Okla. Stat. tit. 21 § 1731

F-2021-785

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In OCCA case No. F-2021-785, Kyle Robert Forsyth appealed his conviction for sexual battery and larceny of merchandise from a retailer. In a published decision, the court decided to affirm Forsyth's conviction but remanded the case for a hearing to determine whether he should receive credit for time served in jail. One justice dissented. Forsyth was tried without a jury and found guilty of sexual battery and larceny. The judge gave him a ten-year sentence for the sexual battery and thirty days in jail for the larceny, with the sentences to run one after the other. Forsyth argued that his rights were violated because the same judge presided over both the preliminary hearing and the trial, which he claimed broke the two-judge rule in legal procedures. However, the court found that the judge listed on the preliminary hearing was not the one who actually presided over it, so there was no error. Forsyth also argued that he should have received credit for the time he stayed in jail before sentencing. He was unable to pay bail and was in jail for nearly ten months. His lawyer pointed out that it is unfair to make someone serve a longer sentence just because they cannot afford to pay bail. The court agreed that this issue of credit for time served needed more examination. They sent the case back to see if there were other reasons that kept Forsyth in jail other than his inability to pay bail. Overall, the court upheld Forsyth’s convictions but wanted to further investigate whether he should get credit for the time he had already spent in jail.

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RE-2020-398

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In OCCA case No. RE-2020-398, Kenneth Joe Norton appealed his conviction for Failure to Register as a Sex Offender and Larceny of Merchandise from a Retailer. In a published decision, the court decided to affirm the revocation of his suspended sentences but ordered the trial court to modify the term executed on one charge to one year. One judge dissented. Norton was charged with two crimes, Failure to Register as a Sex Offender and Larceny of Merchandise, and he pleaded no contest in both cases. He was sentenced to ten years in prison, but part of that sentence was suspended as long as he completed a program. Later, the State claimed he broke the terms of his suspended sentence by getting into more trouble, which led to a court hearing. Norton argued that the sentence that was given to him was too long. He believed that the old law allowed a shorter sentence. The court looked at his claims and noted that, since the law changed after he was convicted, he should only serve one year on the larceny charge. This part of his appeal was accepted. Norton also tried to argue that some of the evidence during his revocation hearing should not have been allowed because it was obtained without proper procedures. He claimed that he had not been warned about his rights when he made a statement that led to his arrest. The court explained that during a revocation hearing, the same protections as a criminal trial do not apply. Therefore, the evidence was allowed. Moreover, he claimed his lawyer did not do a good job because they did not raise certain points about his case. However, since one of his claims was accepted, the court decided that it did not matter if the lawyer made mistakes because his issue was already resolved. In conclusion, the court allowed some changes to the sentence but maintained that his revocation was valid. The court focused on the rules for reviewing revocation cases and kept Norton accountable for his actions that led to the revocation of his suspended sentences.

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F-2017-1000

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In OCCA case No. F-2017-1000, Sonny Raye McCombs appealed his conviction for several crimes including robbery, using a vehicle in a crime, possessing a firearm, larceny, and obstructing an officer. In an unpublished decision, the court decided to reverse the convictions and dismiss the case. McCombs argued that the court did not have jurisdiction over his case because he is a member of the Muscogee (Creek) Nation and the crimes happened on Native American land, which is called Indian Country. The court agreed that the State of Oklahoma could not prosecute him for these crimes because of the legal rulings made in earlier cases regarding Indian rights and territories. The majority of the judges emphasized that the crimes took place in areas still recognized as part of Indian Country, leading to the conclusion that the state lacked the authority to prosecute him. One judge dissented, expressing concerns over the majority opinion and its implications for federal and state law relationship.

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C-2019-853

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In OCCA case No. C-2019-853, the petitioner appealed his conviction for first degree murder and larceny. In a published decision, the court decided to vacate the judgment and sentence and remand the case with instructions to dismiss. One judge dissented. The case involved a woman who entered a guilty plea for two crimes: first degree murder and larceny of merchandise. She was sentenced to life in prison for the murder and thirty days for the larceny, with both sentences running at the same time. Later, she wanted to change her guilty plea and filed a motion to withdraw it. During the appeal, one major issue raised was whether the State of Oklahoma had the right to prosecute her. The woman argued that the state didn’t have jurisdiction because of her status as a member of a federally recognized tribe and the nature of the crime being committed within the reservation boundaries. The court looked at a recent Supreme Court decision, McGirt v. Oklahoma, where it was determined that certain lands in Oklahoma are still recognized as Native American reservations. The court agreed with the petitioner about the jurisdiction issue. Both the petitioner and the state agreed on certain facts regarding her tribal membership and the location of the crime. Since the court found that the state did not have the right to prosecute the petitioner, it decided to vacate the earlier judgment and sentence. The decision meant that the petitioner would not face charges in state court but rather would need to be prosecuted in federal court because of her tribal affiliation and the location of the crime committed. This ruling highlighted the importance of understanding jurisdiction, especially when it involves Native American rights and lands.

