Court Issue Volume 89 - No. 24 9/8/2018 - Oklahoma Bar Association
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Volume 89 — No. 24 — 9/8/2018 Court Issue
OCTOBER IS OCT. 11 MCLE CREDIT 3/1
DOMESTIC VIOLENCE OCT. 12 MCLE CREDIT 7/2
AWARENESS MONTH
october 11:
Program Planner:
DOMESTIC VIOLENCE TRAINING G. Gail Stricklin, Attorney, Oklahoma City
TOPICS COVERED
FOR GUARDIAN AD LITEMS • Domestic Violence and Trauma
• GAL Law and Best Practices
• Case Study (to Include 1 Hr Ethics)
OCTOBER 11 1:30 - 3:40 p.m. $75 for registration. Lawyers providing pro bono services through Legal
Aid, Lawyers for Children, public defender GALs or court-appointed pro
bono GALs may pre-register for $25 by contacting Renee at 405.416.7029 or
University of Tulsa College of Law Moot Courtroom,
3120 East 4th Place, Tulsa ReneeM@okbar.org. NO OTHER DISCOUNTS.
This program will not be webcast.
october 12:
DOMESTIC VIOLENCE AT WORK Program Planner: Ginger Decoteau,
Founder, Executive Director,
AWARENESS, PLANNING & PREVENTION Community Learning Council, Inc.
During this program, participants will review
CoSponsored by the Community Learning Council
case studies that detail incidents of domestic
violence-related incidents and injuries. This program
OCTOBER 12 8:30 a.m. - 3 p.m. was designed to help professionals identify warning
signs, strengthen policies, implement safety measures
and develop an action plan to create a safer and
University of Tulsa College of Law Moot Courtroom,
3120 East 4th Place, Tulsa supportive work environment for all employees.
$150 for early registration (before Oct. 4). Late Fees Apply. Lawyers
providing pro bono services through Legal Aid, Lawyers for Children, public
FOR INFORMATION OR TO REGISTER, GO TO WWW.OKBAR.ORG/CLE defender GALs or court-appointed pro bono GALs may pre-register for $25
by contacting Renee at 405.416.7029 or ReneeM@okbar.org.
Stay up-to-date and follow us on NO OTHER DISCOUNTS. This program will not be webcast.
1244 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018
THE OKLAHOMA BAR JOURNAL is a
publication of the Oklahoma Bar Associa-
tion. All rights reserved. Copyright© 2018
Oklahoma Bar Association. Statements or
opinions expressed herein are those of the
authors and do not necessarily reflect those
of the Oklahoma Bar Association, its officers, Volume 89 – No. 24 – 9/8/2018
Board of Governors, Board of Editors or
staff. Although advertising copy is reviewed,
no endorsement of any product or service JOURNAL STAFF BOARD OF EDITORS
offered by any advertisement is intended or
implied by publication. Advertisers are solely
JOHN MORRIS WILLIAMS MELISSA DELACERDA
responsible for the content of their ads, and Editor-in-Chief Stillwater, Chair
the OBA reserves the right to edit or reject johnw@okbar.org LUKE ADAMS, Clinton
any advertising copy for any reason.
CAROL A. MANNING, Editor CLAYTON BAKER, Vinita
Legal articles carried in THE OKLAHOMA
carolm@okbar.org
BAR JOURNAL are selected by the Board of AARON BUNDY, Tulsa
Editors. Information about submissions can MACKENZIE SCHEER
be found at www.okbar.org. PATRICIA A. FLANAGAN
Advertising Manager
Yukon
advertising@okbar.org
BAR Center Staff
AMANDA GRANT, Spiro
John Morris Williams, Executive Director; Gina LACEY PLAUDIS
Communications Specialist C. SCOTT JONES,
L. Hendryx, General Counsel; Joe Balkenbush,
laceyp@okbar.org Oklahoma City
Ethics Counsel; Jim Calloway, Director of Man-
agement Assistance Program; Craig D. Combs,
LAURA STONE ERIN MEANS DEWALT, Moore
Director of Administration; Susan Damron,
Director of Educational Programs; Beverly Petry
Communications Specialist SHANNON L. PRESCOTT
Lewis, Administrator MCLE Commission; Carol lauras@okbar.org Okmulgee
A. Manning, Director of Communications; Rob- LESLIE TAYLOR, Ada
bin Watson, Director of Information Technology;
Loraine Dillinder Farabow, Peter Haddock,
Tracy Pierce Nester, Katherine Ogden,
Steve Sullins, Assistant General Counsels OFFICERS &
Les Arnold, Gary Berger, Debbie Brink,
BOARD OF GOVERNORS
Melody Claridge, Cheryl Corey, Ben Douglas, KIMBERLY HAYS, President, Tulsa;
Dieadra Florence, Johnny Marie Floyd, RICHARD STEVENS, Vice President, Norman; CHARLES
Matt Gayle, Suzi Hendrix, Debra Jenkins,
W. CHESNUT, President-Elect, Miami; LINDA S. THOMAS,
Rhonda Langley, Jamie Lane, Durrel
Lattimore, Ramey McMurray, Immediate Past President, Bartlesville; MATTHEW C. BEESE,
Renee Montgomery, Whitney Mosby, Muskogee; JOHN W. COYLE III, Oklahoma City; MARK E.
Lacey Plaudis, Tracy Sanders, Mackenzie FIELDS, McAlester; KALEB K. HENNIGH, Enid; BRIAN T.
Scheer, Mark Schneidewent, Laura Stone, HERMANSON, Ponca City; JAMES R. HICKS, Tulsa; ALISSA
Margaret Travis, Krystal Willis, Laura Willis, HUTTER, Norman; JAMES L. KEE, Duncan; BRIAN K. MOR-
Jennifer Wynne & Roberta Yarbrough
TON, Oklahoma City; JIMMY D. OLIVER, Stillwater; BRYON J.
Oklahoma Bar Association 405-416-7000 WILL, Yukon; D. KENYON WILLIAMS JR., Tulsa; NATHAN D.
Toll Free 800-522-8065 RICHTER, Mustang, Chairperson, OBA Young Lawyers Division
FAX 405-416-7001
Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published three
Ethics Counsel 405-416-7055 times a month in January, February, March, April, May, August,
General Counsel 405-416-7007 September, October November and December and bimonthly in
Lawyers Helping Lawyers 800-364-7886 June and July by the Oklahoma Bar Association, 1901 N. Lincoln
Mgmt. Assistance Program 405-416-7008 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage
Mandatory CLE 405-416-7009 paid at St. Joseph, Michigan.
Board of Bar Examiners 405-416-7075 Subscriptions $60 per year except for law students registered with
Oklahoma Bar Foundation 405-416-7070 the OBA and senior members who may subscribe for $30; all active
members included in dues. Single copies: $3
Postmaster Send address changes to the Oklahoma Bar Association,
www.okbar.org P.O. Box 53036, Oklahoma City, OK 73152-3036.
