Okla. Stat. tit. 47 § 11.801

RE-2018-484

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**In the Court of Criminal Appeals of the State of Oklahoma** **Case No. RE-2018-484** **Summary Opinion** **Appellant:** Orville Tabe Keith, Jr. **Appellee:** The State of Oklahoma **Judge Hudson:** Orville Tabe Keith, Jr. appeals the revocation of his concurrent twelve-year suspended sentences following a revocation hearing where the State alleged that he violated probation by committing Manslaughter in the First Degree. **Background:** On March 5, 2009, Appellant pled guilty to two counts of Assault and Battery With a Dangerous Weapon. He was sentenced to twelve years on each count, with the sentences to run concurrently and suspended under specific probation conditions. The State filed a Motion to Revoke on March 23, 2017, based on allegations that Appellant committed Manslaughter in connection with the death of Brandon Martinez during an altercation on June 27, 2015. Evidence presented included DNA matching Appellant to items found at the crime scene and testimony from a neighbor, Donna Underwood, who claimed Appellant admitted to killing Martinez. **Revocation Hearing:** The revocation hearing took place on May 1, 2018. The court reviewed evidence including: - DNA analysis linking Appellant to the crime scene. - Testimony from Underwood about Appellant’s self-incriminating statements. Judge Fry found that Appellant violated his probation conditions, leading to a full revocation of his suspended sentences. **Appellant's Argument:** Keith appeals on the grounds that the evidence presented was insufficient to justify the revocation of his suspended sentences. He challenges the credibility of Underwood's testimony and suggests that another individual, Paul Anderson, may have committed the homicide. **Analysis:** Oklahoma law requires that alleged violations of probation conditions be proven by a preponderance of the evidence. The appeals court found that Underwood's testimony and the DNA evidence were adequate for a rational trier of fact to conclude that Appellant had violated the terms of his probation. **Decision:** The court affirmed the trial court's decision to revoke Appellant's concurrent twelve-year suspended sentences, concluding there was no abuse of discretion in Judge Fry's ruling. **Order:** The order of the District Court of LeFlore County is **AFFIRMED**. **Opinion by**: HUDSON, J. **Concurrences by**: LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. --- For further details, you can [**download the PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-484_1734542820.pdf).

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S-2016-332

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In OCCA case No. S-2016-332, the defendants appealed their conviction for conspiracy to deliver a narcotic controlled dangerous substance and first degree murder. In a published decision, the court decided to affirm the lower court's ruling, which indicated that the defendants were not part of the conspiracy at the time of the victim's death. One judge dissented. The case began when a grand jury accused several people, including the defendants, of being involved in a conspiracy to sell drugs, which ultimately led to the death of Jennifer McNulty. She died from an overdose of oxycodone. After a preliminary hearing, a judge decided that two defendants, Miers and Gregoire, should not be charged with murder because they had withdrawn from the conspiracy before McNulty’s death. The state did not agree with this decision and appealed. They argued that the judge made a mistake in saying Miers and Gregoire had ended their part in the conspiracy. However, the court reviewed the evidence and found that both defendants had indeed separated themselves from the drug conspiracy before the incident occurred, so they couldn’t be held responsible for the murder. The court confirmed that Gregoire was removed from the drug operation because of her problems with addiction, causing others not to want her in the conspiracy anymore. Also, Miers had moved to another state and had stopped working with the main person involved in drug sales before the death happened. After considering everything, the court decided that the earlier ruling was fair and didn't show an abuse of discretion. In conclusion, the court affirmed that Miers and Gregoire could not be charged with first degree murder because they had taken themselves out of the conspiracy before the victim's death. The dissenting judge felt that the court made an error and that the defendants should still face charges.

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RE 2014-0536

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In OCCA case No. RE 2014-0536, Matthew Carl Eddings appealed his conviction for Possession of a Controlled Substance and Driving Under the Influence of Drugs. In a published decision, the court decided to affirm the revocation of Eddings' suspended sentence. One judge dissented. Eddings was originally given a deferred sentence with rules for probation and fines for his crimes. However, over the years, he struggled to meet the conditions of his probation, which included paying fines and child support. The state moved to revoke his sentence because of these issues. When the court reviewed Eddings' case, they found enough evidence to support the revocation. Eddings had not made required payments for over a year and had not shown a good faith effort to comply with the rules. The court also noted that since there were new facts presented during the latest revocation hearing, the principle of res judicata, which prevents re-judging the same issue, did not apply. However, there was an issue identified with an added requirement for supervision after imprisonment. The court agreed that the requirement for one year of supervision after his sentence was not appropriate, as new laws did not apply to his case. In conclusion, while Eddings’ suspended sentence was revoked, the court ordered that the requirement for post-imprisonment supervision be removed.