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F-2018-1187

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In the Court of Criminal Appeals of the State of Oklahoma, the case reviewed is that of Pearlena Hall, who appealed the decision of the district court following her termination from the mental-health court program. On May 4, 2017, Hall entered guilty pleas in two cases related to larceny, obstructing an officer, and possession of drug paraphernalia. After entering the mental-health court program, she faced a motion to terminate her participation due to allegations of committing a new crime and various rule violations. The court reviewed the appeal for any abuse of discretion regarding the termination. The decision to terminate a defendant from a mental-health court must uphold minimum due process standards, which includes proper notice of violations, an opportunity to be heard, and the ability to confront witnesses. Hall argued that her due process rights were violated because the State did not file a new application for removal and thus did not provide adequate notice about the allegations against her. However, the court found that Hall was aware of the allegations, which she confessed to during the proceedings. The judge provided opportunities for her to comply with program requirements, and a delay in sentencing that favored Hall did not equate to a due process violation. The court highlighted that she could not complain about delays she acquiesced to during the processes. Ultimately, the court affirmed Hall's termination from the mental-health court, ruling that her procedural rights had been sufficiently met. Thus, her appeal was denied, and the termination order was upheld. The court's opinion was delivered by Judge Rowland, with Judges Lewis, Kuehn, Lumpkin, and Hudson concurring with the decision. The mandate was ordered as per Oklahoma Court rules, and the relevant parties were identified for representation. For further reference, you can view the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1187_1734785215.pdf).

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RE-2018-868

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**FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **IN THE COURT OF CRIMINAL APPEALS / OF THE STATE OF OKLAHOMA** **SEP 12 2019** **JOHN D. HADDEN** **CLERK** --- **MISTY DAWN BARRETT,** **Appellant,** **V.** **No. RE-2018-868** **THE STATE OF OKLAHOMA,** **Appellee.** --- **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant Misty Dawn Barrett appeals from the revocation of her suspended sentences in Muskogee County District Court Case Nos. CF-2016-439, CF-2017-126, CF-2017-127, and CF-2017-129. Appellant faced multiple charges across these cases, including Possession of a Controlled Dangerous Substance, Larceny of an Automobile, and Identity Theft, among others. After entering pleas and being convicted, she received several sentences which were subsequently suspended to be served concurrently. The State filed an Application to Revoke Suspended Sentence in all four cases, leading to a partial revocation of five years of her suspended sentences on October 25, 2017. A second Application to Revoke was filed on July 25, 2018, for new alleged crimes, leading to a revocation hearing where the trial court, presided over by Judge Mike Norman, revoked her remaining suspended sentences in full. In her appeal, Appellant argues that the full revocation was excessive, asserting that her past actions should have been anticipated due to her struggles with drug addiction, and claiming that incarceration is not an effective remedy for her situation. The decision to revoke a suspended sentence falls within the sound discretion of the trial court. A revocation will not be disturbed absent a clear abuse of that discretion (Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565). The State established sufficient grounds for revocation through competent evidence presented during the hearing. Appellant had previously benefited from leniency when only part of her suspended sentence was revoked. After reoffending post-incarceration, Appellant demonstrated that a suspended sentence is a privilege rather than a right (Hagar v. State, 1999 OK CR 35, ¶ 8, 990 P.2d 894, 897). **DECISION** The full revocation of Appellant's suspended sentences in Muskogee County District Court Case Nos. CF-2016-439, CF-2017-126, CF-2017-127, and CF-2017-129 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 to be issued upon the filing of this decision. --- **AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY, THE HONORABLE MIKE NORMAN, DISTRICT JUDGE** **APPEARANCES AT REVOCATION** **DANIEL MEDLOCK** 620 W. BROADWAY MUSKOGEE, OK 74401 **COUNSEL FOR DEFENDANT** **APPEARANCES ON APPEAL** **NICOLLETTE BRANDT** P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR APPELLANT** **TIMOTHY KING** ASST. DISTRICT ATTORNEY 220 STATE ST. MUSKOGEE, OK 74401 **COUNSEL FOR STATE** **MIKE HUNTER** OKLA. ATTORNEY GENERAL **CAROLINE HUNT** ASST. ATTORNEY GENERAL 313 N.E. 21st STREET OKLAHOMA CITY, OK 73105 **COUNSEL FOR APPELLEE** --- **OPINION BY:** KUEHN, V.P.J. **LEWIS, P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **HUDSON, J.:** CONCUR **ROWLAND, J.:** CONCUR RA/F --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-868_1734360560.pdf)

