Mandate Issued

RE-2019-683

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In OCCA case No. RE-2019-683, the appellant appealed his conviction for the revocation of his suspended sentence. In an unpublished decision, the court decided to affirm the revocation but modify it to be limited to six months. One member dissented. The case involved the appellant who had earlier been sentenced for multiple crimes, including possession of a controlled substance and driving under the influence. Initially, he was given a suspended sentence where he would serve time in jail only on weekends. However, he violated the terms of his probation several times by failing to report, pay fees, and complete required programs. After a while, he faced new charges for more serious crimes, which led to the state seeking to revoke his suspended sentence altogether. During the hearing for the revocation, the judge decided to revoke all five years of his suspended sentence. However, the court found later that this action was not appropriate. The court ruled that even though the appellant had committed technical violations, he could only be punished with a maximum of six months because the alleged new crimes occurred after his probation had expired. The court concluded that the trial judge had made a mistake when revoking the whole five years instead of just six months based on the technical violations proven. Thus, the revocation punishment was modified by the court to six months instead of five years.

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F-2018-1186

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DOMINICK JAVON SMITH, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** **Case No. F-2018-1186** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JAN 30 2020** --- **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **LUMPKIN, JUDGE:** Appellant, Dominick Javon Smith, was tried by jury and convicted of Child Neglect, After Former Conviction of a Felony, in violation of 21 O.S.Supp.2014, § 843.5(C), in the District Court of Tulsa County Case Number CF-2017-1887. The jury recommended punishment of forty years imprisonment and payment of a $5,000.00 fine. The trial court sentenced Appellant accordingly; she will serve 85% of her sentence before becoming eligible for parole consideration. From this judgment and sentence, Appellant appeals, raising three propositions of error: **I.** The trial court erred in permitting the State to cross-examine Dominick Smith in the punishment stage on matters not relevant to her alleged prior felony conviction. **II.** Prosecutorial misconduct deprived Appellant of a fair trial. **III.** Appellant was deprived of effective assistance of counsel. After thorough consideration of the record, including the original documents and briefs, we find that under the law and evidence, Appellant is not entitled to relief. In her first proposition, Appellant claims that the trial court improperly allowed the prosecutor to question her about matters irrelevant to her prior felony conviction. While defense counsel objected multiple times, only two objections referenced relevance. Therefore, the remainder is assessed under plain error review. Under the Simpson test, we assess actual error that is plain or obvious and that affects substantial rights. The trial court's limitations on cross-examination are generally reviewed for abuse of discretion. During the punishment phase, Appellant testified on direct that she had a prior felony conviction for child abuse. On cross-examination, the prosecutor questioned Appellant about conflicting statements made to police, thereby attempting to impeach her credibility. Given that Appellant opened the door to her prior conviction and explanation, there was no error in allowing such cross-examination. Proposition I is denied. In Proposition II, Appellant contends prosecutorial misconduct occurred during closing arguments when the prosecutor suggested that Santa Claus may have caused the victim's injuries and discussed how Appellant's actions deprived K.O. of life experiences. As Appellant failed to object, we review these claims for plain error. The prosecutor's remarks were within acceptable boundaries as they focused on the evidence and reasonable inferences. Appellant's claim that the argument improperly sought sympathy for K.O. does not render it improper. The remarks about the consequences of Appellant's actions are relevant and permissible. Thus, Proposition II is denied. Lastly, in Proposition III, Appellant claims ineffective assistance of counsel for failing to object to the prosecutor's cross-examination and closing argument. Under the Strickland test, the claims of ineffectiveness can be dismissed due to lack of demonstrated error in the prosecutor’s conduct. Since neither allegation resulted in plain error, the claim of ineffective assistance fails. Thus, Proposition III is denied. **DECISION** The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision. --- *Counsel for Appellant: Richard Koller, Richard Couch, Rebecca Newman* *Counsel for the State: Mike Hunter, Andrea Brown, Keeley L. Miller* **OPINION BY: LUMPKIN, J.** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur [Download Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1186_1734785732.pdf)

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F-2017-1001

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In OCCA case No. F-2017-1001, Jacob Darrell Tyre appealed his conviction for child abuse and child neglect. In an unpublished decision, the court decided to affirm his convictions and sentences. One judge dissented. Jacob Darrell Tyre was found guilty by a jury in Tulsa County for child abuse and child neglect. He received a sentence of eight years in prison for child abuse and twelve years for child neglect, with both sentences served back-to-back. He was also fined but the fines were later suspended. Tyre argued three main errors in his appeal. First, he claimed his lawyer had not effectively represented him because the lawyer admitted Tyre was guilty of child abuse without discussing it with him first. The court looked into this issue and found that the lawyer had actually talked to Tyre about this strategy beforehand, and Tyre approved it, even if he was not happy about it. Second, Tyre believed that the actions of the prosecutor made his trial unfair. However, the court found that there were no clear mistakes that affected the fairness of the trial. Third, Tyre challenged the testimony of a doctor who suggested that a child was abused. Since Tyre did not object to this during the trial, the court reviewed it for serious mistakes but found that the doctor's testimony was allowed. In the end, the court upheld Tyre's convictions and sentences, ordering that the decision be effective immediately.

