Yearly Archives: 2018

OCDW 04.23.18


www.ocdw.com

04.23.18

James L. Hankins, Publisher

 

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

 

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

 

No. 39: LATIMER COUNTY: Located in the southeastern part of the state, the county seat is Wilburton. The county is named for James L. Latimer, a delegate from Wilburton to the 1906 state Constitutional Convention. I cannot recall ever being in the county, much less representing a client there, which brings my county total to 21 out of 39.

 

OKLAHOMA

 

Katherine Renee Morales v. State, No. F-2016-1178 (Okl.Cr., April 19, 2018) (unpublished): Evidence (Aggravation of Punishment); After Formers (Enhancement): Morales was convicted by jury in Blaine County (the Hon. Paul K. Woodward, presiding) of Trafficking (Meth) AFCF x 2 and other drug counts. The Court found error (conceded by the State) in the State’s introduction of aggravation evidence during the second stage, holding that such evidence in aggravation of punishment is limited to the fact of the prior convictions. Although it did not help Morales in this case (no objection and plain error review), it is handy to remember this and to object at trial when the State seeks to introduce evidence of damage to the community or other evidence outside of the fact of the prior convictions.

Gerald Albert Snider v. State, No. F-2017-620 (Okl.Cr., April 19, 2018) (unpublished): Jurors (Crime Scene View): Snider was convicted by jury in Tulsa County (the Hon. William J. Musseman, presiding) of Rape in the First Degree. On appeal, he raised a single claim of error regarding denial of his motion for the jury to visit the crime scene (inside a home where the vantage point of a witness was at issue) pursuant to 22 O.S. 851. In this opinion, the Court denied the claim, but I included it because this issue is not litigated frequently and it cites some of the case authority on this issue.

Jennifer Michelle Jennings v. State, No. C-2018-256 (Okl.Cr., April 18, 2018) (unpublished): Jurisdiction (Appellate); Sentence Modification: Jennings was denied a sentence modification under 22 O.S. 982a in Tulsa County, and she tried to appeal. In this Order, the Court reminded us that such sentence modifications are not appealable.

 

TENTH CIRCUIT

 

United States v. Shawn J. Gieswein, Nos. 16-6366 & 17-6044 (10th Cir., April 16, 2018) (Published) (Lucero, Matheson & McHugh) (W.D. Okla., Hon. Stephen P. Friot): Federal Sentencing Guidelines (Forcible Sex Offense): District court erred in applying a circumstance-specific approach to determine whether a prior conviction for lewd molestation qualified as a “forcible sex offense” and therefore a “crime of violence” for sentencing purposes; however, the error was harmless. The Circuit’s categorical approach is still valid, thus because the Oklahoma statute includes conduct that would not qualify, his conviction should not have been treated as a crime of violence.

United States v. John Parker Murphy, No. 17-8010 (10th Cir., April 17, 2018) (Published) (Matheson, Kelly & Bacharach): Federal Sentencing Guidelines (Crime of Violence): The district court dismissed Murphy’s second 2255 motion in light of Johnson, and the panel affirmed because Murphy was sentenced under the ACCA’s enumerated offense clause, not the residual clause that was held vague in Johnson.

United States v. Ryan Jacob Howard, No. 17-6125 (10th Cir., April 17, 2018) (Published) (Tymkovich, C.J., Murphy & McHugh) (W.D. Okla., Hon. Robin J. Cauthron): Restitution: In this case involving a guilty plea to transportation of stolen property, the district court used the replacement cost as the restitution value and determined that the value of the returned property was zero. The panel found no error and affirmed.

United States v. Magdiel Sanchez-Urias, No. 17-1166 (10th Cir., April 17, 2018) (Published) (Hartz, Seymour & Phillips): Indigents; Fines: Illegal re-entry case where the sentence included a $1,000.00 fine which the defendant asserted that he could not pay. The panel affirmed, holding that the defendant bore the burden of showing that he lacked the assets to pay the fine, and that he refused to provide the information necessary to support his claim.

United States v. Trayon L. Williams, No. 17-3071 (10th Cir., April 20, 2018) (Published) (Briscoe, Kelly & Bacharach): Federal Sentencing Guidelines (Crime of Violence): A prior conviction for aggravated battery under Kansas law is a crime of violence under the Guidelines.

 

UNITED STATES SUPREME COURT

 

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

 

Marion Wilson v. Eric Sellers, Warden, No. 16-6855 (U.S., April 17, 2018): Habeas Corpus (General): This case deals with a technical aspect of habeas cases where federal courts must give deference to state court decisions, but what happens when the last state court decision is a summary one-word affirmance? In these situations, most circuits have held the federal court must “look through” this summary decision to the last reasoned decision of the state court. The lone holdout was the Eleventh Circuit, which was reversed in this opinion which holds that the “look through” procedure provides a rebuttal presumption that the summary affirmance rested on the last reasoned decision of the state court.

 

OTHER CASES OF NOTE

 

United States v. Haten Ataya, M.D., No. 16-2611 (6th Cir., March 2, 2018): Guilty Pleas; Waiver (Appeals Waiver): Guilty plea in conspiracy case is vacated because the district court failed to comply with several aspects of Rule11, which also invalidated the waiver of appellate rights.

