NOTE: In the cases outlined below, I was either the sole lawyer on appeal (most of them) or active co-counsel. These cases represent a good cross-section of the types of cases that I handle.
Paul Alan Riggs v. State, No. PC-2017-211 (Okl.Cr., March 21, 2017): Appeal Out of Time: Sometimes when a prisoner misses an important appellate deadline, there is a way to get the appeal re-instated. This is called the appeal out-of-time procedure. In this case, Mr. Riggs sought to have his post-conviction appeal re-instated and in the linked Order, the appellate granted the request.
Audry Nicole Howard v. Hon. R.L. Hert, No. MA-2017-70 (Okl.Cr., April 6, 2017): Motion to Quash: This case deals with the legal question of whether a motion to quash is legally cognizable in a misdemeanor case. Judge Hert ruled that it is not, but we appealed this ruling to the appellate court, which sided with our client.
Alex E. Brown v. Hon. Cindy H. Truong, No. MA-2016-1103 (Okl.Cr., April 4, 2017): Bail: Oklahoma City attorney Skip Kelly represented a client charged with Accessory to Murder in the First Degree. Judge Cindy Truong denied bail altogether, forcing the client to sit in jail awaiting trial. Skip and I proceeded to the Oklahoma Court of Criminal Appeals via extraordinary writ to force Judge Truong to set a reasonable bond. In this case, the appellate court granted relief and remanded the case to Judge Truong with instructions for her to set a reasonable bond.
State v. Chad Allan Lunsford, No. S-2014-759 (Okl.Cr., July 31, 2015): Drug Possession/Trafficking: Attorney Juan Garcia represented Mr. Lunsford, who was charged with Trafficking after the car he was in as a passenger was stopped by police in Watonga, Oklahoma, and drugs were found. Juan did a great job at the preliminary hearing, and got Judge Bozarth to grant a motion to quash and dismiss the case! The State did not like that result, so it appealed to the Oklahoma Court of Criminal Appeals, and I was hired to handle the case in the appellate court. The result was good and, in a close 3-2 opinion, the Court affirmed Judge Bozarth’s ruling and the case was dismissed.
State v. Michael Allen Nolte, No. CRF-1987-131 (Caddo County, June 10, 2015): DNA; Post-Conviction: On June 10, 2015, we ended an almost six year post-conviction odyssey in Anadarko (Caddo County) for my client, Michael Nolte. I had represented Nolte in state post-conviction since 2009, and Tom Zynda helped me for the last year as local counsel. The order granting post-conviction relief is enough to allow our client to discharge his sentence and get out of prison. Nolte and three others broke out of a jail in Illinois in the late 1980s, they eventually hi-jacked an RV and made it to Oklahoma. The owner of the RV was killed. The State turned two of the co-defendants and Nolte was sentenced originally to death. He won a re-sentencing to LWOP, and in prison he stayed until we did DNA testing that undercut the State’s theory of the case (it turns out that the co-defendants who turned against Nolte were the actual killers, not Nolte as the State asserted all along). This case progressed through two elected District Attorneys, three evidentiary hearings, a denial of relief, an appeal and remand, me getting fired mid-way through it, then re-hired to do the appeal and some more hearings, and Nolte rejecting an offer of straight life, which I advised him to take as it was the smart move. He stood steadfast, and last week Judge Van Dyck signed the order, over the State’s objection, changing the conviction from Murder in the First Degree to Murder in the Second Degree and modifying the sentence from LWOP to 45 years—a sentence that Nolte can easily discharge with his accumulated credits. This has been one of the most arduous and satisfying cases that I have done in my career. As soon as the paperwork is processed in a couple of weeks, I look forward to having dinner with my client and his wife.
UPDATE: Michael is enjoying freedom again, and his story was covered in-depth by The Tulsa World in a story titled Former Death Row Inmate Embracing Life on the Outside, posted April 9, 2016.
Jorge Alberto Guevara v. State, No. F-2014-279 (Okl.Cr., May 19, 2015) (unpublished): IAC (CONFLICTS): My client, Mr. Guevara, was convicted of drug trafficking in Oklahoma County when a trooper stopped his semi along the interstate and found drugs inside. Guevara and the passenger, who was also a co-defendant, went to trial together and were represented by the same lawyer. The appellate court reversed the convictions because the lawyer had a conflict in representing them both.
