Sentencing Archives - Page 3 of 13

F 2017-1055

Post author:Staff
Post published:October 10, 2019
Post category:F

In OCCA case No. F 2017-1055, William Singleton Wall, III, appealed his conviction for Possession of Controlled Dangerous Substance (Oxycodone). In an unpublished decision, the court decided to affirm the termination of Appellant from the Pontotoc County Drug Court Program. One judge dissented. William was charged in 2014 and entered a plea for the Drug Court program, where if he succeeded, his case would be dismissed. However, if he failed, he faced a ten-year prison sentence. In April 2017, the State filed to terminate him from the program because he tested positive for THC, which is a substance found in marijuana. During the termination hearing, the judge decided that the State had enough evidence to terminate William from the program. He was given a ten-year prison sentence with credit for time already served. William argued that he should not have been terminated because he did not receive proper notice of the program's rules and because the State filed its motion after the allowed time for his participation in the Drug Court expired. The court explained that the decision to terminate a participant from Drug Court is at the judge's discretion. William did not object when the evidence of his drug use was presented at the hearing. Furthermore, the records showed that William had understood the terms of the Drug Court when he entered. The court also found that although the approval for his Drug Court participation had a time limit, he was still under the court's jurisdiction until he was properly sentenced. The court ruled that they did not see any errors in how the trial court acted. They affirmed the decision to terminate William, meaning he would serve his ten-year sentence for not following the rules of the Drug Court program.

F-2018-616

Post author:Staff
Post published:September 26, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **HEATHER SUZANNE BARBEE, Appellant,** **vs.** **THE STATE OF OKLAHOMA, Appellee.** **No. F-2018-616** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 26, 2019** SUMMARY OPINION **JOHN D. HADDEN, CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Heather Suzanne Barbee, was convicted by a jury in Muskogee County District Court, Case No. F-2017-190, of Sexual Exploitation of a Child. On June 14, 2018, the Honorable Michael Norman, District Judge, sentenced her to thirty-three years imprisonment, in accordance with the jury's recommendation. She must serve 85% of her sentence before parole consideration. Appellant raises six propositions of error in support of her appeal: **PROPOSITION I:** THE TRIAL JUDGE ERRED BY HOLDING A TWO-STAGE TRIAL INSTEAD OF A ONE-STAGE TRIAL. **PROPOSITION II:** THE STATE'S DECISION TO PROCEED WITH A TWO-STAGE TRIAL WITHOUT ANY PROOF OF FORMER FELONIES CAUSED HARM TO Ms. BARBEE. **PROPOSITION III:** PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL. **PROPOSITION IV:** INEFFECTIVE ASSISTANCE OF COUNSEL DEPRIVED APPELLANT OF A FAIR TRIAL. **PROPOSITION V:** THE SENTENCE WAS EXCESSIVE. **PROPOSITION VI:** CUMULATIVE ERROR DEPRIVED Ms. BARBEE OF A FAIR TRIAL. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was charged with sexually exploiting her minor sister for financial gain. The State charged two counts, but the jury found her guilty of only one. As to Propositions I and II, the record indicates that (1) Appellant had prior convictions used to enhance the sentence on one of the two charges she faced; (2) the trial was bifurcated as to both charges; but (3) the jury acquitted Appellant of the enhanced count. Thus, the jury sentenced Appellant as a first offender on the remaining charge, and never heard about the prior convictions. The procedure used was entirely proper, and Appellant fails to show any prejudice from it. *Wisdom v. State*, 1996 OK CR 22, 99 17-20, 918 P.2d 384, 390; *Marshall v. State*, 2010 OK CR 8, I 58, 232 P.3d 467, 481. Propositions I and II are denied. In Proposition III, Appellant alleges six instances of prosecutorial misconduct. Because she did not object to these comments below, we review them only for plain error - an actual error, that is plain or obvious, and that affects a defendant's substantial rights and the outcome of the trial. *Bosse v. State*, 2017 OK CR 10, 9 82, 400 P.3d 834, 863. We find no error. First, the prosecutor did not impermissibly comment on Appellant's failure to testify simply by arguing that the jury had received absolutely nothing to contradict the testimony of the State's primary witnesses. Such general comments about the totality of the evidence (and lack of controverting evidence) differ from directly suggesting that the defendant must be guilty because she did not take the stand. *Id.*, 2017 OK CR 10, I 85, 400 P.3d at 863. The prosecutor never shirked her burden to prove all elements of the crime. Second, the prosecutor did not vouch for the credibility of complaining witnesses by pointing to their demeanor and the consistency in their accounts; these comments were properly based on evidence presented to the jury. *Taylor v. State*, 2011 OK CR 8, I 57, 248 P.3d 362, 379; *Bland v. State*, 2000 OK CR 11, I 97, 4 P.3d 702, 728. Third, the prosecutor's assessment of the defense strategy as smoke and mirrors and intellectually disingenuous, and her statement, Ladies and gentlemen, she is guilty, were also fair inferences from the evidence presented. *Harris v. State*, 2000 OK CR 20, I 35, 13 P.3d 489, 498. Fourth, assertions of the defendant's guilt are not improper if they are made with reference to the evidence presented. *Williams v. State*, 2008 OK CR 19, I 107, 188 P.3d 208, 228. Fifth, asking the jury to consider the long-term effects of the defendant's conduct on the victim when assessing the sentence was not plainly erroneous. *Carol v. State*, 1988 OK CR 114, I 10, 756 P.2d 614, 617. We note that the jury recommended a sentence less than the 40-year sentence requested by the prosecutor. Finally, the prosecutor's reference in the punishment stage to acquitted conduct (Count 2, the charge on which the jury found Appellant not guilty in the first stage of the trial) was not improper. The jury was still free to consider that conduct, because it was not an element the State had to prove beyond a reasonable doubt with regard to sentencing on Count 1. *See Dowling v. United States*, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). We find no error in the prosecutor's comments such as would warrant any relief. Proposition III is denied. In Proposition IV, Appellant faults trial counsel for not making objections to the issues raised in Propositions I, II, and III. To show trial counsel was ineffective, she must show both deficient performance and prejudice. *Strickland v. Washington*, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); *White v. State*, 2019 OK CR 2, I 23, 437 P.3d 1061, 1070. Because we found no merit to these substantive complaints, trial counsel was not ineffective. *Jackson v. State*, 2016 OK CR 5, I 13, 371 P.3d 1120, 1123. Proposition IV is denied. As to Proposition V, given Appellant's conduct in this case, the sentence recommended by the jury (less than what the prosecutor requested) was not shocking to the conscience, and the trial court's order that the sentence be served consecutively to Appellant's sentence in an unrelated case was not an abuse of discretion. *White*, 2019 OK CR 2, I 29, 437 P.3d at 1072. As to Proposition VI, because no error has been identified above, there can be no relief for cumulative error. *Engles v. State*, 2015 OK CR 17, I 13, 366 P.3d 311, 315. Proposition VI is denied. **DECISION** The Judgment and Sentence of the District Court of Muskogee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY THE HONORABLE MICHAEL NORMAN, DISTRICT JUDGE **ATTORNEYS AT TRIAL** DAN MEDLOCK MEDLOCK LAW 620 WEST BROADWAY MUSKOGEE, OK 74401 **COUNSEL FOR DEFENDANT** **ATTORNEYS ON APPEAL** LISBETH L. MCCARTY INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR APPELLANT** NALANI CHING ASST. DISTRICT ATTORNEY DISTRICT ATTORNEY'S OFFICE KEELEY L. MILLER ASST. ATTORNEY GENERAL 220 STATE STREET MUSKOGEE, OK 74401 **COUNSEL FOR THE STATE** **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-616_1735230080.pdf)

