Nunc Pro Tunc

F-2019-912

  • Post author:
  • Post category:F

In OCCA case No. F-2019-912, Charles Issac Jacobs appealed his conviction for Aggravated Assault and Battery. In an unpublished decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Jacobs was charged in McCurtain County after a jury found him guilty and sentenced him to two years in prison. During his appeal, he raised several points: 1. **Jurisdiction**: Jacobs argued that the State did not have authority to prosecute him because the victim was an Indian, and the crime happened in Indian Country. The trial court found that Jacobs was not an Indian according to legal standards, while the victim was. The court also determined that the crime took place within the boundaries of the Choctaw Reservation, meaning the State had the jurisdiction to proceed with the case. 2. **Self-Defense**: Jacobs claimed that he acted in self-defense when he assaulted the victim. The court noted that self-defense is a legal reason for actions that would typically be considered crimes. However, the court found there was enough evidence to show that Jacobs did not have a reasonable belief that he was in danger when he attacked the victim. 3. **Jury Instructions**: Jacobs requested that the jury be given a specific instruction about standing your ground during the trial. The court stated that whether to give specific jury instructions is up to the trial judge. They found that Jacobs did not meet the legal requirements for this instruction because there wasn’t enough evidence showing he was in a situation where he could lawfully defend himself. 4. **Monetary Fine**: At sentencing, the jury did not impose a fine, but the court record incorrectly showed a fine of $500 was imposed. The State and Jacobs both agreed that this was a mistake. The court instructed that this clerical error should be corrected. The main decision reached by the court was that Jacobs' conviction was upheld. They affirmed that the State had the right to prosecute him, and there was sufficient evidence to support his conviction. However, the court also ordered that the punishment record should be corrected to show that no fine was actually imposed.

Continue ReadingF-2019-912

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-2018-313

  • 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-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

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

RE 2018-0457

  • Post author:
  • Post category:RE

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.

Continue ReadingRE 2018-0457

RE 2018-0457

  • Post author:
  • Post category:RE

In OCCA case No. RE 2018-0457, Tommy Lee Tucker appealed his conviction for Domestic Assault and Battery After Prior Conviction, Domestic Assault and Battery by Strangulation, and Kidnapping. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences but remanded the case to the District Court to correct inconsistencies in the sentencing documents. One judge dissented.

Continue ReadingRE 2018-0457

F-2017-769

  • Post author:
  • Post category:F

In OCCA case No. F-2017-769, Tyrees Dotson appealed his conviction for Murder in the Second Degree. In a published decision, the court decided to affirm Dotson's conviction and sentence. One judge dissented. Tyrees Dotson was found guilty of Murder in the Second Degree after a trial in which he received a sentence of thirty years in prison. The judge ordered that this sentence would start after he completed another sentence he was already serving. During the trial, Dotson raised several issues. First, he argued that it was unfair for the court to allow the jury to hear a witness's earlier testimony instead of having the witness speak during the trial. Dotson thought this hurt his case. However, the court found that the state had tried hard to find the missing witness and was fair in allowing the earlier testimony. Dotson also claimed there were problems with other evidence presented during the trial. He believed that some photos of the victim were too much and could make the jury feel very emotional instead of making a fair decision. The court disagreed and said that the evidence was important to explain the situation. Another issue Dotson raised was that the state unfairly removed some black jurors from the jury. The court looked at this claim and found that the state's reasons for removing those jurors were based on valid, non-racial reasons. Dotson also said that his lawyer did not do a good job defending him, which made it unfair. The court found no evidence that his lawyer's actions harmed his case. Finally, Dotson felt that all the mistakes in the trial added up to make it unfair. However, since the court found no significant errors, they decided that there was also no cumulative error. Overall, the court concluded that Dotson's conviction and sentence were valid and went on to say that a small error in the paperwork needed fixing but did not affect the outcome of the case. Thus, his appeal was turned down.

