author: STEWART, Judge.

text:
    Paul T. STAVENJORD, Appellant, v. STATE of Alaska, Appellee.
    No. A-7418.
    Court of Appeals of Alaska.
    March 28, 2003.

      Margi A. Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    John A. Seukanee, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

A jury selected for a trial in Palmer found Paul T. Stavenjord guilty of two counts of first-degree murder for shooting Carl H. Beery and D.R. near Chulitna, a small, off-road community in the Matanuska Susitna Borough. Because this case generated substantial publicity, Stavenjord argues that the superior court erred when it denied his motion to change venue. But we have examined the record and conclude that the superior court did not abuse its discretion when it kept the trial in Palmer after conducting jury voir dire.

Stavenjord also argues that the superior court erroneously denied his motion to suppress evidence seized when the police executed several search warrants. Stavenjord renews his claim that the police intentionally or recklessly misstated material facts and intentionally or recklessly withheld material facts when applying for the search warrants. Because we conclude that the superior court did not abuse its discretion, we reject Staven-jord's argument. Accordingly, we affirm Stavenjord's convictions.

Background facts

Beery and D.R. had a cabin in the Chulitna area of the Mat Su Borough. The Chulitna area is not on the road system but is accessible by foot or off-road vehicles. Beery and D.R. planned to spend the Memorial Day weekend of 1997 at their cabin. When D.R. did not return to work the following Tuesday, May 27, D.R.'s brother, Donald Tidwell, Jr., borrowed a four-wheeler and drove along the railroad tracks into the cabin. Tidwell found the couple's dogs at the cabin but no other sign of the couple.

Tidwell stopped at Stavenjord's nearby cabin to ask about D.R. and Beery. Staven-jord said that he and Beery had had a "falling out" and that he had not seen or talked to the couple in about a year. Nonetheless, he offered to help Tidwell look for them. By the next day, Wednesday, May 28, the troopers had been notified of the missing couple. Tidwell went to Pass Creek (about two miles north of Chulitna) when he heard that a green four-wheeler had been stuck in the creek since the previous Saturday. He recognized it as belonging to D.R.

The next day, Thursday, May 29, Beery's body was recovered from Pass Creek near the stuck four-wheeler. D.R.'s body was located a week later hidden in the bushes less than 150 feet away. Forensic examination found semen consistent with Stavenjord's DNA on D.R.'s body. Each victim was killed by a gunshot to the head with a small caliber weapon: Beery was shot with a .22 caliber bullet; D.R. was likely shot with a .22 caliber bullet. Ultimately, the grand jury indicted Stavenjord on two counts of first-degree murder, one count of first-degree sexual assault, and two counts of second-degree theft.

At trial, Stavenjord claimed that he shot Beery in self-defense after Beery discovered that he was having consensual sex with D.R. and opened fire at Stavenjord. Stavenjord asserted that D.R. was accidently shot by Beery during the gunfight. The jury convicted Stavenjord of the two counts of first-degree murder and acquitted him of the other charges. Superior Court Judge Eric Smith imposed consecutive 99-year terms.

Did the superior court property uphold the challenged search warrants?

As Judge Smith noted, the parties filed a "plethora" of motions that he resolved before trial, In this appeal, Stavenjord challenges the superior court's resolution of one of those motions: Stavenjord's claim that the testimony in support of several search warrants included intentional or reckless misstatements of fact and intentional or reckless omission of material facts such that the evidence seized when the warrants were executed must be suppressed.

On June 10, Alaska State Troopers Michael Brandenburger and Martin Patterson sought search warrants for Stavenjord's person, cabin, and vehicles. The troopers focused on Stavenjord as a potential suspect after they decided that a camper, who had been camping close to the area where D.R.'s four-wheeler and the bodies were found, was not a prime suspect. Both troopers testified in support of the warrant applications before Magistrate David L. Zwink and the court issued the search warrants.

