Judicial Economy

F-2021-49

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

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F-2019-310

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In OCCA case No. F-2019-310, Kedrin Ray Dixon appealed his conviction for first-degree burglary, sexual battery, and possession of a controlled dangerous substance. In a published decision, the court decided to modify the sentence for sexual battery to ten years imprisonment, making it consecutive to the other sentence, and otherwise affirmed the convictions. One judge dissented regarding the modification of the sentence for sexual battery. Dixon was found guilty by a jury on multiple counts after a trial in the District Court of Washington County. The jury sentenced him to twenty years in prison for burglary and sexual battery, and one year for possession of a controlled substance. The trial judge ordered the sentences for burglary and sexual battery to be served back-to-back. Dixon then appealed, raising several points of error, including issues related to jury instructions and evidence. The first issue was about the trial judge not mentioning that he was presumed innocent in the instructions at the start of the trial. The court found this error was not significant since the final instructions did include the presumption of innocence. Next, Dixon claimed that the evidence was not strong enough for the first-degree burglary conviction. The court disagreed, stating that there was enough evidence for a reasonable jury to find him guilty. Dixon also argued that he should have been allowed to present evidence regarding his intoxication at the time of the crime. The court ruled that the trial judge had the right to refuse his request since the evidence did not clearly support intoxication as a defense. Another point of concern for Dixon was what he called evidentiary harpoons, which are when comments are made that suggest knowledge of other crimes. The court found that he did not object to these comments at the trial and they did not seriously affect the verdict. Dixon claimed that he was unfairly prevented from presenting a full defense regarding reports of his previous erratic behaviors. The court decided that these reports were not very relevant to his defense and that excluding them did not significantly harm his case. A notable issue was a mistake in how the jury was informed about the potential punishment for sexual battery. The trial judge incorrectly stated that it could be punished by twenty years, which was incorrect. The State agreed that this was an error. Instead of sending Dixon back for a new trial, the court decided to lower his sentence for sexual battery to ten years because of this error. Dixon stated that his total sentences were too harsh, but after reviewing the circumstances, the court determined that the sentences were acceptable even after the changes made to one of them. Lastly, Dixon argued that there were too many errors in the case that made it unfair for him. The court did acknowledge the instructional error but believed there were no other significant errors affecting the outcome of the trial. In summary, the court modified Dixon's sentence for sexual battery and kept the other parts of his conviction intact. The final decision still upheld his guilty verdicts on all counts.

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F-2018-1103

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BERT GLEN FRANKLIN,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-1103** **OPINION** LUMPKIN, JUDGE: Appellant, Bert Glen Franklin, was tried by jury and convicted in a consolidated trial of Count 1, First Degree Murder (Child Abuse), and of Count 2, Solicitation of First Degree Murder. The jury recommended punishment of life imprisonment without parole on Count 1 and life imprisonment on Count 2, with the sentences running consecutively. Appellant appeals from this judgment and sentence raising two propositions of error. **PROPOSITION I: Joinder of Charges** Appellant contends that his cases should not have been joined in one trial, asserting that this improper joinder resulted in prejudice. However, as Appellant failed to object at trial, we must review this for plain error, which requires an actual error that is plain or obvious and that affects the Appellant's substantial rights. The statute governing joinder of charges, 22 O.S.2011, § 438, permits the trial of two or more offenses together if they could have been joined in a single indictment. Our analysis is guided by reconciling the factors set forth in previous case law. 1. **Same Type of Offenses:** The charges of murder and solicitation reflect a common theme of violence directed towards individuals involved with the defendant, qualifying them as the same type of offenses. 2. **Proximity in Time:** While the offenses occurred approximately seventeen months apart, the delay was due to Appellant's incarceration. They are sufficiently related given the circumstances under which Appellant acted. 3. **Proximity in Location:** Both offenses were committed within Oklahoma County, suggesting a logical relationship between the two. 4. **Overlapping Proof:** Evidence supporting each charge would have been admissible in separate trials since they are intrinsically linked to Appellant’s actions and intent. Given these observations, we find that the joinder was proper, and Appellant suffered no prejudice; therefore, no error occurred. We deny Proposition I. **PROPOSITION II: Ineffective Assistance of Counsel** Appellant argues that his trial counsel was ineffective for not objecting to the joinder. Under the Strickland test, Appellant must demonstrate both that counsel's performance was deficient and that such performance prejudiced his case. Since we determined in Proposition I that the joinder was appropriate, Appellant cannot show that any failure to object prejudiced his case. As a result, we also deny Proposition II. **DECISION** The judgment and sentence are affirmed. The mandate is ordered issued upon the delivery and filing of this decision. --- **APPEARANCES:** **For Appellant:** R. Scott Adams Box 926 Norman, OK 73070 **For Appellee:** Mike Hunter Attorney General of Oklahoma Theodore M. Peeper, Asst. Attorney General 320 Robert S. Kerr, #505 Oklahoma City, OK 73102 --- **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.:** Concur in Result **KUEHN, V.P.J.:** Recuse **HUDSON, J.:** Concur **ROWLAND, J.:** Recuse --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1103_1734788162.pdf) This ruling affirms the conviction and sentences of Bert Glen Franklin and addresses the legal standards regarding the joinder of offenses and ineffective assistance of counsel.