Continue ReadingF-2017-769

RE-2018-155

  • Post author:
  • Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **VESTER VON DOWNUM,** **Appellant,** **v.** **STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-155** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MAY 23, 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** On June 15, 2015, Appellant Vester Von Downum, represented by counsel, was convicted of Planning/Conspiring/Endeavoring to Perform an Act of Violence in Muskogee County, Case No. CF-2014-656. He was sentenced to ten (10) years, with all but the first two (2) years suspended, subject to rules and conditions of probation. On December 6, 2017, the State filed an Application to Revoke Downum's suspended sentence, alleging he violated the terms of probation by violating a protective order issued in PO-2014-218. At the hearing on February 7, 2018, the District Court of Muskogee County, presided by the Honorable Norman D. Thygesen, revoked the remainder of Downum's suspended sentence. Downum now appeals, presenting the following propositions of error: 1. The State failed to prove by a preponderance of the evidence that Mr. Downum violated the terms of his probation by committing the new crime of violating a protective order; 2. The order of revocation is excessive based on the circumstances; 3. There exists a clerical error in the order revoking the suspended sentence that should be corrected by an order nunc pro tunc. **DECISION:** The revocation of Downum's suspended sentence is AFFIRMED. The scope of review in revocation appeals is limited to the validity of the revocation order. We examine the factual determination and consider whether the court abused its discretion. The trial court's findings will not be disturbed on appeal if there is evidence reasonably supporting them. Downum alleges the State did not prove he violated the protective order. In probation revocations, the State must prove violations by a preponderance of the evidence, and conflicting testimony was presented at the revocation hearing. The victim, T.H., claimed Downum contacted her on Facebook shortly after his release, which she found threatening due to their history. Downum testified the contact was accidental. Given the conflicting evidence, the court found sufficient grounds to support the violation, and we find no abuse of discretion in the decision to revoke Downum's sentence. As to Downum's claim of excessive punishment, we note that violation of even one condition of probation justifies full revocation, especially in this case where the violation occurred less than two weeks after his release. Regarding the clerical error in the Judgment filed February 9, 2018, it correctly reflects the need for a nunc pro tunc order to clarify that Downum was found guilty after a jury trial and not via a guilty plea. **CONCLUSION:** The order of the District Court of Muskogee County revoking Downum's suspended sentence in Case No. CF-2014-656 is AFFIRMED. The matter is REMANDED for entry of an order nunc pro tunc to correct the clerical error. **OPINION BY: LEWIS, P.J.:** **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur **[Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-155_1734703626.pdf)**