F-2018-36

Post author:Staff
Post published:September 26, 2019
Post category:F

In OCCA case No. F-2018-36, Robert Eugene Brewer appealed his conviction for Sexual Abuse of a Child Under 12. In a published decision, the court decided to affirm Brewer's conviction. One judge dissented. Brewer was tried in Tulsa County for sexually abusing a child under the age of 12. He was convicted by a jury and sentenced to seven years in prison. He was also ordered to serve three years of supervision after his prison term. Brewer appealed the decision, arguing that the trial court made a mistake by allowing evidence related to other crimes that he believed had not been proven. The court reviewed the evidence and arguments presented. The main issue was whether the trial court had the right to let in evidence that showed Brewer had a pattern of behavior related to sexual abuse. This type of evidence is sometimes called propensity evidence. Brewer argued that the trial court should have held a special hearing before allowing this evidence and should have required witnesses to testify in person. However, the court found that the trial judge had done a thorough job. The judge had held multiple hearings and considered the evidence carefully. The judge did not make a mistake by allowing the evidence because they had enough information to decide it was relevant and necessary for the case. Even though Brewer did not object to the evidence when it was presented during the trial, the court considered whether there was a serious mistake that affected the fairness of the trial. After reviewing everything, the court concluded that the trial judge acted correctly. In summary, the court believed that the evidence presented was acceptable and did not harm Brewer's case. Therefore, Brewer’s conviction was upheld, but the court also instructed the district court to make some corrections to its legal documents regarding the correct law that applied to Brewer's actions at the time of the crime. The decision was to keep Brewer's sentence in place while correcting the legal documentation properly.

F-2018-940

Post author:Staff
Post published:September 19, 2019
Post category:F

In the case of LeJeanna Sue Chronister v. State of Oklahoma, the Oklahoma Court of Criminal Appeals addressed several appeals raised by the appellant following her conviction for Aggravated Manufacture of a Controlled Substance (Methamphetamine) and her subsequent sentencing to twenty years in prison. The appellant raised three primary propositions of error: 1. **Violation of Rights Regarding the 85% Rule**: The appellant contended that her sentence was unconstitutional because she was not informed that the 85% Rule (requiring her to serve 85% of her sentence before becoming eligible for parole) applied to her case. The court concluded that this argument did not hold merit in a non-jury trial setting, stating that the judge, not a jury, was responsible for sentencing and presumed to know the law. The court found no plain error as the sentence was within the statutory range and was the minimum allowed. 2. **Ineffective Assistance of Counsel**: The appellant claimed her counsel was ineffective for not informing her about the 85% Rule, impacting her decision-making during her trial. The court applied the Strickland standard to evaluate the ineffectiveness claim, concluding that the appellant did not demonstrate how the alleged deficiency in counsel's performance prejudiced her case or altered the outcome. 3. **Cumulative Error**: The appellant argued that the combination of errors denied her a fair trial. The court determined that since none of the individual claims of error warranted relief, the cumulative error argument also lacked merit. Ultimately, the court affirmed the judgment and sentence imposed by the District Court of LeFlore County, stating that the appellant had not demonstrated any error that would necessitate modifying the sentence or overturning the conviction. The ruling emphasizes the distinction between non-jury trials and jury trials concerning informing defendants about parole-related laws and the importance of counsel's performance under the criteria established by the Strickland case.

