Rape in the First Degree

RE-2018-1006

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**Court of Criminal Appeals of the State of Oklahoma** **Case No. RE-2018-1006** **Jose Adolfo Rios, Appellant,** **vs.** **The State of Oklahoma, Appellee.** **Summary Opinion** **Judge Lumpkin:** Appellant, Jose Adolfo Rios, appeals from the revocation in full of his concurrent ten-year suspended sentences in Case No. CF-2006-6132. The Honorable Ray C. Elliott, District Judge, ruled on this matter. On April 4, 2008, Appellant entered a guilty plea to two counts of Rape in the First Degree and two counts of Indecent or Lewd Acts With a Child Under Sixteen, resulting in sentences of twenty-two years for the rape counts (with the first twelve years suspended) and twenty years for the lewd acts counts (with the first ten years suspended), all to run concurrently. On July 25, 2018, the State filed an Application to Revoke Suspended Sentence, asserting multiple violations of probation, including failing to report, change of address, pay supervision fees, attend mandated treatment, and committing a new crime—Domestic Assault and Battery With a Dangerous Weapon. During the revocation hearing before Judge Elliott, substantial evidence was presented regarding Appellant's violation of probation terms, including testimonies from Appellant’s probation officer and other evidence illustrating Appellant's failure to comply with treatment and reporting requirements. Appellant testified about personal struggles following a crime in which he was a victim, stating he had fallen victim to substance abuse and homelessness. After reviewing the evidence, Judge Elliott found sufficient basis to revoke the suspended sentences, having established by a preponderance of the evidence that Appellant had committed multiple violations, including failing to report and failing to attend treatment. **Proposition of Error:** Appellant argues that the trial court abused its discretion in fully revoking his sentence, asserting that Judge Elliott did not adequately consider alternatives to full revocation. **Analysis:** The decision to revoke a suspended sentence is within the discretion of the trial court and will not be overturned without evidence of abuse of that discretion. Here, Judge Elliott had unrefuted evidence of Appellant's violations. The record demonstrates that Appellant acknowledged his failures and did not meet the terms of probation. While Appellant claimed that less severe measures should have been considered, the applicable statutes do not mandate such considerations during revocation proceedings. As such, Appellant has not demonstrated that the trial court erred or abused its discretion in revoking the sentences in full. **Decision:** The order of the District Court of Oklahoma County revoking Appellant's concurrent ten-year suspended sentences is AFFIRMED. **Appearances:** **For Appellant:** Ben Munda, Assistant Public Defender Hallie Elizabeth Bovos, Assistant Public Defender 320 Robert S. Kerr, Suite 400 Oklahoma City, OK 73102 **For the State:** Suzanne Lavenue, Assistant District Attorney Mike Hunter, Attorney General of Oklahoma Tessa L. Henry, Assistant Attorney General 320 Robert S. Kerr, Suite 505 Oklahoma City, OK 73102 **Opinion By:** Lumpkin, J. **Concurred by:** Lewis, P.J.; Kuehn, V.P.J.; Hudson, J.; Rowland, J. MANDATE is ORDERED issued upon the filing of this decision. [Download Full Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1006_1734358375.pdf)

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RE-2018-645

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**Court of Criminal Appeals of the State of Oklahoma** **ANTWOIN LEE WALKER, Appellant, vs. THE STATE OF OKLAHOMA, Appellee.** **Case No. RE-2018-645** **Summary Opinion** **File Date: December 12, 2019** **KUEHN, VICE PRESIDING JUDGE:** Antwoin Lee Walker appeals the full revocation of his six-year suspended sentence in Case No. CF-2015-675 by District Judge Paul Hesse of the Canadian County District Court. **Background:** On October 27, 2015, Walker pled guilty to Petit Larceny (Count 1) and Knowingly Concealing Stolen Property (Count 2), resulting in a six-month county jail sentence on Count 1 and a ten-year sentence on Count 2, with four years suspended. On May 30, 2017, the State filed to revoke his suspended sentence, citing new charges including Attempt to Kill, Rape in the First Degree, and two instances of Petit Larceny, in Case No. CF-2017-445. Walker was subsequently convicted on May 10, 2018, of all counts in that case. During a hearing on June 19, 2018, which combined revocation and sentencing phases, Judge Hesse considered evidence from the jury trial and sentenced Walker to life imprisonment on Counts 1 and 2, among others. In the revocation portion, Walker’s attorney agreed to incorporate the trial evidence in assessing the probation violation. Judge Hesse found Walker had violated his probation and revoked the suspended sentence in full, ordering it to run concurrently with his sentences from Case No. CF-2017-445. **Proposition of Error:** Walker asserts the trial court erred by taking judicial notice of evidence from the prior trial. **Analysis:** The appellate court finds that there was no judicial notice taken. Walker consented to the combination of hearings and did not object to the incorporation of trial evidence into the revocation proceedings. The court notes the distinction from precedent cases, as Walker's situation involves a combined hearing rather than separate unrelated proceedings. Given that the trial court is afforded discretion in revocation matters and there was no abuse of that discretion, the court ultimately finds no reversible error. **Decision:** The order revoking Walker’s six-year suspended sentence is AFFIRMED. **Appearances:** - **For the Appellant:** Craig Corgan, Sarah MacNiven - **For the State:** Eric Epplin, Mike Hunter, Theodore M. Peeper **Opinion by:** KUEHN, V.P.J. **Concurred by:** LEWIS, P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. **Note:** For the full opinion, see [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-645_1734427729.pdf).