Continue ReadingRE-2018-155

RE-2017-1128

  • Post author:
  • Post category:RE

**OKLAHOMA COURT OF CRIMINAL APPEALS** **Case No. RE-2017-1128** **Elizabeth Kay Sears, Appellant,** **v.** **The State of Oklahoma, Appellee.** **FILED: MAY 16, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** **¶1** This matter is an appeal from the revocation of Appellant Elizabeth Kay Sears' suspended sentence in Logan County District Court Case No. CF-2013-295, presided over by the Honorable Louis A. Duel, Associate District Judge. **¶2** On January 14, 2014, Appellant entered a plea of guilty to two counts of Child Neglect (21 O.S.2011, § 843.5(C)) and one count of Harboring a Fugitive (21 O.S.2011, § 440). She was sentenced to eight years imprisonment for each count, with the first three years of each sentence to be served, while the remaining years were suspended. On October 3, 2014, the District Judge modified Appellant's sentence to five years imprisonment for each count, all suspended, to be served concurrently. **¶3** The State filed a 2nd Amended Motion to Revoke Suspended Sentence on December 29, 2016, citing several probation violations, including new charges of Second Degree Burglary and Possession of Paraphernalia, arising from Logan County District Court Case No. CF-2016-404. **¶4** Appellant was arraigned on January 26, 2017, entered a plea of not guilty, and subsequently requested a continuance for her revocation hearing, which was ultimately heard on October 25, 2017. The court revoked Appellant's five-year suspended sentences in full after considering the evidence and arguments presented. **¶5** In her first proposition of error, Appellant contends that the revocation order should be reversed and dismissed. She argues that there was no valid waiver of the required twenty-day hearing period following her plea of not guilty, as stipulated in 22 O.S.Supp.2016, § 991b(A). She maintains that the record does not sufficiently show she was informed of this requirement; thus, the motion to revoke should be dismissed. **¶6** However, Appellant's request for a continuance of her revocation hearing undermines her argument. The legal precedent established in *Grimes v. State*, 2011 OK CR 16, clearly states that a defendant who acquiesces in or seeks a continuance cannot later claim entitlement to relief based on noncompliance with the twenty-day requirement. Moreover, Appellant does not claim ineffective assistance of counsel regarding this issue, and it is presumed that her attorney acted competently. **¶7** In her second proposition of error, Appellant seeks clarification of the trial court's revocation order, specifically, concerning the credit for time served. Although the State acknowledges a potential misstatement by the trial court about the duration of time credited, Appellant did not raise this issue for correction in the trial court before bringing it to this Court. Typically, we do not intervene without a preliminary determination by the District Court. **¶8** However, we will modify the procedural requirement that previously necessitated an appellant to file a separate motion to address this issue. In the absence of clear clerical error, we remand this matter back to the District Court of Logan County to allow Appellant to seek an order nunc pro tunc regarding the time served, as outlined in her second proposition of error. **DECISION** The revocation of Appellant's suspended sentence in Logan County District Court Case No. CF-2013-295 is AFFIRMED. This case is REMANDED for proceedings consistent with this opinion. A mandate will be issued following the filing of this decision. **APPEARANCES** **Counsel for Defendant:** Lisbeth L. McCarty, Oklahoma City, OK **Counsel for Appellant:** Lane Fitz, Norman, OK **Counsel for State:** Emily Kirkpatrick, Asst. District Attorney, Guthrie, OK **Counsel for Appellee:** Mike Hunter, Oklahoma Attorney General, Oklahoma City, OK **OPINION BY:** KUEHN, V.P.J. **CONCUR:** LEWIS, P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-1128_1734708375.pdf)

Continue ReadingRE-2017-1128

F-2017-911

  • Post author:
  • Post category:F

In OCCA case No. F-2017-911, the appellant appealed his conviction for various offenses. In an unpublished decision, the court decided to affirm the termination of the appellant from the Drug Court program. One judge dissented. The case began when the appellant, previously convicted of two counts of Second Degree Burglary, was sentenced to twenty-one years for each count but with most of that time suspended. While under supervision, the appellant was accused of violating the terms of his release due to new criminal charges. He later pleaded guilty to those new charges as well. To avoid serving the full sentences, the appellant entered a Drug Court program aimed at helping him overcome substance abuse issues. However, after several years in the program, he faced multiple sanctions for drug use and missed compliance with program rules. Eventually, the state moved to terminate him from Drug Court, asserting he had violated several agreements tied to his participation. During the hearing to decide whether he should be removed from the program, the trial judge ultimately decided that the appellant had not adequately followed the rules and terminated his participation. The appellant then argued that the judge should have considered giving him additional chances rather than terminating him outright. The court checked to see if the trial judge had abused his discretion, meaning if the judge made a choice that was unreasonable or did not follow the law. The records showed the appellant had been sanctioned several times over his three years in the program, but he continued to struggle with drug use. The court found no evidence that the judge had failed to weigh all the necessary factors before deciding to end the appellant's time in Drug Court. In the end, the court affirmed the decision to terminate the appellant from the Drug Court program, stating that the earlier judgments regarding his sentence also needed no changes since the mistakes made in paperwork were corrected. Therefore, the appeal was largely dismissed as moot.