United States v. Ronald Bergrin, No. 16-4240 (6th Cir., March 14, 2018): Jurisdiction (Appellate): Bergrin was charged with threatening a federal officer, but the district court dismissed the case after finding Bergrin incompetent to stand trial. Bergrin sought to appeal. This caused a quandary because the accused was trying to appeal a dismissal of the case. The panel held that since the district court found him incompetent to stand trial, he could appeal that decision; but the panel affirmed on the merits.

Danny Hill v. Carl Anderson, Warden, Nos. 99-4317/14-3718 (6th Cir., February 2, 2018): Death Penalty (MR): Capital habeas case winner where the state courts applied unreasonably SCOTUS precedent regarding intellectual disability.

 

VICTORIES

 

None noted.

 

HEARSAY

 

CONTRABAND: A former inmate at the Oklahoma County Jail has discussed witnessing former detention officer’s alleged contraband ring.

CONTRABAND II: Correctional officers found more than 60 grams of meth in a prison cell at OSR.

DNA: Interesting article discusses problems with “touch DNA.”

NEW OFFICERS: OKC PD has 26 new police officers.

A.G. SUBPOENA: Oklahoma Attorney General Mike Hunter will face the Election Board on Monday to defend his residency under the Oklahoma Constitution which requires 10-years of citizenship.

MURPHY FALLOUT: Lighthorse police (Muscogee (Creek) Nation) are gearing up for ramifications of the Murphy decision. The Tenth Circuit has held that the Indian Reservation boundaries are still in force, and that the State does not have jurisdiction over crimes committed on those lands that involve Indians as the perpetrator. The U.S. and the State has sought certiorari in SCOTUS which is still pending.

OSAGE COUNTY: County Commissioners are considering the utility of an annex at Skiatook; also, the Osage County Jail has implemented a video-conferencing system.

OKMULGEE COUNTY: Officials in Okmulgee County are considering changes and additions to courthouse security.

NITROGEN EXECUTIONS: Oklahoma has endorsed executions by using nitrogen, but some medical experts are skeptical.

SEEKING REELECTION: District Judge Kory Kirkland (Grady & Caddo Counties) is seeking re-election.

RETIRING: The Ponca City Police Chaplain, Larry Harris, has retired after 30+ years of service.

COURTROOM CAMERA?: The Oklahoman is requesting cameras in the courtroom of the Hon. Thad Balkman (Cleveland County) in an opioid trial brought by the State against pharmaceutical companies.

ARRESTED: An Oklahoma County Detention Officer has been arrested for smuggling tobacco into the jail.

ARRESTED II: A contractor with the Canadian County Drug Court to collect urine samples has been charged with five counts of sexual battery.

ARRESTED III: An Oklahoma City Police Officer has been arrested for child sex crimes.

ARRESTED IV: Norman attorney Duane Shiffler Croft has been charged with domestic abuse.

DOC: A “supervised release program” implemented by DOC last September, of which about 1,400 inmates qualified, only 7 have actually been released.

SEATBELTS: The City of Norman has begun a 15-month seatbelt enforcement program.

NGRI: Christian Costello, who murdered his father, Labor Commissioner Mark Costello in 2015, has been found not guilty by reason of insanity by agreement.

CELL PHONES: Cell phones are an especially massive problem in prison.

DENIED: The bid by Jerome Ersland for a commutation was denied.

INMATE DEATH: An inmate has died at the Oklahoma County Jail.

SEX OFFENDERS: Gov. Fallin has signed a bill prohibiting sex offenders from living hear their victims.

RUNNING: Attorney Allan Grubb has filed as a Republican for District Attorney for District 23 (Lincoln and Pottawatomie Counties).

RUNNING II: Leon Sugg is running for Cleveland County Sheriff.

 

WACKY CRIME

IRONY: Two firefighters in Washington County have been charged with…starting fires.

HATES MAIL: A Broken Arrow man has been accused of driving into mailboxes.

DUBIOUS BUSINESS MODEL: A truck wash business in Rogers County dealt in stolen items and paid employees in drugs.

BAD KARMA: Thieves have been syphoning gas…from Salvation Army trucks.

IT’S ALL GOOD: A meth user in Stillwater shot his fellow meth user…but was kind enough to drive the fellow to the hospital.

OUCH!: A woman in Oklahoma City is in jail on a murder complaint…accused of throwing rocks at a house, which killed her boyfriend’s father.

 

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

COPYRIGHT STATEMENT & DISCLAIMER: ©2005-2018 by James L. Hankins. All rights reserved. OCDW hereby grants free use of these materials for any non-commercial purpose provided that proper credit to the OCDW is given. In the event that copyrighted works are included in an edition of the OCDW such works may not be reproduced without the consent of the copyright holder because under federal law the OCDW has no authority to allow the reproduction of the intellectual property of others. For purposes that go beyond “fair use” of the copyrighted material under federal law, the permission of the copyright holder must be obtained. If you are a copyright holder and object to any portion of an issue of the OCDW, please contact the publisher, James L. Hankins, at the contact information above (located under the SUBSCRIPTIONS AND SUBMISSIONS section). Finally, the materials presented in this newsletter are for informational purposes only, and are not, nor intended to be, legal advice or to create an attorney-client relationship. You should consult an experienced attorney licensed in your jurisdiction for legal advice applicable to the specific facts of your case. Cases are summarized in each weekly issue as they are issued and filed by the respective court, and are thus subject to being withdrawn, corrected, vacated, and/or modified or reversed without notice. Always conduct your own research!

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