Okla. Stat. tit. 63 § 2-402

SR-2022-250

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In OCCA case No. SR-2022-250, Dustin Daukei-Cole appealed his conviction for Possession of a Controlled Dangerous Substance. In an unpublished decision, the court decided to dismiss the appeal. One judge dissented. Dustin Daukei-Cole was found guilty of possessing illegal drugs and was given a sentence of five years in prison, with three years of that sentence held back, called a suspended sentence. This meant that he wouldn't go to prison for those three years unless he broke the rules again. Later, the state wanted to take away those three years because they claimed he had violated the conditions of his suspended sentence. The trial court held a hearing and decided that they could only revoke one year of his sentence instead of the full three years because the law had changed. The state didn't agree with this decision and tried to appeal, asking the court to consider whether the law allowing this ruling was against the state constitution. However, the court explained that states can only appeal in certain situations, and this case did not fit that requirement. They highlighted that previous rulings allowed appeals only in cases where someone had been found not guilty or where there was a judgment preventing further prosecution. Since there wasn't a rule blocking further prosecution or an acquittal in this case, the court dismissed the appeal. In conclusion, the court said that the original decision to limit the time revoked was correct and the state could not appeal this issue. The judges decided not to change the trial court's decision.

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RE-2021-1290

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In OCCA case No. RE-2021-1290, Vernon Shawn Miller, Jr. appealed his conviction for the revocation of his suspended sentences. In a published decision, the court decided to affirm the order revoking Miller's suspended sentences but vacated the part of the order that imposed post-imprisonment supervision. One member of the court dissented. Vernon Shawn Miller, Jr. had a serious legal history. He pleaded guilty to multiple charges, including kidnapping and domestic assault, and was given a sentence but had part of it suspended after he completed a special drug program. However, in August 2021, the State filed a motion to revoke his suspended sentence because he broke the rules of his probation, which included failing to complete a required assessment and getting arrested for a new crime. The trial court held a hearing and decided to revoke all of Miller's suspended sentence. Miller argued against this decision, claiming it violated the rules because he should not serve more time than the sentence he was given. The court explained during the hearing that it intended to revoke all of the suspended time left on his sentence. Miller raised several arguments during his appeal. He thought the sentence should not exceed what he had left to serve and believed that the facts used to revoke his sentence came from an earlier trial rather than the hearing itself. Miller also said he did not get good help from his lawyer during the process. The court reviewed Miller's arguments closely. It confirmed that the judge's decision to revoke the entire suspended sentence was valid and within their rights. They found no specific errors in what the trial court did, except for the imposition of post-imprisonment supervision, which should not have been added since it was not part of the original sentence. In the end, the court upheld the revocation of Miller's suspended sentence but removed the part about post-imprisonment supervision, meaning Miller had to serve the time his sentence required without additional conditions.

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RE-2021-1042

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In OCCA case No. RE-2021-1042, Matthew Bryan Buttery appealed his conviction for a series of crimes including distribution of controlled substances and petit larceny. In a published decision, the court decided to affirm the revocation of his suspended sentence but ordered that his new sentence run concurrently with a prior sentence from another case. One judge dissented on the issue of how the sentences should relate to one another. Matthew Buttery had previously pled guilty to several charges. He was given a ten-year suspended sentence, which means he didn't have to serve time in prison at that moment but had to follow certain rules. If he broke any rules, the court could take back that suspended sentence and send him to prison. The state claimed that Buttery did not report as required, did not pay his probation fees, and committed a new crime, for which they wanted to revoke his suspended sentence. During the hearing, the court found Buttery had violated the terms of his probation and revoked his suspended sentence. Buttery argued that the court made a mistake by not giving him credit for time he had already served and by ordering that his new sentence run after a different sentence from another county. The court explained that it had the right to revoke Buttery's suspended sentence because he violated the rules. They stated they didn't have to give him credit for time served because the suspended sentence is not changed by the violation. They also found that the judge improperly decided his new sentence would run after the one from the other county rather than at the same time. The judges clarified that when a sentence is revoked, it should not change how sentences from different cases affect each other. In the end, Buttery's appeal led to some changes. The court ordered that his new sentence should run concurrently, meaning he would serve them at the same time, rather than one after the other. However, the court upheld the overall decision to revoke his suspended sentence for breaking the rules of his probation. One judge agreed with the decision to affirm the revocation but disagreed with other parts of the analysis regarding the relationship between the sentences. So, to summarize, the main points from the case are that Matthew Bryan Buttery's suspension was revoked because he violated probation rules, but the court made a mistake when deciding how his new sentence should relate to an older sentence. He is to serve them at the same time now, according to the latest court ruling.

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RE-2020-501

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In OCCA case No. RE-2020-501, Kaylen Harrison Rice appealed his conviction for the revocation of his suspended sentences. In a published decision, the court decided to affirm the revocation but vacated the portion that required him to remain under supervision. One judge dissented. Kaylen Harrison Rice had previously been given suspended sentences for his crimes. He was supposed to follow certain rules instead of serving time in jail, but the rules changed to make his crime less serious. A new law stated that if someone is being revoked for a crime that is now seen as less serious, their punishment must follow the new law's limits. Kaylen argued that his one-year revocation was too long given the new law. However, the court found that the existing rules and his situation didn’t allow for the changes he suggested. During his revocation hearing, Kaylen raised concerns about being supervised after his jail time, saying that the law did not allow for that kind of supervision for his crime. The State acknowledged this point but later dropped the argument, which meant the court didn't consider it. The court decided that since the State had waived its right to challenge this part, it could not revisit it in Kaylen's appeal. In conclusion, the court upheld the decision to revoke Kaylen's suspended sentences but overturned the requirement that he be supervised, which was not allowed under the new law.

