Lewis v. State, 2006 OK CR 48: Double Jeopardy/21 O.S. 11: Lewis was busted at an OKC bus termnal with a travel bag containing two kilograms of cocaine and 25 grams of heroin. He was convicted of two trafficking counts, one for the cocaine and one for the heroin and sentenced to 25 years and 15 years, respectively, to be served consecutively. Lewis argued that convictions for both violated the Oklahoma statute against multiple punishments. The Court described this issue as one of first impression and held that the one act of possessing cocaine and heroin in a single container constituted one violation of the drug trafficking statute. Count II was reversed. Judge: C. Virgil Black (Oklahoma County).

Percy Dewayne Cato v. State, No. F-2005-859 (Okl.Cr., December 8, 2006) (unpublished): DUI: Felony DUI case that is affirmed, but I include it here because it discusses the issue of a limiting instruction on evidence of a refusal to submit to a breath test or blood test. In Harris v. State, 1989 OK CR 15, the Court held that a refusal is admissible in a DUI case. However, Judge Lumpkin set forth a limiting instruction in his specially concurring opinion. In Cato, the Court agreed "in principle" that a uniform limiting instruction on refusals is needed but rather than promulgate one in this case, the Court referred the matter to the Committee for the Preparation of Uniform Jury Instructions. Thus, if you have a refusal case, the instruction must be given. The Court held that the trial court's failure to give the limiting instruction in this case was error but harmless.

Janet Marie Ruff v. State, No. RE-2006-363 (Okl.Cr., December 8, 2006) (unpublished): Suspended Setences; Excessive Sentence: Ruff was on a 12-year suspended sentence. The State filed an application to revoke, alleging failure to report, failure to pay fees and costs and other technical violations. The State amended the application to include new drug possession offenses in a different county. Judge Twyla Mason Gray, Oklahoma County, revoked the entire 12 years. The Court upheld the revocation but modified the sentence to 6 years.

Jimmy Douglas Letterman v. State, No. F-2005-987 (Okl.Cr., December 4, 2006) (unpublished): Double Jeopardy/21 O.S. 11: Convictions of Possession of Meth and Possession of Marijuana violate double punishment provisions, even though the drugs were found in separate caches.

James G. Willeford v. State, No. C-2006-693 (Okl.Cr., December 8, 2006) (unpublished): Guilty Pleas; State: Willeford entered a blind plea to two counts of Robbery in the First Degree (AFCF). He was sentenced to 20-year sentences to be served consecutively. Willeford raised a claim under Furguson v. State, 2006 OK CR 36, and argued he was not advised of the 85% rule in his case. In an interesting resolution in this certiorari appeal, the Court did not order the pleas withdrawn but rather ordered the counts to run concurrently.


Blast from the past:

Oklahoma v. Decker, 1998 OK CIV APP 57, 960 P.2d 844: Forfeiture: I was always a little confused about whether a claimant was entitled to a jury trial in a forfeiture case. This case holds that forfeitures proceedings are treated like other civil cases, including the right to a jury.


Tenth Circuit

United States v. Shaw, No. 05-6074 (10th Cir., December 6, 2006) (Published): Shaw was sentenced above the calculated guidelines range for bank robbery because the district court believed that the guidelines failed to account for his criminal history and role in assaulting a bank employee. The sole issue in the case is whether the non-guideline sentence (105 months) is reasonable and the panel concluded that it was. The district court imposed a sentence that was 34 months above the guidelines range and comparable to the sentence meted out to the co-defendant.

NEW FEDERAL AND LOCAL RULES: The Amended Rules of Appellage Procedure went into effect on December 1, 2006, and are now available on the Court's web site HERE.


United States Supreme Court

Lopez v. Gonzales, No. 05-547 (U.S., December 5, 2006): This is an Immigration case where Lopez was convicted in state court of a drug crime that was a felony under state law but a misdemeanor under federal law. The Government sought to deport him but the Supreme Court held that the characterization of the crime under federal law controls rather than the characterization under state law.

DROP IN CASE LOAD?: Here is an interesting article stating that the Court heard no oral arguments last Wednesday, despite that day being a scheduled argument day. The Court has accepted 40% fewer cases than last year. Also, HERE is another article describing some of the new criminal cases accepted by the Court.


Victories

"Send lawyers, guns and money, the shit has hit the fan."
--Warren Zevon, "Lawyers, Guns and Money" (song) (1978)



S. GAIL GUNNING, OIDS, scored a nice win for Mr. Willeford in the guilty plea case reported above. It is always odd when the Court grants relief in a guilty plea case by modifying the sentence rather than allowing the defendant to withdraw the plea. Another good win for Gail!

STEVEN M. PRESSON, Norman, provided us with a good published opinion on the multiple punishment issue in the Lewis case and, more important to his client, cut 15 years of the sentence. Super job, Steve!

DAVID SLANE, OKC, walked a client on a charge of misdemeanor Obstructing an Officer last week in Oklahoma County before the Hon. Glenn Jones.


Hearsay

U.S. LEADS IN INCARCERATION: The U.S. leads the world in prison population and rate of incarceration. A U.S. Department of Justice report shows that 7 million persons--one in every 32 Americans--are either behind bars or on probation or parole. China is second with 1.5 million prisoners.

PISTOL PACKIN' JUDGES: Here is an interesting article about judges arming themselves in the courtroom for protection. My favorite snippet from the article is the Florida judge who was ordered to accept "mentoring" after warning a defense attorney that he was "locked and loaded."



UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)


DECEMBER 13, 2006 (TULSA) & DECEMBER 14, 2006 (OKC): Powerful Communication Skills: Winning Strategies for Lawyers. This is a one-woman CLE presented in its entirety by Dr. Anita Jacobs, President of The National Center for Effective Speaking in New Jersey. Although not particularly focused on criminal defense, this program is designed to assist lawyers. 6.5 hours approved including .5 hours of ethics. Tuition is $225 and more information can be obtained at the OBA/CLE Office (800.522.8065 or 405.416.7006).





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