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C-2018-1184

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In the case of Hipolito John Herrera v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals addressed Herrera's appeal concerning his guilty plea to Conjoint Robbery. The key issues raised by Herrera were: 1. **Plea Validity**: Herrera argued that his guilty plea was not entered freely, knowingly, and intelligently, citing misadvice from his legal counsel regarding his potential maximum sentence. The State conceded this point, acknowledging that the plea was not made with the requisite understanding. The court found that this constituted an abuse of discretion by the trial court in denying Herrera's motion to withdraw his plea. 2. **Restitution Order**: Herrera's second and third propositions focused on the restitution order, arguing that the trial court did not have sufficient proof of actual losses incurred by the victim and a bail bondsman, and that the bail bondsman should not be considered a victim under Oklahoma restitution laws. However, these propositions became moot due to the decision on the plea validity. Ultimately, the Oklahoma Court of Criminal Appeals reversed the trial court's denial of Herrera's Motion to Withdraw Guilty Plea and remanded the case for further proceedings. This ruling emphasized the importance of ensuring a defendant's plea is made with full understanding and without coercion or misinformation. The judicial decision highlighted in the summary opinion grants Herrera relief, enabling him to withdraw his plea and possibly reassess the legal consequences and restitution implications of his case.

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C-2018-1040

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** *Case No. C-2018-1040* **ROLLO ROY WERLINE, IV,** *Petitioner,* *vs.* **THE STATE OF OKLAHOMA,** *Respondent.* **FILED** *IN COURT OF CRIMINAL APPEALS* *OCT 31 2019* *JOHN D. HADDEN, CLERK* **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Rolla Roy Werline, IV, represented by counsel, entered pleas of guilty to First Degree Manslaughter (Count I), Leaving the Scene of a Fatality Accident (Count II), and Failure to Maintain Insurance (Count III) in the District Court of Ottawa County, Case No. CF-2017-164. The pleas were accepted by the Honorable Robert G. Haney on April 19, 2018. On June 12, 2018, Petitioner was sentenced to twenty (20) years imprisonment for Count I, five (5) years imprisonment in Count II (suspended), and a $250.00 fine for Count III. On June 15, 2018, Petitioner filed a Motion to Withdraw Guilty Plea, which was denied at a hearing on June 26, 2018. Petitioner appeals this denial, raising two propositions of error: 1. Petitioner should be allowed to withdraw his plea as it was not entered knowingly and intelligently, given he did not understand the consequences of entering a blind plea. 2. The imposed fines and costs were excessive. **Proposition I:** Petitioner contends that his plea was not entered voluntarily and was the result of being misadvised regarding the plea process. The trial court reviewed this issue during the motion to withdraw hearing. Assessing whether the plea was entered voluntarily and intelligently is key. The record indicates the plea was knowing and voluntary, highlighting that the petitioner understood the court would determine punishment and could impose a sentence within statutory limits. The trial court's denial of the motion to withdraw is upheld. **Proposition II:** Petitioner claims his sentence is excessive, particularly citing a victim impact statement that contained a sentence recommendation, which he argues improperly influenced the court's decision. While acknowledging that victim impact statements may be considered during sentencing, those statements should not contain sentence recommendations. Any potential error here was harmless, as the overall sentence is seen as reasonable and within statutory limits. It was also noted that the issue of a $250.00 Victim Compensation Assessment in Count III was not raised previously and is thus waived for appeal. **DECISION:** The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. **OPINION BY:** **LUMPKIN, J.** *LEWIS, P.J.: Concur* *KUEHN, V.P.J.: Concur* *HUDSON, J.: Concur* *ROWLAND, J.: Concur* **Click Here To Download PDF** [Link to PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-1040_1734225145.pdf)

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F-2018-668

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **RICHARD PATRICK SPAULDING,** **Appellant,** **V.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-668** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **OCT 31 2019** **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **LEWIS, PRESIDING JUDGE:** Richard Patrick Spaulding, Appellant, was tried by a jury and found guilty of first degree murder, in violation of 21 O.S.Supp.2012, § 701.7(A), in the District Court of Tulsa County, Case No. CF-2017-682. The jury set punishment at life imprisonment. The Honorable William J. Musseman, Jr., District Judge, pronounced judgment and sentence accordingly. Mr. Spaulding appeals on the following proposition of error: 1. The evidence was insufficient to prove beyond a reasonable doubt that Appellant committed the crime of murder in the first degree. Appellant must serve 85% of his sentence before being eligible for consideration for parole, pursuant to 22 O.S.Supp.2015, § 13.1(1). In Proposition One, Appellant argues the evidence was insufficient to support his conviction. We review the trial evidence in the light most favorable to the State to determine whether any rational trier of fact could find the essential elements of the charged crime beyond a reasonable doubt. *Spuehler v. State,* 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. In this inquiry, we will not second guess the jury's finding of facts, but will accept the reasonable inferences and credibility choices that support the jury's verdict. *Mason v. State,* 2018 OK CR 37, ¶ 13, 433 P.3d 1264, 1269. We conclude that the evidence presented at trial was legally sufficient to support Appellant's conviction for murder. Proposition One is denied. **DECISION** The judgment and sentence 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 TULSA COUNTY** **THE HON. WILLIAM J. MUSSEMAN, JR., DISTRICT JUDGE** **APPEARANCES AT TRIAL** RICHARD KOLLER 423 S. BOULDER AVE., STE. 300 TULSA, OK 74103 ATTORNEY FOR APPELLANT **APPEARANCES ON APPEAL** RICHARD COUCH REBECCA NEWMAN 423 S. BOULDER AVE., STE. 300 TULSA, OK 74103 ATTORNEYS FOR DEFENDANT KENNETH ELMORE MIKE HUNTER KATY HAMSTRA ATTORNEY GENERAL ASST. DISTRICT ATTORNEYS KEELEY L. MILLER 500 S. DENVER AVE., STE. 900 TULSA, OK 742103 ATTORNEYS FOR THE STATE **OPINION BY: LEWIS, P.J.** KUEHN, V.P.J.: Concur LUMPKIN, P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-668_1735223088.pdf)