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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-2018-383

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In OCCA case No. F-2018-383, Samantha Ann Perales appealed her conviction for first degree manslaughter, possession of controlled dangerous substance (methamphetamine), unlawful possession of drug paraphernalia, and no valid driver's license. In an unpublished decision, the court decided that the State of Oklahoma lacked jurisdiction to try Perales because she is a recognized member of an Indian tribe and the crimes occurred in Indian Country. Therefore, her convictions were reversed and the case was remanded to be dismissed. One judge dissented, stating that the Major Crimes Act should not prevent Oklahoma's jurisdiction in cases where federal prosecution is not possible.

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C-2018-640

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In OCCA case No. C-2018-640, Jimmie Dewayne Starr appealed his conviction for multiple crimes. In an unpublished decision, the court decided to vacate his convictions and remand the case for dismissal. One judge dissented. Starr had entered a guilty plea for crimes in three different cases, including endangering others while trying to escape from police, failure to wear a seatbelt, possession of a controlled substance, resisting an officer, and bail jumping. He received several sentences that were ordered to be served concurrently, meaning he would serve them at the same time, rather than one after the other. After his sentencing, Starr wanted to withdraw his guilty plea, so he asked the court to allow it. The court held a hearing on Starr's request but ultimately denied it. This led to Starr appealing the decision, raising several issues including whether the court had the right to sentence him, whether he had good legal help, whether improper evidence led to an unfair sentence, and whether the state had jurisdiction in his case. The court looked closely at one of Starr's arguments about jurisdiction. He claimed that the State of Oklahoma didn't have the right to prosecute him based on a previous Supreme Court decision known as McGirt v. Oklahoma. This case said that certain crimes committed by Native Americans on tribal land must be handled in federal court, not state court. To investigate his claims, the court sent the case back to the lower district court to gather facts, specifically focusing on Starr's status as an Indian and whether the crime happened within the boundaries of the Muscogee Creek Reservation. Both sides agreed on several important facts about Starr's Indian blood, his membership in the Creek Nation, and that the crime occurred on Creek land. The district court accepted these facts and concluded that under federal law, Starr was indeed considered an Indian, and the crime took place on the reservation. Because of the ruling in the McGirt case, the appellate court decided that the state court did not have the authority to prosecute Starr. As a result, the appellate court vacated all of Starr's convictions, which means they were canceled, and they instructed the lower court to dismiss the case. This decision emphasized that Starr should be prosecuted in federal court instead of state court.

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RE-2019-683

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In OCCA case No. RE-2019-683, the appellant appealed his conviction for the revocation of his suspended sentence. In an unpublished decision, the court decided to affirm the revocation but modify it to be limited to six months. One member dissented. The case involved the appellant who had earlier been sentenced for multiple crimes, including possession of a controlled substance and driving under the influence. Initially, he was given a suspended sentence where he would serve time in jail only on weekends. However, he violated the terms of his probation several times by failing to report, pay fees, and complete required programs. After a while, he faced new charges for more serious crimes, which led to the state seeking to revoke his suspended sentence altogether. During the hearing for the revocation, the judge decided to revoke all five years of his suspended sentence. However, the court found later that this action was not appropriate. The court ruled that even though the appellant had committed technical violations, he could only be punished with a maximum of six months because the alleged new crimes occurred after his probation had expired. The court concluded that the trial judge had made a mistake when revoking the whole five years instead of just six months based on the technical violations proven. Thus, the revocation punishment was modified by the court to six months instead of five years.

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F-2019-310

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In OCCA case No. F-2019-310, Kedrin Ray Dixon appealed his conviction for first-degree burglary, sexual battery, and possession of a controlled dangerous substance. In a published decision, the court decided to modify the sentence for sexual battery to ten years imprisonment, making it consecutive to the other sentence, and otherwise affirmed the convictions. One judge dissented regarding the modification of the sentence for sexual battery. Dixon was found guilty by a jury on multiple counts after a trial in the District Court of Washington County. The jury sentenced him to twenty years in prison for burglary and sexual battery, and one year for possession of a controlled substance. The trial judge ordered the sentences for burglary and sexual battery to be served back-to-back. Dixon then appealed, raising several points of error, including issues related to jury instructions and evidence. The first issue was about the trial judge not mentioning that he was presumed innocent in the instructions at the start of the trial. The court found this error was not significant since the final instructions did include the presumption of innocence. Next, Dixon claimed that the evidence was not strong enough for the first-degree burglary conviction. The court disagreed, stating that there was enough evidence for a reasonable jury to find him guilty. Dixon also argued that he should have been allowed to present evidence regarding his intoxication at the time of the crime. The court ruled that the trial judge had the right to refuse his request since the evidence did not clearly support intoxication as a defense. Another point of concern for Dixon was what he called evidentiary harpoons, which are when comments are made that suggest knowledge of other crimes. The court found that he did not object to these comments at the trial and they did not seriously affect the verdict. Dixon claimed that he was unfairly prevented from presenting a full defense regarding reports of his previous erratic behaviors. The court decided that these reports were not very relevant to his defense and that excluding them did not significantly harm his case. A notable issue was a mistake in how the jury was informed about the potential punishment for sexual battery. The trial judge incorrectly stated that it could be punished by twenty years, which was incorrect. The State agreed that this was an error. Instead of sending Dixon back for a new trial, the court decided to lower his sentence for sexual battery to ten years because of this error. Dixon stated that his total sentences were too harsh, but after reviewing the circumstances, the court determined that the sentences were acceptable even after the changes made to one of them. Lastly, Dixon argued that there were too many errors in the case that made it unfair for him. The court did acknowledge the instructional error but believed there were no other significant errors affecting the outcome of the trial. In summary, the court modified Dixon's sentence for sexual battery and kept the other parts of his conviction intact. The final decision still upheld his guilty verdicts on all counts.