When the troopers executed the warrants, they seized evidence including two .22 caliber rifles, three .22 caliber bullets found in a log near Stavenjord's cabin, writings by Staven-jord (which included an assertion of his whereabouts and activities on Memorial Day weekend), and hair samples and tissue swabs from Stavenjord's person.

In State v. Malkin, the Alaska Supreme Court established the framework for evaluating a defendant's claim that an application for a search warrant included material misstatements or omissions.

[Olnee a misstatement or omission is established, the burden of proving that it was neither reckless nor intentional shifts to the state. A failure to meet this burden will vitiate the warrant if the misstatement or omission is material, that is, if deletion of the misstated information from or inclusion of the omitted information in the original affidavit would have precluded a finding of probable cause. A non-material omission or misstatement-one on which probable cause does not hinge-requires suppression only when the court finds "a deliberate attempt to mislead [the magistrate]." []

The parties presented testimony at an evi-dentiary hearing before Judge Smith. Judge Smith entered findings and denied Staven-jord's motion.

Stavenjord's motion rested on two main pillars. First, Stavenjord claimed that the troopers deliberately misled Magistrate Zwink by misstating and omitting information that implicated the camper whom the troopers first suspected but had ruled out as a prime suspect before they sought the Sta-venjord warrants. - Second, Stavenjord claimed that the troopers misstated or omitted information that would have corroborated Stavenjord's statements about his whereabouts on May 28 and May 24.

The State argues that we should reject Stavenjord's arguments and uphold the search warrants based on evidence presented at the trial. As the State points out, Staven-jord admitted at trial that he was involved in the homicides. And Stavenjord admitted that his statements to the troopers about his whereabouts on May 23 and 24 were not true. Thus, Stavenjord's case at trial affirmatively supported the magistrate's decision to issue the search warrants. Basically, the troopers told the magistrate that their investigation had turned from the camper as a prime suspect to Stavenjord when they discovered that several of Stavenjord's statements about his whereabouts around the time of the homicides were false. But we need not uphold the warrants by considering the trial testimony because Judge Smith directly rejected Stavenjord's claims and we conclude that Judge Smith did not abuse his discretion when he denied this motion.

Stavenjord could prevail on this claim only if the purported misstatements or omissions were intentional or were reckless and material to the issuance of the warrant. During the evidentiary hearing that lasted several days, the parties litigated what information the troopers learned and when they learned that information. Judge Smith had a tran-seript of the testimony in support of the application for the search warrants. Judge Smith also observed Troopers Brandenbur-ger and Patterson testify at the evidentiary hearing and, thus, was able to judge their credibility. After receiving all this testimony and evidence, Judge Smith found that the troopers had not sought to deliberately "mislead the magistrate." From our review of the record, we conclude the finding is not clearly erroneous.

Because the troopers did not intentionally mislead the magistrate, Stavenjord would have to show that the troopers' misstatements or omissions were reckless and were material to a finding of probable cause.

Of all the claimed misstatements and omissions, Judge Smith mentioned only two areas that might have risen to the level of a reckless misstatement or omission. First, the troopers did not tell the magistrate that Sta-venjord's ex-wife had been interviewed and supported Stavenjord's claim about his whereabouts on the Sunday of Memorial Day weekend, May 25. But Judge Smith concluded these omissions were not material to the issuance of the warrant. The record supports Judge Smith's analysis. The thrust of the evidence the troopers presented to the magistrate to undercut Stavenjord's story of his whereabouts focused on Stavenjord's de-seription of his movements on Friday, May 28, and Saturday, May 24. We agree with Judge Smith that these potentially reckless omissions were not material to a finding of probable cause because Stavenjord's whereabouts on Sunday were not particularly relevant.

Judge Smith also found that the troopers failure to inform the magistrate that they had not seen evidence of a .22 caliber weapon when visiting Stavenjord's residence on June 1 might have been reckless, but not material. We agree. Trooper Patterson testified that he went to Stavenjord's cabin on June 1 to interview him and had not looked for anything in particular when he was there. Testimony that no evidence of a .22 caliber weapon was seen in Stavenjord's home on June 1 would not have undercut the other evidence supporting probable cause.

