1146

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In OCCA case No. M-2002-1146, Michael Lee Vickery appealed his conviction for unlawful possession of marijuana, possession of paraphernalia, and driving under suspension. In a published decision, the court decided to affirm the convictions but modified the sentences to three months of incarceration, giving credit for time served. One judge dissented regarding the modification.

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