F-2018-565

Post author:Staff
Post published:September 12, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** KIMBERLY ANN SMITH-GENTILE, Appellant, vs. THE STATE OF OKLAHOMA, Appellee. **No. F-2018-565** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 12 2019** **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Kimberly Ann Smith-Gentile, was convicted by a jury in Pottawatomie County District Court, Case No. CF-2017-342, of ten counts of Possessing Child Pornography. On May 31, 2018, the Honorable Dawson Engle, Associate District Judge, sentenced her in accordance with the jury's recommendation to ten years imprisonment on Counts 1-8 and twenty years imprisonment on Count 9, with all sentences to be served concurrently. Appellant must serve 85% of her sentences before parole consideration. 21 O.S.Supp.2015, § 13.1(16). Appellant raises two propositions of error in support of her appeal: **PROPOSITION I.** THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT Ms. GENTILE KNOWINGLY POSSESSED 10 IMAGES OR VIDEOS OF JUVENILE PORNOGRAPHY. **PROPOSITION II.** UNDER THE FACTS OF THIS CASE, A SENTENCE OF 20 YEARS IS EXCESSIVE IN VIOLATION OF THE UNITED STATES AND OKLAHOMA CONSTITUTIONS. After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm. Appellant was convicted of finding child pornography on a smartphone belonging to her boyfriend, Jaymes Dean, but failing to notify authorities, and instead keeping the phone in her possession for several weeks after Dean left town. The fact that the phone contained multiple files of child pornography was not disputed. In Proposition I, Appellant claims the evidence was insufficient to show that she knowingly possessed the child pornography, particularly ten different items of pornography. Once Dean left the phone behind and traveled out of state, Appellant, with knowledge that the phone contained pornographic material, had the authority to control its disposition. At trial, Appellant claimed she was simply unsure of what to do with the phone. The fact remains, however, that she knew it contained child pornography, viewed a number of the images, and even recognized the daughter of a friend in one of the images. Yet at no time did she attempt to notify authorities, even after a social worker informed her that Dean was a convicted sex offender. Instead, Appellant's conduct suggested that she wanted to use the evidence on her own schedule and for her own purposes. Furthermore, Appellant's claim that she only viewed one video file was convincingly contradicted at trial. A rational juror could conclude, beyond a reasonable doubt, that Appellant knowingly possessed ten items of child pornography. **Jackson v. Virginia**, 443 U.S. 307, 319 (1979); **Hamilton v. State**, 2016 OK CR 13, ¶ 4, 387 P.3d 903, 905. Proposition I is therefore denied. In Proposition II, Appellant claims her sentences are shockingly excessive. While the jury recommended the maximum term on one count, the prosecutor never requested a specific punishment, but expressly left that to the jurors' discretion. The trial court ordered concurrent service of all sentences. Finally, we note that the images in question were not simply collected from the internet or some other source; they were direct evidence of child rapes and other sex crimes that Dean himself had committed. Appellant recognized Dean as the adult perpetrator in some of the images. Considering all these circumstances, the cumulative sentences imposed are not shocking to the conscience. **Rea v. State**, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149. Proposition II is denied. **DECISION** The Judgment and Sentence of the District Court of Pottawatomie County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY** **THE HONORABLE DAWSON ENGLE, ASSOCIATE DISTRICT JUDGE** **ATTORNEYS AT TRIAL** SHELLEY LEVISAY 318 NORTH BROADWAY SHAWNEE, OK 74801 COUNSEL FOR DEFENDANT **ATTORNEYS ON APPEAL** NANCY WALKER-JOHNSON INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **APPELLEE** ABBY NATHAN DAVID HAMMER MIKE HUNTER ASST. DISTRICT ATTORNEYS 331 NORTH BROADWAY SHAWNEE, OK 74801 JOSHUA R. FANELLI ASST. ATTORNEY GENERAL COUNSEL FOR THE STATE 313 NE 21 ST STREET OKLAHOMA CITY, OK 73105 **OPINION BY KUEHN, V.P.J.** LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR --- [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-565_1735315294.pdf)

F-2018-892

Post author:Staff
Post published:September 5, 2019
Post category:F

**Court of Criminal Appeals of Oklahoma** **Case Summary:** **Case Name:** David Andrew Sanders, Appellant, v. The State of Oklahoma, Appellee **Case Number:** F-2018-892 **Date Filed:** September 5, 2019 --- **Background:** David Andrew Sanders appeals the acceleration of his deferred sentencing resulting from finding evidence that he committed new offenses while on probation. On April 29, 2016, in **Case No. CF-2012-2326**, Appellant entered no contest pleas to Burglary in the First Degree and Pointing a Firearm at Another. In **Case No. CF-2016-1178**, he entered a guilty plea for Larceny of Merchandise from a Retailer. His sentencing was deferred for ten years (Burglary), five years (Firearm charge), and 30 days (Larceny). All sentences were to run concurrently. On November 28, 2017, the State filed an Application to Accelerate the Deferred Sentence, alleging new offenses. At a hearing on August 21, 2018, the court found sufficient evidence of new offenses: possession of a firearm while on probation, possession of a controlled dangerous substance, and possession of drug paraphernalia. **Facts of the Case:** On May 6, 2017, police found Sanders unconscious in an idling car with a handgun in his lap. During the arrest, officers discovered a glass pipe and methamphetamine in the car's console. Sanders argued that this evidence was the product of an unlawful search. **Legal Findings:** The district court ruled that the exclusionary rule did not apply to the acceleration proceeding, which is not akin to a full trial. The court found no evidence of egregious police misconduct. According to Oklahoma law (Richardson v. State), exclusion of evidence is only warranted in revocation hearings where there has been egregious misconduct. **Conclusion:** The Court of Criminal Appeals affirmed the district court's decision, finding no abuse of discretion. The discovery of the firearm, glass pipe, and methamphetamine did not violate Sanders' rights given the context of the proceedings. **Decision:** The order of the district court accelerating Sanders’ deferred judgment and sentencing is AFFIRMED. --- **Counsel on Appeal:** - For Appellant: Micah Sielert and Andrea Digilo Miller - For Appellee: Tiffany Noble, Mike Hunter, Tessa L. Henry **Opinion by:** Presiding Judge Lewis **Concurrences:** Vice Presiding Judge Kuehn, Judge Lumpkin, Judge Hudson, Judge Rowland --- For more details, you may [download the full PDF here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-892_1735120506.pdf).

F-2018-322

Post author:Staff
Post published:August 29, 2019
Post category:F

In OCCA case No. F-2018-322, Juan Carlos Renovato-Juaregui appealed his conviction for assault and battery with intent to kill and domestic assault and battery resulting in great bodily harm. In an unpublished decision, the court decided to affirm the judgment and sentence. Judge Drummond merged the two counts into one, sentencing him to fifteen years in prison with credit for time served. The court found that the claims of ineffective assistance of counsel and prosecutorial misconduct did not require reversal of the conviction. No judges dissented.