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F-2017-528

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In OCCA case No. F-2017-528, Darrien Hasmii Clark appealed his conviction for Murder in the First Degree and several other charges, including Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to affirm the convictions. One judge dissented. Darrien Clark was found guilty by a jury of murdering a convenience store clerk after he shot the clerk multiple times during a robbery. The jury also convicted him on other charges involving a separate shooting incident. Clark was sentenced to life in prison without the chance of parole for the murder, and he received additional sentences for the other crimes, which will be served consecutively. During the trial, Clark's defense raised several issues. He argued that his murder case and the other cases should not have been tried together, but the court ruled that the similar nature of the crimes justified this decision. The evidence showed that both incidents involved the same weapon and occurred in a close time frame, which the court found relevant for judicial efficiency. Clark also tried to present evidence to suggest that someone else committed the murder, arguing that another man who was initially arrested should be considered a suspect. However, the court found that there wasn’t enough reliable evidence to support this claim. In addition, Clark claimed that the prosecution improperly introduced victim impact evidence during the trial. The court determined that the evidence was relevant to the case and did not constitute a plain error. Another argument made by Clark was that he acted in self-defense during the shooting of another man. The jury was instructed about self-defense laws, and the evidence presented suggested that Clark was the aggressor in that situation. The court concluded that any rational jury could determine that he did not act in self-defense. Lastly, Clark argued that the combination of errors throughout the trial denied him a fair trial. However, since the court found no significant errors, they denied this claim as well. The court ultimately decided to uphold the convictions and sentences issued by the lower court.

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S-2018-6

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** Court Case No: S-2018-51 and S-2018-6 **STATE OF OKLAHOMA,** Appellant, **V.** **SHELLEY MARIE BRADLEY,** Appellee. **STATE OF OKLAHOMA,** Appellant, **V.** **DYLAN THOMAS BRODIE,** Appellee. **SUMMARY OPINION** **ROWLAND, JUDGE:** 1. The State of Oklahoma, Appellant, appeals from an order affirming the ruling of the magistrate, sustaining the defendants' demurrers to evidence on Counts 1 and 2, and denying the State's request to amend the Informations, in Case Nos. CF-2017-445 and CF-2017-446 in the District Court of Wagoner County. **STATEMENT OF THE CASE** 2. Appellees, Shelley Marie Bradley and Dylan Thomas Brodie, were charged with intimidation of a witness and conspiracy to commit a felony. The magistrate sustained the demurrers to the evidence and denied amendments to include additional charges. 3. The matter was assigned to Judge Mark L. Dobbins as the reviewing judge, who affirmed the magistrate's ruling. 4. The State appealed; on August 9, 2018, this Court held oral arguments, after which the ruling was reversed. **SUMMARY OF FACTS** 5. The Appellees are related to Jacob Ode, charged with several offenses following a police pursuit. Hawkins, a relative of the Appellees, was a passenger and initially provided a statement implicating Ode. 6. Later, Hawkins was approached by the Appellees and persuaded to change her statement to indicate Ode was not the driver during the pursuit. 7. The magistrate found no evidence demonstrating that Hawkins was threatened or coerced into altering her testimony. **ANALYSIS** ### I. Intimidation of Witness 8. The State argued sufficient evidence existed for the charge of witness intimidation. However, the records demonstrated no evidence of Hawkins being prevented from testifying or coerced through force or fear. 9. The judges did not err in finding there wasn’t enough evidence to support the claim of intimidation. ### II. Conspiracy to Commit Intimidation 10. The State similarly could not provide sufficient evidence to show any conspiracy between the Appellees to intimidate Hawkins, as no threats or coercion were substantiated. ### III. Conspiracy to Commit Perjury by Subornation 11. The State argued it presented sufficient evidence to show a conspiracy to commit perjury by subornation. The appellate judges found sufficient cause to remand for the trial on this charge. ### IV. False Preparation of Exhibits 12. The evidence presented indicated that Hawkins’ second statement was prepared under the Appellees' guidance with the intent to be submitted as evidence. 13. The failure to include this evidence as a charge of False Preparation of Exhibits was deemed an error by the appellate judges. **DECISION** 14. The order of the District Court sustaining the magistrate's decisions is REVERSED. The case is remanded to the District Court with instructions to proceed to trial for the charges of Conspiracy to Commit Perjury by Subornation and False Preparation of Exhibits. **APPEARANCES** - **For the State:** Douglas G. Dry, Assistant District Attorney - **For the Appellees:** Michon Hastings Hughes & Clinton C. Hastings, Attorneys at Law **OPINION BY: ROWLAND, J.** - LUMPKIN, P.J., LEWIS, V.P.J., HUDSON, J., and KUEHN, J., concur. --- **[Download PDF of Full Opinion](https://opinions.wirthlawoffice.com/wp-content/uploads/S-2018-6_1734333945.pdf)**