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F-2018-664

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **KEYUNA CRYSTAL MOSLEY,** Appellant, vs. **THE STATE OF OKLAHOMA,** Appellee. **No. F-2018-664** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 19 2019** **SUMMARY OPINION** JOHN D. HADDEN CLERK **KUEHN, VICE PRESIDING JUDGE:** Keyuna Crystal Mosley was tried by jury and convicted of Robbery with a Dangerous Weapon in violation of 21 O.S.2011, § 801, after being previously convicted of two or more felonies, in the District Court of Oklahoma County, Case No. CF-2017-1853. Following the jury's recommendation, the Honorable Ray C. Elliott sentenced Appellant to twenty (20) years imprisonment, requiring her to serve 85% of her sentence before becoming eligible for parole consideration per 21 O.S.Supp.2015, § 13.1. Appellant appeals this conviction and sentence. **Proposition of Error:** Appellant raises one proposition of error: that the State’s evidence was insufficient to prove her guilt of conjointly committing robbery with a dangerous weapon beyond a reasonable doubt, and thus due process mandates her case be reversed and remanded with instructions to dismiss. **Decision:** After thorough consideration of the complete record, including original records, transcripts, exhibits, and briefs, we find the law and evidence do not necessitate relief. Viewing the evidence in the light most favorable to the State, any rational trier of fact could reasonably conclude beyond a reasonable doubt that Appellant committed robbery with a dangerous weapon (Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559). To establish robbery with a dangerous weapon, the State must demonstrate that the wrongful taking and carrying away of personal property from another's person or immediate presence occurred by force or fear, specifically involving a knife (21 O.S.2011, § 801; OUJI-CR 2d 4-144). The term “principal” in a crime includes anyone who either directly and actively commits the acts constituting the offense or knowingly and with intent aids and abets in its commission (Hackney v. State, 1994 OK CR 29, ¶ 9, 874 P.2d 810, 814; OUJI-CR 2d 2-5, 2-6). Appellant contends the State failed to prove that she acted conjointly with her boyfriend in committing the robbery. She argues that the victim Seale's testimony was incredible and contradicted by her own statement, and that the State should have corroborated Seale's testimony with additional evidence such as forensic evidence, text records, or records of their online communications. This assertion is incorrect. While the State could have provided such corroborative evidence, it was not required to do so. Seale was both an eyewitness and the victim, and the jury determines the credibility of witnesses and the weight of their testimony (Mason v. State, 2018 OK CR 37, ¶ 13, 433 P.3d 1264, 1269). The jury is entitled to make reasonable inferences supporting their verdict. Even in cases of sharply conflicting evidence, we will not disturb a properly supported verdict (Robinson v. State, 2011 OK CR 15, ¶ 17, 255 P.3d 425, 432). The evidence established that Appellant lured victim Seale to the crime scene, called her accomplice, and directly took and carried away Seale’s property while her accomplice threatened the victim with a knife. We will not reweigh the evidence or substitute our judgment for that of the jury (White v. State, 2019 OK CR 2, ¶ 9, 437 P.3d 1061, 1065). Thus, this proposition is denied. **Conclusion:** 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. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE **ATTORNEYS AT TRIAL** TIMOTHY M. WILSON ASST. DISTRICT ATTORNEY 320 ROBERT S. KERR, STE. 611 OKLAHOMA CITY, OK 73102 **ATTORNEYS ON APPEAL** ANDREA DIGILIO MILLER PUBLIC DEFENDER’S OFFICE 611 COUNTY OFFICE BLDG. 320 ROBERT S. KERR AVE. OKLAHOMA CITY, OK 73102 **COUNSEL FOR APPELLANT** DAN POND KATHERINE BRANDON ATTORNEY GENERAL OF OKLA. ASST. DISTRICT ATTORNEYS TESSA L. HENRY 320 ROBERT S. KERR, STE. 505 OKLAHOMA CITY, OK 73102 **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 Version Here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-664_1735223763.pdf)**