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RE-2015-180

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In OCCA case No. RE-2015-180, the appellant appealed his conviction for two counts of Rape in the First Degree. In an unpublished decision, the court decided to reverse the order revoking his suspended sentence. One judge dissented. Here's a summary of the case: The appellant, after pleading guilty to Rape in the First Degree, was sentenced to twelve years in prison, which was suspended under certain conditions, including registering as a sex offender. Later, the State alleged that the appellant violated his probation by committing a new crime in Michigan, specifically being a felon in possession of a firearm. When the appellant was brought back from Michigan, a hearing took place about whether he had indeed violated his probation. During this hearing, the State presented various documents and testimony to support their claims, but these did not meet the legal requirements. They had included some documents from Michigan that were not certified and did not prove that a final judgment had been made regarding the alleged new crime. The court found that the State did not provide enough competent evidence to support their claim that the appellant had committed a new crime. The judges noted that the State must strictly prove a new offense for revocation of a suspended sentence. Since the State did not prove that the judgment from Michigan was final, the court agreed that there was an error. As a result, the court reversed the revocation order and sent the case back for further actions as needed. The court did not need to consider the other issues raised since the lack of evidence was sufficient to decide the appeal in favor of the appellant.

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F-2014-22

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In OCCA case No. F-2014-22, Padillow appealed his conviction for rape and sexual offenses. In an unpublished decision, the court decided to affirm the convictions but reversed a citation for direct contempt of court and vacated the associated sentence. One judge dissented. Earnest Eugene Padillow faced serious charges in two cases related to the sexual abuse of young girls. The first case involved the abuse of his nine-year-old great-niece, S.G., during a single day in August 2007, and the second case involved the sexual assault of his 11-year-old niece, D.P., in 2011. In both instances, Padillow was accused of serious crimes, including rape and inappropriate sexual contact. During the trial, Padillow had a tumultuous relationship with his attorneys. He expressed dissatisfaction with their defense strategies and at times chose to represent himself. This led to a chaotic scene in the courtroom where Padillow violently attacked one of his attorneys, resulting in his removal from the courtroom. Despite his outbursts, the trial proceeded, and he was found guilty. The court sided with the trial judge's decision that Padillow waived his rights to be present during certain trial stages due to his disruptive conduct. Padillow also claimed that his constitutional right to testify was violated when he was removed from the courtroom. However, the court ruled that his violent actions constituted a waiver of that right. In another point of contention, Padillow argued that he should have been given the chance to respond to a direct contempt charge when the judge found him guilty of contempt for his outburst. Although the court acknowledged he did not have the opportunity to be heard, they decided to reverse the contempt finding rather than require a new hearing given the context of his other convictions. Lastly, it was determined that some of the judgment documents contained errors regarding sentences, which the court directed to be corrected. Overall, the court upheld the significant portions of Padillow's convictions while addressing some procedural errors related to his contempt citation and record-keeping in the judgments.

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RE-2014-392

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In OCCA case No. RE-2014-392, the appellant appealed his conviction for lewd molestation and rape in the first degree. In an unpublished decision, the court decided to affirm the revocation of the appellant's suspended sentences, but they vacated the one-year period of post-imprisonment supervision. One judge dissented.

