¶1 Appellant appeals from the revocation in full of his suspended sentence in Washington County District Court Case No. CF-2009-303. On January 19, 2010, Appellant pleaded no contest to two counts of Lewd Molestation (21 O.S.Supp.1992, § 1123). On March 25, 2010, he was sentenced on both counts to concurrent terms of twenty years imprisonment, with all except the first five years suspended under certain rules and conditions of probation.
¶2 On September 16, 2021, the State filed a First Amended Motion to Revoke Suspended Sentence, alleging Appellant violated the conditions of his probation by: (1) driving a vehicle with a firearm; (2) using intoxicants; (3) failing to pay supervision fees; (4) using computer devices in violation of specific rules and conditions; (5) having repeated conversations with a female minor; (6) not abstaining from certain locations as directed by the probation officer; and (7) associating with and transporting a known felon. Following a revocation hearing on October 27, 2021, the Honorable Russell C. Vaclaw, Associate District Judge, revoked Appellant’s suspended sentence in full.
¶3 Appellant now appeals from the order of revocation, raising the following propositions of error:
I. Under the facts and circumstances of the case, the trial court’s revocation of Appellant’s suspended sentence in full due to technical violations was an abuse of discretion.
II. The decision to revoke Appellant’s suspended sentence based on a failed polygraph examination was improper use of polygraph results.
¶19 The revocation of Appellant’s suspended sentence in Washington County District Court Case No. CF-2009-303 is AFFIRMED and this case is REMANDED to the trial court for entry of an order modifying the order of revocation to six months. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022), the MANDATE is ORDERED issued upon the filing of this decision.
¶1 On August 3, 2022, Petitioner, through Assistant District Attorney McKenzie McMahan, filed a petition for extraordinary relief with the Clerk of this Court requesting this Court stay trial court proceedings in Oklahoma County District Court Case No. CM-2021-3390 and prohibit the trial court from considering the defendant’s Motion to Quash for Insufficient Evidence pursuant to 22 O.S.2011, § 504.1.
¶2 On November 19, 2021, the defendant was charged with Obstructing a Roadway (69 O.S.2011, § 1213)(Count 1) and Refusing to Comply with a Lawful Order (47 O.S.2011, § 11-103)(Count 2). On June 3, 2022, the defendant filed a Motion to Quash for Insufficient Evidence pursuant to 22 O.S.2011, § 504.1 that relied upon State v. Young, 1994 OK CR 25, 874 P.2d 57. Petitioner filed a response in the trial court opposing the motion and arguing that the language of Section 504.1 and this Court’s precedent prohibit the consideration of motions to quash for insufficient evidence in misdemeanor cases. Following a hearing on this issue, the Honorable Perry Hudson, Special Judge, entered an order in the trial court on July 29, 2022, granting the defendant’s request for a probable cause hearing on his Motion to Quash for Insufficient Evidence. Special Judge Hudson set the hearing for August 18, 2022.
¶3 On August 9, 2022, this Court issued an order staying trial court proceedings and directing Special Judge Hudson to file a response to the issues raised in Petitioner’s pleadings filed with this Court.1 In his response, filed on September 9, 2022, Special Judge Hudson asserts that Section 504.1 and Young authorize a trial court’s consideration of motions to quash in misdemeanor cases. In Young this Court held “that Sections 493 through 510 [of Tile 22] apply to both felonies and misdemeanors.” Young, 1994 OK CR 25, ¶ 4, 874 P.2d at 58. Respondent interprets this language in Young to hold that motions to quash for insufficient evidence pursuant to Section 504.1 should be permitted in misdemeanor cases. Respondent maintains the language in Section 504.1, limiting such motions to felony cases, was interpreted in Young to allow the trial court to consider a demurrer to the information in a misdemeanor case.