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F-2018-892

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**Court of Criminal Appeals of Oklahoma** **Case Summary:** **Case Name:** David Andrew Sanders, Appellant, v. The State of Oklahoma, Appellee **Case Number:** F-2018-892 **Date Filed:** September 5, 2019 --- **Background:** David Andrew Sanders appeals the acceleration of his deferred sentencing resulting from finding evidence that he committed new offenses while on probation. On April 29, 2016, in **Case No. CF-2012-2326**, Appellant entered no contest pleas to Burglary in the First Degree and Pointing a Firearm at Another. In **Case No. CF-2016-1178**, he entered a guilty plea for Larceny of Merchandise from a Retailer. His sentencing was deferred for ten years (Burglary), five years (Firearm charge), and 30 days (Larceny). All sentences were to run concurrently. On November 28, 2017, the State filed an Application to Accelerate the Deferred Sentence, alleging new offenses. At a hearing on August 21, 2018, the court found sufficient evidence of new offenses: possession of a firearm while on probation, possession of a controlled dangerous substance, and possession of drug paraphernalia. **Facts of the Case:** On May 6, 2017, police found Sanders unconscious in an idling car with a handgun in his lap. During the arrest, officers discovered a glass pipe and methamphetamine in the car's console. Sanders argued that this evidence was the product of an unlawful search. **Legal Findings:** The district court ruled that the exclusionary rule did not apply to the acceleration proceeding, which is not akin to a full trial. The court found no evidence of egregious police misconduct. According to Oklahoma law (Richardson v. State), exclusion of evidence is only warranted in revocation hearings where there has been egregious misconduct. **Conclusion:** The Court of Criminal Appeals affirmed the district court's decision, finding no abuse of discretion. The discovery of the firearm, glass pipe, and methamphetamine did not violate Sanders' rights given the context of the proceedings. **Decision:** The order of the district court accelerating Sanders’ deferred judgment and sentencing is AFFIRMED. --- **Counsel on Appeal:** - For Appellant: Micah Sielert and Andrea Digilo Miller - For Appellee: Tiffany Noble, Mike Hunter, Tessa L. Henry **Opinion by:** Presiding Judge Lewis **Concurrences:** Vice Presiding Judge Kuehn, Judge Lumpkin, Judge Hudson, Judge Rowland --- For more details, you may [download the full PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-892_1735120506.pdf).

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F 2011-1043

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In OCCA case No. F 2011-1043, Ricky Carlos Colbert appealed his conviction for assault and battery on a police officer and larceny of merchandise from a retailer. In an unpublished decision, the court decided to affirm the convictions but ordered the case to be sent back to correct the judgment and sentence to show the correct crime of assault and battery on a police officer. One judge dissented. Colbert was found guilty of assaulting a police officer after he was identified during a video of the crime. He raised several arguments for his appeal, including ineffective assistance of counsel, errors in jury instructions, introduction of evidence, prosecutorial misconduct, inaccuracies in his sentence, and cumulative errors. The court carefully examined each argument. 1. For the first point, the court decided that Colbert's lawyer did not provide ineffective assistance. They felt his strategy in the case was acceptable, even if it didn't work out as planned. The lawyer's decision to dispute Colbert's identity rather than claiming he committed a lesser crime was valid, according to the court. 2. For the second point about not instructing the jury on a lesser offense, the court found that Colbert did not ask for this instruction, so they only looked for obvious errors (plain error). They concluded there was no plain error. 3. Regarding evidence, the court said the video of the crime was properly introduced, as there were no objections during the trial. 4. On the issue of prosecutorial misconduct, the court found no serious wrongdoing from the prosecutors. 5. The fifth point involved many mistakes in the judgment, which required a remand to correct records to indicate the correct conviction. 6. Lastly, the court found there were no individual errors that required relief, so cumulative error claims were not valid. Overall, the court concluded to send the case back for corrections but allowed the original convictions to stand. Colbert’s request for a hearing about his lawyer’s effectiveness was also denied.

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C-2012-714

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In OCCA case No. C-2012-714, the petitioner appealed his conviction for larceny of merchandise from a retailer and resisting an officer. In a published decision, the court decided to affirm the conviction for larceny but to reverse and remand the conviction for resisting an officer. One member of the court dissented. The case began when Darrell Odell Golden was charged with stealing merchandise from a department store and for resisting arrest after being approached by law enforcement. Golden stole items valued over $1,000, and when police tried to arrest him, he ran away. Golden pled guilty to both charges but later wanted to withdraw his plea, arguing that he was confused about his possible sentence and that he did not understand the charges properly. The court found that while Golden’s plea for larceny was valid, his plea for resisting an officer lacked evidence of the required force or violence, which is necessary to support that charge. Therefore, the court allowed him to withdraw his guilty plea for that particular count but upheld his conviction for larceny. Ultimately, the decision meant that Golden will keep his larceny conviction and its associated penalties, but the charge of resisting an officer was overturned, allowing for further legal proceedings on that matter.

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F-2000-282

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In OCCA case No. F-2000-282, Sidney Wayne Clark appealed his conviction for Larceny of Merchandise from a Retailer and Placing Bodily Fluids on a Government Employee. In a published decision, the court decided to modify Clark's sentence for Count I to one year in the County Jail and for Count II to one year imprisonment, with both sentences to run consecutively. One judge dissented.

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