Retroactive Application

F-2018-954

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Case No. F-2018-954** --- **CHRISTIAN D. MOLINA-SOLORZANO, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** --- **SUMMARY OPINION** **ROWLAND, JUDGE:** Appellant Christian D. Molina-Solorzano appeals his Judgment and Sentence from the District Court of Beckham County, Case No. CF-2017-259, for Aggravated Trafficking in Illegal Drugs, in violation of 63 O.S.Supp.2015, § 2-415. The Honorable F. Douglas Haught presided over the non-jury trial, found Molina-Solorzano guilty, and sentenced him to fifteen years imprisonment, $1,000.00 fine, and one year of post-imprisonment supervision. Molina-Solorzano raises the following issues: 1. Ineffective assistance of counsel for failing to challenge the basis for the traffic stop. 2. Ineffective assistance of counsel for failing to inform him of his rights under the Vienna Convention on Consular Relations (VCCR). 3. Entitlement to retroactive application of recent changes in law regarding parole eligibility for aggravated trafficking convictions. **DECISION:** After review, we find relief is not warranted and affirm the district court's Judgment and Sentence. **1. Ineffective Assistance of Counsel: Traffic Stop Challenge** Molina-Solorzano asserts that defense counsel was ineffective by not challenging the validity of the traffic stop, which he claims was based on race discrimination and an inadequate fog light infraction. To succeed on an ineffective assistance claim, Molina-Solorzano must demonstrate: - Counsel's performance was deficient. - The deficiency resulted in prejudice that affected the outcome of the trial. The Fourth Amendment prohibits unreasonable searches and seizures, and a traffic stop is valid if the officer had probable cause or reasonable suspicion of a traffic violation. The record, including video evidence from the traffic stop, supports that the stop was justified due to a fog light infraction. The trooper's testimony confirmed that visibility was over a mile, and thus the use of fog lights constituted a violation under Oklahoma law. Since the stop was justified, Molina-Solorzano cannot establish that counsel's failure to challenge it affected the trial's outcome, denying his ineffective assistance claim. **2. Ineffective Assistance of Counsel: VCCR Rights** Molina-Solorzano also contends that defense counsel failed to inform him of his rights under the VCCR, which would have allowed him to contact the Mexican consulate for assistance. To evaluate this claim, we consider: - Whether he was unaware of his right to contact his consulate. - Whether he would have utilized that right had he known. - Whether the consulate's assistance would have likely aided his defense. The record lacks evidence that Molina-Solorzano was unaware of his rights or that assistance from the consulate would have changed the trial's outcome. Appellate counsel's assertions do not suffice to demonstrate these conditions. Therefore, this claim is also denied. **3. Retroactive Application of Parole Changes** Molina-Solorzano argues that he should benefit from recent legislative proposals reducing parole eligibility terms for aggravated trafficking convictions. However, as legislation is not retroactive unless explicitly stated, and the referenced Senate Bill was never enacted, his claim is moot. **CONCLUSION:** The Judgment and Sentence of the district court is AFFIRMED. The MANDATE is ORDERED issued upon filing of this decision. **APPEARANCES** - Kenny R. Goza, Counsel for Defendant - Debra K. Hampton, Counsel for Appellant - Gina R. Webb, Counsel for State - Mike Hunter, Attorney General of Oklahoma - Joshua R. Fanelli, Assistant Attorney General **OPINION BY:** ROWLAND, J. **Concur in Results:** KUEHN, V.P.J. **Concur:** LUMPKIN, J. **Concur:** HUDSON, J. --- For the full decision, click here: [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-954_1734874505.pdf)