F-2018-77

Post author:Staff
Post published:August 29, 2019
Post category:F

In OCCA case No. F-2018-77, Jose M. Diaz appealed his conviction for Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to affirm Diaz's conviction and sentence. One judge dissented. The case began when Diaz was tried by a jury in Tulsa County. The jury found him guilty of the crime and recommended he spend thirty years in prison. The trial was overseen by a district judge, who followed the jury's recommendation for sentencing. Three main points were raised by Diaz in his appeal. First, he argued that the court made a mistake by allowing certain testimony from victims' family members, which he believed unfairly impacted the jury's feelings about the case. Second, he claimed that the prosecutors made improper statements during their closing arguments that harmed his right to a fair trial. Lastly, he argued that the issues combined created a situation where he could not receive a fair trial. The court looked carefully at all the evidence from the trial and the records of the case. For the first point about the victim's family's testimony, the court decided that it was relevant to the case. It helped the jury understand the seriousness of the injuries suffered by the victim, which connected to the nature of the crime. The court found no mistake in allowing that testimony. In the second point about the prosecutor's comments during closing arguments, Diaz did not object to some of the comments during the first closing statement, which limited his ability to challenge them later. The court noted that most of what the prosecutor said was based on evidence presented during the trial. Although one comment about the victim not being able to have children was deemed inappropriate, the overall context did not make the trial unfair. For the last point on cumulative error, the court stated that there were no significant mistakes to consider together that would change the outcome of the trial. Ultimately, the court decided that Diaz received a fair trial and did not find any major errors in the way the trial was conducted. As a result, they upheld the original judgment and sentence given to him.

F-2018-39

Post author:Staff
Post published:August 15, 2019
Post category:F

In OCCA case No. F-2018-39, Robert Ephriam Smith appealed his conviction for two counts of Child Sexual Abuse. In an unpublished decision, the court decided to affirm the conviction and sentencing of life imprisonment on both counts, which were to run consecutively. One judge dissented. Robert Ephriam Smith was found guilty by a jury for abusing two children. The jury suggested that he should spend his life in prison for the acts he committed. The trial judge agreed and stated that Smith would serve his sentences one after the other. Smith raised several points in his appeal. He claimed that the instructions given to the jury were confusing. He believed they did not clearly explain what the jury needed to decide for his charges. He also said that evidence presented against him was unfair because it included things that weren't related to the case and might have made the jury feel negatively toward him. The judge's comments during the trial were also a point of concern for Smith. He thought the judge showed support for the young witnesses, which might have influenced the jury’s opinion unfairly. Moreover, he argued that notes from the forensic examiner and testimonies from his former step-daughter, who said he abused her when she was young, should not have been allowed as they added to the unfairness of the trial. Smith also argued that the way the prosecutor spoke during the trial was not appropriate and might have made it harder for him to get a fair trial. He thought that these methods used by the prosecutor could have led the jury to make a decision out of anger instead of focusing only on the facts. When it came to his lawyer, Smith claimed that his defense was weak and did not raise objections when they should have. He thought this lack of action harmed his case. However, the court decided that since no major errors were found in the trial, his lawyer’s performance could not be considered ineffective. In the end, the court found no grounds to change the original decision. They determined that the trial was fair despite Smith's complaints, and his life sentences would remain. The mandate for this decision was ordered to be issued immediately.

F-2018-945

Post author:Staff
Post published:August 8, 2019
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CASE SUMMARY:** **Appellant:** Carey James Buxton **Appellee:** The State of Oklahoma **Case Numbers:** CM-2014-358, CF-2014-578, CF-2017-5 **Opinion Date:** August 8, 2019 **Judge:** Lumpkin --- **BACKGROUND:** Carey James Buxton appealed the termination of his participation in the Drug Court program and the imposition of sentencing by the District Court of Kay County, presided by Judge David Bandy. Buxton had entered pleas of no contest to multiple charges, including drug possession and burglary, and was sentenced to a Drug Court program where successful completion would lead to dismissal of the charges. However, after the State filed applications for his removal from the Drug Court program due to non-compliance, a hearing was conducted on this matter. The judge ultimately decided to terminate Buxton from the program and impose the sentencing terms outlined in the plea agreement. --- **PROPOSITION OF ERROR:** Buxton asserts that the trial court abused its discretion in terminating him from the Drug Court program. --- **ANALYSIS:** 1. **Standard of Review:** The decision to revoke or terminate a Drug Court participant lies within the trial judge's discretion. An abuse of discretion is defined as a clearly erroneous conclusion. 2. **Contentions by Appellant:** - Buxton argues that the court did not assess whether disciplinary measures short of termination would suffice. - He also claims that removal for cheating on drug tests is against Drug Court laws. 3. **Court Findings:** - The court ruled that violations needed to be proven by a preponderance of the evidence. Buxton repeatedly violated the terms of his Drug Court contract despite receiving multiple jail sanctions. - The appellate court noted that termination was not an automatic consequence of drug test failures; the trial court considered all relevant factors before making its decision. 4. **Conclusion:** - The appellate court determined that the trial court’s decision was supported by the evidence and was not an abuse of discretion. Buxton's proposition of error was denied. --- **DECISION:** The order terminating Buxton from the Drug Court and proceeding with sentencing as per the plea agreement is **AFFIRMED**. The mandate is to be issued immediately following the filing of this decision. **APPEARANCES:** - **For Appellant:** Jarrod Stevenson and Jeremy Stillwell (Appellate Defense Counsel) - **For Appellee:** Brian Hermanson (District Attorney), Mike Hunter (Oklahoma Attorney General), Tessa L. Henry (Assistant Attorney General) --- **OPINION BY: LUMPKIN, J.** - **Concur:** Lewis, P.J.; Kuehn, V.P.J.; Hudson, J.; Rowland, J. --- For further details, the complete opinion is available in PDF format: [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-945_1734875235.pdf).