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RE-2013-635

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In OCCA case No. RE-2013-635, Bradberry appealed his conviction for the revocation of his suspended life sentences. In an unpublished decision, the court decided to reverse the full revocation and modify it to a ten-year revocation instead. One judge dissented. Bradberry was given suspended life sentences for failing to register as a sex offender and living near a school. He was on probation for less than two weeks when the state accused him of not reporting to his probation officer and not providing proof of employment or treatment. The trial judge decided to revoke his sentences completely due to these violations. Bradberry argued that the judge made a mistake by revoking his sentences in full, claiming it was excessive. The appeals court agreed that the judge abused his discretion, especially since many of Bradberry’s previous issues happened before his new sentencing. They found that the most significant reason for the revocation was his failure to report, which they believed did not warrant a full revocation. In the end, the appeal court decided that Bradberry’s suspended sentences should be modified. Instead of serving a life sentence, he would have to serve ten years of his suspended time. One judge disagreed with this decision and believed the full revocation was justified because Bradberry had not met his probation requirements.

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F-2013-326

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In OCCA case No. F-2013-326, Maurice Cortez Washington, Jr. appealed his conviction for Possession of a Controlled Dangerous Substance, Driving a Motor Vehicle While Under the Influence of Alcohol, and Transporting an Open Container of Beer. In a published decision, the court decided to affirm Washington's conviction but modified his sentence to fifteen years imprisonment for the first count. One member dissented, arguing that the trial counsel's comments were a reasonable strategic decision.

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RE-2006-246

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In OCCA case No. RE-2006-246, the appellant appealed his conviction for several offenses involving credit cards and a weapon. In a published decision, the court decided to reverse the revocation of the suspended sentences for the credit card offenses but affirmed the revocation of the suspended sentence for the weapons offense. One judge dissented. The appellant had pleaded guilty to multiple charges, including possession of a stolen credit card and using a weapon. He was sentenced to prison but his sentences were suspended, meaning he would not serve time if he followed the rules. Over time, the court decided to revoke some of this suspended time, claiming that he violated the conditions of his release. The main point of disagreement was whether the appellant had violated the terms of his suspended sentences and if the court was right to impose harsher penalties. The court found that for the first case, the timing meant the sentences had already lapsed before the state could take action, so that part was reversed. However, for the weapons offense, the court decided that enough evidence was presented to support revoking the suspended sentence, even considering the appellant’s claims about mental health issues. The judges had different views on the fairness and reasons behind the court's decisions on these matters, leading to the dissenting opinion.

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F-2006-114

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In OCCA case No. F-2006-114, Tuydale Eugene LeFlore appealed his conviction for Second Degree Murder, Leaving the Scene of an Accident Involving Damage, and Unauthorized Use of a Motor Vehicle. In a published decision, the court decided to affirm the judgment for Leaving the Scene and Unauthorized Use of a Motor Vehicle, but modified his sentence for Second Degree Murder from sixty years to thirty years. One judge dissented regarding the modification of the sentence for the murder charge, arguing that there was no evidence that the jury considered parole during their decision.

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F-2005-859

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In OCCA case No. F-2005-859, Percy Dewayne Cato appealed his conviction for driving under the influence, driving with a suspended license, and speeding. In an unpublished decision, the court decided to affirm his convictions, but modified one of the fines. One judge dissented. Percy Cato was found guilty by a jury for three different offenses. The first was driving under the influence, which was more serious because he had two previous DUI convictions. The jury gave him a punishment that included time in prison and other conditions like treatment and community service. He was sentenced to a total of four and a half years, with some of that time suspended, meaning he would only serve three years in prison and spend time on probation afterwards. Cato claimed the instructions given to the jury about his previous DUI convictions were wrong, saying they should have been told that one of those convictions couldn't be used to give him a harsher punishment. The court found that this mistake did not harm Cato; he still received a fair punishment based on his actions. He also argued that the way his punishment was split between prison time and treatment violated the law. However, the court ruled that this was okay because the law allows for a mix of punishment and rehabilitation for DUI cases. Cato requested that the jury be told how to consider evidence showing he refused to take a breath or blood test. Although the court said this type of instruction is important, they did not find it necessary in Cato's case because he couldn't prove that it affected the outcome of his trial. In summary, the court upheld the main parts of Cato's punishment while making a small change to one of the fines. The decision was mostly in favor of maintaining his convictions, showing the court believed that the jury's decision was fair and just.

