OCDW 05.18.15



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).




Joey Lynn Smith v. State, No. F-2013-1180 (Okl.Cr., May 14, 2015) (unpublished): Jury Instructions (Allen Charge): Smith was convicted by jury in Canadian County (the Hon. Gary E. Miller, presiding) of Leaving the Scene of an Injury Accident (AFCF x 2) and sentenced to life imprisonment(!!) In this odd appeal, the Court affirmed even after finding the following errors: 1) failure of the trial court to give the uniform Allen charge instruction (harmless); 2) prosecutorial misconduct in questioning a witness about the back brace she wore (even the State agreed that this was error, but harmless); and 3) error in instructing the jury on the incorrect range of punishment for leaving the scene AFCF x 2 (it should have been 30 days minimum, not four years; but harmless). NOTE: This case is fairly alarming because the Court found error in nearly all claims raised by Smith, yet denied relief under plain error/harmless error review; also, the sentence of life seems very harsh, but the facts are not really set forth with clarity in this decision.

Sean Eddie Howland v. State, No. RE-2014-706 (Okl.Cr., May 12, 2015) (unpublished): Suspended Sentences: In this Possession of Stolen Vehicle case out of Rogers County, the State filed an application to revoke the suspended sentence on March 20, 2010, and Howland confessed the State’s motion on March 7, 2011. A hearing was held 90 days out for Howland to comply (it was just a failure to report allegation), but Howland did not appear. Another revocation hearing was held on August 4, 2014, at which the Hon. Terrell S. Crosson, Special Judge, revoked the remaining 2.5 years. On appeal, the State conceded that the unwarranted delay in prosecuting the application to revoke violated Howland’s Due Process rights, and that the State had failed to exercise due diligence; thus, the revocation order is reversed and remanded with instructions to dismiss. NOTE: This opinion was authored by Judge Hudson, which I think might be the first case he authored as a judge on the Court.

Nathan Todd Harvell v. State, No. RE-2014-248 (Okl.Cr., May 11, 2015) (unpublished): Suspended Sentences: This is another odd case out of Coal County (the Hon. Paula Inge, presiding), in which Harvell entered pleas in two cases to drug counts, and was sentenced to five years, all suspended upon condition that Harvell enter drug court. He refused. The State filed applications to revoke, but then moved to dismiss those and simply have the judge proceed to “execute” the sentences already imposed. Judge Inge bought this argument, dismissed the applications, and revoked. The Court reversed, holding that revocation of a suspended sentence has to be preceded by an application by the State that some condition had been violated. NOTE: I do not get down to Coal County often, but it is very strange that Judge Inge and the District Attorney’s Office in Coalgate had to actually be told this by the OCCA.




United States v. Michael E. Pettit, No. 14-4043 (10th Cir., May 13, 2015) (Published) (Briscoe, C.J., Kelly & Seymour): Search and Seizure (Traffic Stops): Even in light of the recent SCOTUS decision in Rodriguez, the panel upholds a traffic search based on nervousness, unusual travel plans, and “multiple suspended drivers licenses.” NOTE: These opinions, where a police officer searches a motorist’s vehicle during a traffic stop on the flimsiest of reasons, are a staple in the Tenth Circuit, and contain some of the worst legal analysis one will encounter. The panel is always very eager to say how they discount things like nervousness and travel plans, but somehow the search and seizure always seems to be upheld regardless.

United States v. Derrick Ivan Jim, No. 12-2085 (10th Cir., May 12, 2015) (Published) (Briscoe, C.J., Ebel & Kelly): Guilty Pleas; Waiver (Appellate Issues); Federal Sentencing Guidelines (Serious Bodily Injury): Jim entered a plea to aggravated sexual assault, but was allowed to withdraw it. Normally, Rule 410 would prevent the Government from using his guilty plea and the statements attendant thereto, at a subsequent trial. However, Jim waived the Rule 410 protections in his initial plea agreement, so the panel held that there was no error. Also, the Government was not satisfied with a sentence of 360 months in this case, so it cross-appealed the ruling by the district court that a sentencing enhancement of two levels for “serious bodily injury” could not be considered for injuries directly resulting from the sexual abuse underlying the convictions. The panel again agreed with the Government, and remanded for re-sentencing.

United States v. Richard Franklin, No. 13-1519 (10th Cir., May 11, 2015) (Published) (Briscoe, C.J., Holmes & Bacharach): Child Porn: Franklin was convicted of five counts of distribution/advertising or notice of child porn (on GigaTribe), and sentenced to five consecutive sentences totaling 100 years. The panel affirmed, finding that the “advertisement or notice” requirement was proven, the sentences were substantively reasonable, and the trial court did not find improperly facts necessary to justify the long sentences.




“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).


No new cases.


BuzzFeed has ran an article in which it accuses the Oklahoma Attorney General of misleading the Supreme Court about a letter that was submitted in the case pending in the Court concerning lethal injection. The letter was redacted, and was actually addressed to the Texas Department of Criminal Justice—but the A.G.s Office told the Court that the letter was sent to the Oklahoma Department of Corrections.

Attorney General Scott Pruitt responded, characterizing the misrepresentation as an inadvertent error. That may well be, but cases and argument in the Supreme Court are a rare privilege, and it seems to me deeply embarrassing for our state to have its lawyers making “errors” of this sort on a national stage, in a death penalty case which has already garnered negative media attention in the first place.




United States v. Calderon, No. 13-1098 (2nd Cir., May 12, 2015): Accomplice Liability: Conviction for accessory after the fact to murder is reversed because the trial evidence was insufficient.