Continue ReadingF-2017-911

C-2018-441

  • Post author:
  • Post category:C

In OCCA case No. C-2018-441, Clinton Lee Myers appealed his conviction for trafficking in illegal drugs and possession of a controlled substance with intent to distribute near a school. In an unpublished decision, the court decided to deny his appeal. One judge dissented. Clinton Lee Myers entered a plea of guilty to two serious charges. He was sentenced to a long time in prison and had to pay a large fine. After he was sentenced, he wanted to withdraw his guilty plea, but the court said no after listening to evidence in a hearing. Myers complained that his punishment was too harsh and that the prosecutor shouldn't have talked about his past crimes during the sentencing. He felt this information was unfair and should not have been used against him. However, the court explained that this type of information can be considered at sentencing. They also decided that his sentence was within legal limits and did not shock their conscience, so they would not change it. Additionally, Myers believed that there was a mistake in the written records of his sentence regarding the amount of the fine. The court found that there was, in fact, a clerical error in the documents about the fine amount. They agreed that the error should be corrected to match what the judge said during the sentencing. In conclusion, the court denied Myers' request to change his sentence, but they agreed to correct the written record to reflect the right fine amount.

Continue ReadingC-2018-441

RE 2016-0784

  • Post author:
  • Post category:RE

In OCCA case No. RE 2016-0784, James Wilbur Allen appealed his conviction for the revocation of his suspended sentences related to six counts of Child Sexual Abuse. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences. One judge dissented.

Continue ReadingRE 2016-0784

RE-2015-765

  • Post author:
  • Post category:RE

In OCCA case No. RE-2015-765, Jimmy Lee Fields appealed his conviction for sexually abusing a minor child. In an unpublished decision, the court decided to affirm the revocation of Fields' suspended sentence. One judge dissented. The case began when Fields, in 2000, pleaded guilty to sexually abusing a child. He was sentenced to fifteen years in prison, but all but five years were suspended. This meant he would not have to serve the full sentence if he followed the rules. In 2001, his sentence was modified to fourteen years and the execution of that sentence was also suspended with conditions he had to follow while on probation. In 2015, the state accused Fields of breaking the rules of his probation by committing more serious crimes, including child sexual abuse. After a hearing, the court revoked his suspended sentence completely, meaning he had to serve time in prison. Fields disagreed with this decision, claiming the court made errors. Fields presented two main arguments for his appeal. First, he argued that the court was wrong to impose post-imprisonment supervision at the time of revocation, which was not part of the original sentence. Second, he believed the court acted unfairly when it revoked his entire sentence because he had mitigating circumstances like health issues and past good behavior. The court reviewed his claims but found no errors in the decision to revoke the suspension. It highlighted that committing new crimes while on probation justified the revocation. Therefore, the court upheld the revocation but instructed to correct the official written order to remove the additional supervision requirement that was added later. Overall, the court affirmed the decision to revoke his probation with the clarification needed for the written records.

Continue ReadingRE-2015-765

F-2014-1078

  • Post author:
  • Post category:F

In OCCA case No. F-2014-1078, Robert Bradley Champlain appealed his conviction for three counts of Lewd Molestation. In an unpublished decision, the court decided to affirm his judgment and sentence but vacated the imposition of post-imprisonment supervision. One judge dissented. The case involved allegations against Champlain for inappropriate conduct with a minor, and a jury found him guilty. Each count resulted in a recommendation for life imprisonment, to be served consecutively. Champlain raised several arguments on appeal, claiming errors in the trial process, including the imposition of consecutive sentences as a punishment for opting for a jury trial and issues regarding evidence of his past convictions. The court did not find merit in these claims. It clarified that the determination of consecutive versus concurrent sentences is within the trial court's discretion. The court also concluded that prior felony convictions had been proven properly, with no significant errors affecting Champlain's rights during the trial. They explained that the State's evidence was sufficient for the jury to uphold the conviction. Champlain also argued that the conduct of the prosecution and the trial court's instructions were unfair. However, the court stated that the issues raised did not prove any misconduct that made the trial fundamentally unfair. His claims regarding ineffective assistance from his counsel were also dismissed, as the court did not see a failure that affected the outcome of the trial. While Champlain did receive life sentences, the court vacated the post-imprisonment supervision, stating it was not applicable in cases of life sentences. In conclusion, the court affirmed the conviction and sentence while correcting certain references related to the timing of the offenses.

