Okla. Stat. tit. 22 § 303 Archives

F-2018-805

Post author:Staff
Post published:January 9, 2020
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOHNNY EARL JONES,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-805** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN - 9 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LUMPKIN, JUDGE:** Appellant, Johnny Earl Jones, was convicted by jury of Child Neglect, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.2014, § 843.5(C), in the District Court of Tulsa County, Case Number CF-2017-1887. The jury recommended a sentence of forty years imprisonment and a $5,000 fine, which the trial court imposed. Jones appealed from this judgment and sentence. 1. **Trial by Ambush:** Appellant contends that he was subjected to trial by ambush when the State called Corporal Eric Leverington as a witness without prior endorsement. However, the defense did not seek a continuance despite this late endorsement, and defense counsel had access to relevant materials, including Leverington's cell phone extraction report. Thus, the trial court’s decision to allow Leverington to testify was not an abuse of discretion, and appellant was not prejudiced. 2. **Ineffective Assistance of Counsel:** Appellant claims counsel was ineffective for opening the door to the cell phone evidence. The record indicates that defense counsel reviewed the report and made a strategic decision to call Leverington as a witness, which provided support for part of Appellant's narrative. The evidence against Appellant was substantial, and thus he could not demonstrate that but for counsel’s actions, the outcome would have been different. 3. **Admissibility of In-Life Photograph:** Appellant argues that a photograph of K.O. while alive was admitted in error. He did not object at trial, leading to a plain error review. The photograph was relevant to the defense that Appellant did not recognize the need for medical attention, and its probative value was not substantially outweighed by prejudicial effect. 4. **Prosecutorial Misconduct:** Appellant claims instances of prosecutorial misconduct, including misstatements regarding Appellant seeing Smith beat K.O. and regarding K.O.'s suffering. The evidence supports that Appellant knew of the abuse; thus, these claims did not deprive him of a fair trial. 5. **Admission of Pen Pack:** Lastly, Appellant characterizes prejudicial details in his previous offenses as grounds for error. However, under established law, pen packs are generally admissible to prove prior convictions, making their inclusion appropriate. **DECISION:** The judgment and sentence are AFFIRMED. **OPINION BY:** **LUMPKIN, J.** **LEWIS, P.J.:** Concur in Results **KUEHN, V.P.J.:** Concur in Results **HUDSON, J.:** Concur **ROWLAND, J.:** Concur in Results **KUEHN, V.P.J., CONCURRING IN RESULT:** While I agree with the affirmation of Appellant's conviction and sentence, I express concern regarding the prosecutor’s late endorsement of a witness which, while not resulting in prejudice, strays close to trial by ambush. I caution against such practices that may circumvent fair trial standards. [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-805_1735213973.pdf)

C-2015-573

Post author:Staff
Post published:September 22, 2016
Post category:C

In OCCA case No. C-2015-573, Jeremy Ross Wilson appealed his conviction for Escape from the Department of Corrections. In a published decision, the court decided to modify Wilson's sentence. One judge dissented. Jeremy Ross Wilson was an inmate who escaped from a work center. He was arrested later and faced charges for his escape. He pleaded guilty and was given a long sentence, but he later wanted to take back his guilty plea. His motion to do so was denied, and he appealed that decision. The case included a problem with how the state used Wilson's past felony convictions. The law says you cannot use the same prior convictions to charge someone with a crime and to make the punishment worse for that crime. The state did that with Wilson, using five of his past felonies to both charge him and to increase his punishment. Because of this, the court found that Wilson had been given a harsher sentence than what was allowed by law. The main question was whether Wilson had entered his guilty plea voluntarily and intelligently. It was found that he had. However, the court also decided that the sentence needed to be corrected. Wilson's lawyer did not challenge the state's use of the prior felonies, which was seen as ineffective help. As a result, the court modified Wilson's sentence to a shorter term of seven years instead of fifteen. Wilson would also have to be supervised for a year once released and pay fines. The court affirmed the decision to deny his request to withdraw his guilty plea but changed the length of his sentence.

F 2012-1131

Post author:Staff
Post published:May 8, 2014
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.

F-2002-470

Post author:Staff
Post published:January 16, 2003
Post category:F

In OCCA case No. F-2002-470, Dearel Oglesby appealed his conviction for Distribution of a Controlled Substance (Methamphetamine). In an unpublished decision, the court decided to affirm his conviction but modify his sentence to 20 years in prison with a $20,000 fine. One judge dissented. Dearel Oglesby was found guilty by a jury of selling methamphetamine. He was sentenced to life in prison, which he believed was too harsh. Oglesby raised four main issues in his appeal. First, he claimed that the trial allowed some evidence that should not have been included according to the state’s rules. The court found that even though one lab report was late, it was not a major issue since it didn't harm Oglesby’s case. Second, Oglesby argued that he did not get his right to a preliminary hearing, but the court found there was enough evidence to prove there might have been a crime. Third, he was concerned that the jury saw evidence about other drug sales he allegedly made, which he thought was unfair. The court noted that while some of this evidence was not really necessary, the prosecutor did not act on it inappropriately. Finally, Oglesby spoke about a witness being added during the trial, but the court felt that was handled correctly since it wasn’t a key part of the case. The judges found that Oglesby’s punishment was extreme considering the small amount of drugs involved, so they decided to reduce his sentence instead of just keeping the life sentence. This decision was met with some disagreement from one judge, who thought the evidence was relevant and that the original sentence should stay as is.