OCDW 09.12.16

 

(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).

 

 

Kevin Judd Lemons v. State, No. F-2015-715 (Okl.Cr., August 31, 2016) (unpublished): After-Formers (Enhancement); Fines: Lemons was convicted at a bench trial in Jefferson County (the Hon. Dennis L. Gay, presiding) of Trafficking, AFCF x 2, and sentenced to 25 years and a $25,000.00 fine. Lemons had prior felony convictions, consisting of a mixture of drug-related and non-drug-related prior felony convictions; thus, under 21 O.S. 51.1 he was eligible for enhancement which is three times the minimum for a first offense up to life. This meant that, since Trafficking is punishable by 4-life, the sentencing range was 12-life; but, everyone in the courtroom thought that the minimum was 20 years. In light of this error, the Court modified the sentenced to 17 years, on the theory that the trial court sentenced Lemons to five years over what he thought the minimum sentence was. In addition, the Court modified the fine to $10,000.00 because the general fine provision applied under 21 O.S. 64. NOTE: Judge Hudson dissented, in part, on the basis that the matter should have been remanded for re-sentencing.

State v. Mario Alexander, No. S-2015-723 (Okl.Cr., September 8, 2016) (unpublished): Search and Seizure (Traffic Stops); State Appeals: Alexander was charged in Okmulgee County with drug offenses, and he filed a motion to suppress evidence seized from his person during a traffic stop. The Hon. Kenneth E. Adair granted the motion, and the State appealed. In this State appeal, the Court affirmed. NOTE: This is a nifty opinion because the trial court caught the Trooper in some lies (Trooper Brad Guilioli) and essentially held that the traffic stop was pretextual; and Alexander had an outstanding warrant, which in some cases would act as an intervening cause to excuse the violation, but here the Court held that the unlawful arrest was flagrant and thus suppression was appropriate.

Dennis Ray Runnels v. State, No. F-2015-531 (Okl.Cr., September 8, 2016) (unpublished): After-Formers (Enhancement): Runnels was convicted by jury in Hughes County (the Hon. George Butner, presiding), of Distribution of CDS (Meth) AFCF x 2, and sentenced to 19 years. The Court affirmed the conviction over several claims, but found plain error when the trial court instructed the jury that the punishment range was not less than 15 years, when the correct range was not less than 6 years. The Court modified the sentence to 10 years rather than remand for re-sentencing. NOTE: Judge Lewis and Judge Hudson dissented in part, holding that the case should have been remanded for re-sentencing.

 

“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.

 

 

United States v. Jose Herrera-Valdez, No. 14-3534 (7^th Cir., June 17, 2016): Judicial Bias: Conviction for illegal re-entry is reversed because the trial court judge had served as the District Counsel for the INS at the time that Herrera-Valdez was deported.

United States v. Harold Delonte Castle, No. 14-3073 (D.C. Cir., June 14, 2016): Search and Seizure (Warrantless): Warrantless Terry stop of a guy walking out of a suspected drug house is invalid, denial of suppression motion is reversed.

United States v. Ricky Brown, No. 13-1761 (6^th Cir., June 27, 2016): Search and Seizure (Search Warrants; Sufficiency): Denial of motion to suppress fruits of a home search pursuant to a warrant is reversed because the affidavit was insufficient, and the good faith exception does not save it!

Freddy Curiel v. Amy Miller, Warden, No. 11-56949 (9^th Cir., July 25, 2016) (en banc): Habeas Corpus (SOL & Equitable Tolling): This is a complicated en banc opinion dealing with whether a state post-conviction petition was “filed properly” for tolling purposes under California law. The majority held that it was since the California Supreme Court denied it on the basis that it was not pled sufficiently, not that it was untimely. This means that Curiel gets the benefit of extra tolling time and a timely filed federal petition.

United States v. Ralph Dennis, No. 14-3561 (3^rd Cir., June 24, 2016): Entrapment: In this drug case, the panel reversed a conviction for Robbery and Gun Possession based upon denial of a jury instruction on entrapment.

 

 

SCOTT LOFTIS, Ponca City, tried a case in Kay County last week where the client was charged with Conspiracy, Burglary I, Robbery I, and Pointing a Firearm, and two co-defendants rolled on him. The jury found Scott’s client not guilty on everything except the conspiracy and gave him three years—which he will discharge shortly. The State’s offer was 35 years to do at 85%. Nice work, Scott!

ASHLEY SALSIBURY, Tulsa PD, just won her first jury trial in Tulsa County. The details are kind of sketchy, but she is the daughter of Tom Salisbury, who has been fighting the good fight in Ponca City for a long time. Congratulations, Ashley!

KAREN BYARS, OKC, secured a sentence modification in Pottawatomie County, reducing a 35-year sentence in a homicide case by 10 years. It is nice to know that these are successful occasionally. Good job, Karen!

 

 

EXONEREE ACQUITTED: A Philadelphia man who was granted relief by DNA after spending 25 years in prison was nevertheless charged with the same crime by prosecutors who refused to let it go, but this time the jury acquitted the man.

OSBI TECH: The OSBI has unveiled some new crime scene mapping technology.

RETIREMENT: District Judge Richard Van Dyck (Grady and Caddo Counties) has announced his retirement from the bench.

RETIREMENT II: Edmond Police Chief Bob Ricks has announced his retirement.

DNA COLLECTION: This November 1, 2016, marks the date upon which a new law will take effect that authorizes the State to take DNA samples from those arrested for felonies and violent misdemeanors. However, the article notes some dissention by local law enforcement because the Legislature has no mechanism to fund the collection.

BONDSMAN ACCUSED: A bail bondsman in Stillwater has been charged with embezzlement.

GUARD CHARGED: A prison guard at Eddie Warrior Correctional Facility has been charged with raping female inmates.

SHERIFF DEBATE: This Thursday, September 15, 2016, the candidates for Oklahoma County Sheriff will participate in a debate at the luncheon of the Oklahoma County Criminal Defense Lawyers Association, at noon at the downtown library.

CRUISER CRASH: A police officer in Waurika is facing charges after crashing his police cruiser in what might be a DUI.

NEW ASSISTANT CHIEF: Lt. Goebel Music has been named the new Assistant Police Chief in Chickasha.

IRS BREAKIN: Someone broke into the IRS building in downtown OKC.

FBI UNDER FIRE: The FBI is facing criticism for how it handled a child porn sting when it commandeered the web site and kept in business for a while in order to ensnare the subscribers on the deep web site.

RECONCILIATION: Nice story about an Oklahoma man convicted wrongfully, exonerated by DNA and released, and reconciled with his accuser.

TROOPER ARRESTED: A Trooper in Broken Arrow has been charged with felony child abuse for spanking his girlfriend’s child.

MOVING UP: Assistant District Attorney Mark Stoneman, Lawton, is leaving for the U.S. Attorney’s Office in OKC.

 

WACKY CRIME

MULTI-TASKER: A youth in Broken Arrow was arrested for masturbating in public while at the same time riding his bike.

911: A tweaker in Lawton was arrested for “misuse” of the 911 system.

THAT WAS FAST: A man given a 10-year suspended lasted all of one day before being arrested for an altercation at a convenience store.

THE GETAWAY: A man suspected of an OKC burglary made his getaway—on a stolen lawn mower.

SAMURAI: A burglar in Claremore was confronted by a sword-wielding homeowner.

GUN TO KNIFE FIGHT: Only this one involves a man in Tulsa who opened fire on a car with a BB gun…to which the motorist responded by returning fire with a real gun.

PSYCHIC: Police in Oklahoma City have arrested a psychic…why did she not know about this?

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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