Continue ReadingF-2014-1078

RE-2014-371

  • Post author:
  • Post category:RE

In OCCA case No. RE-2014-371, Holland appealed his conviction for Rape in the Second Degree. In a published decision, the court decided to modify the revocation order regarding his suspended sentence. One judge dissented. Holland pleaded guilty to a crime and received a sentence that included five years of imprisonment, but with some of that time suspended as long as he followed rules set by the court. However, he did not follow these rules, such as reporting to his probation officer and attending required treatment. Because of this, the court revoked his suspended sentence and ordered him to serve the full five years. Holland felt the punishment was too harsh and claimed he had tried to follow the rules. He argued that he should not have to serve the full five years because only a part of that sentence was supposed to be enforced. The court looked carefully at his claims. They found that Holland had not fully complied with the rules he agreed to follow, and therefore, they believed the judge was correct in deciding to revoke his suspension. However, they agreed that the judge had made an error when stating he had to serve five years in prison since he had already served part of that time. Ultimately, the court decided to change the revocation order so that Holland would only need to serve four years and eleven months, which is the remaining part of his original sentence. The court confirmed their decision and instructed the District Court to make the necessary changes.

Continue ReadingRE-2014-371

RE-2014-810

  • Post author:
  • Post category:RE

In OCCA case No. RE-2014-810, Simpson appealed his conviction for unlawful possession of a controlled dangerous substance. In a published decision, the court decided to affirm the revocation of Simpson's suspended sentence but vacated the imposition of post-imprisonment supervision. One judge dissented. Simpson had entered a guilty plea to possession of a controlled substance in 2013 and was given a ten-year suspended sentence. His sentence was suspended as long as he followed the rules of probation. However, in 2014, the State accused him of violating these rules by committing a new offense of possession of a controlled substance. After a hearing, the judge decided to revoke Simpson’s suspended sentence and send him to jail for ten years. Simpson raised three main issues in his appeal. First, he argued that the judge's decision to revoke the whole sentence was too harsh given his situation. He was struggling with drug addiction and believed that this should be taken into account. However, since he had previously had several felony convictions and had violated the terms of his probation, the court did not find this argument convincing. Second, Simpson claimed that the judge should not have added post-imprisonment supervision to his sentence after revoking it. The law states that this supervision is required only for those who are in prison after being sentenced, which was not the case for Simpson at the time of his original sentencing. Therefore, the court agreed with Simpson and removed the requirement for post-imprisonment supervision. Lastly, Simpson noted that he had already served ten days of his sentence before it was revoked and argued that the judge should not have ordered him to serve a full ten years in prison. The court acknowledged that the judge had indeed made an error by ordering a full ten years instead of the correct amount of nine years and 355 days, taking into account the time already served. In summary, the court upheld the revocation of Simpson’s suspended sentence, meaning he would go to prison. However, they corrected the total time he needed to serve to reflect the time he had already completed, and they took away the added supervision requirement after his prison term.

Continue ReadingRE-2014-810

F-2014-22

  • Post author:
  • Post category:F

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.

Continue ReadingF-2014-22

RE-2014-96

  • Post author:
  • Post category:RE

In OCCA case No. RE-2014-96, Blackwell appealed his conviction for Child Abuse. In a published decision, the court decided to affirm the revocation of Blackwell's suspended sentence but remanded the case to determine whether Blackwell is entitled to credit for time served as a Youthful Offender. One member of the court dissented. Blackwell was charged with First Degree Rape but later pleaded guilty to Child Abuse, and his sentence was delayed for five years on probation. After violating several terms of his probation, the state requested to revoke his suspended sentence. Blackwell claimed that the court did not have the right to revoke his sentence because he argued he was a youthful offender and that his adult conviction was improper. The court explained that the appeal focused on if the revocation was valid rather than the underlying conviction's correctness. Blackwell’s claims related to his conviction need to be addressed through a different legal process, not this appeal. The court also pointed out that issues about the correctness of laws mentioned in the documents were not within their authority to correct in this appeal. Additionally, Blackwell argued that his entire sentence revocation was too harsh. However, the court mentioned that breaking even a single probation rule is enough to revoke the suspended sentence. Finally, Blackwell maintained he should get credit for the days he spent under juvenile custody, and the court agreed to look into this matter further, sending the case back for clarification on this issue. They affirmed the revocation overall but allowed for the investigation into how much credit Blackwell should receive.