Judge Smith found no other claimed misstatement or omission to be reckless. And negligent omissions or misstatements are not included or excised from the warrant application. But Stavenjord argues that the other misstatements and omissions were reckless.

A finding that a trooper recklessly omitted or misstated facts contains both subjective and objective components because a person who acts recklessly disregards a substantial and unjustifiable risk despite the subjective awareness of the risk. Judge Smith observed the testimony of both troopers who appeared before the magistrate and was in a position to evaluate their credibility when deciding whether either trooper was subjectively aware of the risk of a purported misstatement or omission,. Except for the specific instances discussed above, Judge Smith made no such finding regarding the other areas advanced by Stavenjord.

We have examined the record to evaluate Stavenjord's remaining claims. Judge Smith found in some instances that the troopers did not misstate or omit information or, by implication, that the misstatement or omission was negligent. Based on our review, the record supports Judge Smith's findings. Accordingly, we conclude that Judge Smith did not abuse his discretion when he denied the motion to suppress that was based on Sta-venjord's Malkin claim.

-In the superior court, Stavenjord also argued that the troopers "judge shopped" when they applied for the search warrants before Magistrate Zwink and not District Court Judge Peter Ashman, the judge who had considered and issued all warrants in the case before June 10. But Judge Smith made no specific findings on this claim. Because Stavenjord did not press the court for a ruling on this issue, this claim is not preserved. We express no opinion on whether the police had a duty to seek all search warrants from Judge Ashman.

Did the superior court properly deny Sta-venjord's motion to change venue?

The media serving the Mat Su area, consisting of newspapers in Anchorage and the Mat-Su Valley, Anchorage television stations, and those radio stations in the region which provide local news, provided intense coverage of the case following the discovery of Beery's body. The coverage included favorable descriptions of D.R. and Beery, portraying them as happily-married and well-liked. On Saturday, June 14, the day after the district court issued a warrant for Sta-venjord's arrest, the troopers announced the beginning of their search for Stavenjord as a suspect. A manhunt ensued and lasted until Stavenjord turned himself in on July 18. Over fifty stories broadcast on television and over a dozen published newspaper stories, often on the front page, reported the manhunt. The publicity receded after Staven-jord surrendered in July, but coverage returned in October during pre-trial hearings. Stavenjord moved to change venue on the basis of the publicity the case generated. Judge Smith denied the motion but indicated that Stavenjord could renew the motion during jury selection or after it was complete.

In Mallott v. State, the Alaska Supreme Court adopted the recommendation of the American Bar Association on the standards to apply when considering a motion to change venue in a case that has had substantial pre-trial publicity:

A motion for change of venue or continuance shall be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had.... A showing of actual prejudice shall not be required.[]

This standard effectively relieves a party from the burden of demonstrating actual prejudice in the panel.

The Mallott court also adopted the ABA standards for the acceptability of a juror who has been exposed to pre-trial publicity:

"[a] prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to the prospective juror's testimony as to state of mind.[]

Under this standard, a juror who claims not to be unable to set aside preconceptions developed about the case must be excused. Also, a juror who has been exposed to material that is highly inflammatory or highly incriminating must be exeused even if the juror claims impartiality because such a claim is considered suspect. On the other hand, jurors are not automatically disqualified if they have some knowledge of the facts of the case or an opinion on the case that is not based on exposure to inadmissible evidence or other highly inflammatory material. Instead, the trial court must base its decision on the credibility of the juror if the juror claims impartiality.

