Okla. Stat. tit. 21 § 51

RE-2018-932

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ANTHONY CURTIS CREEK,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2018-932** **SUMMARY OPINION** **Filed January 23, 2020** ROWLAND, JUDGE: Anthony Curtis Creek, Appellant, entered a guilty plea on March 16, 2015, in Garfield County District Court Case No. CF-2013-393, to Count 1 - Possession of a Controlled Dangerous Substance, a misdemeanor, and Count 2 - Unlawful Possession of Drug Paraphernalia, a misdemeanor. He received a sentence of one year in the County Jail on Count 1, with 90 days to be served and the remainder suspended; Count 2 was sentenced to one year suspended, with penalties running consecutively. He was also fined $500.00. On January 20, 2017, the State applied for the revocation of Appellant's suspended sentence on Count 2, alleging violations: (1) possession or consumption of alcohol; (2) DUI-A, a misdemeanor; and (3) Defective Equipment, a misdemeanor, in Oklahoma County Case No. CM-2016-2776. During the revocation hearing on June 2, 2017, Appellant admitted to the first allegation. The trial judge, Honorable Dennis Hladik, determined that the State proved the other allegations and revoked six months of Appellant's suspended sentence. Appellant appeals this decision, raising several propositions of error: 1. **Abuse of Discretion:** The trial court allegedly utilized a strict liability standard, resulting in a cruel and excessive sentence. 2. **Prosecutorial Misconduct:** Claiming that Appellant was deprived of a fundamentally fair proceeding due to misconduct. 3. **Plain Error:** The trial court's finding on the State's evidence and the standard of proof was erroneous. 4. **Equal Protection Violation:** Appellant asserts he was denied equal protection under the law. 5. **Cumulative Error:** The accumulation of errors deprived Appellant of due process. Upon review, the Court affirms the District Court's order revoking six months of Appellant's suspended sentence. 1. The decision to revoke a suspended sentence is within the substantial discretion of the trial court and will not be disturbed absent a clear abuse of discretion. The evidence supported Judge Hladik’s decision to revoke only part of the sentence after considering a stipulation and witness testimonies. 2. The Court agrees with Appellant's counsel that prosecutorial misconduct is more appropriate for post-conviction matters. The record does not support claims of misleading behavior by the prosecutors. 3. The standard of proof for such violations is a preponderance of the evidence, adequately satisfied in Appellant's case. Revocation is valid with any proven violation. 4. The trial court's exclusion of evidence does not equate to an equal protection violation. The ruling was consistent and reasonable. 5. As there were no individual errors identified, the argument for cumulative error also fails. **DECISION** The revocation of Appellant's suspended sentence in Garfield County District Court Case No. CF-2013-393 is **AFFIRMED**. The mandate is ordered to be issued upon the filing of this decision. **APPEARANCES ON APPEAL:** **David J. Batton** Counsel for Defendant **Tallena Hart** Carter Jennings Assistant District Attorney Counsel for the State **OPINION BY: ROWLAND, J:** **LEWIS, P.J.: Concur** **KUEHN, V.P.J.: Concur** **LUMPKIN, J: Concur** **HUDSON, J.: Concur** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-932_1734358983.pdf)

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C-2016-38

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In OCCA case No. C-2016-38, Charlie Franklin Roberts appealed his conviction for violation of a protective order, kidnapping, and domestic assault and battery with a dangerous weapon. In a published decision, the court decided to grant the petition and remand for a new hearing on the motion to withdraw plea. One judge dissented. Roberts had entered a no contest plea to the charges and was sentenced to one year in county jail for the misdemeanor and thirty years for each felony, with the felony sentences running at the same time but after the jail sentence. He later wanted to withdraw his plea, claiming he did not have the right help from his attorney during this process. The court looked into his claims and found that Roberts had not been given fair legal help when trying to withdraw his plea. Specifically, his attorney had conflicts of interest that affected his ability to represent Roberts properly. Because of these issues, the court allowed Roberts to have a new and better attorney who could help him file the motion. The court also ordered a hearing to figure out what Roberts would like to do about his plea within specific timelines.