¶4 According to Respondent, any doubts that Young controls in this case were answered by this Court in two unpublished orders, Howard v. The Honorable R. L. Hert, No. MA-2017-70 (Okl.Cr. April 6, 2017) (not for publication) and Nehring v. The Honorable Paul K. Woodward, No. MA-2017-752 (Okl.Cr. August 2, 2017) (not for publication). In these mandamus actions, this Court directed the trial court to entertain motions to quash for insufficient evidence in misdemeanor cases. In both, this Court granted relief over arguments similar to those made by Petitioner in this case. We hereby find that the results reached in these unpublished summary opinions were erroneous.
¶5 Notwithstanding previous unpublished decisions of this Court to the contrary, we now find that to the extent Young suggests the right to file a motion to quash for insufficient evidence extends to misdemeanor cases, our holding was overbroad and cannot withstand scrutiny under the plain language of Section 504.1. Young decided a state appeal pursuant to 22 O.S.2011, § 1053(1) wherein this Court allowed consideration of a demurrer to the information pursuant to 22 O.S.2011, § 504 in a misdemeanor case. Young, 1994 OK CR 25, ¶ 3, 874 P.2d at 58. In Young, this Court reversed its previous position iterated in State v. Ogden that demurrers to the information were inappropriate in misdemeanor cases. Id.; see also State v. Ogden, 1981 OK CR 57, ¶ 3, 628 P.2d 1167, 1169, overruled by State v. Hammond, 1989 OK CR 25, 775 P.2d 826, and overruled by Young, 1994 OK CR 25, 874 P.2d 57. This Courtdid not contemplate motions to quash pursuant to Section 504.1 in Young or Ogden. The analysis in Young is inapposite in this case because, unlike Section 504.1, the applicable statutes in that case dealing with demurrers were silent regarding whether their applications were limited to cases involving felonies. See 22 O.S.2011, §§ 504(4), 1053(1). The only reference to Section 504.1, which was by mere inclusion, was dicta when this Court held in Young that:
First, we note that this case involves a misdemeanor. However, under our current case law, an appeal under 22 O.S.1981, § 1053(1), within the mandate of 22 O.S.1991, § 504(4), will not lie in this Court, since we have held that Title 22 O.S., §§ 493-510 do not apply to misdemeanors. See State v. Ogden, 628 P.2d 1167, 1169 (Okl.Cr.1981) and State v. Hammond, 775 P.2d 826 (Okl.Cr.1989).
We have re-examined those cases so holding and now adopt Judge Brett’s well-reasoned dissent in Ogden at 11691 and hold that Sections 493 through 510 apply to both felonies and misdemeanors….
Young, 1994 OK CR 25, ¶¶ 3-4, 874 P.2d at 58 (footnote omitted).
¶6 Unlike the statutes dealing with demurrers, Section 504.1 unequivocally limits motions to quash to felony cases. It specifically states that a “defendant may file a motion to quash for insufficient evidence in felony cases after preliminary hearing.” 22 O.S.2011, § 504.1(A). General statements in Young and Ogden, which have nothing to do with motions to quash for insufficient evidence, regarding applicability of Sections 493 through 510 of Title 22, do not incorporate by reference the specific language found in Section 504.1. This Court is not vested with the power to enlarge a statute beyond its plain language. State v. Tran, 2007 OK CR 39, ¶ 8, 172 P.3d 199, 200. To the extent that these opinions’ general references to Sections 493 through 510 touch on statutes not at issue in those cases, they are dicta and, as such, do not control here. As we noted in a more recent, published, opinion this Court has long held “that the proper procedure for a motion to quash for insufficient evidence required that the preliminary hearing transcript be presented to the trial court.” State v. Delso, 2013 OK CR 5, ¶ 6, 298 P.3d 1192, 1194 (citing Whitman v. District Court of Oklahoma County, 1967 OK CR 12, ¶ 8, 423 P.2d 740, 742). Moreover, 22 O.S.2011, § 1053(4) further confirms that motions to quash are limited to felony cases and establishes that Petitioner has no other adequate remedy.