Vol. 89 — No. 24 — 9/8/2018 The Oklahoma Bar Journal 1245
1246 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018
Oklahoma Bar Association
table of
contents
Sept. 8, 2018 • Vol. 89 • No. 24
page
1248 Index to Court Opinions
1249 Opinions of Court of Criminal Appeals
1253 2019 OBA Board of Governors Vacancies
and Nominating Petitions
1255 Calendar of Events
1256 Disposition of Cases Other Than by Publication
Vol. 89 — No. 24 — 9/8/2018 The Oklahoma Bar Journal 1247
Index to Opinions of Court of Criminal Appeals
2018 OK CR 32 ROY DALE THOMPSON, Appellant, v. THE STATE OF OKLAHOMA,
Appellee. Case No. F-2016-1117....................................................................................................... 1249
NOTICE OF REAPPOINTMENT OF INCUMBENT MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF OKLAHOMA
The current term of office of the United States Magistrate Judge Steven P. Shreder at Muskogee, Oklahoma, is due to
expire on May 14, 2019. The United States District Court is required by law to establish a panel of citizens to consider
the reappointment of the magistrate judge to a new eight-year term.
The duties of the position are demanding and wide-ranging. Such duties include, but are not limited to:
(1) Conduct of preliminary proceedings in criminal cases;
(2) Trial and disposition of misdemeanor cases;
(3) Conduct of various pretrial matters and evidentiary proceedings on delegation from the judges of
the district court; and
(4) Trial and disposition of civil cases upon consent of the litigants.
Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should
be recommended by the panel for reappointment by the court. Comments should be directed to:
Tami Collins, Chief Deputy Clerk
United States District Court for the Eastern District of Oklahoma
P.O. Box 607
Muskogee, OK 74402
Comments must be received by October 19, 2018.
1248 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018
Opinions of Court of Criminal Appeals
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2018 OK CR 32 mission of a felony or the crime of bur-
glary in the second degree.
ROY DALE THOMPSON, Appellant, v. THE
STATE OF OKLAHOMA, Appellee. 4. Mr. Thompson was denied his right to the
effective assistance of trial counsel, in viola-
Case No. F-2016-1117. August 30, 2018
tion of the 6th and 14th Amendments to the
OPINION United States Constitution and Art. II, §§ 7,
9, and 20, of the Oklahoma Constitution.
LEWIS, VICE PRESIDING JUDGE:
5. Based on the facts and circumstances of
¶1 Roy Dale Thompson, Appellant, was tried
this case, Mr. Thompson’s sentences are
by jury and convicted of Count 1, second
grossly excessive and should shock the
degree burglary, in violation of 21 O.S.2011, §
conscience of this Court.
1435; Count 2, assault with a deadly weapon,
in violation of 21 O.S.2011, § 652; Count 3, pos- 6. Cumulative errors deprived Mr. Thomp-
session of a firearm after former conviction of a son of a fair proceeding and a reliable out-
felony, in violation of 21 O.S.Supp.2014, § come.
1283(A); and Count 4, possession of a firearm
during the commission of a felony, in violation FACTS
of 21 O.S.Supp.2012, § 1287,1 in the District ¶2 On the morning of November 25, 2015,
Court of Lincoln County, Case No. CF-2015- Appellant and his accomplice, Marcus Catron,
370A. In the sentencing stage, the jury found arrived in the small town of Davenport, Okla-
Appellant committed these crimes after former homa, hoping to burglarize and perhaps steal
conviction of two (2) or more felonies, and sen- one or more cars in the area. This plan led them
tenced Appellant to life imprisonment and a to approach the home of the victim at around 10
$10,000.00 fine in each of Counts 1 through 4. a.m. Catron knocked at the door of the victim’s
The Honorable Cynthia Ferrell Ashwood, Dis- residence. The victim, who had been paying
trict Judge, pronounced judgment and ordered bills, slipped his pistol into his back brace and
the sentences served concurrently.2 Mr. Thomp- opened the door. Catron then distracted the vic-
son appeals in the following propositions of tim with some questions about raking his leaves.
error: Appellant was already breaking into the victim’s
1.
Mr. Thompson was denied due process truck, looking for something to steal.
when he was convicted of a crime that ¶3 The victim declined Catron’s offer to rake
does not exist. The Judgment and Sentence his leaves but stepped outside to direct him
for Count II must be vacated. toward some other potential customers. Appel-
2. Mr. Thompson has suffered double pun- lant saw the victim talking to Catron and shot
ishment by his convictions and sentences his pistol at the victim through the windshield
on Count III — possession of a firearm of the truck. The victim heard a bullet whiz
after former conviction of a felony and past him, approximately a foot away, and
Count IV — possession of a firearm during strike the side of the house. The victim drew
the commission of a felony in violation of his pistol and returned several shots in Appel-
due process under the 14th Amendment to lant’s direction, wounding him in the belly.
the United States Constitution and Art. II, Appellant returned more shots as he took off
§ 7, of the Oklahoma Constitution. running, and managed to get away. The victim
ordered Catron to the ground at gunpoint and
3. Insufficient evidence was presented at trial called police, who came and arrested him.
to show beyond a reasonable doubt that
Mr. Thompson committed the crime of ¶4 Around 5:30 p.m. that evening, another
possession of a firearm during the com- Davenport resident saw a man he didn’t know
Vol. 89 — No. 24 — 9/8/2018 The Oklahoma Bar Journal 1249stumbling along a road in Davenport, then fall- specifically enumerated assault with a deadly
ing down, and figured him for drunk. He told weapon as a separate crime under section
his wife to call police, but the man disap- 652(C), but had not done so. Avants, 1983 OK
peared. A few hours later, this same man CR 35, ¶ 5, 660 P.2d at 1052; see also, Meggett v.
appeared on their front porch, leaning against State, 1979 OK CR 89, ¶ 10, 599 P.2d 1110, 1114
the wall. Appellant told the couple he’d been (finding “[a]n assault — whether by firearm or
hurt in a car accident and needed medical by some other dangerous weapon — made
attention. He mentioned that his friend had without the intent to kill is proscribed by [21
been driving, but when asked where the friend O.S.2011,] § 645”). Under this longstanding in-
was, Appellant said he didn’t know. terpretation of subsection 652(C), Appellant’s
conviction for assaulting the victim with a
¶5 The couple invited Appellant into their
deadly weapon with intent to do bodily harm,
home and called police. Hearing their descrip-
without proof of an accompanying battery, is
tion of the man, police told the couple to quickly
plainly erroneous.
clear out of their house. Police later took Appel-
lant into custody and eventually transported ¶9 We remedy plain error only when it seri-
him to Tulsa, where he underwent surgery to ously affects the fairness, integrity, or public
remove a bullet fragment from his stomach. reputation of the proceedings. Hogan, 2006 OK
Appellant’s weapon was never recovered. CR 19, ¶ 38, 139 P.3d at 923. A conviction under
section 652(C) carries up to life imprisonment
ANALYSIS
for a first offense, and is subject to the 85%
¶6 In Proposition One, Appellant argues that Rule. 21 O.S.Supp.2015, § 13.1(5). Appellant’s
his conviction under 21 O.S.2011, § 652(C)3 for current conviction and life sentence thus ren-
the crime of assaulting the victim with a dead- der him ineligible for parole consideration for
ly weapon, without proof of an accompanying at least twenty (23) years, three (3) months
battery, is reversible error. Because this ques- longer than a non-85% life sentence. 57 O.S.
tion of statutory interpretation is raised for the Supp.2013, § 332.7(B)(requiring parole consid-
first time on appeal, Appellant must show that eration after 1/3 of sentence); Anderson v. State
a plain or obvious error affected the outcome of 2006 OK CR 6, ¶ 24, 130 P.3d 273, 282-83 (not-
the proceedings. Hogan v. State, 2006 OK CR 19, ing Pardon and Parole Board policy of comput-
¶ 38, 139 P.3d 907, 923; Simpson v. State, 1994 ing a life sentence as 45 years).