The vast majority of the coverage throughout the history of the case focused on the underlying facts. However, some coverage discussed information that was facially inadmissible. The information included: (1) that Stavenjord had been expelled from school for calling African Americans "coons," (2) that as a juvenile he had been arrested five times-once for armed robbery of a liquor store- and had been incarcerated for two years, (8) that he had threatened to kill himself with a gun, (4) that he had escaped from juvenile prison and led police on a high speed car chase, (5) that he had committed an armed bank robbery in Seward in 1971, (6) that after the Seward robbery, he fled into the mountains but was caught two days later, and (7) that he had attempted to rob the bank in order to support his drug habit. However, an article that described all this information also had a large section entitled "A Changed Man" which chronicled Staven-jord's life from 1976 forward. The section portrayed Stavenjord as a reformed man, a craftsman living in the Bush.

Onee court proceedings began, television and newspapers reported on the pre-trial motions, the amount of his bond, whether he would wear leg restraints in the courtroom, and the jury selection process.

Jury selection began on March 20, 1998. Prospective jurors were given written questionnaires to complete. After completing the questionnaires, the court allowed individual voir dire of each prospective juror (outside the presence of the other potential jurors), primarily about each person's knowledge of the case. Out of the 184 potential jurors questioned in this initial phase, 60 potential jurors were passed for cause, 47 were excused for case-related reasons, and the balance were exeused for reasons unrelated to the case.

The court then proceeded with additional questioning of those passed in the initial phase. No juror was challenged for cause related to publicity during this phase of jury selection. Stavenjord challenged two jurors for cause unrelated to publicity, but the court denied those challenges and Stavenjord excused them with peremptory challenges. By the end of jury selection, Stavenjord exercised his normal ten peremptory challenges, four additional peremptory challenges granted him by the court, and four peremptory challenges as to alternate jurors. Jury selection lasted through ten court days; the tran-seript for those ten days is over two thousand pages. Jury selection ended on April 7.

The record shows that twenty-six jurors were excused for cause because of exposure to pre-trial publicity. Another ten jurors were excused for cause because they were familiar with Beery, D.R., Stavenjord, or members of their families. Eleven jurors were excused for cause because of exposure to publicity and other factors including personal hardship. Sixteen jurors were eventually selected-twelve plus four alternates. During trial, three jurors were excused: two for personal reasons unrelated to the case, and one after the juror notified the court that she recalled reading or hearing something about Stavenjord's robbery conviction. The remaining alternate was excused before the jury deliberated.

At the end of jury selection, Stavenjord renewed his change of venue motion. Because of the number of jurors who were exeused based on exposure to publicity or knowledge of the families involved in the case, Judge Smith reasoned that he had to apply the "substantial likelihood" test set out in Mallott Judge Smith denied the motion after analyzing the nature and timing of the publicity, including the inadmissible evidence published, the size and character of the community, the venire's ties to the parties involved, and the responses of those who were actually chosen to serve on the panel.

The question facing a court when there is intensive pre-trial publicity is whether there is substantial reason to doubt the impartiality of the jurors who remained after the selection process was complete, or stated another way, what is the likelihood that, despite voir dire, the jury panel "harbor[sl unrevealed prejudices as a result of the publicity."

In Stavenjord's case, the attorneys and Judge Smith recognized the issues raised by the pre-trial publicity. Before individual voir dire, the court had each potential juror answer a long questionnaire that included several questions about media exposure, what the juror learned about the case (whether through the media or personal contacts), and whether the juror knew any of about 200 people who might be mentioned in the case or called as a witness. The court then allowed individual voir dire of each juror.

The jury panel of twelve and the four alternates selected included ten who remembered only the bare allegations of the State's case, four who knew details about the participants in the case, had interests in the location of the homicides, or had heard about Stavenjord's disappearance, and two who had not heard about the case. But all these jurors expressed confidence that they could be impartial. None of the selected jurors personally knew any of the parties involved in the trial, and at the end of jury selection, none recalled any of the inadmissible evidence about Stavenjord. The trial began April 18, 1998, more than eight months after the end of the manhunt and continued into the first week of June. However, during trial, one of the jurors remembered Stavenjord's involvement in a robbery. The juror notified Judge Smith and she was excused from service.