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F-2018-901

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-901** **NAJEE JAMALL COX, Appellant,** **vs.** **THE STATE OF OKLAHOMA, Appellee.** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Appellant, Najee Jamall Cox, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2014-5486 in Oklahoma County, presided over by Judge Ray C. Elliott. On January 30, 2017, Cox entered a guilty plea to Burglary in the First Degree, and his judgment and sentencing were deferred for seven years, with probation conditions effective until January 29, 2024. On March 20, 2018, the State filed an application to accelerate the deferred sentence, citing multiple violations, including new criminal charges and failure to pay court costs. At the hearing on August 14, 2018, Judge Elliott denied Cox's request for a continuance to allow his co-defendant to testify, after which the hearing proceeded with the State's presentation of evidence from probation officers and law enforcement. **FINDINGS:** 1. **Evidence of Possession**: The court found sufficient evidence supporting that Cox had constructive possession of marijuana and related paraphernalia based on the circumstances surrounding the traffic stop and subsequent findings in his vehicle. 2. **Right to Present Testimony**: Cox was given the opportunity to present a defense but failed to secure the presence of his co-defendant through proper procedural channels. His claim of due process violation was denied due to lack of shown prejudice. 3. **Notice of Reimbursement Fee**: Sufficient evidence demonstrated that Cox was aware of his obligation to pay the District Attorney's fees. 4. **Judicial Notice**: The court's reference to Cox's counsel's reputation did not negatively impact his rights, as the violation found was supported by sufficient evidence regardless. 5. **Ineffective Assistance of Counsel**: Cox did not demonstrate that his counsel's performance was deficient enough to have affected the outcome. Based on the analysis of these propositions, the order of acceleration issued by the District Court is **AFFIRMED**. **CONCLUSION**: The mandate will be issued upon the filing of this decision. --- **Representatives:** - **Counsel for Appellant**: Matthew Tate Wise - **Counsel for State**: Kirk Martin, Mike Hunter **Decision by**: LEWIS, Presiding Judge **Concurrences**: KUEHN, V.P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [Click here to download the full PDF of the opinion.](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-901_1735118825.pdf)

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F-2019-99

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **WILLIAM ALVIN WIMBLEY,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2019-99** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN 30 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** On April 30, 2018, Appellant entered pleas of guilty in McCurtain County District Court to the following charges: Possession of a Controlled Dangerous Substance (Count 1, Case No. CF-2016-103) and multiple counts in Case No. CF-2017-147, including another charge of Possession of a Controlled Dangerous Substance (Count 1), Possession of a Firearm After Conviction of a Felony (Count 2), and another Possession of a Controlled Dangerous Substance (Count 3). As part of a plea agreement, Appellant was admitted to the McCurtain County Drug Court Program, which stipulated that successful completion would lead to the dismissal of charges, while termination would result in a twenty-year imprisonment sentence for all four counts, served concurrently. Subsequently, on October 3, 2018, the State filed an Application to Revoke from Drug Court, citing numerous violations of the program's terms by Appellant despite receiving multiple graduated sanctions. A hearing was conducted, resulting in the Honorable Walter Hamilton, Special Judge, determining the defendant had indeed violated his performance contract, leading to his termination from the drug court program and imposition of the agreed twenty-year sentence. Appellant's sole proposition for appeal is grounded in an assertion of ineffective assistance of termination counsel, based on comments made by Judge Hamilton during the hearing regarding the sentencing implications of the termination and potential reversal by this Court. Under the legal framework established by *Strickland v. Washington*, 466 U.S. 668 (1984), to succeed on a claim of ineffective assistance, an appellant must demonstrate (1) deficient performance by counsel and (2) resulting prejudice. Appellant's claim does not find support in the record, as he fails to establish that his counsel's performance was deficient under *Strickland*'s rigorous standards. Termination of drug court participation, as outlined by Oklahoma law, requires a factual determination by the trial court regarding violations of the performance contract and the sufficiency of disciplinary sanctions. Judge Hamilton's determination hinged on whether any violations were proven by a preponderance of the evidence, rather than any alleged bias from his statements. Ultimately, Appellant has not demonstrated that Judge Hamilton abused his discretion in terminating his drug court participation. **DECISION** The termination of Appellant's participation in the McCurtain County District Court Drug Court in Case Nos. CF-2016-103 and CF-2017-147 is **AFFIRMED**. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the **MANDATE** is ordered to be issued upon the filing of this decision. **TERM OF THE COURT:** **Affirmed.** **OPINION BY:** LEWIS, P.J. **KUEHN, V.P.J.:** Concur **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur *Counsel in trial and on appeal: Hugh Hood (Appellant's Counsel), Mark Uptegrove, and others representing the State.*