OK CR 40, ¶ 2, 876 P.2d 690, 692-93.
¶10 The overwhelming evidence at trial, and
¶7 The amended information in Count 2 the jury’s verdict that Appellant committed
charged Appellant with assaulting the victim assault with a deadly weapon, establish beyond
with a deadly weapon by shooting at him with a reasonable doubt that Appellant is actually
intent to do bodily harm. The trial court’s jury guilty of assault with a dangerous weapon
instructions on this count permitted a convic- with intent to do bodily harm or shooting at
tion of the charged crime based on the ele- another with intent to injure, a felony violation
ments of assaulting another person with a of section 645.5 This crime, after two (2) or more
deadly weapon. The court also instructed the prior felony convictions, is punishable by
jury that it could convict Appellant of the less- twenty (20) years to life imprisonment, but is
er-included offenses of assault with a danger- not subject to the 85% Rule.6
ous weapon with intent to do bodily harm, in
¶11 Appellant’s erroneous conviction and
violation of 21 O.S.2011, § 645,4 or of simple
sentence for a crime subject to the 85% Rule
assault. By failing to object to the information
significantly affects his parole consideration
or the trial court’s instructions in these particu-
eligibility, and thus seriously affects the fair-
lars, Appellant has waived all but plain error.
ness and integrity of the proceedings. We
¶8 However, it is plain or obvious that a vio- therefore exercise our discretion to remedy this
lation of section 652(C) requires not only proof error by modifying Appellant’s conviction to
of an assault, but also an accompanying bat- assault with a dangerous weapon or shooting
tery. Avants v. State, 1983 OK CR 35, ¶¶ 4-7, 660 with intent to injure, after former conviction of
P.2d 1051, 1051-52; see also, OUJI-Cr(2nd), In- two (2) or more felonies, and affirming the sen-
struction No. 4-3 (identifying section 652 tence of life imprisonment.7 No additional
offense as requiring “that the defendant com- relief is warranted.
mit both assault and battery”). The Court in
Avants found that the Legislature could have
1250 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018¶12 In Proposition Two, Appellant claims his ¶15 These claims are either moot or without
convictions and sentences for assault with a merit. We agreed with Appellant that his con-
deadly weapon, possessing a firearm in the viction for assault with a deadly weapon was
commission of a felony (burglary), and pos- plainly erroneous, and modified the conviction
sessing a firearm after former conviction of a to assault with a dangerous weapon or shoot-
felony, punish him separately for a single ing with intent to injure. Appellant’s remaining
criminal act in violation of 21 O.S. 2011, § 11. section 11 and sufficiency of the evidence
Reviewing for plain error, as defined above, claims are without merit. Assuming any defi-
this claim is without merit. While Counts 3 and ciency in counsel’s performance in failing to
4 arose in part from one continuous act of fire- raise these errors at trial, Appellant cannot
arm possession, Appellant’s possession of the show a reasonable probability of a different
firearm in the commission of burglary is suffi- outcome. Proposition Four is therefore denied.
ciently “separate and distinct” from both his
¶16 Proposition Five challenges Appellant’s
earlier criminal possession of the firearm and
life sentences as excessive. This Court will not
his subsequent assault of the victim to warrant
disturb a sentence within statutory limits un-
separate punishments. Sanders v. State, 2015
less, under the facts and circumstances of the
OK CR 11, ¶¶ 8-12, 358 P.3d 280, 284-85 (find-
case, it shocks the conscience of the Court. Pul-
ing possession of single, stolen firearm within
len v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922,
defendant’s home cannot be punished as both
928. Appellant is a violent recidivist who fired
felon in possession and knowingly concealing
several shots at his latest victim during an
stolen property; but that section 11 generally
attempted auto burglary, and might have easi-
allows punishment for both the felonious pos-
ly committed a senseless murder. His sentences
session of a firearm and for other crimes in
do not shock the conscience. Proposition Five
which the weapon is possessed or used). Prop-
is denied.
osition Two is denied.
¶17 Appellant argues in Proposition Six that
¶13 In Proposition Three, Appellant chal-
the accumulation of prejudice from errors war-
lenges the sufficiency of the evidence to show
rants relief. We remedied the only prejudicial
possession of a firearm in the commission of a
error by modification. There is no other indi-
felony (burglary), and the crime of second
vidual, harmful error, and no cumulative preju-
degree burglary. We determine whether the
dice from individually harmless errors. Barnett v.
evidence, taken in the light most favorable to
State, 2011 OK CR 28, ¶ 34, 263 P.3d 959, 970.
the prosecution, permits any rational trier of
Proposition Six is therefore denied.
fact to find the essential elements of the crime
charged beyond a reasonable doubt. Spuehler v. DECISION
State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.
This Court will accept all reasonable inferences ¶18 The Judgment and Sentence in Count 2 is
and credibility choices that tend to support the MODIFIED to assault with a dangerous weap-
verdict. Washington v. State, 1986 OK CR 176, ¶ on or shooting another with intent to injure,
8, 729 P.2d 509, 510. We find the evidence suf- and otherwise AFFIRMED. The Judgment and
ficient in each count, and no relief is warranted. Sentence in Counts 1, 3, and 4 is AFFIRMED.
Proposition Three is denied. Pursuant to Rule 3.15, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch.18, App.
¶14 In Proposition Four, Appellant argues (2018), the MANDATE is ORDERED issued
that trial counsel was ineffective for failing to upon the delivery and filing of this decision.
object to: (1) the improper conviction in Count
2 (see Proposition One); (2) the violations of AN APPEAL FROM THE DISTRICT
section 11 (see Proposition Two); and the insuf- COURT OF LINCOLN COUNTY
ficient evidence of burglary and possession of HONORABLE CYNTHIA FERRELL
a firearm in commission of burglary (see Prop- ASHWOOD, DISTRICT JUDGE
osition Three). We review these claims under
the standard set forth in Strickland v. Washing- APPEARANCES AT TRIAL
ton, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 Charles Michael Thompson, 104 W. 8th, Chan-
(1984), requiring Appellant to show both defi- dler, OK 74834, Attorney for Defendant
cient performance and prejudice. Id., 466 U.S.
at 687, 104 S.Ct. at 2064.
Vol. 89 — No. 24 — 9/8/2018 The Oklahoma Bar Journal 1251Emily Mueller, Asst. District Attorney, 811 2. Appellant must serve 85% of his sentence in Count 2 before he is
eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1 (5).
Manvel Ave., Ste. 1, Chandler, OK 74834, Attor- 3. The pertinent part of section 652(C), says:
ney for the State Any person who commits any assault and battery upon another …
by means of any deadly weapon … shall upon conviction be
APPEARANCES ON APPEAL guilty of a felony punishable by imprisonment in the State Peni-
tentiary not exceeding life (emphasis added).
4. Every person who, with intent to do bodily harm and without
Sarah MacNiven, P.O. Box 926, Norman, OK justifiable or excusable cause, commits any assault, battery, or assault
73070, Attorney for Appellant and battery upon the person of another with any sharp or dangerous
weapon, or who, without such cause, shoots at another, with any kind of
Mike Hunter, Attorney General, Joshua L. firearm, air gun, conductive energy weapon or other means whatever,
with intent to injure any person, although without the intent to kill such
Lockett, Asst. Attorney General, 313 N.E. 21st person or to commit any felony, upon conviction is guilty of a felony
St., Oklahoma City, OK 73105, Attorneys for …” (emphasis added).