In summary, most jurors knew only the bare details of the crimes the State alleged. Of those who remembered more detailed information, none of the information recalled was of an inflammatory or prejudicial nature. And many other potential jurors who did not serve on Stavenjord's jury did not recall more than the fact of the homicides and Stavenjord's disappearance. Even though there was substantial pre-trial publicity, it is apparent that in an area as physically large as the Mat Su area, considering the size of its population, many people were not influenced by the media coverage.

Because a trial judge is in the best position to evaluate the conduct and results of jury selection, we affirm the superior court's denial of the motion for change of venue unless we are convinced, after our own independent review 'of the record, that the superior court abused its discretion. Based on the proceedings in this case, which we have summarized above, Judge Smith could reasonably conclude that the pre-trial publicity complicated jury selection, but that the jurors ultimately selected did not conceal latent prejudices about the case that threatened Stavenjord's right to a fair trial. Therefore, we conclude that Judge Smith did not abuse his discretion when he denied Sta-venjord's motion to change venue.

Conclusion

The judgment of the superior court is AFFIRMED.

      . AS 11.41.100(a)(1)(A).

      . AS 11.41.410(a)(1) & (2).

      . AS 11.46.130(a)(1) & (2).

      . 722 P.2d 943 (Alaska 1986).

      . Id. at 946 (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).

      . Lewis v. State, 862 P.2d 181, 186 (Alaska App.1993) (quoting Malkin, 722 P.2d at 946 n. 6) (footnotes omitted).

      . See Hubert v. State, 638 P.2d 677, 680 n. 2 (Alaska App.1981) (noting that the "better reasoned" state cases follow well-settled federal law that "evidence presented at trial may be considered on appeal" when resolving a suppression issue).

      . See State v. Bianchi, 761 P.2d 127, 130 (Alaska App.1988).

      . See Malkin, 722 P.2d at 946.

      . See Blank v. State, 3 P.3d 359, 365 (Alaska App.2000).

      . See Malkin, 722 P.2d at 946.

      . Id. at 946-47.

      . The argued misstatements and omissions comprise several discrete areas: the camper's observation of smoke coming from Stavenjord's cabin on May 23; the whereabouts of the camper in the Chulitna area during the Memorial Day weekend; underwear seen near the camper's Pass Creek campsite; the camper's background and record and other areas that might direct suspicion on the camper; gray fibers found near D.R.'s body and the similarity of those fibers to an article of the camper's clothing; receipts obtained from the Igloo, a business at which Sta-venjord said he made some purchases while he was away from Chulitna on Memorial Day weekend; Stavenjord's purported meal at the Perch, a restaurant in the Denali Park area; Stavenjord's whereabouts during the Memorial Day weekend; Stavenjord's use of a four-wheeler on May 24; Stavenjord's "refusal" to voluntarily provide hair and blood samples; and "bad blood" between Stavenjord and Beery.

      . See AS 11.81.900(a)(3) (defining "recklessly"); Davis v. State, 766 P.2d 41, 45 (Alaska App.1988).

      . See Taylor v. Johnston, 985 P.2d 460, 467 (Alaska 1999); Russell v. State, 934 P.2d 1335, 1340-41 (Alaska App.1997); Marino v. State, 934 P.2d 1321, 1327 (Alaska App.1997); Erickson v. State, 824 P.2d 725, 733 (Alaska App.1991).

      . 608 P.2d 737 (Alaska 1980).

      . Id. at 748.

      . See Sever v. Alaska Pulp Corp., 931 P.2d 354, 360 (Alaska 1996) Mallott, 608 P.2d at 748.

      . Id. at 749, citing ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, § 8-3.5(b) (Approved Draft 1978).

      . -See Nelson v. State, 781 P.2d 994, 997 (Alaska App.1989); Arnold v. State, 751 P.2d 494, 500 (Alaska App.1988).

      . Id.

      . See Mallott, 608 P.2d at 749-50.

      . See Cheely v. State, 861 P.2d 1168, 1174 (Alaska App.1993).

      . Mallott, 608 P.2d at 748.

