Okla. Stat. tit. 21 § 443 Archives

F-2017-1270

Post author:Staff
Post published:April 18, 2019
Post category:F

In OCCA case No. F-2017-1270, Bryan James Abner appealed his conviction for several offenses. In an unpublished decision, the court decided to affirm the decision to terminate him from drug court and sentence him according to the plea agreement. One judge dissented. Bryan James Abner was involved in multiple criminal cases related to theft, guns, drugs, and burglary. He was given the chance to join a Drug Court program to help him with his drug addiction instead of going straight to prison. However, if he did not follow the rules of the program, he would be sentenced for his crimes. Abner did well in the Drug Court for the first six months, but then he started to have problems. He tested positive for methamphetamine several times, had legal troubles, and missed appointments. The State's attorney asked to terminate him from the Drug Court because of these issues. During the hearing, witnesses testified about Abner's behavior. One officer found drugs on him, and a supervisor explained that Abner had many chances to improve but did not make enough progress. Abner's counselor testified that he had learned from some difficult experiences, including the death of his son, and asked for another chance in the program. The judge decided against Abner, saying that despite what the counselor said, Abner's problems continued. She noted that he had broken the rules of the Drug Court many times and had not responded to the chances he had been given. In summary, the court ruled that Abner needed to be removed from the Drug Court program for not following the rules, and he was sentenced based on his plea agreement. The court found that the evidence supported this decision, and there was no abuse of discretion by the judge.

C-2017-271

Post author:Staff
Post published:December 14, 2017
Post category:C

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JUSTON DEAN COX,** *Petitioner,* **v.** **STATE OF OKLAHOMA,** *Respondent.* **FILED** *DEC 14 2017* **SUMMARY OPINION GRANTING CERTIORARI IN PART AND REMANDING THE CASE TO THE DISTRICT COURT FOR APPOINTMENT OF COUNSEL** **LUMPKIN, PRESIDING JUDGE:** Petitioner Juston Dean Cox was charged in the District Court of McIntosh County on August 23, 2005, with Knowingly Concealing Stolen Property, After Former Conviction of Two or More Felonies (Case No. CF-2005-152A). An Amended Information filed on November 28, 2005, added ten additional counts of Knowingly Concealing Stolen Property. Petitioner was bound over for trial on five counts after the Preliminary Hearing on November 30, 2005, and trial was set for April 17, 2006. Subsequently, charges were filed against Petitioner for Escape from a County Jail and Destruction of a Public Building (Case No. CF-2005-172A) on September 19, 2005, followed by additional charges for Escape from a Penal Institution on January 5, 2006 (Case No. CF-2006-04) and January 26, 2006 (Case No. CF-2006-14). On January 26, 2006, Petitioner entered into negotiated guilty pleas for all four cases, resulting in concurrent sentences of thirty years. On February 6, 2006, Petitioner filed a request to withdraw his plea. A hearing was held on March 23, 2006, where the trial court denied his request. Petitioner filed Applications for Post-Conviction Relief on August 13, 2014, and June 9, 2016, leading to a hearing on December 1, 2016, where the trial court recommended allowing Petitioner an appeal out of time. This Court granted that request on January 6, 2017, and appointed counsel to represent the Petitioner. At the March 9, 2017, hearing to discuss the motion to withdraw, it was established that counsel had not prepared a formal motion for withdrawal. Petitioner was not actively represented during this critical hearing, as his plea counsel took no part in the proceedings despite being present. The court did not adequately address the lack of representation or question Petitioner regarding his rights to counsel. A criminal defendant is entitled to effective assistance of counsel at a motion to withdraw hearing (Carey v. State, 1995 OK CR 55). The court's failure to appoint conflict-free counsel and its allowance for Petitioner to proceed without adequate representation constituted a violation of his constitutional rights. Given that Petitioner raised claims regarding the voluntariness of his plea, the harmless error doctrine does not apply. Accordingly, we find marginal grounds to question the diligence of prior representations and affirm that this situation merits careful reconsideration. **DECISION** Certiorari is granted in part. The order of the district court denying Petitioner's motion to withdraw his guilty plea is *REVERSED* and the case is remanded to the District Court for *APPOINTMENT OF COUNSEL* to evaluate whether to further pursue the withdrawal of the guilty pleas. *MANDATE to be issued upon delivery and filing of this decision.* **APPEARANCES IN DISTRICT COURT** **COUNSEL FOR PETITIONER:** Ariel Parry **COUNSEL FOR THE STATE:** Thomas C. Giulioni, Mike Hunter (Attorney General), O.R. Barris III, Gregory Stidham (Assistant District Attorneys), Jay Schniederjan (Assistant Attorney General) *OPINION BY: LUMPKIN, P.J. LEWIS, V.P.J.: Concur in Results HUDSON, J.: Concur KUEHN, J.: Concur ROWLAND, J.: Concur* [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2017-271_1733992184.pdf)