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C-2013-254

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In OCCA case No. C-2013-254, Gina Diane Eslick appealed her conviction for multiple drug-related charges. In an unpublished decision, the court decided to grant her petition for certiorari, meaning they agreed to look at her case closely. The court found that she did not have effective help from her lawyer when she tried to change her guilty plea, as her lawyer had a conflict of interest. The court ordered that her case be sent back to the District Court so she could have a new hearing with a lawyer who did not have a conflict. No one dissented in this decision.

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C-2018-415

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **TALISA NICOLE BANKS, Petitioner,** **v.** **STATE OF OKLAHOMA, Respondent.** **Case No. C-2018-415** **October 31, 2019** **SUMMARY OPINION GRANTING CERTIORARI** Judge Hudson presiding: On November 8, 2016, Talisa Nicole Banks entered blind pleas of guilty to the following charges: Count 1 - Distribution of Controlled Dangerous Substance - Marijuana; Count 2 - Unlawful Possession of Controlled Drug, Marijuana, With Intent to Distribute; and Count 3 - Possession of Controlled Dangerous Substance - Methamphetamine in the District Court of Texas County, Case No. CF-2016-64. Sentencing occurred on February 28, 2018, resulting in a combined fifteen-year sentence with conditions on Counts 1, 2, and 3. After sentencing, on March 7, 2018, Banks filed a motion to withdraw her guilty pleas, which was supported by an additional pro se letter outlining her reasons. A hearing on this motion was held on April 4, 2018, but was denied by the Honorable Jon Parsley, District Judge. Banks appealed, arguing she faced multiple forms of conflict regarding her legal representation, which adversely affected her ability to receive effective assistance during her plea withdrawal hearing. This Court has previously established the right to effective counsel at plea withdrawal hearings. The arguments presented by Banks indicated an actual conflict of interest, as her counsel simultaneously represented conflicting interests regarding claims made against his own effectiveness. The evidence suggests Banks was denied the opportunity for conflict-free representation, and thus a new hearing is warranted for the motion to withdraw her guilty pleas. **DECISION** The Petition for Writ of Certiorari is GRANTED. The case is REMANDED to the District Court for the appointment of new counsel for Banks’ motion to withdraw her guilty pleas and to conduct a new hearing regarding that motion. **Parties Appeared Below** - **Defense Counsel**: Robert H. Jaques - **Respondent Counsel**: Assistant District Attorney Buddy Leach; Oklahoma Attorney General Mike Hunter **OPINION BY**: HUDSON, J. **CONCUR**: LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. **[Download Full Decision](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-415_1734109426.pdf)**

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C-2018-1119

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **AARON MARCUS SHORES,** **Petitioner,** **V.** **THE STATE OF OKLAHOMA,** **Respondent.** **Case No. C-2018-1119** **SUMMARY OPINION DENYING CERTIORARI** **ROWLAND, JUDGE:** Petitioner Aaron Marcus Shores entered a negotiated plea of no contest in the District Court of LeFlore County to resolve his felony and misdemeanor charges in three cases. The charges included: 1. **Case No. CF-2018-239:** Failure to Notify Address Change of Sex Offender (felony). 2. **Case No. CM-2018-371:** Unlawful Possession of a Controlled Dangerous Substance (misdemeanor). 3. **Case No. CM-2018-373:** Malicious Injury to Property Under $1,000.00 (misdemeanor). Pursuant to the plea agreement, one count of Obstructing an Officer and one count of Unlawful Possession of Drug Paraphernalia were dismissed by the State. Judge Marion Fry subsequently sentenced Shores to four years of imprisonment on the felony count and one year in the county jail for each misdemeanor count, with all sentences running concurrently. He was also ordered one year of post-imprisonment supervision and awarded credit for time served. Shores filed a pro se motion to withdraw his plea, which was denied after a hearing. He appeals this denial, claiming: 1. The district court erred in denying his motion to withdraw his plea as he did not receive the benefits of his plea bargain. 2. He received ineffective assistance of counsel. **1. Denial of Motion to Withdraw Plea** Shores argues he did not receive the promised benefits of his plea bargain. The court evaluated this claim against the standard set forth in *Couch v. State*, noting that promises made in plea agreements must be fulfilled. While Shores did not specifically raise his current argument in his initial motion to withdraw, it was discussed during the evidentiary hearing. The appellate court reviews the denial for abuse of discretion and affirmatively holds that Shores received the benefits of his plea agreement. The district court's order confirmed that Shores's Oklahoma sentences would run concurrently with his sentences from Arkansas, fulfilling the terms agreed upon during the plea process. **2. Ineffective Assistance of Counsel** Shores claims ineffective assistance from conflict counsel, who allegedly failed to preserve his claim regarding the benefits of the plea agreement. To prevail on such a claim, Shores must demonstrate that he was prejudiced by counsel's performance. The court found that conflict counsel adequately raised Shores's concerns at the withdrawal hearing, effectively preserving the issue for appeal. Therefore, Shores could not establish that his counsel's performance resulted in any prejudice. **CONCLUSION** The Petition for a Writ of Certiorari is DENIED. The district court’s denial of Petitioner’s motion to withdraw plea is AFFIRMED. **MANDATE ordered to be issued upon the delivery and filing of this decision.** **Appearances:** - Doug Schmuck, Appellate Defense Counsel, for Petitioner. - Matt McBee, Counsel for Withdraw Motion. - Kevin Merritt and Margaret Nicholson, Assistant District Attorneys for the State. --- This summary is designed for clarity and understanding without retaining excessive legal jargon, while accurately reflecting the decisions and arguments presented in the original case summary.