Continue ReadingRE-2014-96

RE-2014-392

  • Post author:
  • Post category:RE

In OCCA case No. RE-2014-392, the appellant appealed his conviction for lewd molestation and rape in the first degree. In an unpublished decision, the court decided to affirm the revocation of the appellant's suspended sentences, but they vacated the one-year period of post-imprisonment supervision. One judge dissented.

Continue ReadingRE-2014-392

F-2013-1073

  • Post author:
  • Post category:F

In OCCA case No. F-2013-1073, George H. Pinkney appealed his conviction for possession of a controlled substance (marijuana) in the presence of a minor, among other charges. In a published decision, the court decided to modify his sentence for the first count to five years but upheld other convictions. One judge dissented regarding the sentence modification.

Continue ReadingF-2013-1073

RE-2013-250

  • Post author:
  • Post category:RE

In OCCA case No. RE-2013-250, Richard Shane Kuehn appealed his conviction for Lewd Molestation. In a published decision, the court decided that the revocation of seven years of Kuehn's twelve-year suspended sentence was reversed because the judge who decided his case had previously worked as a prosecutor on it. Kuehn claimed he did not get a fair hearing because of this, and the court agreed, stating that judges cannot preside over cases in which they have been involved as attorneys without consent from the parties. Kuehn's other claims were not reviewed since the court found for him on the first point.

Continue ReadingRE-2013-250

F 2012-1131

  • Post author:
  • Post category:F

In OCCA case No. F 2012-1131, Antonio Herman Cervantes appealed his conviction for sixty-nine counts of child sexual abuse and one count of child physical abuse. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court while ordering the correction of the sentencing documentation. One judge dissented. Cervantes was found guilty of serious crimes against children and received a significant prison sentence of forty years for each count. The court decided that some counts would be served concurrently, while others would be served consecutively. This meant that Cervantes would spend a long time in prison before being eligible for parole. Cervantes raised several issues in his appeal. First, he argued that the jury instructions at his trial were not correct, but the court found that these instructions were adequate since there were no objections made at the trial. Therefore, the court only looked for plain errors and did not find any. Next, Cervantes claimed that many of his convictions should not have happened because they involved double punishment for the same act. However, the court disagreed, stating that the evidence showed these were separate acts that could be considered individual offenses. Cervantes also thought that the trial judge did not treat him fairly. Yet, since there were no objections to any of the judge's comments during the trial, the court reviewed these comments and concluded that they did not show bias against Cervantes. He further claimed that he was denied a speedy trial. The court reviewed the reasons for trial delays, noting that they mostly stemmed from issues with his defense attorneys and were not caused by the state. The court decided that the delays were not a violation of his rights because he did not demonstrate how he was prejudiced by the wait. Cervantes also argued that there were mistakes in how his previous convictions were presented during the trial, but he did not raise objections when the evidence was introduced, so the court did not find any reversible error. Another point he raised was that the written judgment did not match what was said in court regarding his sentence. The court agreed that his sentencing documents needed to be corrected to reflect the proper orders given during the trial. Cervantes also suggested that his lawyer did not provide effective assistance because he failed to complain about certain aspects during the trial. However, the court found that there was no evidence of how this alleged absence of support affected the outcome of his case. He also noted instances of what he thought was misconduct by the prosecution but concluded that overall, he was not denied a fair trial due to these points. The court found that his sentences were appropriate and did not see any major errors that would warrant changing its earlier decisions. Finally, the court ruled that there was no cumulative effect of errors since no individual error was found to be significant enough to affect the fairness of the trial. Thus, the court affirmed the conviction while ordering the necessary corrections in the documentation of the sentence.