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C-2018-1119

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **AARON MARCUS SHORES,** **Petitioner,** **V.** **THE STATE OF OKLAHOMA,** **Respondent.** **Case No. C-2018-1119** **SUMMARY OPINION DENYING CERTIORARI** **ROWLAND, JUDGE:** Petitioner Aaron Marcus Shores entered a negotiated plea of no contest in the District Court of LeFlore County to resolve his felony and misdemeanor charges in three cases. The charges included: 1. **Case No. CF-2018-239:** Failure to Notify Address Change of Sex Offender (felony). 2. **Case No. CM-2018-371:** Unlawful Possession of a Controlled Dangerous Substance (misdemeanor). 3. **Case No. CM-2018-373:** Malicious Injury to Property Under $1,000.00 (misdemeanor). Pursuant to the plea agreement, one count of Obstructing an Officer and one count of Unlawful Possession of Drug Paraphernalia were dismissed by the State. Judge Marion Fry subsequently sentenced Shores to four years of imprisonment on the felony count and one year in the county jail for each misdemeanor count, with all sentences running concurrently. He was also ordered one year of post-imprisonment supervision and awarded credit for time served. Shores filed a pro se motion to withdraw his plea, which was denied after a hearing. He appeals this denial, claiming: 1. The district court erred in denying his motion to withdraw his plea as he did not receive the benefits of his plea bargain. 2. He received ineffective assistance of counsel. **1. Denial of Motion to Withdraw Plea** Shores argues he did not receive the promised benefits of his plea bargain. The court evaluated this claim against the standard set forth in *Couch v. State*, noting that promises made in plea agreements must be fulfilled. While Shores did not specifically raise his current argument in his initial motion to withdraw, it was discussed during the evidentiary hearing. The appellate court reviews the denial for abuse of discretion and affirmatively holds that Shores received the benefits of his plea agreement. The district court's order confirmed that Shores's Oklahoma sentences would run concurrently with his sentences from Arkansas, fulfilling the terms agreed upon during the plea process. **2. Ineffective Assistance of Counsel** Shores claims ineffective assistance from conflict counsel, who allegedly failed to preserve his claim regarding the benefits of the plea agreement. To prevail on such a claim, Shores must demonstrate that he was prejudiced by counsel's performance. The court found that conflict counsel adequately raised Shores's concerns at the withdrawal hearing, effectively preserving the issue for appeal. Therefore, Shores could not establish that his counsel's performance resulted in any prejudice. **CONCLUSION** The Petition for a Writ of Certiorari is DENIED. The district court’s denial of Petitioner’s motion to withdraw plea is AFFIRMED. **MANDATE ordered to be issued upon the delivery and filing of this decision.** **Appearances:** - Doug Schmuck, Appellate Defense Counsel, for Petitioner. - Matt McBee, Counsel for Withdraw Motion. - Kevin Merritt and Margaret Nicholson, Assistant District Attorneys for the State. --- This summary is designed for clarity and understanding without retaining excessive legal jargon, while accurately reflecting the decisions and arguments presented in the original case summary.

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RE 2018-0457

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In OCCA case No. RE 2018-0457, Tommy Lee Tucker appealed his conviction for domestic assault and battery along with other charges. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences but remanded the case to the District Court for further proceedings to fix some inconsistencies in the records. One judge dissented.

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C-2018-834

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**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** FILED JUN 27 2019 **Case No. C-2018-834** **TAMMERA RACHELLE BAKER,** Petitioner, vs. **THE STATE OF OKLAHOMA,** Respondent. --- **SUMMARY OPINION DENYING CERTIORARI** LEWIS, PRESIDING JUDGE: Tammera Rachelle Baker, Petitioner, entered a blind plea of guilty to first degree manslaughter, in violation of 21 O.S.2011, § 711, in the District Court of Delaware County, Case No. CF-2017-157. The Honorable Robert G. Haney, District Judge, found Petitioner guilty. The Honorable Barry V. Denny, Associate District Judge, later sentenced Appellant to thirty (30) years imprisonment, with ten (10) years suspended, and a $1,000.00 fine. Petitioner filed an application to withdraw the plea, which was denied. She now seeks a writ of certiorari in the following propositions of error: 1. The plea was not knowingly and intelligently entered into as Petitioner believed the court would not impose more than ten years and relied on misinformation from her attorney regarding witness testimony. 2. Petitioner received ineffective assistance of counsel during her plea proceedings. 3. The sentence imposed post-plea is shockingly excessive due to improper victim impact statements. Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a competent jurisdiction, whether the sentence is excessive, whether counsel was constitutionally effective, and whether the State has the power to prosecute. The Court will not review issues not raised in the motion to withdraw the guilty plea. The trial court's ruling on a motion to withdraw a plea is reviewed for an abuse of discretion unless it involves statutory or constitutional interpretation, which is reviewed de novo. **Proposition One**: Petitioner argues her plea was involuntary due to reliance on her attorney's misinformation regarding sentencing expectations. The record refutes this argument, indicating that the plea was voluntary; therefore, no relief is warranted. **Proposition Two**: Petitioner alleges ineffective assistance of counsel and requests an evidentiary hearing. Claims are assessed under the Strickland v. Washington test. Petitioner has not shown clear evidence to support a finding of ineffective assistance, thus this proposition and the request for a hearing are denied. **Proposition Three**: Petitioner claims her sentence is excessive. The Court will only disturb a sentence within statutory limits if it shocks the conscience. The facts of this case do not meet that threshold, so no relief is warranted. **DECISION**: The petition for the writ of certiorari is DENIED. The Judgment and Sentence is AFFIRMED. The MANDATE is ORDERED issued upon the delivery and filing of this decision. --- **APPEARANCES:** **TRIAL** Lee Griffin, Attorney for Appellant Kathy Baker, Attorney for Withdrawal **APPEAL** Katrina Conrad-Legler, Attorney for Appellant Nicholas P. Lelecas, Assistant District Attorney for the State **OPINION BY**: LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur --- For full ruling, [click here to download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-834_1734180202.pdf).