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F-2011-563

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In OCCA case No. F-2011-563, Ronnie Lee Martin appealed his conviction for Trafficking in Illegal Drugs After Former Conviction of Three Felonies. In an unpublished decision, the court decided to reverse the conviction and remand for further proceedings consistent with the opinion. One judge dissented. Ronnie Lee Martin was found guilty after a bench trial, meaning there was no jury, and received a life sentence without the chance for parole. Martin's case stemmed from a traffic stop where drugs were discovered in his possession. The police officer who stopped the car noticed Martin acting suspiciously and later found a substantial amount of crack cocaine during a search of Martin's belongings. Initially, Martin was charged with possession of cocaine with the intent to distribute, which could have resulted in a sentence of four years to life. However, a plea deal of ten years was offered but not accepted due to Martin's attorney advising against it. Later, after more evidence was presented, Martin was charged with the more serious crime of trafficking, which led to a mandatory life sentence without parole. Martin claimed his attorney failed to provide effective counsel, particularly in advising him about the plea deal. The court found his attorney's performance to be deficient, as he did not read important documents that would have clarified the seriousness of Martin’s situation. Additionally, the attorney failed to prepare properly for both pretrial motions and the trial itself. The court looked at the history of Martin's defense lawyer and noted that this attorney had been previously disciplined for ineffective practices, which raised concerns about Martin's representation throughout the trial. The judge stated that Martin was denied a fair trial, and as a result, the court had no choice but to reverse the conviction and send the case back for a new trial. In summary, the court determined that due to many errors made by Martin's lawyer, he did not receive sufficient legal representation, and therefore, his convictions could not stand. Martin’s journey through the legal system was marked by these failings, which ultimately led to the court's decision to give him another chance to defend himself properly.

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F-2010-914

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In OCCA case No. F-2010-914, Burdex appealed his conviction for uttering a forged instrument. In an unpublished decision, the court decided to affirm the judgment but modified Burdex's sentence from life imprisonment to twenty years. One judge dissented. Burdex was found guilty of dealing with a fake check, and the jury decided he should serve life in prison due to his past crimes. His appeal raised several issues, including whether he received a speedy trial, if the evidence against him was strong enough, and if the judge made mistakes during the trial. The court looked at the claim for a speedy trial and used a test from a previous case. They found that he was not denied this right. They also believed there was enough evidence that showed Burdex knew the check was fake since he gave different reasons for having it. Burdex argued that the state shouldn't have used some of his old felonies to lengthen his sentence. However, the court found that the state followed the rules correctly. They said that the past felonies were not too old to be used in deciding his punishment. The court also looked into whether Burdex had good lawyers. They found no evidence that his lawyers did a bad job. Additionally, the judges decided the trial court was correct in not explaining what a life sentence meant. When it came to his sentence, the court felt that life imprisonment was too harsh for a non-violent crime. They noticed that the jury seemed to struggle with the punishment and had questions about how to decide it. Because of this, they decided to change his sentence to twenty years instead of life. In summary, the court agreed with the trial's decision to convict Burdex but felt the punishment should be lighter. One judge did not agree with changing the sentence and believed the jury's decision on punishment should stay as it was.

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F-2011-354

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In OCCA case No. F-2011-354, Isaiah Hasan Gilbert appealed his conviction for Felonious Possession of a Firearm. In an unpublished decision, the court decided to modify his sentence from thirty years to twenty years in prison. Gilbert was found guilty after a jury trial. He was charged with having a gun even though he was not allowed to because of his past criminal record. The jury recommended a sentence of thirty years and a fine of $5,000. Gilbert argued that his lawyer did not do a good job during the trial and that his sentence was too long considering the circumstances. The court looked carefully at everything that happened during the trial. It agreed that Gilbert's lawyer made mistakes but concluded that they did not affect the trial's outcome enough to reverse the conviction entirely. One of the main issues was that Gilbert's lawyer did not call a witness who could have said the gun belonged to someone else. Instead, the lawyer tried to bring that information up in a way that was not allowed, which was a mistake. The court also found that the jury heard improper information about Gilbert’s past, specifically that he had been given suspended sentences from previous convictions. The prosecutor mentioned this to the jury, which could have unfairly influenced their decision on how long to sentence him. Because of these issues, the court decided to reduce Gilbert's sentence from thirty years to twenty years. In conclusion, the decision by the court maintained Gilbert's conviction but reduced the time he had to spend in prison due to the unfair use of his past criminal history in the trial process.