5. The trial court’s definition of “assault” required the jury to find
Appellee Appellant guilty of a “willful and unlawful attempt or offer to do a
bodily harm to another.” We therefore find the jury’s guilty verdict of
OPINION BY: LEWIS, V.P.J. assault in Count 2 tantamount to a verdict that Appellant shot at the
LUMPKIN, P.J.: Concur victim with a formed intent to do bodily harm.
6. With Appellant’s two or more prior convictions, he is subject to
HUDSON, J.: Concur the same sentence for either crime, ten (20) years to life imprisonment.
KUEHN, J.: Concur 21 O.S.2011, § 51.1(B).
ROWLAND, J.: Concur 7. Birdine v. State, 2004 OK CR 7, ¶ 6, 85 P.3d 284, 286 (modifying
murder conviction to manslaughter, where necessary finding of fetus’s
viability to convict of murder was rendered doubtful under erroneous
1. The jury acquitted Appellant of Count 5, possession of burglary instruction, but evidence showed, beyond a reasonable doubt, that
tools. defendant committed manslaughter by killing an unborn quick child;
and affirming life sentence).
CONQUER YOUR
MOUNTAIN
BURNOUT • DEPRESSION
ANXIETY • SUBSTANCE ABUSE
RELATIONSHIP CHALLENGES
LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM
FREE 24-HOUR CONFIDENTIAL ASSISTANCE
800.364.7886
WWW.OKBAR.ORG/LHL
1252 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018Bar News
2019 OBA Board of
Governors Vacancies
Nominating Petition deadline was 5 p.m. Friday, Sept. 7, 2018
OFFICERS Supreme Court Judicial bars may file appropriate resolu-
President-Elect District Five tions nominating a candidate for
Current: Charles W. Chesnut, Miami Current: James L. Kee, Duncan this office.
Mr. Chesnut automatically becomes Carter, Cleveland, Garvin, Grady, Not less than 60 days before the
OBA president Jan. 1, 2019 Jefferson, Love, McClain, Murray opening of the annual meeting,
(One-year term: 2019) and Stephens counties 50 or more voting members of the
Nominee: Susan B. Shields, (Three-year term: 2019-2021) association may file with the
Oklahoma City Nominee: Vacant executive director a signed petition
Vice President Member At Large nominating a candidate for the
Current: Richard Stevens, Norman Current: Alissa Hutter, Norman office of president elect or vice
(One-year term: 2019) Statewide president, or three or more county
Nominee: Lane R. Neal, (Three-year term: 2019-2021) bar associations may file appro-
Oklahoma City Nominee: Josh D. Lee, Vinita priate resolutions nominating a
Miles T. Pringle, Oklahoma City candidate for the office.
BOARD OF GOVERNORS If no one has filed for one of the
Supreme Court Judicial vacancies, nominations to any of the
SUMMARY OF
District Three above offices shall be received from
NOMINATIONS RULES
Current: John W. Coyle III, the House of Delegates on a petition
Oklahoma City Not less than 60 days prior to the
annual meeting, 25 or more voting signed by not less than 30 delegates
Oklahoma County certified to and in attendance at the
(Three-year term: 2019-2021) members of the OBA within the
Supreme Court Judicial District session at which the election is held.
Nominee: David T. McKenzie,
from which the member of the See Article II and Article III of
Oklahoma City
Board of Governors is to be elected OBA Bylaws for complete informa-
Andrew E. Hutter, Oklahoma City
that year, shall file with the execu- tion regarding offices, positions,
Supreme Court Judicial tive director, a signed petition nominations and election procedure.
District Four (which may be in parts) nominating Elections for contested positions
Current: Kaleb K. Hennigh, Enid a candidate for the office of member will be held at the House of Dele-
Alfalfa, Beaver, Beckham, Blaine, of the Board of Governors for and gates meeting Nov. 9, during the
Cimarron, Custer, Dewey, Ellis, from such judicial district, or one Nov. 7-9 OBA Annual Meeting.
Garfield, Harper, Kingfisher, or more county bar associations Terms of the present OBA officers
Major, Roger Mills, Texas, Washita, within the judicial district may file and governors will terminate Dec.
Woods and Woodward counties a nominating resolution nominating 31, 2018.
(Three-year term: 2019-2021) such a candidate. Nomination and resolution forms
Nominee: Vacant Not less than 60 days prior to the can be found at www.okbar.org/
annual meeting, 50 or more voting members/BOG/BOGvacancies.
members of the OBA from any or all
judicial districts shall file with the
executive director a signed petition NOTICE
nominating a candidate to the office This issue went to press before the deadline, and
the list of nominees may not be complete. See
of member at large on the Board of www.okbar.org/annualmeeting for updates.
Governors, or three or more county
Vol. 89 — No. 24 — 9/8/2018 The Oklahoma Bar Journal 1253Oklahoma Bar Association
Nominating Petitions
(See Article II and Article III of the OBA Bylaws)
OFFICERS Andrew E. Hutter, Oklahoma City Miles T. Pringle, Oklahoma City
President-Elect Nominating Petitions have been Nominating Petitions have been
Susan B. Shields, Oklahoma City filed nominating Andrew E. Hutter filed nominating Miles T. Pringle,
Nominating Petitions have been for election of Supreme Court Judi- Oklahoma City for election of Mem-
filed nominating Susan B. Shields cial District No. 3 of the Oklahoma ber at Large of the Oklahoma Bar
for President-Elect of the Oklahoma Bar Association Board of Governors Association Board of Governors for
Bar Association Board of Governors for a three-year term beginning Jan- a three-year term beginning January
for a one-year term beginning uary 1, 2019. Twenty-five of the 1, 2019. Fifty of the names thereon
January 1, 2019. names thereon are set forth below: are set forth below:
A total of 573 signatures appear on John W. Coyle III, Brian Morton, David A. Poarch, Valerie K. Couch,
the petitions. Sonja Porter, Mike Arnett, Kenneth Len Cason, Paul Cason, Cody Coo-
Watson, Jason Spanich, Myong per, Mack Martin, Amber Martin,
Vice President John W. Coyle III, Jeremy Tubb,
Chung, Joan Lopez, Lance Phillips,
Lane R. Neal, Oklahoma City Lynn Pringle, Laura Pringle, John
E. Seth Hendrick, Kelli Kelso, Red-
Nominating Petitions have been mond Kemether, John Hunsucker, David Hershberger, C. Miles Tolbert,
filed nominating Lane R. Neal for Paul Austin, Lily Cruickshank, Lisa Cummings, Benjamin E. Russ,
Vice President of the Oklahoma Keith McGill, Todd Kernal, Amber Michael P. Sullivan, Kent P. Sullivan,
Bar Association Board of Governors Godfrey, Josh Lee, Aaron Glover, Douglas Dale, R. Lindsay Bailey,
for a one-year term beginning Brian Young, Hayley Potts, Phillip Greg Tontz, Jennifer Fischer, James
January 1, 2019. Winters, Angela Sonagerra and Richard Martin, Mark H. Price, Jack
A total of 127 signatures appear on Amanda Everett H. Petty, James R. Moore, Armando
the petitions. A total of 33 signatures appear on Rosell, Linda K. Ellis, Elizabeth D.
the petitions. Crampton, Joel Hall, Steven R.