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RE 2018-0397

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In OCCA case No. RE 2018-0397, Wesley Scot Kilpatrick appealed his conviction for robbery in the second degree. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence. One judge dissented. Wesley Scot Kilpatrick had pleaded guilty to robbery in the second degree, and a more serious charge of burglary in the first degree was dropped. He received a seven-year suspended sentence, which means he would not go to prison right away if he followed certain rules. He also had to pay a fine and court costs. Later, the state said Kilpatrick did not follow the rules of his suspended sentence. They claimed he failed to pay his costs and restitution, got into trouble with the police, and committed another crime. Because of this, a court hearing was held to decide if his suspended sentence should be revoked. At the hearing, the judge decided to revoke his sentence completely, meaning Kilpatrick would have to serve the full seven years in prison. Kilpatrick disagreed with this decision and appealed, arguing that the judge made a mistake in revoking his sentence. However, the court found that the judge did not make an error. They believed the judge had the right to make that decision based on the facts presented. The court defined an abuse of discretion as a decision that is clearly wrong and not based on logic or evidence. Since Kilpatrick did not show that the judge was wrong, the court affirmed the decision to revoke his suspended sentence. In the end, Kilpatrick would have to serve the full time in prison for his robbery conviction.

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C-2018-1002

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**Summary of Case No. C-2018-1002: Carey James Buxton v. The State of Oklahoma** **Court:** Oklahoma Court of Criminal Appeals **Date Filed:** June 13, 2019 **Parties:** - **Petitioner:** Carey James Buxton - **Respondent:** The State of Oklahoma **Background:** Carey James Buxton entered a negotiated plea of no contest on multiple criminal charges across three cases in the District Court of Kay County. The charges included unlawful possession of drug paraphernalia, unlawful possession of a controlled dangerous substance with intent to distribute, second-degree burglary, and knowingly concealing stolen property. The plea agreement included entering a drug court program, which promised potential leniency upon completion. **Plea Agreement Details:** - **Successful Completion:** District Attorney would recommend dismissal of certain charges and suspended sentences. - **Failure:** Imposition of lengthy prison time. The State later filed a motion to terminate Buxton from the drug court program, which was granted after a hearing. Consequently, Buxton was sentenced according to the plea agreement. Attempting to contest this outcome, Buxton filed a motion to withdraw his plea, claiming it was not knowingly and voluntarily entered. **Issues on Appeal:** Buxton appealed the denial of his motion to withdraw his plea, arguing that the district court abused its discretion by not allowing him to withdraw due to the involuntariness of his plea. **Court Findings:** The Oklahoma Court of Criminal Appeals reviewed the district court's decision, determining that: 1. The review of the denial of a motion to withdraw a plea is for an abuse of discretion. 2. It is the petitioner's burden to prove that there was a defect in the plea process. 3. The district court based its ruling on a comprehensive review of the record, included plea forms, and Buxton's testimony. Ultimately, the appeal court found no abuse of discretion in the district court’s denial of Buxton's request to withdraw his plea, affirming the decision. **Decision:** - The Petition for a Writ of Certiorari is DENIED. - The district court's denial of Buxton's Motion to Withdraw Plea is AFFIRMED. **Mandate:** The mandate will be issued following the filing of this decision as per the applicable court rules. **Opinion Author:** Judge Rowland **Concurring Judges:** Lewis, Kuehn, Lumpkin, Hudson

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F-2017-1301

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In OCCA case No. F-2017-1301, William Curtis Box appealed his conviction for Aggravated Domestic Assault and Battery. In an unpublished decision, the court decided to affirm the acceleration of his deferred judgment, which meant that his earlier decision to defer judgment was changed to a conviction. One judge dissented. The case started when Box was found guilty of a crime related to domestic violence and was given a deferred judgment, meaning he wouldn’t have a criminal record if he followed certain conditions for ten years. However, he did not follow those conditions and committed another crime called Obstructing an Officer. When the State of Oklahoma found out, they asked the court to change his deferred judgment to a conviction. Box argued that his probation should not be accelerated because the court did not have a written list of rules for his probation. He referred to previous cases from 1969 and 1970 which ruled in favor of defendants when there were no signed probation rules. However, the court explained that in later cases, they decided that a person on probation should understand they cannot commit any further crimes, even without a written agreement. Box also asked to withdraw his agreement to the State's application to change his probation status but could not find any laws that allowed him to do so. The court noted that a stipulation, or agreement, to accelerate a deferred judgment is different from things like guilty pleas, and there is no established way to take back such an agreement. Moreover, Box claimed that his sentence was too harsh. However, the court stated that during an acceleration appeal, they can only examine whether the acceleration was lawful, not whether the sentence was too long. Ultimately, the court upheld the decision to accelerate Box's judgment to a conviction based on his probation violation. They found no evidence of an abuse of discretion by the lower court in making this decision.