State v. Ryon Langrehr, No. CF-2012-80 (Seminole County, February 12, 2015): SENTENCE MODIFICATION: This is a case where Langrehr pled guilty to rape and was sentenced to 15 years, with 10 years to do and 5 suspended. I appealed to the Oklahoma Court of Criminal Appeals, but the Court did not allow Langrehr to withdraw his plea. However, we sought a sentence modification before the trial judge and obtained a reduction of the sentence from 10 years to 3 years.
D.S.C. v. State, No. J-2014-646 (Okl.Cr., October 23, 2014): JUVENILE; PLEA BARGAINS: You will notice that my client is not identified by name in this case. This is because the client was a juvenile who was charged with criminal offenses (Lewd or Indecent Acts), and as such the client’s identity must be protected. In this case, the State failed to live up to its part of a plea bargain after the client had stipulated (basically pled guilty) to the charge. The client was allowed to withdraw the stipulation and have a day in court to contest the charges.
Jesus A. Solano v. State, No. RE-2012-155 (Okl.Cr., January 24, 2014) (unpublished): DUI; SENTENCE MODIFICATION: Solano was on probation for 15 years on a drug case, but caught a DUI which resulted in a judge in Garfield County revoking the full 15 years(!!) I appealed this case and the Court modified the sentence to time served.
Brian Hayden Harney v. State, 2011 OK CR 10, 256 P.3d 1002: DUI: In this DUI case, the State introduced Harney’s entire “driving index” which is basically his entire driving record that contained every infraction he ever had as a licensed driver; and the trial judge failed to instruct the jury regarding the available punishment which included options for treatment rather than prison time. In light of these errors, Harney’s sentence of five years in prison was vacated, and the case remanded for a new sentencing hearing.
Phillip Anthony Summers v. State, 2010 OK CR 5, 231 P.3d 125: DEATH PENALTY: Phillip was convicted of First Degree Murder in Tulsa, Oklahoma, and sentenced to death. In this opinion, the Oklahoma Court of Criminal Appeals reversed and remanded his case for a new trial because of the argument I made that the trial judge prevented Phillip from introducing evidence of another perpetrator, thereby denying Phillip his right to present a defense.
Ernest Eugene Phillips v. Randall G. Workman, Warden, 604 F.3d 1202 (10th Cir. 2010): DEATH PENALTY: Phillips was convicted Bryan County of Murder in the First Degree and sentenced to death. One of the legal rules in criminal cases is that the jury has to be able to consider lesser crimes if they are warranted by the evidence. In this case, which I handled with my friend Greg Laird (who argued the case), we convinced the appellate court that the trial judge committed error by not letting the jury consider the lesser crime of murder in the second degree; thus, the conviction and death penalty were reversed, and the case remanded for a new trial.
Val Wilkerson v. State, No. F-2007-909 (Okl.Cr., May 13, 2009) (unpublished): RAPE BY INSTRUMENTATION; SENTENCE MODIFICATION: This case involved a prosecution of Wilkerson for child molestation, but the State used evidence of other alleged instances of molestation over the years, many of which were decades old and uncorroborated. Wilkerson was found guilty at trial and sentenced 30 years. On appeal, the Court agreed with me that errors were committed at trial, but did not reverse the conviction, choosing instead to modify his sentence from 30 years to 15 years.
Gary Lee Hicks v. Franklin, 546 F.3d 1279 (10th Cir. 2008): SECOND DEGREE MURDER; GUILTY PLEAS: Hicks was sentenced to life imprisonment when a person was killed during the process of cooking methamphetamine. Although Hicks pled guilty to the charge of murder in the second degree, it did not appear that all of the elements were present to support such a charge. The Tenth Circuit Court of Appeals agreed with my argument and granted habeas corpus relief to Hicks which allowed him to withdraw his guilty plea.