C-2018-679

Post author:Staff
Post published:July 25, 2019
Post category:C

It appears that you've shared a document detailing a legal opinion from the Oklahoma Court of Criminal Appeals denying a writ of certiorari for petitioner Jerry Ray Hawkins. He was appealing his convictions related to exhibiting obscene material to minors, procuring child pornography, and lewd acts, asserting that his guilty pleas were not made knowingly, that he did not receive conflict-free counsel, and that his sentence was excessive. Here’s a summary of the main points covered in the opinion: ### Case Overview: - **Petitioner**: Jerry Ray Hawkins - **Charges**: Multiple counts including Exhibiting Obscene Material to a Minor, Procuring Child Pornography, and Lewd Acts. - **Sentencing**: Total of twenty years for some charges and ten years for others, with certain counts running concurrently and others consecutively. ### Key Legal Issues Raised by Petitioner: 1. **Withdrawal of Guilty Pleas**: Hawkins argued he should be allowed to withdraw his pleas because they were not made knowingly or voluntarily, claiming that he was misled by his attorney regarding potential plea agreements. 2. **Ineffective Assistance of Counsel**: He claimed that the failure to appoint conflict-free counsel during the plea withdrawal hearing resulted in inadequate legal representation. 3. **Excessive Sentence**: He contended that the aggregate sentence was excessive for the charges he pleaded to. ### Court's Findings: - **Proposition I (Withdrawal of Pleas)**: The court found that Hawkins had waived his right to argue that his pleas were not knowing and voluntary by failing to raise it during his motion to withdraw. Therefore, this claim was denied. - **Proposition II (Ineffective Assistance of Counsel)**: The court concluded that there was no actual conflict of interest that adversely affected counsel's performance, as Hawkins did not accuse his plea counsel of misconduct. Therefore, this claim was also denied. - **Proposition III (Excessive Sentence)**: The court noted that Hawkins similarly failed to raise this issue during the appropriate proceedings, resulting in a waiver of his excessive sentence claim. ### Conclusion: The court affirmed the judgment and sentence of the district court, concluding that no legal grounds existed to warrant relief. #### Final Notes: Petitioner’s appeals were denied on all fronts, with the court emphasizing the need for claims to be preserved at the trial level to be considered on appeal. If you have any specific questions or need further analysis regarding this case or related legal concepts, feel free to ask!

F-2018-43

Post author:Staff
Post published:July 25, 2019
Post category:F

In OCCA case No. F-2018-43, the appellant appealed his conviction for possession of a firearm after a felony conviction and falsely personating another to create liability. In an unpublished decision, the court decided to affirm his conviction and sentence. One judge dissented. The appellant, Anthony Paul Ornder, was found guilty by a jury in the Washington County District Court of two counts of possession of a firearm after a prior felony conviction and one count of falsely impersonating another. The jury recommended a total sentence of forty years for each firearm count and forty-five years for the impersonation count, all to be served at the same time. Ornder raised several arguments on appeal. He claimed that the state did not have enough evidence to prove he possessed the firearm or to show that he gained any benefit from using a false identity. He also argued that his lawyer did not represent him properly, which hurt his chances of a good defense, and asked the court to reduce his sentence because it was too harsh. The court looked carefully at the whole case, including evidence, witness testimonies, and records. They found that there was enough evidence for a reasonable person to conclude that he was guilty. They explained that the law allows both direct and indirect evidence to support charges. The court determined that the claims about ineffective help from his lawyer were not strong enough because they were based on guesses without solid evidence. Lastly, regarding the length of the sentence, the court concluded that it did not seem overly severe given his past criminal record and the nature of his actions during the incident. They affirmed his judgment and sentence, meaning they agreed with the original decision without changes.

F-2017-1232

Post author:Staff
Post published:July 18, 2019
Post category:F

In OCCA case No. F-2017-1232, Adrian Luis Walker appealed his conviction for second-degree murder and robbery by two or more persons. In an unpublished decision, the court decided to reverse the conviction on the robbery charge because it violated the law against being punished for the same crime more than once. The court affirmed the other parts of the sentence. One judge dissented.

F-2017-1127

Post author:Staff
Post published:July 18, 2019
Post category:F

In OCCA case No. F-2017-1127, Jones appealed his conviction for robbery, kidnapping, and possession of a firearm after a previous felony. In an unpublished decision, the court decided to affirm the judgment and sentence. One judge dissented. Jones was found guilty of robbing someone with a dangerous weapon, kidnapping, and having a gun after a felony conviction. He was sentenced to serve many years in prison for these crimes. Jones argued several points in his appeal. He believed it was wrong for him to stand trial for the gun possession charge when the earlier ruling had dismissed that part of his case. The court found that the process used to bring that charge back was okay. Jones also thought that statements he made after being arrested should not have been allowed in trial because he was scared and did not have a lawyer present. However, since he did not say this during the trial, the court looked at it carefully but decided it did not affect the trial in a serious way. Jones requested a special instruction for the jury about flight, meaning that if someone runs away from a situation, it might mean they are guilty. The court denied this request because Jones denied being at the crime scene, so the flight instruction was not needed. Finally, Jones claimed that the prosecutor acted unfairly during the closing arguments. The court concluded that while some comments might not have been ideal, they did not make the trial unfair. All in all, Jones's appeal did not lead to a change in his conviction or sentence.