BOARD OF GOVERNORS McConnell, Sally K. Edwards, Amy
Member at Large
Supreme Court Judicial District Douglas, Alex Kaiser, Curtis Kaiser,
Josh D. Lee, Vinita
No. 3 Jennifer Kaiser, Blu Hulsey, Brent
Nominating Petitions have been Johnson, Timothy Dowd, Megan
David T. McKenzie, filed nominating Josh D. Lee, Vinita
Oklahoma City Dowd , Chase Schnebel, John Wad-
for election of Member at Large of ley, Nicole Blair, Gregory Chan-
Nominating Petitions have been the Oklahoma Bar Association solme, Andrew Harroz, Richard
filed nominating David T. McKenzie Board of Governors for a three-year Thomas Hornbeek , Daniel Hays,
for election of Supreme Court Judi- term beginning January 1, 2019. Daniel Couch, Peter Scimeca, Kelsey
cial District No. 3 of the Oklahoma A total of 66 signatures appear on Quillian and Lindsey Ridgway
Bar Association Board of Governors the petitions.
for a three-year term beginning Jan- A total of 105 signatures appear on
uary 1, 2019. the petitions.
A total of 57 signatures appear on
the petitions.
1254 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018Calendar of Events
September
12 OBA Group Insurance Committee meeting;
11:30 a.m.; Oklahoma Bar Center, Oklahoma City
with teleconference; Contact Jo Angela Ables
405-272-9221
14 OBA Law-Related Education Committee
meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma
City with teleconference; Contact Amber Peckio Garrett
918-895-7216
15 OBA Young Lawyers Division meeting; 10 a.m.;
Oklahoma Bar Center, Oklahoma City; Contact
Nathan Richter 405-376-2212
21 OBA Board of Governors meeting; 10 a.m.;
17 OBA Board of Editors meeting; 2 p.m.; Oklahoma Stillwater; Contact John Morris Williams
Bar Center, Oklahoma City with videoconference; 405-416-7000
Contact Melissa DeLacerda 405-624-8383
OBA Lawyers Helping Lawyers Assistance
18 OBA Bench and Bar Committee meeting; Program Committee meeting; 12 p.m.; Oklahoma
12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Bar Center, Oklahoma City with BlueJeans; Contact
Rod Ring 405-325-3702 Hugh E. Hood 918-747-4357 or Jeanne Snider
405-366-5466
OBA Women in Law Committee meeting;
4 p.m.; Oklahoma Bar Center, Oklahoma City with 25 OBA Access to Justice Committee meeting;
BlueJeans; Contact Melanie Christians 405-705-3600 11:30 a.m.; Oklahoma Bar Center, Oklahoma City with
or Brittany Byers 405-682-5800 BlueJeans; Contact Rod Ring 405-325-3702
19 OBA Family Law Section meeting; 11:30 a.m.; 26 OBA Immigration Law Section meeting; 11 a.m.;
Oklahoma Bar Center, Oklahoma City; Contact Oklahoma Bar Center, Oklahoma City; Contact
Jeffrey H. Crites 580-242-4444 Melissa R. Lujan 405-600-7272
OBA Indian Law Section meeting; 12 p.m.; OBA Financial Institutions and Commercial
Oklahoma Bar Center, Oklahoma City with tele- Law Section meeting; 12 p.m.; Oklahoma Bar
conference; Contact Valery Giebel 918-581-5500 Center, Oklahoma City with teleconference; Contact
Miles T. Pringle, 405-848-4810
OBA Clients’ Security Fund Committee
meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma 27 OBA General Practice/Solo and Small Firm
City with teleconference; Contact Micheal Salem Section meeting; 12 p.m.; Oklahoma Bar Center,
405-366-1234 Oklahoma City with videoconference; Contact
20 OBA Diversity Committee meeting; 12 p.m.;
Ashley B. Forrester 405-974-1625
Oklahoma Bar Center, Oklahoma City with tele- 28 OBA Professional Responsibility Commission
conference; Contact Telana McCullough 405-267-0672 meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma
City; Contact Gina Hendryx 405-416-7007
OBA Professionalism Committee meeting;
4 p.m.; Oklahoma Bar Center, Oklahoma City with OBA Environmental Law Section meeting;
teleconference; Contact Linda Scoggins 405-319-3510 11 a.m.; Oklahoma Bar Center, Oklahoma City with
teleconference; Contact Teena G. Gunter 405-522-4576
Vol. 89 — No. 24 — 9/8/2018 The Oklahoma Bar Journal 1255Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS court further ordered the sentences to be served
Thursday, August 16, 2018 concurrently, with all but seven years suspend-
RE-2017-0695 — Michael Angelo Terry, Ap- ed. From this judgment and sentence Justin
pellant, entered a plea of guilty on May 5, 2016, Anthony Braun has perfected his appeal. The
in Oklahoma County District Court Case No. Judgment and Sentence of the District Court is
CF-2016-1792 to Count 1 – Possession of a Con- AFFIRMED. Opinion by: Lewis, V.P.J.; Lump-
trolled Dangerous Substance (Meth), a felony, kin, P.J., concurs; Hudson, J., concurs; Kuehn,
and Count 2- Possession of Drug Parapherna- J., concurs; Rowland, J., concurs.
lia. He was sentenced to ten years on Count 1 F-2017-235 — Cody Lloyd Haynes, Appel-
and 1 year on Count 2, all suspended with lant, was tried in a non-jury trial for the crimes
rules and conditions of probation. The State of Count 1, child abuse by injury, and Counts
filed an application to revoke Appellant’s sus- 2-5, child neglect, in Case No. CF-2015-192 in
pended sentences on September 1, 2016. Fol- the District Court of Creek County. The Honor-
lowing a revocation hearing on June 26, 2017, able Douglas W. Golden, District Judge, found
before the Honorable Cindy H. Truong, Appel- Haynes guilty and sentenced him to forty
lant’s suspended sentences were revoked in years imprisonment with all but the first twen-
full. The sentences were ordered to run concur- ty years suspended and a $500.00 fine in Count
rently. Appellant appeals the revocation of his 1, and ten years imprisonment and a $500.00
suspended sentences. The revocation of Appel- fine in each of Counts 2-5. The trial court fur-
lant’s suspended sentences is AFFIRMED. ther ordered the sentences on Counts 2-5 to be
Opinion by: Rowland, J.; Lumpkin, P.J., con- served concurrently with each other but con-
curs; Lewis, V.P.J., concurs; Hudson, J., con- secutively to the sentence on Count 1, with
curs; Kuehn, J., concurs. credit for time served. From this judgment and
F-2017-782 — Larry Gene Keeler, Appellant, sentence Cody Lloyd Haynes has perfected his
was tried by jury for the crimes of Count 1 - appeal. The Judgments and Sentences are
First Degree Murder and Count 2 - Cruelty to AFFIRMED. Opinion by: Lewis, V.P.J.; Lump-
Animals in Case No. CF-2014-306 in the Dis- kin, P.J., concurs; Hudson, J., concurs; Kuehn,
trict Court of McClain County. The jury re- J., concurs; Rowland, J., concurs.
turned a verdict of guilty and recommended as F-2017-563 — Farron Robert Deerleader, Ap-
punishment life imprisonment without parole pellant, was tried by jury for the crimes of
on Count 1 and a $5000 fine on Count 2. The Count 1, second degree burglary, and Count 2,
trial court sentenced accordingly. From this larceny of an automobile, both after former
judgment and sentence Larry Gene Keeler has conviction of two or more felonies, in Case No.