State v. Deborah Ann Kolch, No. S-2008-502 (Okl.Cr., August 27, 2008) (unpublished): STATE APPEALS: This is a nifty case that I worked on with my friend Josh Welch. The client was charged with manufacturing drugs, but Josh filed a motion to suppress the evidence, which the trial court granted. The State was not pleased with that and decided to appeal, and Josh got me involved to defend the client in the appellate court. I noticed that the prosecutor had not filed a Petition in Error timely, which is a jurisdictional defect, so I filed a motion to dismiss the appeal (which would result in a win on the suppression issue). The Court agreed with me and Josh, and dismissed the State’s appeal.
Charles Causey v. State, No. F-2006-991 (Okl.Cr., June 29, 2007) (unpublished): LEWD MOLESTATION: Causey was convicted of Lewd Molestation down in McCurtain County, and sentenced to 15 years in prison. I found quite a few errors in his trial (failure of the trial court to make reliability findings of the statements of the minor complaining witness, improper vouching for the veracity of the witness, and failure to tell the jury that Causey would have to serve 85% of any prison time imposed), and the appellate court reversed his conviction and remanded for a new trial.
Ricky Allen Rinker v. State, No. C-2005-608 (Okl.Cr., March 12, 2007) (unpublished): CHILD SEXUAL ABUSE; GUILTY PLEAS: This is an appeal that I worked on with my old boss in Oklahoma City, John W. Coyle, III, where Rinker was sentenced to 160 years (!!) on a blind plea. On appeal, we argued that his pleas should be withdraw because he was not advised that the crimes are subject to the 85% Rule (which states that Rinker must serve 85% of his time before being eligible for parole). The appellate Court agreed and allowed Rinker to withdraw his pleas.
Wesley Wayne Dodson v. State, No. F-2005-97 (Okl.Cr., October 4, 2006) (unpublished): RAPE; JURORS: Dodson was convicted of rape and sentenced to two 50-year sentences in Garfield County. I found quite a few errors in the trial of this case, including the fact that a juror was biased (she would not consider all the range of punishment and would vote for the max!), a police officer vouched for the credibility of the complaining witness, and the trial judge failed to make proper findings regarding the reliability of the statements of the complaining witness. This case was reversed and remanded for a new trial.
Charles Earl Lindsay v. State, No. F-2005-252 (Okl.Cr., August 30, 2006) (unpublished): ROBBERY; SENTENCE MODIFICATION: Lindsay was convicted of robbery with an imitation firearm and sentenced to 40 years. In this appeal, I noticed that the State did not produce evidence that Lindsay actually threatened the complaining witness with the imitation firearm. The appellate court modified the charge to robbery in the first degree and also reduced the sentence to 20 years.
Tony Neal Duncan v. State, No. F-2005-320 (Okl.Cr., July 11, 2006) (unpublished): MANSLAUGHTER (DUI); CONFRONTATION AND CROSS-EXAMINATION: This conviction was reversed because a witness for the State was not available, so the trial judge used the preliminary hearing testimony of the witness. I argued that the witness was not unavailable to testify at trial, and thus Duncan was denied his right to confront and cross-examine the witnesses against him. The appellate agreed, and reversed the case for a new trial.
Glen Dale Hammon v. Ron Ward, 466 F.3d 919 (10th Cir. 2006): POSSESSION OF CRACK COCAINE & FIREARMS; CONFLICT OF INTEREST: This case illustrates the perils of one lawyer representing two persons at the same time when both are accused of possessing contraband in a vehicle. My client, Glen Hammon, was effectively sentenced to 70 years, but in this case the appellate court reversed the denial of relief and remanded the case back to the district court to conduct an evidentiary hearing to determine the nature of the lawyer’s conflict of interest.
State v. Emily Cherise Thomas, No. CF-2003-160 (Lincoln County, September 27, 2005): DRUG TRAFFICKING; SEARCH AND SEIZURE: This is a drug trafficking case involving a traffic stop along I-40 which yielded over 300 pounds of marijuana. I worked this case with my old boss, John W. Coyle, III, and we attacked it on a motion to suppress because the arresting state trooper just searched without obtaining consent, and there was no other reasonable suspicion to search the car. Luckily, we had the dashcam which showed that our client did not consent to the search, and this made it an easy decision for Judge Vassar to grant our motion to suppress and to dismiss the case.