      . According to the 2000 census, the Matanuska, Susitna Borough is the third largest population area in the state. Information for Alaska from the 2000 census is available on the state website by accessing http://www.li-brary.state.ak.us/asp/statestatistics.html and clicking on Census 2000 Data for Alaska or on the U.S. Census Bureau website by accessing http://quickfacts.cen-sus.gov/gfd/states/02000.html.

      . See Newcomb v. State, 800 P.2d 935, 937
      (Alaska App.1990).


source: Caselaw Access Project

license: Public Domain

text:
    George C. PRICE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 02PDJ003.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Nov. 22, 2002.
    Attorney Regulation. George F. Price, attorney registration number 10652, was reinstated to the practice of law effective December 22, 2002.
    Opinion issued by Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board Members MARILYN L. ROBERTSON and ROBERT M. MAES, both members of the bar.
   OPINION AND ORDER READMITTING GEORGE C. PRICE TO THE PRACTICE OF LAW

ATTORNEY - REINSTATED TO THE PRACTICE OF LAW

On September 20, 2002, a reinstatement hearing was held pursuant to C.R.C.P. 251.29(b) before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board members, Marilyn L. Robertson and Robert M. Maes, both members of the Bar. Alexander R. Rothrock appeared on behalf of George S. Price. James S. Sudler, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). Sarah Cline, Lebsack, Richard B. Wagner, Sandra G. Ja-quith, and Howard V. Selinger, Ph.D testified on behalf of Price, who testified on his own behalf. Price's exhibits 1 through 9 were offered and admitted into evidence.

The Hearing Board considered the testimony and exhibits admitted, assessed the credibility of the witnesses, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

George Case Price ("Price") took the oath of admission and was admitted to the bar on October 17, 1980, attorney registration number 10652. As a result of a Conditional Admission of Misconduct submitted by the parties, the Colorado Supreme Court suspended Price from the practice of law on December 16, 1996 for a period of one year and one day. The effective date of the period of suspension was January 15, 1997. People v. Price, 929 P.2d 1816 (Colo.1996).

The facts giving rise to the suspension arose in part from conduct involving five separate client matters. In the first matter, Price represented a client in a dispute with a school district involving the client's termination of employment and the employer's failure to retain her following the termination. Price agreed to represent her on a contingent fee basis without executing a written fee agreement. When the matter settled, Price deposited the settlement check in his trust account. Price attempted to send the client her share two months thereafter, but she did not receive the check. After Price deposited the settlement check into his trust account, the account dropped below the amount owed to the client. Two months later, when the client filed a request for investigation, Price tendered payment in the form of a cashier's check to the client. Price's misappropriation of client funds was due to inattention and neglect rather than knowing conversion.

In a second matter, Price entered into a settlement agreement on behalf of a client, and the client tendered funds to Price to pay the agreed-upon sum pursuant to the agreement by wiring the funds to Price's trust account. Price wrote a check the same day to opposing counsel. When the check was presented for payment five days later, it was returned due to insufficient funds. Price did not maintain all of the client's funds in the trust account due to an accounting error.

In a third matter, Price represented a client in an employment dispute. The parties entered into a settlement agreement, and Price failed to timely deliver the settlement documents to opposing counsel. Price's conduct constituted neglect of the client's matter. Thereafter, during the period of time he was immediately suspended, when a problem arose with the settlement, Price attempted to resolve the problem on behalf of his. client, and admitted that his conduct constituted the practice of law while under suspension.

In a fourth matter, Price represented a client concerning an employment dispute, sent a letter on behalf of the client to the employer with an offer to settle the matter, and when no agreement was reached, Price advised the client to commence a lawsuit. The client provided funds to Price to be used for costs incurred in the action and Price agreed to file a complaint. For an eight-month périod thereafter, the client attempted to reach Price and was unable to do so. During that time frame, Price did not file a complaint. Following the client's filing a request for investigation with the then Office of Disciplinary Counsel, Price provided the client with a draft copy of the, complaint, which was subsequently filed. Price's conduct amounted to neglect of the client's matter.