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F-2018-646

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The document is a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding the appeal of Ashley Dawn Bost. She was convicted of several offenses in LeFlore County District Court, including trafficking in illegal drugs and possession of a controlled substance, along with additional charges related to a firearm and drug paraphernalia. In her appeal, Bost raised a single proposition of error arguing that her convictions for trafficking in methamphetamine and possession of oxycodone violated the prohibition against multiple punishments for a single offense, as outlined in 21 O.S.2011, § 11. The court found that Bost did not preserve this argument for appeal as she failed to raise it during the trial, thus waiving her right to full review, except for considering it for plain error. The appellate court applied a three-part test for assessing plain error and determined that Bost did not demonstrate actual or plain error. The court explained that the analysis under Section 11 focuses on the relationship between the crimes and whether they require different proofs. Since the two charges involved different drugs and amounts required for trafficking and possession, the court concluded that they were indeed separate and distinct offenses and affirmed the trial court's judgments and sentences. The court's final decision was to affirm Bost's convictions and sentences, with the mandate ordered to be issued promptly. The opinion included a list of counsel for both the appellant and the appellee. For more information, a link to the full opinion is provided at the end of the summary.

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F-2018-411

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In OCCA case No. F-2018-411, Joey Elijo Adames appealed his conviction for Conspiracy to Distribute a Controlled Dangerous Substance and Unlawful Possession of a Firearm by a Convicted Felon. In a published decision, the court decided to uphold his convictions and the order revoking his suspended sentences. One judge dissented. The case began when Adames was charged with several serious offenses. After a trial, a jury found him guilty, and he was sentenced to a total of 45 years in prison. This included 35 years for the conspiracy charge and 10 years for the gun possession charge, and the sentences were ordered to be served one after the other. Adames had previous felony convictions, which affected his sentences. Furthermore, Adames had prior suspended sentences due to earlier charges, including Domestic Assault and Battery with a Dangerous Weapon. The state decided to revoke those suspended sentences after Adames committed the new crimes. During the trial, Adames argued that the prosecutor acted unfairly by making comments that hinted he should have testified, which he did not. He believed this made it hard for him to get a fair trial. However, the court examined Adames' claims. They found that the prosecutor’s comments did not directly force attention to the fact he did not testify and were within the acceptable limits of court arguments. The judges believed the jury was properly instructed to not hold his silence against him, and thus they did not see an error in the trial process. Adames also complained about the sentencing part of the trial, saying the prosecutor made remarks that were inappropriate and could have influenced the jury to give him a harsher sentence. Again, the court found that the comments focused more on his past behavior and did not unfairly sway the jury’s decision. Lastly, about the revocation of Adames' previous suspended sentences, he argued that he should have had a hearing within 20 days after pleading not guilty to the revocation. The court reviewed the record and concluded that Adames had waived his right to that fast hearing when he entered his plea of not guilty. Therefore, the court ruled that since no rule was broken, the revocation of his suspended sentence was valid. In summary, the court found no significant errors in Adames' trial or the revocation order. As a result, his convictions and the revocation of his suspended sentences were upheld, affirming the decisions made by the lower court.

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RE-2018-536

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CHRISTIAN EMMANUEL REYES,** **Appellant,** **V.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-536** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JUN 20 2019** **JOHN D. HADDEN - SUMMARY OPINION** **CLERK** **HUDSON, JUDGE:** Appellant Christian Emmanuel Reyes appeals from the revocation of his suspended sentences in Oklahoma County District Court Case Nos. CF-2013-6460 and CF-2017-3715 by Honorable Glenn Jones. **Background:** On November 13, 2013, Appellant pled guilty to Unauthorized Use of a Vehicle and Attempting to Elude a Police Officer in Case No. CF-2013-6460. The trial court sentenced him on July 30, 2014, to five years with all but two years suspended for Count 1, and one year for Count 3, to run concurrently. On July 6, 2017, Appellant pled guilty to Possession of a Controlled Dangerous Substance in the Presence of a Minor in Case No. CF-2017-3715, receiving a five-year sentence with all but 100 days suspended. The State agreed not to file for revocation on Case No. CF-2013-6460 as part of the plea deal. On April 6, 2018, the State filed a 1st Amended Application to Revoke, citing non-payment of fees and the commission of a new crime, Second Degree Burglary, in a separate case (CF-2017-6227). Following a revocation hearing, the trial court fully revoked Appellant’s suspended sentences. **Propositions of Error:** 1. **Improper Introduction of Evidence:** Appellant argues the State’s introduction of testimony regarding his behavior violated 12 O.S.2011, § 2404(B) and the standards set forth in *Burks v. State*. He claims he did not receive proper notice and therefore is entitled to relief. He made no objection during the hearing, waiving this issue except for plain error review. Appellant's argument fails, as he did not demonstrate that any error occurred. 2. **Insufficient Evidence of Burglary:** Appellant contends the State failed to prove he entered the victim’s home intending to steal. However, sufficient evidence supported that he intended to steal, meeting the *preponderance of the evidence* standard required in revocation hearings. **Conclusion:** The revocation of Appellant's suspended sentences is affirmed, as the court found competent evidence to justify the revocation and there was no abuse of discretion. **MANDATE** is ORDERED issued upon the filing of this decision. **APPEARANCES:** Micah Sielert and Hallie Bovos for Appellant; Tiffany Noble and Mike Hunter for the State; Tessa Henry for Appellee. **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR IN RESULTS **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-536_1734522451.pdf)