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F 2004-1182

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In OCCA case No. F 2004-1182, Bryan Matthew Carroll appealed his conviction for multiple offenses. In an unpublished decision, the court decided to reverse some of his convictions and modify others. One judge dissented. Carroll was found guilty by a jury of several charges. These charges included Assault and/or Battery with a Dangerous Weapon, Attempting to Elude a Police Officer, and Unlawful Possession of Drug Paraphernalia, among others. The jury sentenced him to various fines and jail time for these offenses. Carroll argued that he was unfairly punished for some offenses and that there was not enough evidence to support the charges against him, especially for the more serious ones like Assault and Unlawful Possession of Drug Paraphernalia. He claimed his rights were violated and that he did not receive fair representation from his lawyer. In looking at Carroll's appeal, the court decided to dismiss some of the judgments against him, specifically the Assault and Unlawful Possession of Drug Paraphernalia charges. The court found that the evidence did not convincingly support the Assault charge and there was not enough proof that Carroll was intending to use the paraphernalia for drugs. For the Attempting to Elude charge, the court noted that Carroll was also convicted for not stopping at a stop sign while trying to escape from the police, which should not happen according to legal rules. The court ruled that one of the offenses was covered by the other, and that means Carroll was unfairly charged twice for one action. As for other charges, the court changed the punishment for speeding because the jury was not correctly informed about the possible penalties. They modified Carroll's sentence for that charge but kept the other sentences intact, concluding that they were fair based on what happened. In summary, Carroll's case showed that even when someone is charged with multiple offenses, it's important for the legal system to follow rules to ensure fairness. The court made changes that reflected these principles, showing that justice is essential in every case.

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F-2004-1080

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In OCCA case No. F-2004-1080, Kirk Douglas Byrd appealed his conviction for multiple offenses, including Unlawful Possession of a Controlled Drug and Driving Under the Influence of Intoxicating Liquor. In a published decision, the court decided to affirm most of the convictions but modified the sentence for the DUI charge to ten years. One judge dissented.

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F-2004-197

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In OCCA case No. F-2004-197, McNeil appealed his conviction for possession of a controlled substance, resisting an officer, and speeding. In an unpublished decision, the court decided to reverse the convictions and remand the case for a new trial. One judge dissented. McNeil was convicted by a jury for three counts: possession of methamphetamine, resisting an officer, and speeding. The judge sentenced him to two years in prison for the drug charge and imposed fines and jail time for the other charges. McNeil believed he did not get a fair trial for several reasons. Firstly, he argued that the jury heard about other crimes that did not relate to the current case, which might have made them think he was a worse person than he actually is. Secondly, he claimed that a police officer made comments during the trial that unfairly influenced the jury against him. In reviewing the case, the court found that one of the officer’s comments was particularly damaging and could have influenced the jury's decision. The judge's warnings to the jury did not fix the problem, and since the evidence against McNeil was not strong, it was decided he deserved a new trial. Because the appeal was successful based on these issues, the court did not need to discuss the other points McNeil raised about his trial. The outcome was that McNeil's conviction was overturned, and the case was sent back for a new trial where he could have another chance to defend himself.

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RE-2003-1203

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In OCCA case No. RE-2003-1203, Floyd Andrew Morris appealed his conviction for violating the terms of his suspended sentence. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence and remand the case for correction of the length of the sentence. One judge dissented. Floyd Andrew Morris had a suspended sentence for growing and having marijuana after he pleaded guilty. Initially, he was supposed to serve ten years for one charge and one year for another, but both sentences were put on hold. Later, the state argued that he broke the rules of his probation by not following the drug court program instructions and testing positive for drugs. After some hearings, the judge decided to revoke his suspended sentence. However, there was confusion about how much of that sentence should actually be carried out. The appeal pointed out that the written order didn’t match what the judge had said before and that the time he was supposed to serve was excessive based on what he had done. The court found that the way the sentence was ordered needed to be corrected to show that Morris should serve ten years minus the thirty days he had already served. They decided not to change the decision to revoke the entire suspended sentence, as they believed it was not an unreasonable choice given the situation.