¶7 For a writ of prohibition, Petitioner must establish: (1) a court, officer or person has or is about to exercise judicial or quasi-judicial power; (2) the exercise of said power is unauthorized by law; and (3) the exercise of said power will result in injury for which there is no other adequate remedy. Rule 10.6(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022). Petitioner has established that a trial court considering a motion to quash a misdemeanor charge for insufficient evidence pursuant to Section 504.1 is unauthorized by law.
¶8 As a result, Petitioner has established that it is entitled to the relief sought in Oklahoma County District Court Case No. CM-2021-3390. Petitioner’s request for extraordinary relief is GRANTED. The trial court’s order setting the motion to quash for insufficient evidence for an August 18, 2022, hearing on the motion’s merits is VACATED. The stay of proceedings imposed by this Court in an Order issued August 9, 2022, is hereby LIFTED.
¶1 Appellant, Demarco Danzell Metoyer, was tried and convicted by a jury in the District Court of Tulsa County, Case No. CF-2016-5998, of two counts of First Degree Manslaughter, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 711(1). The jury imposed a sentence of twenty years imprisonment on each count.
¶2 The Honorable Sharon K. Holmes, District Judge, pronounced judgment and sentence in accordance with the jury’s verdicts but imposed a $600.00 fine on each count as additional punishment. Judge Holmes ordered both sentences to run concurrently and imposed various costs and fees.1
¶3 Metoyer now appeals and alleges eleven propositions of error. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence except with respect to the fines imposed. Appellant’s judgment and sentence is AFFIRMED except the $600.00 fine imposed for each count is STRICKEN.
¶1 Petitioner Benjamin Josiah Ricker entered a no contest plea to charges of Lewd Molestation (Count I) and Possession of Juvenile Pornography (Count II) in the District Court of Craig County, Case No. CF-2017-181. The Honorable Joseph Gardner, Associate District Judge, accepted the pleas and scheduled sentencing. Prior to the date of sentencing, Petitioner filed a Motion to Withdraw No Contest Plea. After a hearing in which testimony and argument were presented, Judge Gardner denied the motion to withdraw. Petitioner was sentenced to imprisonment for thirty-five (35) years in Count I and thirty (30) years in Count II, with the sentences ordered to run consecutively.1 Petitioner appeals the denial of his motion, and raises the following propositions of error:
I. The District Court of Craig County was without jurisdiction to adjudicate the charges brought against Petitioner by the State of Oklahoma.
II. Petitioner should be allowed to withdraw his plea which was not knowingly, intelligently, and voluntarily made because it was entered under duress and as the result of frustration, misunderstanding, misapprehension, and without deliberation as the result of unseemly haste.
¶2 After thorough consideration of these propositions and the entire record before us on appeal, including the original record, transcripts, and Petitioner’s brief, we have determined that the trial court did not abuse its discretion in denying the motion to withdraw guilty plea.
¶13 The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
¶1 Appellant, Malik Omar Vance, was tried by a jury in the District Court of Tulsa County, Case No. CF-2018-3829, and convicted of Rape in the First Degree in violation of 21 O.S.Supp.2011, § 1114(A). The Honorable Sharon Holmes, District Judge, presided over Vance’s jury trial and sentenced him, in accordance with the jury’s verdict, to thirteen years imprisonment, and suspended the sentence in its entirety, supervised by the Department of Corrections. Vance appeals raising the following issues:
II. whether several instances of prosecutorial misconduct deprived Appellant of a fair trial in violation of the Fourteenth Amendment to the United States Constitution;
III. whether there was insufficient evidence to prove the third element of rape in the first degree;
IV. whether the trial court erred in admitting the hearsay statements of the SANE nurse in support of the alleged victim as being both cumulative and hearsay; and
V. whether cumulative error deprived Appellant of a fair trial.
¶2 We affirm the Judgment and Sentence of the district court.