perfected his appeal. AFFIRMED. Opinion by: CF-2016-319 in the District Court of Creek
Kuehn, J.; Lumpkin, P.J., concur; Lewis, V.P.J., County. The jury returned a verdict of guilty
concur; Hudson, J., concur; Rowland, J., concur. and set punishment at forty-five years impris-
F-2017-821 — Justin Anthony Braun, Appel- onment and a $10,000.00 fine in Count 1, and
lant, was tried in a non-jury trial for the crimes forty-five years imprisonment and a $50,000.00
of Count 1, lewd or indecent proposals to a fine in Count 2. The trial court sentenced ac-
child under sixteen (16), and Count 2, attempt- cordingly and ordered the sentences to be
ed lewd or indecent acts to child under sixteen served consecutively. From this judgment and
(16), in Case No. CF-2016-316 in the District sentence Farron Robert Deerleader has per-
Court of Custer County. The Honorable F. fected his appeal. The Judgment and Sentence
Doug Haught found Braun guilty and sen- is AFFIRMED. Opinion by: Lewis, V.P.J.; Lump-
tenced him to fifteen years imprisonment and kin, P.J., concurs; Hudson, J., concurs; Kuehn,
a $500.00 fine in Count 1, and ten years impris- J., concurs; Rowland, J., concurs.
onment and a $500.00 fine in Count 2. The trial
1256 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018Thursday, August 23, 2018 in CF-2016-24 to run concurrently with each
RE-2017-51 — Justin Kyle Taylor, Appellant, other and further ordered the sentences in
appeals from the revocation in full of his sus- CF-2014-65 to run consecutive to each other
pended sentences in Case No. CF-2014-1450 in and consecutive with the sentences imposed in
the District Court of Cleveland County, by the CF-2016-24. From this judgment and sentence
Honorable Tracy Schumacher, District Judge. Earnesto Ray Loya has perfected his appeal.
AFFIRMED. Opinion by: Lewis, V.P.J.; Lump- The Judgment and Sentence of the District
kin, P.J., concurs; Hudson, J., concurs; Kuehn, Court is hereby AFFIRMED. Opinion by:
J., concurs in results; Rowland, J., concurs. Lumpkin, P.J.; Lewis, V.P.J., Concur; Hudson, J.,
Concur; Kuehn, J., Specially Concurs; Row-
F-2016-908 — Orlando Delgado, Appellant, land, J., Specially Concurs.
was tried by jury for the crime of shooting with
the intent to kill in Case No. CF-2015-6626 in F-2017-466 — Appellant, Jerimiah Don New-
the District Court of Tulsa County. The jury comb, was charged on November 6, 2014, with
returned a verdict of guilty and set punishment Count 1 – Manufacture of CDS, Methamphet-
at thirty years imprisonment. The trial court amine, a felony; Counts 2-6 – Child Neglect,
sentenced accordingly. From this judgment felonies; Count 7 – Speeding in a School Zone,
and sentence Orlando Delgado has perfected a misdemeanor; Count 8 - Driving Under Sus-
his appeal. The Judgment and Sentence of the pension, a misdemeanor; and Count 9 – Failure
District Court is AFFIRMED. Opinion by: to Maintain Security, a misdemeanor. Appel-
lant pled guilty on December 17, 2014, and was
Lewis, V.P.J.; Lumpkin, P.J., concurs in results;
accepted into the Delaware County Drug Court
Hudson, J., concurs; Kuehn, J., concurs in re-
Program. Pursuant to the plea agreement, up-
sults; Rowland, J., concurs in results.
on successful completion of the program, all
F-2017-566 — Donald Ray Lockridge, Appel- charges would be dismissed; if not successful,
lant, was tried by jury for the crime of attempt- he would be sentenced to life imprisonment
ing to obtain a controlled substance by forged with twenty years to serve and the balance
or altered prescription, after former conviction suspended on Counts 1-6. He would also be
of two or more felonies, in Case No. CF-2015- fined $50,000.00 on Count 1, $500.00 on Counts
60 in the District Court of Canadian County. 2-6, $20.00 on Count 7, and $250.00 on Counts
The jury returned a verdict of guilty and set 8 and 9. The State filed an application on Au-
punishment at fifteen years imprisonment. The gust 25, 2016, to remove Appellant from the
trial court sentenced accordingly. From this Drug Court program and for sentencing pursu-
judgment and sentence Donald Ray Lockridge ant to the plea agreement. Following a hearing
has perfected his appeal. The Judgment and on April 26, 2017, before the Honorable Robert
Sentence of the District Court is AFFIRMED. G. Haney, District Judge, Appellant was termi-
Opinion by: Lewis, V.P.J.; Lumpkin, P.J., con- nated from Drug Court and sentenced in accor-
curs; Hudson, J., concurs; Kuehn, J., concurs; dance with the plea agreement. The sentences
Rowland, J., concurs. were ordered to run concurrently. Appellant
F-2017-65 — Appellant, Earnesto Ray Loya, appeals from his termination from Drug Court.
was tried by jury and convicted of Child Sexu- Appellant’s termination from the Delaware
al Abuse (Count 1) and Lewd Molestation County Drug Court Program is AFFIRMED.
(Count 2) in District Court of Alfalfa County Opinion by: Kuehn, J.; Lumpkin, P.J., concur;
Case Number CF-2014-65. The jury recom- Lewis, V.P.J., concur; Hudson, J., concur; Row-
mended as punishment, imprisonment for land, J., concur.
twenty (20) years in Count 1 and five (5) years F-2017-605 — Mark Anthony Ford, Appel-
in Count 2. Appellant was simultaneously lant, was tried by jury for the crimes of Count I
tried by jury and convicted of Forcible Sodomy – Possession of Controlled Drug (Cocaine Base)
(Count 1) and Rape in the First Degree (Count after former conviction of two or more felonies
2) in District Court of Alfalfa County Case and Count II - Failure to Obey Traffic Control
Number CF-2016-24. The jury recommended Device (misdemeanor) in Case No. CF-14-359
as punishment, imprisonment for ten (10) years in the District Court of Comanche County. The
in each of the counts. The trial court sentenced jury returned a verdict of guilty and recom-
Appellant in accordance with the jury’s recom- mended as punishment 21 years imprisonment
mendations and imposed a period of post- on Count I and a $250 fine in Count II. The trial
imprisonment supervision for five (5) years in court sentenced accordingly. From this judg-
each case. The trial court ordered the sentences ment and sentence Mark Anthony Ford has
Vol. 89 — No. 24 — 9/8/2018 The Oklahoma Bar Journal 1257perfected his appeal. AFFIRMED. Opinion by: $5,000.00 fine on Count 2. The Honorable Kelly
Kuehn, J.; Lumpkin, P.J., concur in results; Greenough, District Judge, sentenced accord-
Lewis, V.P.J., concur; Hudson, J., concur; Row- ingly and ordered the sentences on Counts 1
land, J., concur. and 2 to run consecutively each to the other
F-2017-838 — Troy Jason McNeely, Appel- and consecutively to Appellant’s sentences in
lant, was tried by jury for the crime of Injuring Tulsa County Case Nos. CF-2012-1691 and CF-
a Public Building after former conviction of a 2012-3726. From this judgment and sentence
felony in Case No. CF-2016-299 in the District Jack Leroy O’Donnell has perfected his appeal.