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RE-2003-397

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In OCCA case No. RE-2003-397, the appellant appealed his conviction for multiple offenses including drug possession and firearms charges. In a published decision, the court decided to affirm the revocation of his suspended sentences. One judge dissented. The case involved Michael Wayne Hackler, who had been previously convicted in three separate cases. He was given five years of suspended sentences for felony and misdemeanor drug and firearm offenses. However, the state claimed he violated his probation by committing new crimes, which led to a petition to revoke his suspended sentences. During the revocation hearing, the judge decided that some evidence obtained against Hackler could not be used to revoke his probation due to improper police actions. However, the judge also ruled that the police behavior was not serious enough to apply a rule that would prevent that evidence from being considered in the revocation hearing. After examining the evidence, the court found that the appellant had indeed violated the terms of his probation and revoked his suspended sentences. The judge’s rulings were questioned, but the appeals court agreed that there was no major mistake in how the judge made his decisions. However, the court did note that the written sentences needed to be changed to show the correct punishments for some of the misdemeanor charges. In the end, the appeals court upheld the decision of the lower court to revoke the suspended sentences and ordered corrections to be made to the judgments regarding the sentences imposed.

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C-2003-356

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In OCCA case No. C-2003-356, Feaster appealed his conviction for robbery and related charges. In a published decision, the court decided that he was denied effective assistance of counsel and granted his writ for a proper hearing on the motion to withdraw guilty pleas. One judge dissented, arguing that the motion to withdraw was filed too late and should be dismissed.

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F-2001-230

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In OCCA case No. F-2001-230, Shihee Hason Daughrity appealed his conviction for two counts of Robbery with a Dangerous Weapon and one count of False Personation. In a published decision, the court decided to affirm his convictions on the robbery counts but reversed the conviction for False Personation. One judge dissented. Daughrity was tried along with another person and was found guilty of robbing someone while using a dangerous weapon and falsely claiming to be someone else. The judge sentenced him to a long time in prison and also made him pay fines. Daughrity thought the trial was unfair and wanted to appeal. The court looked at the reasons Daughrity gave for why he thought he should win his appeal. He questioned whether there was enough proof for the False Personation charge because there wasn't clear evidence that he impersonated an actual person. The court reviewed previous cases to understand what counts as False Personation. They found that in this case, there wasn’t enough proof to show he impersonated someone who could be harmed by his actions. While the evidence seemed to show he used a fake name to escape responsibility for his actions, the instructions given to the jury were incomplete. Because of this, Daughrity's conviction for False Personation was reversed, which means he shouldn’t have been found guilty of that charge based on how the jury was instructed. However, they kept his convictions for robbery since they were clear and backed by enough evidence. In conclusion, while Daughrity's robbery convictions stayed, he won on the False Personation count. The judges made sure that the right procedures were followed, highlighting how important it is for juries to have complete and clear instructions when they are deciding on guilt.

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F-2000-1262

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In OCCA case No. F-2000-1262, Robert Anthony Lamar appealed his conviction for Unauthorized Use of a Motor Vehicle. In an unpublished decision, the court decided to reverse his conviction and remand the case for a new trial. One judge dissented. Robert Anthony Lamar was found guilty by a jury of taking a U-Haul truck without permission. He claimed he only wanted to drive the truck to see what it felt like and intended to return it right after. The jury believed that he did not intend to keep the truck permanently, but the trial court did not let the jury consider a possible lesser charge of joyriding. Lamar raised several points in his appeal. He argued that it was unfair for the court to give the instructions it did without his request and that there wasn’t enough proof to show he meant to keep the truck. But the main issue was that he should have been able to have a chance to be judged on the lesser offense of joyriding, since his actions matched that claim too. The court found that joyriding was indeed a valid option for the jury to consider, and since the jury’s decision did not support the idea of him wanting to permanently take the truck, he deserved a fair chance to contest the lesser charge. Because of this, the court ruled that the prior judgment was reversed, and a new trial was ordered.

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