¶1 Appellant, Jessica Marie Polk, was tried and convicted by a jury in the District Court of Oklahoma County, Case No. CF-2019-1845, of Manslaughter in the First Degree, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 711(1). The jury sentenced Polk to twenty-five years imprisonment. The Honorable Ray C. Elliott, District Judge, presided at trial. Judge Elliott pronounced judgment and sentence in accordance with the jury’s verdict, ordered credit for time served and ordered the sentence in this case to run concurrently with Appellant’s sentences in CF-2016-6032, CF-2016-6316 and CM-2019-1493. Appellant must serve 85% of the sentence imposed before becoming eligible for parole. 21 O.S.Supp.2015, § 13.1.
¶2 Polk now appeals and alleges a single proposition of error challenging the sufficiency of the evidence supporting her first degree manslaughter conviction. After careful review, we reject this claim and AFFIRM Appellant’s judgment and sentence.
¶1 Appellant Stewart Wayne Coffman was tried by jury and convicted of First Degree Manslaughter (21 O.S.2011, § 711), After Former Conviction of Two or More Felonies in the District Court of McCurtain County, Case No. CF-2017-0301. As punishment, the jury returned a verdict of forty (40) years in prison, and the trial court sentenced accordingly.1 Appellant appeals from this conviction and sentence.
¶2 Appellant raises the following propositions of error in support of his appeal:
I. Mr. Joe Battiest, the victim in this case, is an enrolled member of the Choctaw Indian Tribe, and the crime occurred within the jurisdictional boundaries of the Choctaw Nation. As such, the State courts lack jurisdiction to prosecute [Appellant] for manslaughter, a crime only the federal government may prosecute if it occurs in Indian Country, thereby requiring this Court to dismiss the charges against Appellant.
II. Three out of the four prior felony convictions used to enhance the sentence in this case were more than ten years old, thus were not permitted to be used for enhancement purposes. Therefore, this Court must remand the matter for a new sentencing hearing whereby [Appellant] will be sentenced after one felony conviction, rather than four, or otherwise modify the sentence.
III. [Appellant] received ineffective assistance of counsel, in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Article II, § 20 of the Oklahoma Constitution.
IV. Under the unique circumstances of this case, the forty year sentence assessed is excessive and should be modified.
¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.
¶25 The JUDGMENT and SENTENCE is AFFIRMED. The Motion to Supplement the Record on Appeal or, in the Alternative, Application for Evidentiary Hearing on Sixth Amendment Claimsis DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
¶1 Appellee, K.B., is charged as a Youthful Offender with Manslaughter in the First Degree, in violation of 21 O.S.2011, § 711(3), in Oklahoma County District Court Case No. CF-2021-5362. On January 6, 2022, the State filed a Motion for Imposition of an Adult Sentence. Eight days later, Appellee filed a Motion for Certification as a Juvenile or in the Alternative as a Youthful Offender. A hearing on the motions was conducted over the course of March 11, 18, and 30, 2022. After taking the matter under advisement, the Honorable Thomas Riesen, Special Judge, denied the State’s request to certify Appellee as eligible for an adult sentence and granted Appellee’s request to be treated as a Youthful Offender in an order filed on April 7, 2022.1 The order further bound Appellee over for trial as charged.
¶2 The State appeals the denial of its Motion for Imposition of an Adult Sentence, arguing the trial court abused its discretion because the State presented clear and convincing evidence that Appellee should be sentenced as an adult upon conviction. The State contends that the trial court improperly weighed the seven factors enumerated in 10A O.S.Supp.2018, § 2-5-208. Alternatively, the State argues that the trial court improperly considered factors outside of those enumerated in the statute.
¶3 Pursuant to Rule 11.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022), this appeal was automatically assigned to this Court’s accelerated docket and the issue was presented to this Court in oral argument on July 21, 2022. At the conclusion of oral argument, the parties were advised of the decision of this Court.