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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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F-2014-22

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In OCCA case No. F-2014-22, Padillow appealed his conviction for rape and sexual offenses. In an unpublished decision, the court decided to affirm the convictions but reversed a citation for direct contempt of court and vacated the associated sentence. One judge dissented. Earnest Eugene Padillow faced serious charges in two cases related to the sexual abuse of young girls. The first case involved the abuse of his nine-year-old great-niece, S.G., during a single day in August 2007, and the second case involved the sexual assault of his 11-year-old niece, D.P., in 2011. In both instances, Padillow was accused of serious crimes, including rape and inappropriate sexual contact. During the trial, Padillow had a tumultuous relationship with his attorneys. He expressed dissatisfaction with their defense strategies and at times chose to represent himself. This led to a chaotic scene in the courtroom where Padillow violently attacked one of his attorneys, resulting in his removal from the courtroom. Despite his outbursts, the trial proceeded, and he was found guilty. The court sided with the trial judge's decision that Padillow waived his rights to be present during certain trial stages due to his disruptive conduct. Padillow also claimed that his constitutional right to testify was violated when he was removed from the courtroom. However, the court ruled that his violent actions constituted a waiver of that right. In another point of contention, Padillow argued that he should have been given the chance to respond to a direct contempt charge when the judge found him guilty of contempt for his outburst. Although the court acknowledged he did not have the opportunity to be heard, they decided to reverse the contempt finding rather than require a new hearing given the context of his other convictions. Lastly, it was determined that some of the judgment documents contained errors regarding sentences, which the court directed to be corrected. Overall, the court upheld the significant portions of Padillow's convictions while addressing some procedural errors related to his contempt citation and record-keeping in the judgments.

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F-2002-899

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In OCCA case No. F-2002-899, Edward John VanWoundenberg appealed his conviction for Driving While Under the Influence (DUI) after having two or more previous convictions. In an unpublished decision, the court decided to affirm the conviction and sentence. One judge dissented. VanWoundenberg was found guilty of DUI in a trial where a jury sentenced him to twenty years in prison. He raised several arguments in his appeal. He argued there were mistakes in the jury instructions, his sentence should be changed, a clerical error needed to be fixed, and that the combined effect of all the mistakes denied him a fair trial. The court reviewed all the information from the trial. It decided that VanWoundenberg’s case did not need to be reversed or changed, but there was a clerical mistake in the court documents that had to be corrected. The court found that the evidence did not support giving the jury instructions about lesser charges, and so the trial court acted correctly by not providing those instructions. VanWoundenberg also argued that his felony DUI sentence should not have been increased under a general law since it had already been raised under a specific DUI law due to his previous offenses. The court explained that it was legal to enhance (or increase) his sentence using a general law because he had many previous different felony convictions within the required time. The court pointed out that one of VanWoundenberg's arguments was mistaken; the rules allowed for both the specific and general laws to apply in his case. Finally, the court amended the total costs listed in the original court documents to a lesser amount due to a fee that should not have been included. In the end, the court confirmed VanWoundenberg's conviction and corrected the clerical error, but found no other issues that needed to change the outcome of the case.

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J 2001-878

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In OCCA case No. J 2001-878, G.S. appealed his conviction for petit larceny. In a published decision, the court decided to reverse the trial court's decision and send the case back for a new trial. One judge dissented. G.S. was found to be a delinquent child for committing a crime that would be a crime for an adult, called petit larceny. This meant that he was taken to court to see if he really did what he was accused of. After the trial, a judge decided that G.S. should be placed in a special care program for children and that he should pay for court costs and fees for his lawyer. G.S. was unhappy with this decision and decided to appeal, which means he wanted a higher court to look at his case again. He brought up three main problems with his case: 1. He argued that there wasn’t enough of a record for the higher court to review, so his conviction should be changed. 2. He thought that his lawyer didn’t give enough information to the higher court, which meant he didn’t get the help he needed. 3. He also said that there was no evidence showing he agreed to give up his right to a jury trial, which he thought was wrong. The court looked closely at everything, including the records and the written arguments from both sides. They decided that G.S. was right about not having proof he gave up his right to a jury trial. Because of this, they thought the trial court's decision should be reversed, meaning G.S. would get another chance to have his case heard. The judges agreed that the original trial didn’t follow the right rules. A big part of this situation was that when a child is accused of something serious, like stealing, they have rights, including having a jury to listen to their case. In G.S.’s case, there was no paperwork or proof showing he understood and agreed to give up that right. So, the court decided that G.S. should have a new trial to give him a fair chance to defend himself. The decision made by the original trial court was erased, and the case was sent back so it could be done again properly.

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