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F 2018-0398

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **STEVE GRAYSON FALEN, Appellant,** **V.** **THE STATE OF OKLAHOMA, Appellee.** **No. F 2018-0398** **May 23, 2019** **SUMMARY OPINION** **JOHN D. HADDEN LEWIS, PRESIDING JUDGE:** Appellant, Steele Grayson Falen, was charged on March 14, 2013, in Beckham County District Court Case No. CF-2013-106 with various offenses including Count 1 - Unlawful Possession of Controlled Drug with Intent to Distribute (felony), Count 2 - Possession of Controlled Dangerous Substance (misdemeanor), and Count 3 - Unlawful Possession of Drug Paraphernalia (misdemeanor). Following a guilty plea on January 23, 2014, he received a ten-year deferred sentence for Count 1 and one year for Counts 2 and 3, all to run concurrently, with credit for six months served in treatment. Later, on November 12, 2014, Appellant faced additional charges in Case No. CF-2014-446 involving burglary-related offenses. Consequently, the State sought to accelerate his deferred sentences linked to the new charges. Under a plea agreement, Appellant joined the Beckham County Drug Court Program on June 23, 2015, where he would face a significant sentence if he failed to complete the program successfully. The State filed to terminate Appellant from the Drug Court on February 21, 2018, citing early exit from treatment and subsequent arrest. After a revocation hearing on April 6, 2018, he was sentenced to 20 years for Count 1 and associated consequences for Counts 2 and 3 from both cases with sentences ordered to run concurrently. Appellant now appeals the termination from Drug Court, asserting that the trial court abused its discretion. However, findings indicate no abuse of discretion occurred as the Drug Court Act emphasizes the judge’s authority to revoke participation when conduct warrants termination. **DECISION** The termination of Appellant from the Beckham County Drug Court Program in both Case Nos. CF-2013-106 and CF-2014-446 is **AFFIRMED**. **APPEARANCES** *Counsel for Defendant:* J. Cade Harris, Appellate Defense Counsel Nicollette Brandt, Counsel *Counsel for the State:* Gina R. Webb, Assistant District Attorney Mike Hunter, Attorney General Theodore M. Peeper, Assistant Attorney General **OPINION BY:** LEWIS, P.J. *KUEHN, V.P.J.: Concur in Results* *LUMPKIN, J.: Concur* *HUDSON, J.: Concur* *ROWLAND, J.: Concur*

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F-2017-762

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In OCCA case No. F-2017-762, Kendell Paul Sparrow appealed his conviction for Murder in the First Degree (Malice Aforethought). In a published decision, the court decided to affirm the Judgment and Sentence of the district court, sentencing him to life imprisonment with the possibility of parole. One judge dissented. Sparrow was convicted of a serious crime, and his appeal included two main issues. First, he argued that the trial should not have included the preliminary hearing testimony of a witness because he believed it went against his right to confront witnesses. Second, he contended that there was not enough evidence to support his conviction for murder. During the trial, the court allowed a witness’s earlier testimony to be used because that witness was unavailable to testify in person. Sparrow challenged this, claiming it violated his constitutional rights. However, the court found no error because the State had made reasonable efforts to bring the witness to trial. The court also determined that Sparrow had a chance to question the witness during the preliminary hearing. Therefore, the admission of the testimony was upheld. As for the evidence presented against Sparrow, the court examined whether the State proved he was guilty of murder. The law requires that to convict someone of first-degree murder, it must be shown they unlawfully caused the death of another with intent or malice. The court looked at all the evidence in favor of the State and concluded that reasonable jurors could find Sparrow guilty beyond a reasonable doubt. Ultimately, the court decided that Sparrow's appeal did not provide grounds for reversing his conviction. Therefore, the original sentence of life imprisonment was affirmed.