C-2018-834

Post author:Staff
Post published:June 27, 2019
Post category:C

**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** FILED JUN 27 2019 **Case No. C-2018-834** **TAMMERA RACHELLE BAKER,** Petitioner, vs. **THE STATE OF OKLAHOMA,** Respondent. --- **SUMMARY OPINION DENYING CERTIORARI** LEWIS, PRESIDING JUDGE: Tammera Rachelle Baker, Petitioner, entered a blind plea of guilty to first degree manslaughter, in violation of 21 O.S.2011, § 711, in the District Court of Delaware County, Case No. CF-2017-157. The Honorable Robert G. Haney, District Judge, found Petitioner guilty. The Honorable Barry V. Denny, Associate District Judge, later sentenced Appellant to thirty (30) years imprisonment, with ten (10) years suspended, and a $1,000.00 fine. Petitioner filed an application to withdraw the plea, which was denied. She now seeks a writ of certiorari in the following propositions of error: 1. The plea was not knowingly and intelligently entered into as Petitioner believed the court would not impose more than ten years and relied on misinformation from her attorney regarding witness testimony. 2. Petitioner received ineffective assistance of counsel during her plea proceedings. 3. The sentence imposed post-plea is shockingly excessive due to improper victim impact statements. Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a competent jurisdiction, whether the sentence is excessive, whether counsel was constitutionally effective, and whether the State has the power to prosecute. The Court will not review issues not raised in the motion to withdraw the guilty plea. The trial court's ruling on a motion to withdraw a plea is reviewed for an abuse of discretion unless it involves statutory or constitutional interpretation, which is reviewed de novo. **Proposition One**: Petitioner argues her plea was involuntary due to reliance on her attorney's misinformation regarding sentencing expectations. The record refutes this argument, indicating that the plea was voluntary; therefore, no relief is warranted. **Proposition Two**: Petitioner alleges ineffective assistance of counsel and requests an evidentiary hearing. Claims are assessed under the Strickland v. Washington test. Petitioner has not shown clear evidence to support a finding of ineffective assistance, thus this proposition and the request for a hearing are denied. **Proposition Three**: Petitioner claims her sentence is excessive. The Court will only disturb a sentence within statutory limits if it shocks the conscience. The facts of this case do not meet that threshold, so no relief is warranted. **DECISION**: The petition for the writ of certiorari is DENIED. The Judgment and Sentence is AFFIRMED. The MANDATE is ORDERED issued upon the delivery and filing of this decision. --- **APPEARANCES:** **TRIAL** Lee Griffin, Attorney for Appellant Kathy Baker, Attorney for Withdrawal **APPEAL** Katrina Conrad-Legler, Attorney for Appellant Nicholas P. Lelecas, Assistant District Attorney for the State **OPINION BY**: LEWIS, P.J. KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur --- For full ruling, [click here to download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-834_1734180202.pdf).

J-2019-2

Post author:Staff
Post published:June 20, 2019
Post category:J

This document is a summary of a court case from the Oklahoma Court of Criminal Appeals involving an appeal by B.J.H., a youthful offender, contesting an order that allowed the State of Oklahoma to sentence him as an adult. The case centered around multiple charges, including Assault With a Deadly Weapon, and the court's decision on whether the public would be adequately protected if the appellant were sentenced as a youthful offender. **Key Points:** 1. **Background**: B.J.H. was charged as a youthful offender at the age of 16 for multiple violent offenses. The State filed a motion to sentence him as an adult under Oklahoma law. 2. **Court Proceedings**: Hearings were held to review the motion, where evidence included testimonies and psychological evaluations. The presiding judge, David A. Stephens, granted the State's motion based on findings that the public would not be adequately protected if B.J.H. were sentenced as a youthful offender. 3. **Appellant's Claims**: B.J.H. appealed the decision on four grounds, including claims of abuse of discretion regarding public safety findings, denial of due process, procedural issues related to preliminary hearings, and lack of service notice to his guardians. 4. **Court's Ruling**: The court affirmed the lower court's decision, finding no abuse of discretion or merit in B.J.H.'s claims. The ruling stated that the evidence supported the conclusion regarding public safety. 5. **Dissenting Opinion**: Presiding Judge Lewis dissented, arguing that the overwhelming evidence presented at the hearing indicated that the public would be adequately protected if B.J.H. were sentenced as a youthful offender. He highlighted that the majority’s ruling contradicted the facts presented during the hearings. Overall, the Oklahoma Court of Criminal Appeals upheld the decision to sentence B.J.H. as an adult despite disagreements on the interpretation of evidence and procedural fairness.

F-2018-158

Post author:Staff
Post published:June 20, 2019
Post category:F

In OCCA case No. F-2018-158, Nathan Simmons appealed his conviction for accessory to first degree murder and robbery with a dangerous weapon. In a published decision, the court decided to affirm the judgment and sentence. One judge dissented. Nathan Simmons was found guilty after a jury trial held in Tulsa County. He was charged with being an accessory to first degree murder, which means he helped someone commit that crime, and for robbery with a dangerous weapon, which means he was involved in taking something with a weapon. The jury gave him a tough sentence: 36 years for being an accessory, 10 years for the first robbery, and 17 years for the second robbery. All the sentences were to be served one after the other. Simmons had two main arguments for his appeal. First, he said that the prosecutor made a mistake during the closing argument that took away his chance for a fair trial. He believed the prosecutor suggested that he would not serve the full amount of time for his first conviction and this made the jury decide to give him longer sentences. However, the court found that there was no significant error in what the prosecutor said during the trial that would change the outcome. Second, Simmons claimed that his lawyer did not do a good job because they did not object to what the prosecutor said. The court reviewed this claim carefully. Using a standard that looks at whether the lawyer's actions were truly wrong and if they affected the trial’s outcome, the court decided that Simmons did not have a strong case. Ultimately, the court kept the original sentence and decision made by the jury.

F-2017-710

Post author:Staff
Post published:June 13, 2019
Post category:F

In OCCA case No. F-2017-710, Alex Moore appealed his conviction for Murder in the First Degree. In a published decision, the court decided to affirm his conviction. One judge dissented. Alex Moore was accused of killing his cellmate, Todd Bush, in a prison. On the evening of March 6, 2014, while they were locked in their cell, an officer checked on them but did not enter the cell. Later, another officer found Moore with Bush on the floor and called for medical help. Despite efforts from medical staff, Bush was pronounced dead at the hospital. Moore claimed Bush had fallen while drinking, but the investigation revealed signs of a struggle and injuries that suggested he had been attacked. The medical examiner determined that Bush died from strangulation and that the injuries were not consistent with a fall. During the trial, the prosecution introduced evidence of Moore's previous assaults on other inmates as part of their case, arguing that these incidents showed he had a pattern of violent behavior. The defense argued that Bush's death could have been accidental. The trial court allowed photographs of the victim's injuries to be presented as evidence, despite Moore's objection that they were too gruesome. The court ruled that these images were relevant to the evidence and helped to prove how Bush died. Moore also raised concerns about the prosecution's statements during jury selection and whether he had been informed of his right to testify. The court ruled that the prosecutor's comments were within proper bounds and that there was no requirement for a formal acknowledgment of Moore's right to testify. Overall, the appeals court found no legal errors significant enough to reverse the trial court's decision, affirming Moore's conviction for murder.