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F-2018-418

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In OCCA case No. F-2018-418, Ebrima Tamba appealed his conviction for trafficking in illegal drugs. In an unpublished decision, the court decided to affirm the Judgment and Sentence of the district court. One judge dissented. Ebrima Tamba was sentenced to twenty years in prison for his involvement in trafficking illegal drugs, specifically marijuana. Tamba felt that this sentence was too harsh. He argued that it was unfair because it was longer than the minimum penalty for the crime and that he had less marijuana than what the law required for a more serious charge. He also mentioned that since his arrest, the laws in Oklahoma changed, allowing people with a medical marijuana license to use marijuana legally. However, the court explained that even if laws changed after Tamba's crime, the new laws did not apply to his case. They noted that he was given a sentence that followed the laws in place when he committed the crime, and his sentence was within the legal limits. Tamba also claimed that his lawyer did not help him properly during the trial. He believed his attorney should have challenged how police stopped him and questioned whether the evidence used against him was acceptable. However, the court found that Tamba did not prove that his lawyer's actions negatively affected the outcome of his trial. In conclusion, the court decided that Tamba's twenty-year sentence was appropriate and that his lawyer provided adequate help during his trial. Therefore, his appeal did not lead to any changes in his case.

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F-2018-104

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In OCCA case No. F-2018-104, Dameon Tyrese Lundy appealed his conviction for Possession of a Controlled Drug with Intent to Distribute. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Dameon Tyrese Lundy was found guilty by a jury in Tulsa County for having drugs and cash that suggested he intended to sell drugs. He was sentenced to sixty years in prison and had to pay a fine. He was acquitted of another charge related to money from drug sales. Lundy had two main arguments in his appeal. First, he said the trial court made a mistake by not allowing his lawyer to suppress evidence found by the police. He argued that the police did not have the right to approach him outside a bar. However, the court found that the police were allowed to speak to him in a public place and had a good reason to suspect him because they could smell marijuana and he acted suspiciously. So, they decided there was no mistake by the trial court. Secondly, Lundy claimed there wasn't enough evidence to prove that he intended to sell drugs. His defense was that the drugs were for personal use, but the court said that a reasonable jury could think that Lundy was selling drugs due to the large amount of different drugs and cash he had. This means that the evidence was enough to support his conviction. Lundy then argued that his sentence was too harsh. He pointed out that the laws changed after his crime, meaning someone charged now would face a lower maximum sentence. However, the court stated that the new laws couldn’t be applied to Lundy's case because his crime was committed before the law changed. They concluded that the sentence was proper because of his past convictions. In the end, the court upheld the original decision from the district court, meaning Lundy will have to serve his sentence.

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S-2013-413

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In OCCA case No. S-2013-413 & 415, Mark Anthony Herfurth appealed his conviction for Failure to Register as a Sex Offender and Sex Offender Living within 2000 feet of a School. In an unpublished decision, the court decided to affirm the lower court's ruling that dismissed the charges against Herfurth. One member of the court dissented. Herfurth was charged in the District Court of Cleveland County. He initially pled guilty to Indecent Exposure in 1995 and was required to register as a sex offender for a certain period. Over the years, changes in the law increased registration times, and Herfurth was reclassified without a clear indication that the new rules applied to his case. The court found the law change was not meant to be retroactive, meaning it could not be applied to him for actions that took place before the law changed. The court concluded that the dismissal of the charges by the District Court should stand, and therefore Herfurth's conviction was overturned. The dissenting opinion disagreed, arguing that the laws should also be based on current requirements and should not shield offenders from prosecution for failing to comply with updated registration laws. The dissent emphasized that failing to register under the laws in effect at the time should still be a chargeable offense.

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S-2013-415

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In OCCA case No. S-2013-413 & 415, Mark Anthony Herfurth appealed his conviction for Failure to Register as a Sex Offender and Sex Offender Living within 2000 feet of a School. In an unpublished decision, the court decided to affirm the lower court's ruling to dismiss the charges against him. One judge dissented. Mark Anthony Herfurth was taken to court because he was accused of not registering as a sex offender and for living too close to a school after he had been convicted of a crime related to indecent exposure. In his earlier conviction, he had agreed to register as a sex offender for a certain number of years. However, when laws changed in 2007, it meant that people in his situation could be assigned a risk level and have to register for longer. Herfurth argued that he shouldn't be held to the new law because he had already completed his requirements from his original plea. The judge agreed with him and dismissed the charges, saying that the laws could not be applied to him retroactively. The State of Oklahoma did not agree with this decision. They believed that the new law should apply to Herfurth since he was still required to register as a sex offender. They argued that laws are meant to protect the public, and because he was registering at the time of the new law's change, he should follow the new rules. However, upon review, the court decided that the lower court did not make a mistake. They concluded that the 2007 law was a significant change and should only apply going forward, not backward. The court also stated that applying the 2007 law to Herfurth after his original plea would have changed his obligations unfairly. Therefore, the appeals court agreed with the lower court's decision to dismiss the charges against Herfurth, stating that they have a duty to interpret laws as they were intended at the time of the original guilty plea. The dissenting judge felt differently, believing that the law should have applied to Herfurth based on the new requirements.