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RE-2018-435

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOSE FIGUEROA MESTA,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2018-435** **FILED** IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JUN 20 2019 JOHN D. HADDEN CLERK **SUMMARY OPINION** LUMPKIN, JUDGE: Appellant appeals from the revocation of his suspended sentence in Texas County District Court Case No. CF-2015-1. On March 4, 2016, Appellant entered a plea of no contest to Possession of a Controlled Dangerous Substance Within 1,000 Feet of a Park, in violation of 63 O.S.Supp.2012, § 2-402(C)(1). The Honorable Jon Parsley, District Judge, convicted Appellant and sentenced him to ten years imprisonment, with all but the first eighty days suspended. On February 27, 2018, the State filed an Amended Application to Revoke Suspended Sentence alleging Appellant failed to submit probation reports; failed to report his arrest for public intoxication; moved back into Oklahoma without reporting it to the district court; and committed new crimes of Possession of a Controlled Drug, Marijuana, Within 2000 Feet of a School or Park, With Intent to Distribute (Count 1), and Possession of CDS Without a Tax Stamp Affixed (Count 2) as alleged in Texas County District Court Case No. CF-2018-58. Following a hearing, Judge Parsley revoked Appellant's remaining suspended sentence in full. **Proposition I:** Appellant alleges the trial court erred in assessing him attorney fees of $500, which he claims exceeds the amount allowed by statute. **Proposition II:** Appellant argues he cannot be assessed the costs of his incarceration because he is mentally ill. These claims are outside the scope of a revocation appeal. The consequence of judicial revocation is to execute a penalty previously imposed in the judgment and sentence. The scope of review in a revocation appeal is limited to the validity of the revocation order executing the previously imposed sentence. As noted on numerous occasions, arguments regarding attorney fees and incarceration costs are administrative and not properly presented as part of the appeal of an order revoking a suspended sentence. Thus, we deny Propositions I and II. **Proposition III:** Appellant objects to the inclusion of post-imprisonment supervision in the revocation order. The State concedes this point, arguing the issue is moot because Judge Parsley entered an amended revocation order on January 17, 2019, deleting post-imprisonment supervision from the revocation order. We agree that this proposition is moot. The decision to revoke a suspended sentence in whole or part is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Appellant has not established that Judge Parsley abused his discretion. **DECISION** The revocation of Appellant's suspended sentence in Texas County District Court Case No. CF-2015-1 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon the filing of this decision. **APPEARANCES** AT REVOCATION **VONDA WILKINS** P.O. BOX 1486 GUYMON, OK 73492 COUNSEL FOR DEFENDANT ON APPEAL **LISBETH McCARTY** P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **TAOS SMITH** ASST. DISTRICT ATTORNEY 319 N. MAIN GUYMON, OK 73942 COUNSEL FOR STATE **MIKE HUNTER** OKLA. ATTORNEY GENERAL KEELEY MILLER ASST. ATTORNEY GENERAL 313 N.E. 21st ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.:** Concur **KUEHN, V.P.J.:** Concur **HUDSON, J:** Concur **ROWLAND, J:** Concur [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-435_1734691413.pdf)