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F-2016-843

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DAVID RUBLE, II,** **Appellant,** **VS.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2016-843** **FILED DEC 14 2017** **SUMMARY OPINION** *KUEHN, JUDGE:* David Ruble II was tried by jury and convicted of Count I, Felony Murder with the predicate Attempted Robbery by Firearm in violation of 21 O.S.2011, § 701.7; and Count III, Conspiracy to Commit Robbery with a Firearm in violation of 21 O.S.2011, § 421, in the District Court of Tulsa County, Case No. CF-2014-2691. Following the jury's recommendation, the Honorable William D. LaFortune sentenced Ruble to life imprisonment (Count I) and ten (10) years imprisonment (Count III), to run consecutively. Ruble appeals from these convictions and sentences. Ruble raises five propositions of error in support of his appeal: I. The trial court's erroneous rulings on challenges for cause deprived Appellant of his full complement of peremptory challenges to use at his discretion and prevented his ability to remove objectionable jurors. II. The cumulative effect of prosecutorial misconduct constituted plain error and deprived Appellant of a fair trial. III. The trial judge erred in not instructing the jury on lesser offenses. IV. Mr. Ruble was deprived of the effective assistance of counsel. V. The accumulation of errors deprived Mr. Ruble of a fair trial and the due process of law secured to him. **DECISION:** After thorough consideration of the entire record, we deny Ruble's propositions of error. 1. **Proposition I:** The trial court did not abuse its discretion in denying Ruble's challenges for cause. The record does not support that the jurors were biased, nor was there a showing that trial counsel properly preserved this issue. 2. **Proposition II:** Ruble's claims of prosecutorial misconduct were not substantiated. Many of his complaints were unobjected to and reviewed for plain error, which was not found. 3. **Proposition III:** There was no error in failing to instruct the jury on lesser included offenses, as Ruble's defense was that he was not involved in the crime. 4. **Proposition IV:** Trial counsel's performance was not deficient. Ruble did not demonstrate that he was prejudiced by counsel's actions. 5. **Proposition V:** With no fundamental error established, the claim of cumulative error fails. The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. **MANDATE:** Ordered issued upon the delivery and filing of this decision. **ATTORNEYS AT TRIAL:** Michael Manning 624 South Denver, Ste. 201 Tulsa, OK 74119 **ATTORNEYS ON APPEAL:** Rhiannon Sisk Homicide Direct Appeals Div. Oklahoma Indigent Defense System P.O. Box 926 Norman, OK 73070 **COUNSEL FOR THE STATE:** Becky Johnson Mike Hunter Benjamin Fu 500 S. Denver, Ste. 900 Tulsa, OK 74103 **OPINION BY:** KUEHN, J.; LUMPKIN, P.J., CONCUR IN RESULTS; LEWIS, V.P.J., CONCUR; HUDSON, J., CONCUR; ROWLAND, J., CONCUR. **[Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2016-843_1734264868.pdf)**

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JS-2016-1062

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In OCCA case No. JS-2016-1062, Z.N. appealed his conviction for First Degree Burglary. In a published decision, the court decided to affirm the lower court's ruling that granted Z.N. certification as a juvenile. The State had claimed that the judge made a mistake in allowing Z.N. to be treated as a juvenile. However, the court found that the judge's decision was reasonable given the evidence and factors surrounding the case. The ruling included considerations of the nature of the crime, Z.N.'s background, and the potential for rehabilitation. No judge dissented.

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F-2014-1019

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In OCCA case No. F-2014-1019, Charles Leonard Bennett, III appealed his conviction for Assault and Battery with a Deadly Weapon. In a published decision, the court decided to affirm the judgment of the district court. One judge dissented. Bennett was found guilty after a trial where the judge, not a jury, listened to the case. He received a sentence of fifteen years in prison. Bennett raised several issues on appeal. He first argued that the evidence did not prove he did not act in self-defense. The court found enough evidence that a reasonable person could decide he was guilty beyond a reasonable doubt. This means they believed the victim and the facts presented at the trial supported the conviction. Bennett also wanted to argue other issues that could lead to a new trial. However, he decided to withdraw those arguments and only focus on the issues that might lead to his case being dismissed or his sentence being changed. He signed a document saying he knew what he was doing by waiving those rights. Another issue was about restitution, which is when a person convicted of a crime has to pay the victim for their losses. Bennett contested the court's order for him to pay restitution because the required paperwork showing the victim's losses was not properly presented during the trial. Since no proof of the victim's financial losses was provided, the court agreed that the restitution order was arbitrary and sent the case back to the district court to properly determine the victim's losses. Overall, while Bennett's conviction was upheld, the court required a re-evaluation of the restitution owed to the victim. The case was sent back to the district court for this purpose, but other than that, the court found no significant errors that would change the outcome of the case.

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RE-2014-238

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In OCCA case No. RE-2014-238, the appellant appealed his conviction for possession of a controlled substance within the presence of a minor child, driving a motor vehicle while under the influence of drugs, unlawful possession of drug paraphernalia, and failure to carry an insurance verification form. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence but vacated the one year of post-imprisonment supervision. One judge dissented.

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J-2014-0646

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In OCCA case No. J-2014-0646, D.S.C. appealed his conviction for lewd or indecent acts to a child under 16. In a published decision, the court decided to reverse the order adjudicating him as a delinquent child and remand the case for further proceedings. One justice dissented. D.S.C., who was born on September 17, 1997, had been charged with two counts of lewd or indecent acts, and a petition was filed on December 21, 2012. His trial occurred without a jury on July 9, 2014, and the decision was made to find him delinquent, meaning that the court said he had committed an act that is considered wrong for a child of his age. D.S.C. appealed this decision, arguing that he had been denied a right to a jury trial. He claimed that he agreed to waive his jury trial as part of a deal to enter a sex offender program, which he did not end up getting into. Because he could not start or complete this program, he felt that he should not have waived his right to a jury trial. He believed that the deal between him and the State was unfair because it was not fulfilled, and therefore, the agreement should not hold. The court agreed with D.S.C. and pointed out that he had the right to demand a jury trial, which could only be waived under certain conditions. Since the conditions of the deal were not met, the waiver of the jury trial was not valid. This means that once the deal fell through, D.S.C. should have been given the chance to have a jury trial. Because of this ruling, the court decided to reverse the earlier decision that found D.S.C. delinquent and send it back to the lower court so that it can be handled differently. Since the court found this issue important, they did not see a need to discuss the other claims D.S.C. made in his appeal. Therefore, the outcome focused on the jury trial right, leading to the decision that he deserved another chance to have a trial with a jury.