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S-2009-944

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In OCCA case No. S-2009-944, the defendant appealed his conviction for Failure to Register as a Sex Offender. In an unpublished decision, the court decided to uphold the lower court's ruling that the amendments to the Sex Offender Registration Act did not apply to the defendant. A dissenting opinion was not stated. The case involved the defendant, who was previously charged under the Sex Offender Registration Act. The key question was whether later amendments to the law should apply to him or not, given that he had entered a plea in 1999 and had complied with the previous legal conditions. The magistrate in the lower court determined that the law changes would be unfair to apply retroactively in the defendant's case. The court explained that new laws usually apply to future actions unless they are explicitly stated to have retroactive effects. They found no clear indication in the legislature's changes to imply that the new requirements should apply to those who had already been sentenced under the old rules. The court confirmed that since the amendments would change the defendant's obligations significantly, these substantive changes should not apply to him. As a result, the decision maintained that the lower court's refusal to move forward on the charge against the defendant could stand, with the matter being sent back to the District Court for any further actions needed, while affirming that the defendant was correct in his assertion that the recent amendments did not apply to him.

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F-2001-1445

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In OCCA case No. F-2001-1445, John Wesley Dickson appealed his conviction for Possession of a Controlled Dangerous Substance, After Former Conviction of a Felony. In a published decision, the court decided to affirm the judgment of the trial court but modified his sentence to twenty years imprisonment. One judge dissented. John Wesley Dickson was found guilty by a jury for having illegal drugs after he had been convicted of a crime before. The jury decided that he should go to prison for forty years. Dickson thought this was too harsh and took his case to a higher court for a review. The higher court looked at all the evidence, including what happened in the original trial. The judges found that while the forty-year sentence was lawful, the remarks made by the prosecutor during the sentencing could have influenced the jury too much. The prosecutor's comments on what they thought was an appropriate punishment were seen as quite problematic. The court believed that the sentence given shocked their sense of fairness, which is a key reason for modifying sentences. Despite being allowed to recommend sentences, the prosecutor should have kept personal views out of their statements to avoid bias in the jury's decisions. Finally, the court decided to change the sentence from forty years to twenty years. They pointed out that the rules at the time of the crime did not allow applying changes in law retroactively to make the punishment lighter. Thus, only the laws that were in place when Dickson committed the crime could be applied to him. In conclusion, the court confirmed Dickson’s conviction but found the original sentence too severe, leading to a new sentence of twenty years in prison. One judge disagreed with the change in sentence, feeling that the jury's and prosecutor’s actions were acceptable.

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F-2001-1230

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In OCCA case No. F-2001-1230, a person appealed his conviction for attempted second-degree burglary. In an unpublished decision, the court decided to affirm the conviction but modify the sentence from thirty years to twenty years. One judge dissented. The person, who was found guilty of trying to break into a garage, admitted to the police that he was looking for tools to fix his car. However, the court determined that this was not a good enough reason to justify his actions in attempting to commit burglary, so the evidence supported his conviction. The appellant raised several issues in his appeal. He argued that there wasn't enough evidence to support the conviction, and claimed that two of his previous convictions, which were used to enhance his sentence, came from the same incident. He also argued that the introduction of some unfair evidence during the trial and the instruction given to the jury resulted in a higher sentence than warranted. Another point of contention was that a new law reducing penalties for certain non-violent offenders should apply to him. However, the court found that this new law could not be applied to his case because it was not stated that it should apply to past cases. Finally, he claimed that the cumulative errors in his trial affected the fairness of the verdict, but the court found that the only issue that warranted a change was the irrelevant evidence that influenced the length of his sentence. In summary, the court agreed that some aspects of the trial weren't fair, leading to a modified sentence of twenty years instead of thirty, but it upheld the conviction itself.

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