In a fifth matter, Price entered his appearance on behalf of a client in an employment dispute. Price failed to provide opposing counsel with discovery and failed to respond to a summary judgment motion or advise the client that the motion had been filed. The motion was granted. Price attempted to move for reconsideration of the ruling, but did so, in part, while under suspension, and on these grounds the court denied Price's motion. Price's conduct constituted neglect, engaging in conduct prejudicial to the administration of justice and conduct adversely reflecting on fitness to practice law.

In addition to the misconduct involving client matters, from January 1994 through August 1994, Price wrote thirty checks on his business account that were returned for insufficient funds, and twenty-five checks that were paid by the bank even though there were insufficient funds on deposit to cover the checks. During the same time frame, nine checks written on Price's trust account were returned for insufficient funds.

In February 1998, Price petitioned for reinstatement. By Order dated January 16, 2001, Price was denied reinstatement because he had failed to file an affidavit containing a list of all pending matters, failed to notify all of his clients and opposing counsel that he had been suspended, and failed to file a list of pending matters with the court after being suspended. Additionally, with regard to several clients, Price took action on their behalf when he was suspended. See generalty In the Matter of George Case Price, 18 P.3d 185 (Colo.2001).

The misconduct giving rise to the disciplinary proceeding occurred within the time frame 1991 through 1998. Throughout those seven years, Price was distracted by marital difficulties and became increasingly depressed, manifesting a short attention span, an inability to concentrate and a failure to focus on the details of any given matter. Throughout that period, however, he remained close to his two sons. Price sought marital counseling in 1997, but it did not resolve the marital difficulties In 1997, at the zenith of the depression, in an attempt to stop the downward spiral of his personal and professional life, Price sought individual therapy with Dr. Selinger, a behavioral psychologist, who continued to treat Price through March, 2002, and intermittently thereafter. A divorcee was later finalized on May 28, 2002.

Throughout this time period, Dr. Selinger treated Price for dysthymic disorder involy-ing moderate depression. Based on his assessment of Price over a five-year period, Dr. Selinger opined that the primary cause of Price's depression has been resolved, and that he no longer manifests the behavior which gave rise to the prior disciplinary action. Currently, Price shows no sign of depression, and enjoys a positive outlook on his life.

In 1999, Price sought and obtained employment with the Federal Emergency Management Administration ("F.E.M.A."), where he is presently part of the Project Impact/Corporate Team dealing directly with the victims of disasters. The team is respon-gible for contacting roughly three hundred businesses seeking private sector and government cooperation in preventing disasters. Price's performance in his current position reflects that he is efficient, capable, and has good communication skills. He meets deadlines and brings projects to completion. During the time period he has been employed at F.E.M.A., he has never neglected a project or a client.

From 1999 to the present, Price has also been employed as a paralegal by Sandra Jaquith, who has known Price since law school. Under Jaquith's supervision, Price conducts research, interviews clients, and assists in negotiation and arbitration of cases. As a paralegal, Price has worked on approximately thirteen cases, is attentive to detail, and is responsible. He follows through on assignments, calendars matters and is proactive with his tasks. Throughout his period of suspension, both through his work as a paralegal and through his fulfillment of Continuing Legal Education courses, Price has remained current in the law.

Notwithstanding his suspension from the practice of law, Price remained active in community affairs. He has performed volunteer work in the Denver community with the Park Hill Community Justice Council, and is also a member of the Community Accountability Board. Price takes full responsibility for his misconduct. He is committed to getting back into the practice of law of law. He intends to continue in therapy and submit his law practice to financial monitoring.

Price filed the within Petition for Reinstatement on January 14, 2002. At the time he filed the Petition, he had been suspended for approximately five years. The People stipulated that the Petition was filed within the five-year time frame set forth in C.R.C.P. 251.29(b). Under that rule, the five-year time frame would be tolled during the period of time a Petition for Reinstatement was pending. Price's prior Petition for Reinstatement was pending for approximately a three year period. The People further stipulated that Price substantially complied with all prior orders. The People stipulated to Price's reinstatement.