Court of Creek County. The jury returned a AFFIRMED. Opinion by: Hudson, J.; Lumpkin,
verdict of guilty and recommended as punish- P.J., Concurs; Lewis, V.P.J., Concurs; Kuehn, J.,
ment 10 years imprisonment and a $1,000 fine. Concurs in Results; Rowland, J., Concurs.
The trial court sentenced accordingly. From F-2017-148 — Antonio Bernard Ford, Appel-
this judgment and sentence Troy Jason McNeely lant, was tried by jury for the crime of Robbery
has perfected his appeal. AFFIRMED. Opinion with a Firearm, in Case No. CF-2014-3766, in
by: Kuehn, J.; Lumpkin, P.J., concur; Lewis, the District Court of Oklahoma County. The
V.P.J., concur; Hudson, J., concur; Rowland, J., jury returned a verdict of guilty and recom-
concur. mended as punishment ten years imprison-
Thursday, August 30, 2018 ment. The trial court sentenced accordingly.
From this judgment and sentence Antonio Ber-
F-2017-98 — Charles Edward Frierson, Ap- nard Ford has perfected his appeal. AFFIRMED.
pellant, was tried by jury, in Case No. CF-2015- Opinion by: Hudson, J.; Lumpkin, P.J., Con-
2124, in the District Court of Oklahoma Coun- curs; Lewis, V.P.J., Concurs; Kuehn, J., Concurs;
ty, of Count 1: Trafficking in Illegal Drugs Rowland, J., Recuses.
(Cocaine Base); Count 2: Trafficking in Illegal
Drugs (Phencyclidine); Count 3: Possession of F-2017-593 — Watani Phinnes Gleason, Ap-
a Controlled Dangerous Substance (Marijuana) pellant, was tried by jury for the crime of Mur-
with Intent to Distribute; Count 4: Possession der in the First Degree (Malice Aforethought)
of an Offensive Weapon While Committing a in Case No. CF-2016-779 in the District Court
Felony; and Count 6: Possession of Proceeds of Tulsa County. The jury returned a verdict of
Derived from a Violation of the Uniform Con- guilty and set punishment at life imprisonment
trolled Dangerous Substances Act. The jury re- with the possibility of parole. The trial court
turned a verdict of guilty and recommended as sentenced accordingly. From this judgment and
punishment twenty years imprisonment and a sentence Watani Phinnes Gleason has perfected
$100,000.00 fine on Count 1; life imprisonment his appeal. AFFIRMED. Opinion by: Rowland,
and a $100,000.00 fine on Count 2; five years J.; Lumpkin, P.J., concurs in results; Lewis, V.P.J.,
imprisonment and a $20,000.00 fine on Count concurs; Hudson, J., concurs; Kuehn, J., concurs.
3; seven years imprisonment on Count 4; and F-2017-585 — David Allen Knight, Appel-
five years imprisonment and a $25,000.00 fine lant, was tried by jury for the crime of Robbery
on Count 6. The Honorable Cindy H. Truong, by Force or Fear, After Former Conviction of
District Judge, sentenced Appellant in accor- Two or More Felonies (Count 1) and Endanger-
dance with the jury’s verdicts. However, Judge ing Others While Eluding Police Officer, After
Truong ordered the sentences on all counts to Former Conviction of Two or More Felonies
run concurrently. From this judgment and sen- (Count 2) in Case No. CF-2015-222 in the Dis-
tence Charles Edward Frierson has perfected trict Court of Pottawatomie County. The jury
his appeal. AFFIRMED. Opinion by : Hudson, returned verdicts of guilty and set punishment
J.; Lumpkin, P.J., Concurs; Lewis, V.P.J., Con- at twenty years imprisonment on Count 1 and
curs; Kuehn, J., Concurs; Rowland, J., Concurs. three years imprisonment on Count 2, with
F-2016-1008 — Jack Leroy O’Donnell, Appel- nine months post imprisonment supervision
lant, was tried by jury for the crimes of Count upon his release. The trial court sentenced ac-
1: First Degree Manslaughter; and Count 2: cordingly and ordered the sentences to run
Driving Under the Influence - Great Bodily consecutively to each other, and also consecu-
Injury, in Case No. CF-2015-2919, in the District tive to his sentences in Oklahoma County Case
Court of Tulsa County. The jury returned a ver- Nos. CF-2016-9955, CF-2014-925, CF-2014-1717,
dict of guilty and recommended as punishment CF-2006-2172, and CF-2015-7401. From these
twelve years imprisonment and a $10,000.00 fine judgments and sentences David Allen Knight
on Count 1; and two years imprisonment and a has perfected his appeal. AFFIRMED. Opinion
1258 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018by: Rowland, J.; Lumpkin, P.J., concurs; Lewis, viction of two or more felonies in Oklahoma V.P.J., concurs; Hudson, J., concurs; Kuehn, J., County Case No. CF-2015-2061. That same date concurs. he entered a guilty plea to three counts of False F-2017-153 — Michael Ray Crawley, Appel- Declaration of Ownership to a Pawnbroker, after lant, was tried by jury for the crime of First former conviction of two or more felonies, in Degree Felony Murder (Count 1), Eluding/ Oklahoma County Case No. CF-2015-4378. Attempting to Elude a Police Officer, After Two George was sentenced to fifteen (15) years for or More Prior Convictions (Count 2), Second each of the counts in the two cases, the sen- Degree Burglary, After Two or More Prior Con- tences to be served concurrently with each victions (Count 3) and Possession of Burglary other, with the balance suspended after com- Tools (Count 8) in Case No. CF-2015-866 in the pletion of Drug Offender Work Camp. On July District Court of Pittsburg County. The jury re- 25, 2016, the State filed an Application to turned verdicts of guilty and set punishment at Revoke George’s suspended sentence in Case life imprisonment with the possibility of parole No. CF-2005-6817. On October 11, 2016, the on Count 1, three years imprisonment on Count State filed an Application to Revoke George’s 2, six years imprisonment on Count 3 and one suspended sentences in Case Nos. CF-2010- year imprisonment on Count 8. The trial court 2865, CF-2015-2061 and CF-2015-4378 alleging sentenced accordingly. Judge Mills ordered the George violated his terms and conditions of sentences on Counts 1, 2, 3 and 8 to be served probation by failing to pay court costs and by concurrently, but consecutively to Crawley’s having contact with a child under the age of 18. revoked sentences. Judge Mills further award- At the conclusion of a revocation hearing con- ed credit for time served, but only from the ducted November 7, 2016, in the District Court time of Crawley’s arrest to the revocation of his of Oklahoma County, the Honorable Bill Graves, prior sentences. From these judgments and District Judge, revoked George’s suspended sentences Michael Ray Crawley has perfected sentences in full. The revocation of George’s his appeal. AFFIRMED. The Judgement and suspended sentence in Oklahoma County Case Sentence of the district court on Counts 1 and 2 No. CF-2005-6817 is AFFIRMED. The district is REVERSED and the case REMANDED for a court’s order revoking George’s sentences in new trial. Appellant’s Notice of Extra-Record Oklahoma County Case Nos. CF-2010-2865, Evidence Supporting Proposition IX of Brief of CF-2015-2061 and CF-2015-4378 is REVERSED Appellant and/or Alternatively Application with instructions to DISMISS. Opinion by: for Evidentiary Hearing on Sixth Amendment