Continue ReadingF 2012-1131

F-2012-478

  • Post author:
  • Post category:F

In OCCA case No. F-2012-478, Michael Ray Baack appealed his conviction for Unlawful Possession of a Controlled Dangerous Substance and Public Intoxication. In an unpublished decision, the court decided to affirm the judgment and sentence of the District Court while remanding the case to correct the judgment regarding the fine on Count 1. One member of the court dissented. Michael Ray Baack was found guilty by a jury in Canadian County for having controlled substances and for being publicly intoxicated. The jury decided that he should serve eight years in prison and pay a $2,000 fine for the drug charge, along with thirty days in jail for public intoxication. The judge ordered both sentences to be served one after the other but waived the fine on the drug charge. Baack raised several questions on appeal. He argued about the evidence being enough to convict him of the drug charge, how other crimes were presented during the trial, the lack of instructions on a lesser drug offense, the fine, and whether his sentence was too harsh. 1. The court found that the evidence showed Baack had knowingly possessed drugs. The jury had enough proof to make a logical decision based on the facts presented. 2. About the other crimes evidence, the court mentioned that Baack had introduced his prior record himself, so he could not complain about that during the appeal since it was his choice to bring it up. 3. Baack's request for a lower charge on drug paraphernalia was not granted because he claimed he was innocent. The court said that when someone claims they did not do something, they cannot ask for lesser charges. 4. The fine for the drug charge was waived, and both Baack and the state agreed that the case should go back to the lower court to correct the documents to show there was no fine. 5. The claim that Baack was hurt by showing his previous felony conviction was denied because it did not affect the outcome of the case. The court stated that the sentences were appropriate and followed the law. In conclusion, the court upheld the findings of the lower court and noted there was no need for a new trial or changes to the verdicts, except for correcting the issue with the fine.

Continue ReadingF-2012-478

F 2011-1045

  • Post author:
  • Post category:F

In OCCA case No. F 2011-1045, Joshua Paul Nosak appealed his conviction for first-degree manslaughter, leaving the scene of a fatal accident, driving without a driver's license, and assault with a dangerous weapon. In an unpublished decision, the court decided to affirm his convictions but ordered that the case be sent back to fix a mistake in the sentencing. One judge disagreed with the decision. Nosak was found guilty of serious crimes after a jury trial. The jury decided he was guilty of first-degree manslaughter for driving while impaired and also found him guilty of leaving the scene of an accident after someone died. He was sentenced to a total of 50 years in prison for the manslaughter charge and received additional time and fines for the other offenses. Nosak's appeal raised several arguments. First, he believed that the court should not have allowed a specific charge against him because the underlying misdemeanor wasn't strong enough to support the manslaughter charge. However, the court found that this didn't really hurt his case because the jury found him guilty on other grounds. Second, Nosak argued that the court allowed bad evidence to be presented, which shouldn't have been allowed. The court found that he didn't object to this during the trial, so they couldn’t rule on it unless it was obviously wrong and affected his rights, which they determined it did not. Third, he claimed that he didn’t get good help from his lawyer. However, the court said that because the evidence against him was very strong, he could not show that he was harmed by any mistakes made by his attorney. The fourth point was about correcting mistakes in the court's decision regarding his punishment. The court accepted that there were errors in the sentencing order and decided to send the case back to fix them. Finally, Nosak argued that the many errors combined made it impossible for him to have a fair trial. But the court found that there were no individual mistakes that were serious enough to change the trial's outcome. In conclusion, the decision meant that while Nosak's convictions were upheld, the court would correct the sentencing mistakes before finalizing the case. One judge disagreed with this conclusion, but the others agreed with the majority opinion.

Continue ReadingF 2011-1045