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F-2008-1199

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In OCCA case No. F-2008-1199, Cody Robert Grenemyer appealed his conviction for Rape in the First Degree and Lewd Molestation. In an unpublished decision, the court decided to affirm the convictions but modified the sentences to life imprisonment with the possibility of parole for two counts. One judge dissented. Grenemyer was found guilty of committing serious sexual crimes against his daughters, including rape and lewd molestation. The abuse happened over a period of time and was described by multiple victims. Despite Grenemyer's denial of the allegations, the testimony of his daughters was consistent and compelling enough for the jury to convict him. During the trial, Grenemyer wanted to introduce evidence that the younger victims had been molested by another man earlier. However, the trial court decided that this information wasn't relevant to the case at hand. The judge recognized that while the evidence could have some bearing, it also risked confusing the jury and unfairly prejudicing the victims. Grenemyer argued that his sentences were too harsh, claiming that life imprisonment without parole was not appropriate under the law effective at the time of his offenses. However, this was found to be without merit as the law allowed for such sentences. The appeals court found an issue with how much past behavior information was shared during the trial, particularly focusing on the testimonies of older siblings who spoke of their own experiences of abuse. The amount of such information might have led the jury to concentrate more on past actions rather than the specific charges brought against Grenemyer. The judges agreed that while the evidence did not affect the jury's determination of guilt, it likely influenced the sentences they recommended. Thus, Grenemyer’s sentences for the first-degree rape charges were modified to ensure he would have the possibility for parole after serving a portion of his sentence. In conclusion, while the convictions were upheld based on the strong testimony of the victims, the sentence was adjusted to reflect the concerns regarding the fairness of the trial and the overwhelming amount of past abuse information presented.

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C-2005-207

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In OCCA case No. C-2005-207, William Allen Pelican, Jr. appealed his conviction for multiple counts of rape. In a published decision, the court decided to grant his petition for certiorari and remand the case for a new hearing. One judge dissented. Pelican was sentenced after entering a plea deal where he accepted nolo contendere pleas to three counts of serious crimes. These included rape by instrumentation and first-degree rape. He was given a total sentence of 22.5 years, with part of it suspended, and was also fined. Later, Pelican sought to withdraw his pleas, but the trial judge forced his lawyer to talk about the case despite the attorney having a conflict of interest. The lawyer felt he could not fully support Pelican because he also represented someone else. Because the trial judge didn’t let the lawyer withdraw before discussing the case, Pelican was not effectively helped by his attorney. This was seen as unfair to Pelican since he deserved a lawyer who could fully support his case without conflicts. The court recognized this problem, stating that everyone has the right to have a lawyer who can represent them fully and without conflicts. Because of these issues, the court decided to give Pelican another chance to have a hearing with new legal help so he could properly address his request to withdraw his pleas. The decision was made to correct the case records and ensure that Pelican would be fairly represented in the future.

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RE-2004-1015

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In OCCA case No. RE-2004-1015, the appellant appealed his conviction for Rape in the First Degree and Lewd Molestation. In an unpublished decision, the court decided to affirm the revocation of the suspended sentence for Lewd Molestation and reverse the revocation of the suspended sentence for Rape in the First Degree. One judge dissented. The appellant had previously entered a plea of no contest in 2001 to charges of Rape in the First Degree and Lewd Molestation. After this, he was given a ten-year sentence for each charge, which was suspended. However, in 2003, the State filed an Application to Revoke the appellant's suspended sentences, claiming he had violated several conditions of his probation, such as not paying fees and not attending counseling. During a hearing, the appellant admitted to violating the terms of his probation. Initially, the court held off on revoking his sentence to give him chances to comply with the rules. However, after several reviews and additional hearings, the court eventually revoked his sentences in 2004. The appellant argued that the court did not have the right to keep reviewing his case or to revoke his sentences because he believed the last filed application to revoke had expired by that time. The court found that it had been monitoring the appellant's progress, showing that it was acting out of leniency. The appellant also stated that he was not properly notified of the issues to be addressed at the last hearing. In the court's decision, it was explained that when someone admits to violating probation rules, it is generally accepted that the court can act on that admission. The court noted that the legal standard for revoking a suspended sentence is not very high and concluded that they did not find any error with the decision during the hearings. However, the appellant sought to vacate his conviction for Rape, claiming he was underage at the time of the offense and thus legally not able to have committed the crime as defined by the law. The court ultimately agreed with the appellant that there was a critical error regarding the age requirement for a Rape conviction. They decided to reverse the revocation of that particular sentence and stated that the Judgment and Sentence for Count I should be vacated and dismissed entirely. So, the final decision was to keep the revocation of the sentence for Lewd Molestation but to remove the conviction for Rape due to the age issue, allowing for a correction of that mistake in legal proceedings.

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