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RE-2018-208

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DESMOND ZHUMONSHA SMITH,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2018-208** **Summary Opinion** **FILED MAY 16, 2019** **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant Desmond Zhumonsha Smith appeals the revocation of his suspended sentence from the Garvin County District Court, Case No. CF-2015-498, presided over by the Honorable Leah Edwards. On February 26, 2016, Smith entered a plea of nolo contendere to charges of Possession of a Controlled Dangerous Substance and Falsely Personate Another to Create Liability. He was subsequently sentenced to twenty years imprisonment for each count. In his first proposition of error, Smith contends that the State failed to provide sufficient evidence to support the claim that he violated the conditions of his probation by engaging in new criminal behavior, specifically Unauthorized Use of a Motor Vehicle and Placing Bodily Fluid on a Government Employee. Upon review, this assertion lacks merit. The standard applicable in revocation hearings is a preponderance of the evidence, which requires the State to demonstrate that it is more likely than not that the violations occurred (Tilden v. State, 2013 OK CR 10). Testimony from Officer Cooper and Sheriff Rhodes sufficiently established the necessary proof of Smith's involvement in the new crimes. In his second proposition, Smith argues that the revocation of ten years of his twenty-year suspended sentence is excessive and asserts that it should be modified. The law stipulates that proving just one violation of probation is adequate for revocation (Tilden, 2013 OK CR 10). In this case, the State demonstrated multiple violations, including new charges from two counties. Furthermore, Judge Edwards did not fully revoke Smith's remaining sentence, affirming that such decisions fall under the trial court's discretion, which will not be overturned unless an abuse of that discretion is clearly shown (Jones v. State, 1988 OK CR 20). **DECISION:** The revocation of Desmond Zhumonsha Smith’s suspended sentence in Garvin County District Court Case No. CF-2015-498 is **AFFIRMED**. The mandate is ordered to be issued upon the filing of this decision, pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals. **APPEARANCES:** **For Defendant:** Arlan Bullard 110 N. Willow St., Ste. B Pauls Valley, OK 73075 **For Appellant:** Kristi Christopher P.O. Box 926 Norman, OK 73070 **For State:** Laura A. McClain Asst. District Attorney 201 W. Grant St., Room 15 Pauls Valley, OK 73075 Mike Hunter Attorney General of Oklahoma Theodore M. Peeper Asst. Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105 **OPINION BY:** Kuehn, V.P.J. **CONCUR:** Lewis, P.J., Lumpkin, J., Hudson, J. **CONCUR IN RESULTS:** Rowland, J. [**Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-208_1734702735.pdf)

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F-2018-202

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In OCCA case No. F-2018-202, the appellant appealed her conviction for robbery with a dangerous weapon, possession of a firearm in the commission of a felony, conspiracy to commit a felony, kidnapping, and possession of a controlled dangerous substance. In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. The case involved Katherine Marie Houser, who was found guilty by a jury for several serious crimes. The jury gave her a variety of sentences, including five years for robbery, two years for possession of a firearm during a felony, and six months for kidnapping. Some of these sentences were set to run at the same time, which is called concurrent sentences. Katherine argued that her lawyer did not represent her well, especially by not challenging one of the counts against her (the possession of a firearm). Although this count was eventually dismissed by the state, she felt that just being tried for it affected the jury’s decisions on other counts. The court looked at this claim and decided that even if the lawyer made a mistake, it wouldn’t have changed the outcome. The evidence against her for the other charges was strong, and the jurors weren’t likely swayed by having one extra charge against her. In her second argument, Katherine said that a fine imposed on her should not count because the judge did not mention it during the sentencing, even though she hadn’t complained about it at that time. The court found that since she didn’t raise an issue at the right time, she had a harder time proving there was an error worth correcting. Ultimately, both of Katherine's arguments were denied, and the court decided to uphold her convictions and sentences.

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RE-2018-644

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DUSTIN ARDELL CRUCE,** Appellant, **v.** **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2018-644** **FILED APR 25 2019** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** ROWLAND, JUDGE: This appeal arises from the revocation of Dustin Ardell Cruce’s suspended sentence in Okfuskee County District Court Case No. CF-2016-143, adjudicated by the Honorable Lawrence W. Parish. On February 22, 2017, Cruce entered a guilty plea to multiple charges, including Assault With a Dangerous Weapon and Possession of a Controlled Dangerous Substance, resulting in a total sentence of ten years for the most serious counts, suspended in part. On October 31, 2017, the State filed a Motion to Revoke Suspended Sentence, citing Cruce's failure to pay ordered reimbursement fees and alleged new criminal activity. However, the State subsequently abandoned the new crime allegation as part of a plea agreement in a separate case, leaving only the failure to pay as the basis for revocation. At the revocation hearing on May 2, 2018, the trial court determined that Cruce had indeed violated his probation by failing to fulfill financial obligations. Despite Cruce's claims regarding his employment status and efforts to comply, he provided no evidence of bona fide attempts to make the required payments. The standard for revocation allows the State to meet its burden by a preponderance of the evidence, and one proven violation is sufficient to justify a full revocation of a suspended sentence. Judge Parish opted to revoke only half of Cruce's remaining suspended sentence, demonstrating leniency. Cruce’s appeal asserts that the trial court abused its discretion by imposing revocation. However, as established in previous case law, including *Sparks v. State* and *Livingston v. State*, the court has broad discretion in these matters. The trial court was within its rights to revoke the suspension based on the stipulated violation of payment obligations. The decision of Judge Parish is affirmed, as Cruce has not demonstrated an abuse of discretion. **DECISION** The revocation of Appellant's suspended sentence in Okfuskee County District Court Case No. CF-2016-143 is AFFIRMED. **Legal Representation:** Counsel for Appellant: CURT ALLEN Counsel for Appellee: EMILY MUELLER, ASST. DISTRICT ATTORNEY **OPINION BY:** ROWLAND, J. **Concur:** LEWIS, P.J.; KUEHN, V.P.J. (Concur in Results); LUMPKIN, J.; HUDSON, J.