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S-2009-719

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In OCCA case No. S-2009-719, the appellant appealed his conviction for Driving While Under the Influence of Alcohol, Second and Subsequent Offense. In an unpublished decision, the court decided to affirm the lower court's decision, which had quashed the felony charge. One member of the court dissented. Leslie Doyle was charged with multiple offenses, including a second DUI, after a traffic incident on April 1, 2001. Initially, the state claimed Doyle had a prior DUI conviction from June 17, 1998, which would elevate his charge from a misdemeanor to a felony. However, Doyle's attorney argued that since more than ten years had passed since the 1998 conviction, this should not be treated as a felony charge under Oklahoma law. After entertaining arguments from both sides, the special judge ruled in favor of Doyle, stating that because of the ten-year rule, the state could not pursue a felony charge against him. The state then appealed the decision. The core of the argument revolved around the interpretation of statutes related to DUI offenses. The state believed that the existing law allowed them to enhance the charge based on the earlier conviction if the DUI was committed within ten years, regardless of the conviction date. Meanwhile, Doyle maintained that his prior conviction had to occur within ten years of the new charge in order for it to be considered a felony. The reviewing district court confirmed the special judge's ruling, concluding that the law explicitly states convicted and not merely committed, meaning that for enhancement to apply, Doyle's prior conviction must have occurred within the ten-year timeframe, which was not the case here. Ultimately, the court found in favor of Doyle, maintaining that the specific statutes dealing with DUI enhancement supported his case. The court's opinion affirmed the lower court's decision to quash the supplemental information that would have allowed for the felony charge to proceed. A member of the court disagreed with this conclusion and expressed dissent.

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RE-2005-863

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In OCCA case No. RE-2005-863, the appellant appealed his conviction for several counts of burglary and for knowingly concealing stolen property. In a published decision, the court decided to modify the order of the District Court regarding the appellant's sentences, making them run concurrently as originally ordered instead of consecutively. One judge dissented.

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F-2003-991

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In OCCA case No. F-2003-991, James Preston Ray, Sr., appealed his conviction for manufacturing methamphetamine. In a published decision, the court decided that while Ray's conviction and life imprisonment sentence were affirmed, the $50,000 fine imposed was vacated. One judge dissented regarding the vacation of the fine. The case was about Ray being found guilty of making methamphetamine after a trial where the jury heard evidence about his prior felony convictions. Ray argued that he did not get a fair trial due to several problems with how the trial was handled. He listed eight points of error. One major point was that he believed the jury was incorrectly told about the punishments they could give him. He also argued that the court should not have let evidence of his previous convictions be shown to the jury and that this influenced their decision unfairly. Ray claimed that the evidence of his guilt was not strong enough, and he thought the fine he was given was too high. He also said that all the mistakes made together took away his chance for a fair trial. The court reviewed these claims. They specifically looked at his concerns about the instructions the jury received regarding punishment. They noted that Ray was charged under a law that set his punishment between seven years and life in prison. Because Ray had prior convictions, he could be sentenced to a longer term. The law had been changed in 2002, meaning that the state could ask for both a longer imprisonment and additional fines for drug offenses. However, the state did not ask for the jury to be instructed about the fine, which led to the decision to vacate it. Ray also questioned whether the state could present the second page of the Information that listed his prior offenses, but the court ruled that he had agreed to those charges beforehand and did not raise any objections at the right times during the process. In the end, the court found that the evidence against Ray was sufficient for the conviction, and even though there were some mistakes, they did not change the trial's outcome. Therefore, his conviction and life sentence were upheld, but the fine was removed because it was not properly included in his penalty based on the law at the time. One judge, however, believed that the fine should not have been removed, stating that the changes made by the legislature allowed for both a longer sentence and a fine.