F-2013-732

Post author:Staff
Post published:February 19, 2015
Post category:F

In OCCA case No. F-2013-732, Bryan Thomas Delaney appealed his conviction for Escape from a Penal Institution and Resisting Arrest. In a published decision, the court decided to modify his sentence for post-imprisonment supervision but upheld the rest of his conviction. One member of the court dissented. Delaney was found guilty by a jury after a trial where he faced charges for escaping a jail and resisting the police. As a result of these charges, he was sentenced to 18 years in prison for the escape and 1 year in the county jail for the resisting arrest. The judge also ordered him to have 2 years of supervision after his prison time. Delaney argued that he was treated unfairly during the sentencing. He felt that the jury was wrongly told that his previous felony convictions could lead to a harsher sentence. However, he did not raise this issue during the trial, which made it harder for him to win the appeal. The court found that his past crimes were separate incidents and did not fall under the rules for counting prior offenses. Delaney also claimed that his lawyer did not do a good job because they did not challenge the jury instruction about the prior convictions. For his appeal to be successful on this point, he needed to show that his lawyer's mistakes really changed the outcome of his trial. The court decided that, since the jury's instruction was appropriate, his lawyer's actions did not affect his case. Finally, the court noted that while neither side pointed it out, Delaney was sentenced to longer supervision than what the law allows. They corrected this by reducing the supervision time to just 1 year. In summary, the court made some changes to Delaney's post-prison supervision but agreed with the rest of his sentencing and conviction. The decision was mostly upheld, and only one part was changed to be in line with the law.

F-2006-598

Post author:Staff
Post published:April 13, 2007
Post category:F

In OCCA case No. F-2006-598, Timmy Eugene Owen appealed his conviction for escaping from Grady County Jail and assaulting a police officer. In an unpublished decision, the court decided to affirm Owen's convictions but reverse his sentences, leading to a remand for resentencing. One judge dissented from the opinion. Timmy Eugene Owen was convicted for two crimes: escaping from jail and assaulting a police officer. The jury found him guilty, and he was sentenced to life in prison for the escape and ten years for the assault. Owen appealed this decision, claiming that he did not get a fair trial because of several reasons. First, he argued that the trial judge should have given him a mistrial due to improper questions from the prosecutor during the trial. However, the court said the judge did not make a mistake because the questions asked did not unfairly influence the jury's decision. Owen also claimed that the prosecutor acted unethically during the trial, which made it hard for him to get a fair trial. The court agreed that some of the prosecutor's comments were inappropriate but believed they did not change the outcome of the trial. They said that despite these comments, the evidence against Owen was very strong. Additionally, Owen believed that his sentences were too harsh. He felt it was unfair to receive a life sentence for escaping from jail and ten years for the assault. The court did not change the life sentence for the escape but suggested that all sentences might need reconsideration because they found that the prosecutor's words affected the sentencing. Owen also raised an issue about being punished twice for the two different crimes. However, the court stated that the two crimes were separate and required different evidence, so they did not violate any laws about double punishment. In the end, while the court affirmed Owen's guilty verdicts, saying he was rightly found guilty for both charges, they reversed the sentences and sent the case back to lower court for a new sentencing. A judge disagreed, believing the trial was fair despite the errors.

F-2004-1217

Post author:Staff
Post published:November 23, 2005
Post category:F

In OCCA case No. F-2004-1217, a person appealed his conviction for escaping from a work facility. In an unpublished decision, the court decided to affirm the conviction but reduced the original twenty-year sentence to ten years. One judge dissented, believing the original sentence was appropriate given the defendant's past convictions.

F 2000-740

Post author:Staff
Post published:July 6, 2001
Post category:F

In OCCA case No. F 2000-740, the appellant appealed his conviction for Attempted Escape. In a published decision, the court decided to affirm the conviction but modified the sentence from three and a half years to two years imprisonment. Two judges dissented regarding the sentence modification. The case involved the appellant trying to escape from a private prison that was not officially recognized as a penitentiary. The court determined that the appellant should have been charged under a specific law concerning attempted escapes from non-penitentiary facilities. After reviewing the case, the judges concluded that while the conviction was valid, the original sentence was excessive since the appropriate law related to his actions was different than what was originally applied.

F-2000-692

Post author:Staff
Post published:May 10, 2001
Post category:F

In OCCA case No. F-2000-692, Donald Gean Miller appealed his conviction for escape from the county jail and injury to a public building. In an unpublished decision, the court decided to affirm the conviction for escape but modified the sentence for injury to a public building to run concurrently with the escape sentence. One judge dissented, suggesting that the sentence for the escape conviction be reduced from 200 years to 45 years and believed that the injury to a public building conviction violated legal statutes.