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F-2018-83

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In OCCA case No. F-2018-83, the appellant appealed his conviction for terminating his participation in a drug court program. In an unpublished decision, the court decided to affirm the termination of the appellant's participation in the Kay County Drug Court Program. One judge dissented. The case began with the appellant being charged with domestic abuse, followed by several other charges which led to his participation in the drug court program. He had previous sentences but entered a plea agreement that allowed him to avoid immediate incarceration if he completed the program successfully. However, after multiple instances of non-compliance, the state requested to terminate him from the program. During a hearing, the judge evaluated whether the appellant had violated the terms of his performance contract in the drug court. The judge determined that he had. The appellant argued that the judge should have given him more chances to comply with the rules of the program, but the judge concluded that the appellant's actions warranted termination. The court ultimately agreed with the judge's decision, stating that he had not abused his discretion in terminating the appellant’s participation in the drug court program. The termination was deemed appropriate given the appellant's repeated violations.

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C-2018-315

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This document is a summary opinion from the Oklahoma Court of Criminal Appeals regarding the case of David Duane Albright, a petitioner who sought to withdraw his guilty pleas related to charges of manufacturing methamphetamine, possession of a controlled substance, and maintaining a place for keeping/selling controlled substances. ### Key Points: 1. **Background**: - Albright was originally charged in Delaware County with multiple drug-related offenses in 2010. - He entered a guilty plea in December 2010 and was accepted into the Delaware County Drug Court Program. - After being terminated from the program for non-compliance, he was sentenced in September 2013 to life imprisonment on two counts and 20 years on another, with fines imposed. 2. **Procedural Posture**: - Albright filed a Motion to Withdraw Guilty Pleas shortly after sentencing, which was denied. - He initially failed to appeal but was granted an appeal out of time in 2018. 3. **Claims on Appeal**: Albright raised several propositions of error: - **Proposition I**: He argued his plea lacked an adequate factual basis. - **Proposition II**: Claimed his pleas were not entered knowingly and voluntarily. - **Proposition III**: Contended the $50,000 fine was unauthorized by statute. - **Proposition IV**: Asserted he should have received credit for jail time, violating his due process. - **Proposition V**: Claimed ineffective assistance of counsel. 4. **Court's Analysis**: - **Proposition I and II**: The court found Albright waived appellate review by not raising these claims in his motion to withdraw his plea. - **Proposition III and IV**: These claims were also deemed waived for similar reasons, not raised in the motion to withdraw. - **Proposition V**: While the court reviewed the ineffective assistance of withdrawal counsel, they found no evidence of deficiency or that it prejudiced Albright's case. 5. **Decision**: - The court affirmed the lower court's denial of Albright's Motion to Withdraw Plea, concluding that he did not demonstrate a valid basis for the claims made. 6. **Concurring Opinion**: - Judge Rowland specially concurred, expressing concern regarding the adequacy of the factual basis for the plea related to maintaining a place for keeping/selling a controlled dangerous substance. While recognizing the issues, he noted that because the facts weren’t adequately challenged during the proceedings, the claims were not actionable in this appeal. ### Conclusion: The petitioner's appeal was denied, and the trial court's decision stands, allowing the guilty pleas to remain in effect due to procedural waivers and the lack of substantive evidence to support the claims raised on appeal. The opinion highlights the importance of raising issues timely and thoroughly in the proper forums to preserve them for review.

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F-2017-950

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In OCCA case No. F-2017-950, Terry Lyn Elkins appealed his conviction for Possession of Methamphetamine and Resisting an Officer. In an unpublished decision, the court decided to affirm the convictions but remand for resentencing on the possession count. One judge dissented. Terry Lyn Elkins was found guilty by a jury for having methamphetamine and for resisting a police officer. He was sentenced to 40 years in prison for the drug charge and fined $500 for resisting the officer. The jury did not find him guilty of assaulting a police officer. Elkins argued that the trial was unfair because the jury saw evidence that was not relevant to his case, which might have affected their decision about his punishment. The evidence included a document from the Department of Corrections that had many details about Elkins’ past, including other crimes he committed many years ago. Some of this information was not needed for the current case and could have made the jury think more negatively about him. The judges decided that while the evidence showing Elkins’ past convictions was correctly used, parts of the additional information were not relevant and should not have been presented to the jury. They believed that this extra information could have influenced how the jury decided on the punishment. Therefore, they decided to keep the convictions as is, but send the case back to lower court for a new review of his punishment for the meth charge. In a separate opinion, a judge agreed with keeping the conviction but believed that sending the case back for resentencing was not necessary since Elkins did not receive the maximum punishment possible.

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C-2017-1311

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In OCCA case No. C-2017-1311, Heath Justin Wright appealed his conviction for multiple charges, including Second Degree Burglary, Knowingly Concealing Stolen Property, and Unlawful Possession of a Controlled Dangerous Substance. In an unpublished decision, the court decided to grant relief to Wright, allowing him to withdraw his guilty plea and proceed to trial. One judge dissented. Wright entered a negotiated plea without legal counsel and was accepted into the Pontotoc County Drug Court program. His plea agreement stated that if he successfully completed the program, his charges would be dismissed. However, if he failed, he would receive a lengthy prison sentence for each charge. After the State sought to terminate him from the drug court program, Wright tried to withdraw his plea. The court denied his request and sentenced him to the agreed-upon prison terms. Wright claimed his attorney did not assist him properly. He argued that he was not warned about the risks of representing himself in court. The court found that this lack of advice affected his decision to plead guilty. Since it was clear that Wright’s attorney did not address this issue, the court decided he should be allowed to withdraw his plea and face trial for the charges. The ruling concluded that because the initial plea was handled improperly, Wright should get another chance to defend himself in court.

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