F-2017-68

Post author:Staff
Post published:May 30, 2019
Post category:F

This text appears to be a legal opinion from the Court of Criminal Appeals of the State of Oklahoma regarding the case of Jonathan D. McKee, who was convicted of Child Abuse. The judgment affirms the conviction and address various propositions raised by the appellant concerning the conviction and the trial process. The summary of the opinion includes analysis of the following propositions: 1. **Sufficiency of Evidence**: The court concluded that there was sufficient evidence for a rational juror to convict McKee of child abuse based on medical expert testimony. 2. **Evidentiary Rulings**: The court reviewed multiple evidentiary rulings that McKee argued were erroneous. They concluded that while McKee's refusal to speak with authorities could raise Fifth Amendment concerns, it did not constitute plain error affecting the trial’s outcome. Additionally, evidence concerning drug paraphernalia was found relevant to the case. 3. **Judicial Bias**: Appellant’s claim of judicial bias was rejected as the court found no evidence of actual bias or any violations affecting due process. 4. **Cumulative Error**: The court stated that because none of the individual propositions were sustained, the cumulative error argument had no merit. The opinion also includes concurring opinions from Judges Kuehn and Rowland. Judge Kuehn expressed some reservations about the relevance of mentions of a request for legal counsel, while Judge Rowland emphasized that McKee's conduct and refusal to speak were relevant in assessing guilty knowledge, even though they did not implicate any constitutional violations. The final decision affirmed the judgment and sentence, with the court ordering the mandate issued upon delivery and filing of this decision. For further details, one may refer to the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2017-68_1734271673.pdf).

PC 2017-755

Post author:Staff
Post published:May 24, 2019
Post category:PC

In OCCA case No. PC 2017-755, the petitioner appealed his conviction for First Degree Murder. In a published decision, the court decided to vacate the previous sentence and allow for resentencing with a jury. The dissenting opinions argued against the majority decision, indicating that the judge had the discretion to deny jury resentencing based on prior waivers. The case started when the petitioner was just seventeen years old and pleaded guilty to First Degree Murder in 2006. Originally, he was sentenced to life in prison without the chance for parole. After some time, he claimed that this sentence was unfair because he was a minor when he was sentenced. The court agreed and decided to let him be resentenced but had to deal with the issue of whether his resentencing should involve a jury. The petitioner argued that since he was seeking resentencing, he should be allowed a jury trial. However, the state disagreed, pointing out that he had waived his right to a jury trial when he originally pleaded guilty. The judge decided that because of this waiver, he didn’t have to give the petitioner a jury for resentencing. In this case, the court looked at previous decisions that said when a juvenile is sentenced to life without parole, they should have a jury trial unless they give up that right. The majority of the court found that the petitioner did not truly waive his right to a jury for the resentencing, as he was relying on new rules from recent important cases. Ultimately, the court decided that it was wrong for the judge to deny the jury resentencing. They chose to vacate that decision and said the case should go back to the lower court to figure out the right way to do the resentencing, with the ability to include a jury if the petitioner asked. The dissenting opinions argued that the judge had actually acted correctly by denying the request for a jury because the petitioner had already waived that right back when he pleaded guilty. They believed that the rules shouldn’t allow a person to change their mind long after the original decision. The court ordered that the petitioner’s guilty plea and conviction were still valid, but they needed to follow the correct process under the law for the new sentencing.

C-2017-1036

Post author:Staff
Post published:May 23, 2019
Post category:C

**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MAY 23, 2019** **DANA MECHELE LANGLEY,** Petitioner, vs. **THE STATE OF OKLAHOMA,** Respondent. **Case No. C-2017-1036** **SUMMARY OPINION DENYING CERTIORARI** **HUDSON, JUDGE:** Petitioner Dana Mechele Langley was charged in the Tulsa County District Court with multiple counts, including **Lewd Molestation**, **Enabling Child Sexual Abuse**, and **Child Sexual Abuse**. Langley entered a blind plea of guilty to these charges on June 19, 2017. Following a hearing, Judge Sharon K. Holmes sentenced her to significant prison terms. On September 6, 2017, Langley, through her counsel, filed an application to withdraw her guilty plea, which led to the appointment of conflict counsel. After a hearing, her request was denied. Langley then sought a writ of certiorari, raising three propositions of error: 1. The trial court's denial of the motion to withdraw her guilty plea was plain error and an abuse of discretion due to an inadequate factual basis. 2. Denial of effective assistance of counsel during both the plea hearing and the plea withdrawal hearing. 3. The sentences imposed were excessive given the circumstances. **DECISION:** After reviewing the complete record, including transcripts and exhibits, the Court found no grounds for relief. **Proposition I:** The claim regarding the factual basis for the lewd molestation counts was not raised at the withdrawal hearing; thus, it was procedurally defective and not properly before the Court. **Proposition II:** The ineffective assistance claim was similarly waived as it was not included in her motion to withdraw. Furthermore, the Court found sufficient evidence supporting the factual basis of her pleas, dismissing claims about the inadequacy of representation. **Proposition III:** The sentences were consistent with statutory ranges and did not shock the conscience of the Court. **CONCLUSION:** The Petition for Writ of Certiorari is **DENIED**, and the judgment and sentence from the district court are **AFFIRMED**. **Pursuant to Rule 3.15, RULES OF THE OKLAHOMA COURT OF CRIMINAL APPEALS, the MANDATE is ORDERED issued upon delivery and filing of this decision.** --- **Click Here To Download PDF** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2017-1036-1_1733900854.pdf)