Deaundrae Lance Dority v. State, No. F-2004-328 (Okl.Cr., July 13, 2005) (unpublished): RIGHT TO COUNSEL; ACCELERATION OF SENTENCE: Dority caught a break on charges of drug trafficking and was placed on probation for five years. Unfortunately, he violated his probation and showed up at the hearing without a lawyer; whereupon the judge sentenced him to two 25-year sentences to be served back-to-back. On appeal, I was able to have these sentences vacated, and the case remanded for a new hearing, but this time Dority would have a lawyer!
Byrin Carr v. State, No. F-2000-1163 (Okl.Cr., September 27, 2001) (unpublished): DISTRIBUTION OF COCAINE; ENTRAPMENT: This is one of my earliest appeals, and deals with entrapment. Carr was sentenced to 10 years in prison, but the Court found error in denying his defense of entrapment and reduced his time to 5 years.
State v. Hon. J. Bruce Harvey, No. P-1999-660 (Okl.Cr., June 21, 1999): DISCOVERY: This is my first solo appeal, and one of my favorites. I was in a criminal case and wanted copies of the police reports in order to prepare for the preliminary hearing. The prosecutor said that I could come to his office and view the reports, but that he would not make copies. I argued my case to Judge Harvey, the Special District Judge in Garfield County back then, who agreed with me. The prosecutor did not like his ruling and appealed to the Oklahoma Court of Criminal Appeals via a writ of prohibition. The appellate Court agreed with Judge Harvey and me, even going so far as to chastise the State’s position as being “nonsensical”(!!!)
Timothy James McVeigh v. Dallas Morning News, 119 F.3d 806 (10th Cir. 1997): SEALED RECORDS: This appeal involved a tangential aspect of the Oklahoma City Bombing case, namely the extent to which the trial judge could keep legal documents and information secret from the press. Several newspapers sued to gain access, and I was assigned by Stephen Jones to handle the bulk of these issues. In this appeal, the Tenth Circuit sided with the defense and kept the materials sealed.
United States v. Timothy J. McVeigh, 896 F.Supp. 1549 (W.D. Okla., August 7, 1995): GRAND JURY SUBPOENAS; HANDWRITING EXEMPLARS: This is an opinion dealing with preliminary issues in the Oklahoma City Bombing case, wherein the grand jury sought a handwriting exemplar from McVeigh but he refused.
OTHER NOTABLE CASES
State v. Wade Matthew Iven, 2014 OK CR 8, 335 P.3d 264: Arrest: This case involved application of the “fellow officer rule” to misdemeanor arrests. The trial judge ruled in our favor, holding that the police officer who actually arrests the person on a misdemeanor charge must have actually possessed first-hand knowledge of the facts supporting the arrest. This is not the rule in felony cases, and I tried to persuade the appellate court against extending this legal rule to misdemeanor cases, but was unsuccessful. This is an example of how you can win in the trial court, but lose on appeal.
Rene Gomez v. State, 2007 OK CR 33, 168 P.3d 1139: Search and Seizure: This case involved a traffic stop, which under settled Oklahoma law required the police officer to have both reasonable suspicion and exigent circumstances to search. The appellate agreed with us that settled state law required these two things, and application of this law would render the search in this case unlawful; however, the Court decided to simply overrule prior settled law on this subject and change the rules in this case, which resulted in the search being upheld. This is an example of another peril that can occur on appeal: even when the law is in your favor, the appellate court can change the law!
Isidro Marquez-Burrola v. State, 2007 OK CR 14, 157 P.3d 749: Death Penalty: This was a very tragic case involving a roadside incident where Isidro stabbed his wife to death while they were driving along the highway. Isidro was sentenced to death for this crime, but as it turned out, he was certifiably insane, and in this opinion the Court vacated the death penalty and imposed a sentence of life without the possibility of parole. A talented appellate lawyer for the Oklahoma Indigent Defense System, Michael Morehead, represented Isidro on direct appeal in this opinion, while I represented Isidro in post-conviction proceedings which, ultimately, were never actually resolved because of the vacatur of his death sentence.