United States v. Brock, et.al, No. 14-239-cr (2nd Cir., May 12, 2015): Conspiracy; Sufficiency: Conviction for drug conspiracy is reversed because the evidence showed that the defendant was a mere purchaser from the conspiracy, not a member of it.

United States v. Sellers, No. 13-4431-cr (2nd Cir., April 27, 2015): Federal Sentencing Guidelines (ACCA): Sellers was sentenced under the ACCA for being a felon in possession of a firearm and ammunition. In this appeal, application of the ACCA is error because a 2001 state conviction for criminal sale of CDS does not qualify as a predicate prior conviction because he was adjudicated as a youthful offender for that offense under New York law.

United States v. Braxton, No. 13-4491 (4th Cir., April 28, 2015): Guilty Pleas: Guilty plea vacated because the district court impermissibly participated in the discussions that led Braxton to plead guilty (on the first day of trial, after he had insisted on going to trial for months).

Benito Julian Luna v. Scott Kernan, No. 12-17332 (9th Cir., April 28, 2015): Habeas Corpus (SOL & Equitable Tolling): District court dismissal as time barred a state prisoner’s federal habeas petition is reversed based upon professional misconduct of attorney that provided a basis for equitable tolling.




None noted.




SHERIFF GLANZ UPDATE: The media is investigating a 2005 shooting of a suspect by a reserve deputy that has similarities to the recent shooting by Deputy Robert Bates, which is likely to cause even more headaches for Sheriff Glanz; also, Major Tom Huckeby of the Tulsa County Sheriff’s Office is on administrative leave and has announced that he will retire in August, and the reserve deputy program has been placed on hold. The District Attorney in Tulsa has requested an investigation by the OSBI. Meanwhile, Payne County has announced that all 26 reserve deputies are fully trained.

PAROLE BOARD SUED: A inmate doing time for murder has sued the Board, and member Patricia High, in particular, alleging that the Board failed to provide him with a fair and impartial hearing as required by the Oklahoma Constitution since Ms. High has allegedly vowed to never vote for parole in a murder case. The Board has become somewhat of a bad joke in my opinion, stacked with three ex-cops and a former prosecutor, all with direct ties to the Oklahoma City Police Department and former District Attorney Bob Macy. Also, the Executive Director of the Board, Van Guillotte, resigned abruptly last week after only a few weeks on the job. No reason was given for his resignation.

JUDGE MATTINGLY REMEMBERED: Nice article recounting the human side of the late Hon. William H. Mattingly (Osage County).

JUDGE RESIGNS: The Presiding Judge of Tulsa County, the Hon. Carlos Chappelle, has resigned because of health reasons. Replacing him will be the first female to hold the post of Presiding Judge in Tulsa County, the Hon. Rebecca Nightingale.

DOGS IN COURT: District Attorney Matt Ballard is spearheading an effort to use a “therapy dog” for witnesses who testify in court.

SEX OFFENDER LOOPHOLE CLOSED: Gov. Fallin amended the sex offender law in response to a ruling out of Pawnee that defined the word “city” to exclude towns and smaller communities.

THE “ATOMIC WEDGIE” CASE: This case mesmerized America for a portion of a 24-hour news cycle a couple of years ago. It looks like the accused has pled to manslaughter.

JAIL RAZED: The former Cleveland County Jail is set to be demolished.

DEATH ROW INMATE LINKED: A death row inmate, John Paul Washington, who was on death row before his sentence was overturned, has been linked to yet another murder that occurred back in 1980s.

INMATE REMAINS FOUND: The skeletal remains of an inmate found in Woodward County are those of an inmate who escaped from William S. Key in 2012. The medical examiner says that he may have frozen to death.

POLYGRAPHER PLEADS: A polygrapher in Norman, who was charged with training customers to lie on polygraph exams, has pled guilty in federal court. This seemed like an interesting case, and I was hoping he would fight it.

NEW CHIEF: Mike Carter has been named the new Chief of Police for the city of Sand Springs.

JAIL TO DOC: A new law signed by Gov. Fallin is designed to speed up the time it takes to transfer convicted persons from county jails to DOC.

FINALISTS: The three finalists for the district judgeship for McClain and Garvin counties are: Leah J. Edwards (prosecutor in Grady County); Suzanne Woodrow Snell (family law practitioner in Purcell); and Steven L. Stice (Special Judge in Cleveland county).

DEADLY CRASH: A police officer for the Osage Nation was involved in a fatal car wreck and has been fired.

DEADLIEST PROSECUTORS: The link goes to an interesting Slate article profiling prosecutors around the country who are mostly responsible for the bulk of death sentences handed down by juries.

OFFICER ON LEAVE: An Oklahoma City P.D. Sergeant has been placed on administrative leave, and may face felony charges, as a result of domestic incident.

RECORDS RESTRICTED: District Judge Darrell Shepherd has ordered records in a murder case restricted temporarily from the internet during the trial in Cherokee County.

FORTUITOUS ARREST: An Oklahoma City man who eluded police, but eventually turned himself in, was found to have been acting erratically possibly as the result of a brain tumor.

TURNER TURNPIKE: The turnpike connecting OKC to Tulsa was opened in 1953.




THURSDAY, JUNE 25 & FRIDAY, JUNE 26, 2015: The 2015 Patrick A. Williams Criminal Defense Institute & Annual Meeting (including annual awards) will be held at the Renaissance Hotel and Cox Convention Center in Oklahoma City. This program is always top-notch, and this year I am presenting on a case-law update during the Friday session. Hope to see you there!



SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164th St., Edmond, OK 73013.


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.

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