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RE-2013-261

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In OCCA case No. RE-2013-261, Harjo appealed his conviction for obtaining merchandise and cash by bogus checks. In an unpublished decision, the court decided to reverse the revocation of Harjo's remaining suspended sentences. One judge dissented. To give a bit more background, Harjo had initially entered a guilty plea to three counts of obtaining merchandise and cash with bogus checks and received suspended sentences on those counts. He was supposed to follow certain rules while on probation. However, he faced multiple issues and missed a court date, leading to a bench warrant for his arrest. Although he was later ordered to complete a drug and alcohol program, he still faced trouble and did not appear for court when required. Eventually, in 2013, the court conducted a hearing regarding his probation violations. Interestingly, the State did not present any new evidence at this hearing. Because the State admitted that it had made a mistake, the court ruled to reverse the decision made to revoke Harjo's suspended sentences. This meant that the earlier decision to punish him again was incorrect, since he had already been punished for the previous violations. In conclusion, the appeals court found that it was not right to revoke Harjo's suspended sentences based merely on earlier violations, and it decided that Harjo's sentences would remain suspended.

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S-2012-1012

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In OCCA case No. S-2012-1012, Barry Lee Brown appealed his conviction for a traffic offense. In an unpublished decision, the court decided to affirm the trial court's ruling to suppress evidence and dismiss the prosecution. One judge dissented. The case began when a police officer claimed to have seen a traffic violation, which led to a stop of Barry Lee Brown's vehicle. After stopping him, the officer suspected that Brown might be under the influence of drugs or alcohol. A second officer was called to the scene to perform sobriety tests. Before the trial, Barry Lee Brown argued that the stop was not legal and asked the court to throw out any evidence from the stop. During the hearing, the officer who stopped Brown had trouble remembering exactly what happened. He referred to a report written by the second officer, but that officer had not witnessed the stop himself. Initially, the trial court thought there was enough evidence to say the stop was legal, but later changed its mind. The court reviewed different points raised by the state about why the trial court’s decision should be changed. The state argued that the trial court made mistakes in its decision to suppress the evidence. However, the Appeals Court looked carefully at the facts and decided that the trial court had a good reason to change its decision. They noted that the officer who stopped Brown did not have a clear memory and his testimony was mainly based on what was written in another officer's report. The Appeals Court stated it respects the findings of the trial court unless they are clearly wrong or not supported by the evidence. After reviewing everything, they agreed with the trial court's ruling because it was based on the officer's inability to reliably remember the details of the stop. The Appeals Court also addressed the state’s claim that the trial court should not have been allowed to change its previous ruling. They found that the state did not provide enough legal backing for this claim, so they didn't consider it further. Finally, the court looked at whether the first officer could accurately use the report to refresh his memory about the stop. They concluded that just because he accepted the report as true did not mean it helped him remember the stop accurately. In the end, the court affirmed the decision to suppress the evidence that led to the conviction and agreed to dismiss the case.

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S-2012-214

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In OCCA case No. S-2012-214, Nhanh Van Dang and Nhi Thi Nguyen appealed their conviction for trafficking in illegal drugs and conspiracy to traffic in illegal drugs. In an unpublished decision, the court decided to affirm the lower court's decision to suppress the evidence, meaning the charges against them could not proceed. One judge dissented. The case began when law enforcement stopped the vehicle driving by Dang and Nguyen. They were suspected of breaking traffic laws, but the court found that the officers did not have enough reason to pull them over. The original judge ruled that there wasn’t enough evidence to support the stop, which led to the suppression of the evidence gathered afterward. The state tried to argue that the stop was justified because of alleged traffic violations. However, the appeals court agreed with the lower court's decision, saying the evidence did not clearly show that the officers had a good reason to stop the vehicle. Since the stop was deemed improper, the gathered evidence could not be used in court against Dang and Nguyen. Therefore, the appeals court confirmed that the right decision was made by the lower court in suppressing the evidence, reinforcing the idea that fair legal procedures must be followed.

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S-2011-765

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In OCCA case No. S-2011-765, Steven Cory Lymen appealed his conviction for Second Degree Burglary. In an unpublished decision, the court decided to deny the State's appeal to reverse the trial court's decision. The court determined that the trial court did not misuse its authority when it suppressed evidence and dismissed the case. The State had argued that the witness's identification of Lymen was valid despite it being considered unduly suggestive initially, but the court ultimately agreed with the trial court’s conclusion that the identification was not reliable.

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