¶4 The District Court’s order denying the State’s request to certify Appellee to stand trial as an adult is AFFIRMED. Recognizing the need for expeditiousness in this matter given Appellee’s age, the Court entered a Summary Order on August 10, 2022, directing the District Court to proceed on the disposition of Appellee’s case without delay.2 The Summary Order filed on August 10, 2022, is hereby WITHDRAWN and substituted with the following Opinion.
¶21 The order of the District Court of Oklahoma County denying the State’s Motion for Imposition of an Adult Sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2022), the MANDATE is ORDERED issued upon the filing of this decision.
¶1 Before the Court is an Order from The Honorable Carolyn B. McHugh, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, certifying the following questions of law:
1. Does Okla. Stat. tit. 21, § 1312(5) apply only to individuals who are guilty of participating in a riot and who unlawfully obstruct a roadway while participating in such riot?
2. Does Okla. Stat. tit. 21 § 1320.12 impose liability only on organizations that have been found guilty of conspiring with others to violate one of Oklahoma’s specifically enumerated anti-riot laws?
¶2 This Court has authority to respond to such requests from the federal court pursuant to the Uniform Certification of Questions of Law Act. 20 O.S.2011, § 1601. See also Moore v. Gibson, 2001 OK CR 8, ¶ 6, 27 P.3d 483, 485 (“This Court has the power to give the present state of the law as well as use the opportunity to create new precedents in answering a certified question of law.”). We accept the certified questions as presented and answer both in the affirmative.
IN RE: ADOPTION OF THE 2022 REVISIONS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)
2022 OK CR 20
Case Number: CCAD-2022-1
¶1 On August 3, 2022, the Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions submitted its report and recommendations to the Court for adoption of amendments to Oklahoma Uniform Jury Instructions-Criminal (Second Edition). The Court has reviewed the report and recommendations by the committee for the adoption of the proposed 2022 revisions to the Uniform Jury Instructions. Pursuant to 12 O.S.2021, § 577.1, the Court accepts that report and finds the revisions should be adopted.
¶2 IT IS THEREFORE ORDERED ADJUDGED AND DECREED that the report of the Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions shall be accepted, and its revisions adopted. The revisions shall be available for access via the internet from this Court’s website at www.okcca.net on the date of this order and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to duplicate and provide copies of the revisions to the judges of the District Courts and the District Courts of the State of Oklahoma are directed to implement the utilization of these revisions effective on the date of this order.
¶3 IT IS FURTHER ORDERED ADJUDGED AND DECREED that the amendments to existing OUJI-CR (2d) instructions, and the adoption of new instructions, as set out in the following designated instructions and attached to this order, are adopted, to wit:
1-8A; 3-41; 4-35; 4-35A; 4-35B; 4-36; 4-37; 4-37A; 4-38; 4-39; 4-40; 4-40D.
¶4 The Court also accepts and authorizes the updated committee comments to be published, together with the above styled revisions and each amended page in the revisions to be noted at the bottom as follows “(2022 Supp.)”.
¶5 IT IS THE FURTHER ORDER OF THIS COURT that the members of the Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Criminal Jury Instructions be commended for their ongoing efforts to provide up-to-date Uniform Jury Instructions to the bench and the bar of the State of Oklahoma.
¶6 IT IS SO ORDERED.
¶1 Appellant, Joe Gilbert Calvert, was tried and convicted by a jury in the District Court of Tulsa County, Case No. CF-2018-444, of First Degree Felony Murder, in violation of 21 O.S.2001, § 701.7(B). The jury sentenced Appellant to life imprisonment. The Honorable Clifford Smith, District Judge, pronounced judgment and sentence in accordance with the jury’s verdict.1
¶2 The evidence in this case shows that Appellant kidnapped Latricia Fipps on the afternoon of November 20, 2002, near Catoosa, Oklahoma, by handcuffing her and forcing her into an army duffel bag. Fipps had recently ended a turbulent seven-year relationship with Appellant and was heard the night before her abduction arguing with Appellant on the phone and saying: “Joe, don’t threaten me because I know too much on you.”