RE-2017-1128

Post author:Staff
Post published:May 16, 2019
Post category:RE

**OKLAHOMA COURT OF CRIMINAL APPEALS** **Case No. RE-2017-1128** **Elizabeth Kay Sears, Appellant,** **v.** **The State of Oklahoma, Appellee.** **FILED: MAY 16, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** **¶1** This matter is an appeal from the revocation of Appellant Elizabeth Kay Sears' suspended sentence in Logan County District Court Case No. CF-2013-295, presided over by the Honorable Louis A. Duel, Associate District Judge. **¶2** On January 14, 2014, Appellant entered a plea of guilty to two counts of Child Neglect (21 O.S.2011, § 843.5(C)) and one count of Harboring a Fugitive (21 O.S.2011, § 440). She was sentenced to eight years imprisonment for each count, with the first three years of each sentence to be served, while the remaining years were suspended. On October 3, 2014, the District Judge modified Appellant's sentence to five years imprisonment for each count, all suspended, to be served concurrently. **¶3** The State filed a 2nd Amended Motion to Revoke Suspended Sentence on December 29, 2016, citing several probation violations, including new charges of Second Degree Burglary and Possession of Paraphernalia, arising from Logan County District Court Case No. CF-2016-404. **¶4** Appellant was arraigned on January 26, 2017, entered a plea of not guilty, and subsequently requested a continuance for her revocation hearing, which was ultimately heard on October 25, 2017. The court revoked Appellant's five-year suspended sentences in full after considering the evidence and arguments presented. **¶5** In her first proposition of error, Appellant contends that the revocation order should be reversed and dismissed. She argues that there was no valid waiver of the required twenty-day hearing period following her plea of not guilty, as stipulated in 22 O.S.Supp.2016, § 991b(A). She maintains that the record does not sufficiently show she was informed of this requirement; thus, the motion to revoke should be dismissed. **¶6** However, Appellant's request for a continuance of her revocation hearing undermines her argument. The legal precedent established in *Grimes v. State*, 2011 OK CR 16, clearly states that a defendant who acquiesces in or seeks a continuance cannot later claim entitlement to relief based on noncompliance with the twenty-day requirement. Moreover, Appellant does not claim ineffective assistance of counsel regarding this issue, and it is presumed that her attorney acted competently. **¶7** In her second proposition of error, Appellant seeks clarification of the trial court's revocation order, specifically, concerning the credit for time served. Although the State acknowledges a potential misstatement by the trial court about the duration of time credited, Appellant did not raise this issue for correction in the trial court before bringing it to this Court. Typically, we do not intervene without a preliminary determination by the District Court. **¶8** However, we will modify the procedural requirement that previously necessitated an appellant to file a separate motion to address this issue. In the absence of clear clerical error, we remand this matter back to the District Court of Logan County to allow Appellant to seek an order nunc pro tunc regarding the time served, as outlined in her second proposition of error. **DECISION** The revocation of Appellant's suspended sentence in Logan County District Court Case No. CF-2013-295 is AFFIRMED. This case is REMANDED for proceedings consistent with this opinion. A mandate will be issued following the filing of this decision. **APPEARANCES** **Counsel for Defendant:** Lisbeth L. McCarty, Oklahoma City, OK **Counsel for Appellant:** Lane Fitz, Norman, OK **Counsel for State:** Emily Kirkpatrick, Asst. District Attorney, Guthrie, OK **Counsel for Appellee:** Mike Hunter, Oklahoma Attorney General, Oklahoma City, OK **OPINION BY:** KUEHN, V.P.J. **CONCUR:** LEWIS, P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2017-1128_1734708375.pdf)

F-2018-339

Post author:Staff
Post published:May 16, 2019
Post category:F

In OCCA case No. F-2018-339, Gary Julian Gallardo, Jr., appealed his conviction for Trafficking in Illegal Drugs (Methamphetamine) and Conspiracy to Commit Trafficking. In an unpublished decision, the court decided to affirm the judgment and sentence. One member of the court dissented. Gary Gallardo was found guilty of two serious crimes related to drugs. This happened in Jackson County. The jury decided to give him a very long sentence of 40 years in prison for each crime, and these sentences would happen one after the other. When Gallardo appealed, he pointed out a few reasons he believed he should not have been convicted. First, he claimed that the court did not have the right to try him in Jackson County because he believed the crime happened somewhere else. However, the court explained that the issue was actually about where the trial should be held, not whether the court had the power to judge the case. Next, Gallardo said there wasn't enough evidence to prove he was involved in the drug trafficking. The court disagreed after looking at all the evidence and decided that it was enough to show he was part of the crime, even though he was in prison at the time. Gallardo also thought that his trial wasn’t fair because the jury heard about other bad things he had done. The court said this evidence was important to understand his ability to carry out the crime in question. He raised concerns about the way the prosecutors behaved in court, but the court found that their actions did not make the trial unfair or wrong. Gallardo argued that the long sentences he received were too harsh but the court affirmed that his punishments were right given his previous criminal record. Lastly, Gallardo claimed that all the errors during the trial together made it unfair. The court stated that because they didn’t find any actual errors in the trial, there was no unfairness. In summary, the court upheld Gallardo's conviction and sentence, stating there was sufficient evidence, no unfair trial conditions, and that the sentences were appropriate based on his prior convictions.

F-2018-202

Post author:Staff
Post published:May 16, 2019
Post category:F

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.

F-2018-167

Post author:Staff
Post published:May 16, 2019
Post category:F

In OCCA case No. F-2018-167, Roland G. Torgerson, Jr. appealed his conviction for Knowingly Concealing Stolen Property. In an unpublished decision, the court decided to affirm the acceleration of his deferred judgment and sentencing. One member of the court dissented. The case began when Torgerson entered a plea of nolo contendere (no contest) in 2015 for concealing stolen property. His sentencing was delayed for three years, during which time he was required to make payments for restitution and district attorney fees. However, he failed to make these payments, leading the State to request that his deferred judgment be accelerated. Torgerson admitted he had not made the payments and asked for more time to do so several times. His illness and difficulty finding work made it hard for him to pay. At the hearing, he stated that he was trying to get Social Security to help his financial situation. Despite his claims, the judge decided he had not done enough to show he was unable to make the payments, and therefore, he was sentenced to a five-year suspended sentence. Torgerson raised two main arguments in his appeal. First, he claimed the court was wrong to accelerate his sentence based on his failure to pay, stating that doing so violated his constitutional rights. Second, he argued that the five-year suspended sentence was too harsh. However, the court found that Torgerson had not proven he could not pay and ruled that the judge exercised proper discretion in his decision. Ultimately, the court affirmed the decision to accelerate Torgerson's sentencing, while one judge dissented and expressed concern that the failure to pay was more about his financial situation than a willful disregard of the court's orders.