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JOSH T. WELCH,
02.06, Ogle & Welch, OKC, also got some painless relief for his client via a Motion to Dismiss on the basis of VINDICTIVE PROSECUTION(!), in Oklahoma County no less. Some background is necessary to appreciate this win. Client was Indicted in state court on 71 Counts in a complex Tax Commission case, including a RICO count and a conspiracy count. A plea deal is worked in which the A.G. dismissed 70 Counts and client plead to the conspiracy count and got ten years. Ten months into this sentence, Josh files a Motion to Modify before Judge Tammy Bass-Jones (a one year review) arguing that client needs some drug treatment that he is not getting while incarcerated. T-Bass grants the motion and modifies the sentence one and half years in and eight and half years out which essentially sets client free when given credit for time served (this was done to get client into private treatment facility). A.G. is incensed at this turn of events and subsequently drafts and files a 26-Count Information alleging crimes which were technically different from those in the original 71 Count Indictment but which were known to the A.G. all the while. The Assistant made statements to the media essentially admitting that the reason for filing the Information was because Client had asked for, and received, the sentence modification. The A.G.'s theory was that Client had breached his plea agreement by trying to serve less than the 10 years. T-Bass did not buy it and dismissed with prejudice on the basis of vindictive prosecution since there was no provision in the plea agreement that Client waived his right to seek a one-year review. Essentially, the State did not deny that the new case was in retaliation for the modification; and the Court held that State could not punish Client for exercising a legal right to which he was entitled (which is supported by many cases). Very nice win here for Josh. The State gave notice of intent to appeal, but whether it will go through with remains to be seen. NOTE: The A.G. will most likely require a waiver of the right to seek a one year review in future plea agreements. The Court took into account that the Oklahoma County D.A.'s Office makes waiver of such reviews part of the plea agreement and the A.G. did not do so in Josh's case.
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