¶3 Appellant initially drove Fipps to Tulsa where he made her consume sleeping pills and told her they were “going on a little trip.” True to his word, Appellant and his new girlfriend, Shanna Ramsey, then headed for New Mexico in Appellant’s SUV with the duffel bag containing Fipps in the backseat. On the way, Appellant stopped at a motel somewhere in the Texas Panhandle where the trio spent the night. Appellant let Fipps out of the duffel bag and carried her–while still handcuffed–inside the motel room. Appellant kept Fipps handcuffed to him while inside the motel room. Sometime during the night, Ramsey awoke to the pair having sex while still handcuffed to each other. At this point, Ramsey went to the bathroom, got high on methamphetamine and took a shower. When she returned, Appellant and Fipps were dressed and ready to leave. Fipps was still handcuffed but not directly attached to Appellant.
¶4 It was before dawn when Appellant, Ramsey and Fipps left for New Mexico. Along the way, they stopped in Tucumcari, New Mexico, at the Circle K. Appellant then drove to his hometown of San Ysidro, New Mexico, to visit an uncle who, it turned out, was not home. Appellant next drove to a national historical park where he, Ramsey and Fipps got out and walked around. Ramsey testified that Appellant showed off the park to the women. At this point, Fipps was no longer handcuffed and everyone was smoking a joint. Fipps and Appellant were also kissing, hugging and acting like a normal couple as they toured the park. Ramsey eventually broke away and found a secluded spot where she used meth. When Appellant decided to leave, all three loaded up in the SUV and headed back for Oklahoma.
¶5 Nightfall soon came and Appellant stopped on the side of the road in a secluded area of New Mexico so the women could enjoy the rising moon. As the trio walked into an adjacent field, Appellant put his arm around Fipps and asked: “Just think you could get away with it? What were you thinking, bitch?” Appellant then threw Fipps to the ground and started strangling her. Fipps fought back and clawed Appellant who promptly ordered Ramsey to grab Fipps’s feet. Ramsey complied and Fipps kicked her in the face and bit her. Appellant continued to struggle with Fipps as she kept getting up. In the end, Appellant pinned Fipps to the ground and fatally strangled her using his hands. Fipps’s last words of “mommy loves you” were for her young daughter. With the killing complete, Appellant put Fipps’s body in the backseat of the SUV, drove thirty minutes to another location in the New Mexico desert and buried the body. Authorities never found Fipps’s remains.
¶6 Calvert now appeals from his judgment and sentence, alleging the following propositions of error:
I. THE STATE OF OKLAHOMA LACKED SUBJECT MATTER JURISDICTION TO PROSECUTE APPELLANT FOR A NEW MEXICO MURDER;
II. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR FIRST DEGREE FELONY MURDER. OKLAHOMA’S KIDNAPPING STATUTE LIMITS ITS APPLICATION TO ACTS COMMITTED IN THIS STATE;
III. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR FIRST DEGREE FELONY MURDER. THERE WAS A SIGNIFICANT BREAK IN THE CHAIN OF EVENTS AFTER THE ALLEGED OKLAHOMA KIDNAPPING, WHICH NEGATED THE NEXUS REQUIRED FOR FELONY MURDER;
IV. THE JURY WAS NOT PROPERLY INSTRUCTED ON CONSENT AS A DEFENSE TO THE UNDERLYING CHARGE OF KIDNAPPING;
V. THE JURY WAS IMPROPERLY INSTRUCTED ON “DELIBERATE INTENT” AS DESCRIBED IN OUJI-CR 4-63;
VI. THERE WAS INADEQUATE ACCOMPLICE CORROBORATION OF THE KIDNAPPING CHARGE;
VII. EVIDENCE OF A TELEPHONE CONVERSATION BETWEEN APPELLANT AND THE ALLEGED VICTIM CONSTITUTED HEARSAY AND WAS IMPROPERLY ADMITTED OVER DEFENSE COUNSEL’S OBJECTION;
VIII. THE EXCESSIVE DELAY IN THE PROSECUTION OF THIS CASE ULTIMATELY VIOLATED APPELLANT’S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION;
IX. PROSECUTORIAL MISCONDUCT SO INFECTED THE STATE’S CLOSING ARGUMENT THAT A NEW TRIAL IS REQUIRED; and
X. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
¶7 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED.