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F-2002-899

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

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C-2002-1188

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In OCCA case No. C-2002-1188, the petitioner appealed his conviction for various crimes related to drug possession and firearm offenses. In an unpublished decision, the court decided to affirm most of the convictions but reversed one conviction for maintaining a vehicle used for selling drugs. One judge dissented and suggested that the sentences should run concurrently instead of consecutively.

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C-2003-298

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In OCCA case No. C-2003-298, Edward Charles Scott appealed his conviction for Distribution of Controlled Dangerous Substance and Conspiracy to Distribute Controlled Dangerous Substance. In a published decision, the court decided to affirm the denial of the motion to withdraw guilty pleas and remand the case for resentencing. One member of the court dissented. Edward Charles Scott was charged with two counts of distributing drugs and one count of conspiring to distribute drugs in Stephens County. On November 19, 2001, he pleaded guilty to all charges and was sentenced to 40 years in prison for each count, with the sentences running at the same time, and he was also fined $2,500 for each count. Scott later filed a Motion to Withdraw the Plea, claiming that his lawyer did not help him properly. He had a hearing on this motion, but the court refused his request. Scott also filed other motions seeking to remove his guilty pleas and sought help for an appeal later on. The court allowed him an appeal out of time after concluding that his lawyer had not filed the appeal correctly. Scott raised several points in his appeal. He argued that the trial court should have given him a new lawyer when he claimed his lawyer wasn’t doing a good job. He also believed he should be allowed to take back his guilty pleas because he didn’t understand everything. He felt his prison sentence was too long and suggested the trial court did not check if he was really able to understand what he was pleading guilty to. Lastly, he argued that there was not enough proof that he was guilty of conspiracy. After reviewing everything, the court decided Scott did not show that his lawyer had a real conflict of interest. There was no evidence that Scott did not understand what he was doing when he pleaded guilty, as he admitted his guilt during the processes. The court noted that being unhappy with the length of his sentence was not a valid reason to withdraw a guilty plea. The court found some mixed statements about whether Scott was sentenced as a repeat offender or a first-time offender. These inconsistencies meant the case needed to go back to the lower court for a new sentencing. While the court thought the original inquiry into Scott’s mental competence could have been better, the records showed he was capable of understanding his charges and the guilty pleas he entered. The court also confirmed that there was a sufficient factual basis for the conspiracy plea. In the end, the court agreed with some points but decided Scott's case needed to return for resentencing due to the unclear basis for his sentence, even as they upheld the rejection of his motion to withdraw his guilty pleas.

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F 2001-999

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In OCCA case No. F 2001-999, Eric Jackson Davis appealed his conviction for multiple sexual offenses. In an unpublished decision, the court decided to affirm most of his convictions but reversed one of them due to lack of sufficient evidence. One member of the court dissented regarding the decision on sentencing. Davis was found guilty by a jury of five counts of First Degree Rape, two counts of Lewd Molestation, and one count of Forcible Oral Sodomy. The trial took place over three days, and the jury decided on punishments ranging from ten to fifty years for the various counts. The judge announced that Davis's sentences would be served one after the other, known as consecutive sentences. Davis raised three main issues on appeal. First, he argued that there was no evidence proving that a sexual act occurred in the case of the Forcible Oral Sodomy charge, and therefore he asked for that conviction to be overturned. Second, he claimed that there was insufficient evidence for one of the rape counts and wanted it dismissed as well. Lastly, he argued that receiving a total of two hundred forty years in prison was too severe. After looking at the facts and evidence from the trial, the court found that most of the convictions were supported by enough evidence. However, they agreed that one rape conviction should be reversed because the prosecution did not present enough proof to support that specific charge. The court did not find merit in the argument about the Forcible Oral Sodomy conviction. Regarding the sentence, the court acknowledged that different factors should be considered when deciding if a sentence is too harsh. While they found the trial judge's refusal to consider running the sentences at the same time was wrong, they stated that the judge's personal views about sex crimes against children influenced that decision. Therefore, the case was sent back to the lower court for resentencing, but the main convictions were upheld. In summary, the court upheld the majority of Davis's convictions and ordered the court below to reconsider how the sentences were issued, while they reversed one specific conviction due to a lack of evidence. One judge disagreed with the need for a new sentencing hearing, believing that the consequences should remain as they are given the serious nature of the crimes.