Lumpkin, P.J.; Lewis, V.P.J., Concur; Hudson, J., Claims is MOOT. Opinion by: Rowland, J.; Concur in Result; Kuehn, J., Concur; Rowland, Lumpkin, P.J., concurs in part and dissents in J., Concur. part; Lewis, V.P.J., concurs in results; Hudson, F-2017-476 — Michael Brent Davis, Appel- J., concurs; Kuehn, J., concurs. lant, was tried by jury for the crime of Child RE-2016-1049 — On February 27, 2006, Ap- Sexual Abuse in Case No. CF-2014-660 in the pellant George, represented by counsel, entered District Court of Pottawatomie County. The a guilty plea to Second Degree (Statutory) Rape jury returned a verdict of guilty and set pun- in Oklahoma County Case No. CF-2005-6817. ishment at eight years imprisonment and a George was sentenced to twenty (20) years $5,000.00 fine. The trial court sentenced accord- with all but the first eight (8) years suspended, ingly. From this judgment and sentence Michael subject to terms and conditions of probation. On Brent Davis has perfected his appeal. AF- July 22, 2010, George entered a guilty plea to FIRMED. Opinion by: Rowland, J.; Lumpkin, Attempted Larceny of a Vehicle and Possession P.J., concurs; Lewis, V.P.J., concurs; Hudson, J., of a Controlled Dangerous Substance (Metham- concurs; Kuehn, J., specially concurs. phetamine), after former conviction of a felony, F-2017-714 — Tommy Dean Phillips, Appel- in Oklahoma County Case No. CF-2010-2865. lant, was tried by jury for the crime of unlawful George was sentenced to ten (10) years for each possession of controlled dangerous substance, count, the sentences to run concurrently with after former conviction of two or more felonies each other. The balance of the sentences was in Case No. CF-2014-433 in the District Court suspended upon George’s successful comple- of Carter County. The jury returned a verdict of tion of a substance abuse treatment program. guilty and set punishment at fourteen years On June 26, 2016, George entered a guilty plea imprisonment. The trial court sentenced ac- to Possession of a Controlled Dangerous Sub- cordingly. From this judgment and sentence stance (Methamphetamine), after former con- Tommy Dean Phillips has perfected his appeal. Vol. 89 — No. 24 — 9/8/2018 The Oklahoma Bar Journal 1259
The Judgment and Sentence of the District 116,803 — Katie McGaha, Petitioner, vs. Buf-
Court is AFFIRMED. Opinion by: Lewis, V.P.J.; falo Wild Wings, Stone Trust Insurance Co.
Lumpkin, P.J., concurs in results; Hudson, J., And the Workers’ Compensation Commission,
concurs; Kuehn, J., concurs; Rowland, J., con- Respondents. Petitioner, Katie McGaha (Claim-
curs. ant), appeals from the Workers’ Compensation
COURT OF CIVIL APPEALS Commission’s order denying her quest for
(Division No. 1) workers’ compensation benefits. In 2016,
Thursday, August 16, 2018 Claimant was working as a server at a Buffalo
Wild Wings restaurant owned by Respondent
116,179 — Thomas A. Quinn, Plaintiff/ when a co-worker threw a ranch dressing-
Appellant, vs. Estate of Aubrey K. McClendon, covered potato wedge at her. Moments later in
Defendant/Appellee. Appeal from the District the kitchen Claimant sprayed cleaning solution
Court of Oklahoma County, Oklahoma. Hon- on the co-worker’s backside. The co-worker
orable Patricia G. Parrish, Judge. Plaintiff/ then pushed Claimant in the back, causing
Appellant seeks review of the trial court’s injuries. A Commission ALJ found any injury
order granting the motion for summary judg- sustained by Claimant was caused by “horse-
ment of Defendant/Appellee Estate of Aubrey play” and Claimant was not an “innocent vic-
K. McClendon on Plaintiff’s claim to collect a tim.” The Commission affirmed. We hold that
promissory note. In this accelerated review although Claimant’s co-worker initiated the
proceeding, Plaintiff asserts there is a contro- horseplay in this case, Claimant transformed
versy of material fact concerning the alleged herself from an innocent bystander to an active
forgery of the subject promissory note which participant in the horseplay when she deviated
precludes the summary adjudication of his from her customary duties, retaliated against
claim. The uncontroverted evidence estab- the co-worker and sprayed her with the clean-
lished the note, purportedly executed in 1991, ing solution. Pursuant to 85A O.S. Supp. 2013
was printed in Tahoma font, but that the Taho- §2(9)(b)(1), Claimant’s injuries are not compen-
ma font was not created until 1995. If the sable. The Commission’s order is SUSTAINED.
Tahoma font did not exist prior to 1995, the Opinion by Bell, P.J.; Joplin, J., and Buettner, J.,
note printed in that font and purportedly exe- concur.
cuted by Decedent was obviously created at
some time after that date, and could not have Thursday, August 30, 2018
been created earlier in 1991 as alleged by Plain- 115,901 — Grey Aldridge and Jamie Aldridge,
tiff. AFFIRMED. Opinion by Joplin, J.; Bell, P.J., Husband and Wife, Plaintiffs/Appellants, v.
and Swinton, J. (sitting by designation), concur. R&R Homes, LLC, an Oklahoma Limited Lia-
116,755 — JPMorgan Chase Bank,N.A., Suc- bility Company, Defendant/Appellee. Appeal
cessor by Merger to Chase Home Finance LLC, from the District Court of Logan County, Okla-
Successor by merger to Chase Manhattan homa. Honorable Louis A. Duel, Judge. In this
Mortgage Corporation, Plaintiff/Appellee, vs. action for breach of a home warranty, Plain-
Candas Christie Golden, a/k/a Candas C. tiffs/Appellants, Grey and Jamie Aldridge, hus-
Golden, a/k/a Candas C. Golden-Been, a/k/a band and wife, appeal from the trial court’s
Candas Estes, Defendant/Appellant. Appeal order compelling the parties to arbitration. In
from the District Court of Cleveland County, 2014, Plaintiffs purchased a home from Defen-
Oklahoma. Honorable Thad Balkman, Trial dant/Appellee, R&R Homes, LLC, an Oklaho-
Judge. Defendant/Appellant Candas C. Gold- ma Limited Liability Company. Defendant
en appeals from the trial court’s order granting contractually agreed to provide Plaintiffs with
summary judgment to Plaintiff/Appellee JP- a home warranty. The home warranty contract
Morgan Chase Bank, N.A., Successor by Merg- contained an arbitration provision. In January
er to Chase Home Finance LLC, Successor by 2016, Plaintiffs filed the instant lawsuit against
Merger to Chase Manhattan Mortgage Corpo- Defendant claiming the home has significant
ration (Bank). The undisputed material facts in water problems due to Defendant’s poor work-
the record show that Bank was the holder of manship and improper grading. In February
the note entitled to enforcement and that Gold- 2016, Defendant filed an answer and alleged
en was in default. Accordingly, Bank was enti- affirmative defenses and counterclaims. De-
tled to judgment as a matter of law and we fendant’s answer did not plead its contractual
AFFIRM. Opinion by Buettner, J., Bell, P.J., and right to arbitration as an affirmative defense.
Joplin, J., concur. In November 2016, Defendant moved to com-
pel arbitration, which the trial court granted.
1260 The Oklahoma Bar Journal Vol. 89 — No. 24 — 9/8/2018You can also read