¶1 Appellee, J.B., was charged pursuant to the Youthful Offender Act1 with Second Degree Murder, in violation of 21 O.S.2011, § 701.8 (Count 1), and three counts of Assault With a Dangerous Weapon, in violation of 21 O.S.2011, § 652 (Counts 2-4), in Oklahoma County District Court Case No. CF-2021-2922.
¶2 On August 4, 2021, the State filed a Motion for Imposition of an Adult Sentence. The motion was heard and denied on January 31, 2022, by the Honorable Lydia Green, Special Judge, in an order which the State now appeals.
¶3 In seeking reversal of Judge Green’s denial of its motion to impose an adult sentence pursuant to 10A O.S.Supp.2018, § 2-5-208(E), the State raises one proposition of error:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE STATE’S MOTION TO IMPOSE ADULT CERTIFICATION AS THE STATE PRESENTED BY CLEAR AND CONVINCING EVIDENCE THAT APPELLEE SHOULD BE SENTENCED AS AN ADULT. THE TRIAL COURT IMPROPERLY WEIGHED THE SEVEN ENUMERATED FACTORS IN SECTION 2-5-208 OF 10A OF THE OKLAHOMA STATUES, OR IN THE ALTERNATIVE, IMPROPERLY CONSIDERED FACTORS OUTSIDE OF THE ENUMERATED ONES IN SECTION 2-5-208 OF TITLE 10A OF THE OKLAHOMA STATUTES.
¶4 Pursuant to Rule 11.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022), this appeal was automatically assigned to this Court’s accelerated docket and heard in oral argument on May 12, 2022. At the conclusion of that argument, the parties were advised of this Court’s decision. The trial court’s order denying the State’s motion to certify J.B. as eligible to be sentenced as an adult is REVERSED and this case is REMANDED to the District Court of Oklahoma County.
¶1 The State of Oklahoma charged Appellee, John Edward Breznai, Jr., in the District Court of Custer County, Case No. CF-2021-93, with Count 1: Possession of Firearm after Former Felony Conviction in violation of 21 O.S.Supp.2019, § 1283(A); Count 2: Knowingly Receiving or Concealing Stolen Property in violation of 21 O.S.Supp.2018, § 1713, a misdemeanor; Count 3: Possession of a Controlled Dangerous Substance in violation of 63 O.S.Supp.2017, § 2-402, a misdemeanor; Count 4: Unlawful Possession of Paraphernalia in violation of 63 O.S.2011 § 2-405(B), a misdemeanor.
¶1 The State of Oklahoma, Appellant, appeals from an order sustaining Appellee’s motion to dismiss a charge of assault and battery on a police officer filed in the District Court of Mayes County, Case No. CF-2019-295. The trial court held an evidentiary hearing on Appellee’s motion to dismiss, and, relying on McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), and Hogner v. State, 2021 OK CR 4, 500 P.3d 629, concluded that Oklahoma lacked jurisdiction to prosecute this non-Indian Appellee because the deputy sheriff whom Appellee allegedly assaulted and battered during his arrest was an Indian, and the crime occurred within Indian Country, i.e., the Cherokee Reservation. See 18 U.S.C., §§ 1151-1153.