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F-2001-210

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In OCCA case No. F-2001-210, Gary Wesley Tucker appealed his conviction for Driving Under the Influence and Driving Under Revocation. In an unpublished decision, the court decided to reverse the conviction for Driving Under the Influence and remand for a new trial. The conviction for Driving Under Revocation was affirmed. One judge dissented. Tucker was found guilty by a jury and sentenced to ten years in prison for Driving Under the Influence and one year for Driving Under Revocation, with the sentences to be served one after the other. Tucker argued that there were several mistakes made during the trial. The court agreed with Tucker that the trial court made errors, especially when it failed to give important instructions to the jury about how to consider his charges. One key mistake was not letting the jury know they didn’t need to agree on the greater crime to look at the simpler one. This caused confusion for the jury, which was shown in a note they sent to the judge asking for clarification. The judge’s response didn’t help them understand, which was a big problem. Since the jury wasn’t properly informed, the court decided that Tucker's conviction for Driving Under the Influence should be reversed and he should get a new trial. However, the court affirmed his conviction for Driving Under Revocation because there were no issues raised concerning that charge. In summary, the court found there were enough errors to make Tucker's DUI conviction unfair, leading them to send the case back for a new trial on that charge while keeping the other conviction intact.

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F-2000-483

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In OCCA case No. F-2000-483, Debra Gorrell appealed her conviction for several drug-related crimes. In a published decision, the court decided to reverse one of Gorrell's convictions but affirmed the others. One judge dissented. Debra Gorrell was found guilty of crimes including unlawful possession of methamphetamine with intent to distribute, and other drug-related charges. She was sentenced to a total of many years in prison. During her appeal, Gorrell raised several arguments against her convictions. Gorrell argued that the court shouldn't have allowed evidence about her past crimes. She also said she was punished too many times for the same actions and claimed that part of the law used against her was unfair. She disputed the evidence stating she had methamphetamine in front of a child, claimed the testimonies used against her weren't reliable, and said the jury wasn't properly instructed about the crimes. The court reviewed all arguments and found that most of Gorrell's claims did not hold up. They decided that the evidence against her was strong enough for the other convictions. However, they found that Gorrell's conviction for maintaining a dwelling for drug use was not fair, and this conviction was reversed. In the end, the court upheld her other convictions but ordered a new trial for the one related to maintaining a dwelling for drug use.

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F-2000-1308

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In OCCA case No. F-2000-1308, Recil Gravitt appealed his conviction for Distribution of a Controlled Dangerous Substance, Maintaining a Dwelling for Drugs, and Possession of a Controlled Dangerous Substance in the Presence of a Minor. In an unpublished decision, the court decided to affirm the convictions, but modified the fine on Count I to $10,000. One judge dissented.

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F-2000-617

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In OCCA case No. F-2000-617, Bernard Eugene Laster, Jr. appealed his conviction for Possession of Controlled Dangerous Substance and Unauthorized Use of a Motor Vehicle. In a published decision, the court decided to affirm the order of acceleration of Laster's sentences for the first two offenses but vacated the judgment for the third offense related to a tax stamp. There was no dissent.

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F-2000-796

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In OCCA case No. F-2000-796, Ronald Phipps appealed his conviction for attempting to manufacture methamphetamine, possession of methamphetamine (as a subsequent offense), possession of marijuana, and possession of drug paraphernalia. In an unpublished decision, the court decided to vacate the $1,000 fine for the possession of marijuana but affirmed all other convictions and sentences. One judge dissented on the issue of the fine.

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F 2000-292

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In OCCA case No. F 2000-292, Joe Stratmoen appealed his conviction for Unlawful Possession of a Controlled Dangerous Drug (Methamphetamine) and Possession of a Weapon While Committing a Felony. In an unpublished decision, the court decided to affirm his conviction but modified the sentence for the weapon charge. One judge dissented regarding the modification of the sentence. Stratmoen was found guilty of having methamphetamine and a weapon during a felony. At his trial, he was sentenced to 30 years for the drug charge and 20 years for the weapon charge. He raised three main issues on appeal. First, he argued that the court did not correctly explain the state’s need to prove his past convictions. Second, he claimed the jury was misinformed about the punishment ranges for the second charge. Third, he said the jury was not correctly told about the punishments for the drug offense. The court looked carefully at all the evidence and arguments presented. They decided that the way the jury was instructed about the drug charges was correct. However, they agreed that the sentence for the weapon charge should be less severe based on their interpretations of the law, setting it to the minimum of two years instead of the original twenty. One judge disagreed with the decision to lessen the sentence for the weapon charge, feeling that the jury’s sentence should be upheld. The final conclusion was that while the main conviction was upheld, the penalty for possession of a weapon was reduced.

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F-1999-1654

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In OCCA case No. F-99-1654, Damean Ortego Tillis appealed his conviction for Unlawful Possession of Marijuana with Intent to Distribute and Feloniously Carrying a Firearm. In an unpublished decision, the court decided to modify the first conviction to Unlawful Possession of Marijuana and reduce the sentence to one year of imprisonment, which would be served consecutively with the sentence for the firearm charge. One judge dissented. Tillis was tried by jury in Caddo County and found guilty of both charges. The jury recommended a ten-year sentence for the marijuana charge and a twenty-year sentence for the firearm charge. The judge agreed to these sentences and ordered them to be served back-to-back. Tillis raised several points in his appeal. He argued that the trial court made mistakes, including admitting evidence of his previous conviction and not allowing a separate trial for the firearm charge. He claimed this hurt his chances for a fair trial. He also believed there wasn't enough evidence to prove he intended to distribute marijuana and that his sentence was too harsh. After reviewing everything, the court agreed that the trial court made a mistake by admitting evidence of Tillis's past conviction during the first part of the trial. This was against the rules because the laws say only certain previous convictions should be shared at certain stages of the trial. However, the court decided that, even with this mistake, the evidence against Tillis for possessing marijuana was strong enough to still uphold his conviction, but it should be changed to a less serious charge. For the second point, the court found no error in not telling the jury about a lack of knowledge defense regarding the firearm. They said there was no evidence to support that claim. On the third point, they agreed there wasn't enough evidence to show he wanted to distribute marijuana, so they modified that conviction to simple possession, which is less serious. Lastly, they said the sentences were not extreme, so the decision on the firearm charge stayed unchanged. In summary, Tillis's conviction for marijuana possession was lessened, and his sentence was adjusted, but the firearm conviction was maintained as originally sentenced.

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F 2000-341

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In OCCA case No. F 2000-341, Cortez Lamont Franklin appealed his conviction for Possession of a Controlled Dangerous Substance (Cocaine Base). In an unpublished decision, the court decided to reverse the conviction. One judge dissented. Cortez Franklin was found guilty after a trial in Oklahoma County. The jury sentenced him to twenty years in prison. He appealed, arguing that the trial court should have excluded evidence found during his arrest, claiming it violated his rights under the Fourth Amendment. He also said the evidence was not enough to prove he had the drugs. The appellate court looked at the reasons for stopping Franklin. The judges found that the police did not have reasonable suspicion when they detained him. Because Franklin's detention was considered unreasonable, they stated that the drugs found during this unlawful detention could not be used as evidence. Since there was no valid evidence left to support his conviction, the court reversed the trial court's decision, meaning Franklin's case was sent back with instructions to dismiss the charges against him. They did not need to discuss Franklin's second point about the sufficiency of the evidence.

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