II. CONCLUSIONS OF LAW

CRCP. 251.29(b) provides in relevant part:

An attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law.

Thus, an attorney who desires reinstatement after suspension must bear the burden of proving that he or she is (1) rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (8) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized. See Goff v. People, 85 P.3d 487 (Colo. PDJ 2000).

Additionally, certain criteria must be considered in reinstatement proceedings in order to evaluate an attorney's rehabilitation. People v. Klein, 756 P.2d 1013 (Colo.1988), interprets the language of the prior reinstatement rule, C.R.C.P. 241.22, and sets forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorney's rehabilitation. Klein requires:

Any determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the petitioner's state of mind and professional ability, including character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, present business pursuits, personal and community service, and the petitioner's recognition of the seriousness of his previous misconduct.

Price has established by a clear and convincing standard that he is rehabilitated. Price determined that the main cause of his spiral into depression and the consequential professional misconduct over a seven year period was his response to a difficult marriage. After seeking marital counseling and determining that the counseling was not benefiting the situation, Price obtained a divorce. He also sought treatment for his depression. Medical evidence confirms that Price has rectified the behavior and cireumstances which resulted in his suspension. .

Prior to his suspension, Price was a capable attorney whose judgment and ability to function became impaired due to depression. He has demonstrated that he is reliable and capable in his present employment with F.E.M.A. and as a paralegal. Through his paralegal position and his fulfilling Continuing Legal Education requirements, as well as the independent reading of legal journals, Price has established that he is currently fit to practice law.

The parties stipulated that Price has substantially complied with all prior disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline. The parties further stipulated that Price's Petition for Reinstatement was filed within the five-year deadline required by C.R.CP. 251.29(b). The facts acknowledged by these stipulations are accepted.

Price fully acknowledged and expressed remorse for his prior conduct. He recognized that the conduct was entirely his responsibility and took affirmative action to resolve the difficulties in his life underlying the misconduct.

The evidence admitted in this reinstatement hearing established by clear and convincing evidence that Price is rehabilitated, has complied with all applicable disciplinary orders, and is fit to practice law as required by C.R.C.P. 251.29.

The Supreme Court in People v. Price, 929 P.2d at 1321, ordered that "[ulpon any reinstatement, the respondent is ordered to comply with the conditions included in the conditional admission." Accordingly, Price's reinstatement is conditioned upon his adherence to the following conditions:

1, MONITORING OF PRACTICE BY ANOTHER ATTORNEY:

An attorney approved by the Office of Attorney Regulation Counsel shall review the respondent's legal files and method of handling the respondent's case load for a period of three years following the respondent's reinstatement to the practice of law. The review procedure shall be as follows:

A. The respondent shall demonstrate the existence of a workable reminder, or "tickler" system, and proof of a dual calendar system, or comparable case monitoring system, in the respondent's office to the Office of Attorney Regulation Counsel within ninety (90) days of any Order of Reinstatement and shall, by the reports of the monitoring attorney, demonstrate that both the reminder system and the dual calendar system, or comparable case-monitoring system, is in existence and operating effectively.
B. A case-load-review meeting shall take place between the monitoring attorney and the respondent on this schedule:
(1) First year; meeting onee per month;
(2) Second year: meeting every other month;
(8) Third year; meeting quarterly.
C. At each meeting the following will take place:
(1) The respondent will prepare a list of current, active files, which files will be reviewed by the monitoring attorney together with the respondent. The monitoring attorney will take steps to verify that the list is complete.
(2) The monitoring attorney will make, and the respondent will write down, specific suggestions necessary to assure that the case load is being properly and professionally handled and that the respondent is progressing in a satisfactory mannér following the respondent's reinstatement.
(3) The monitoring attorney and the respondent will review the list of suggestions from the previous meeting to be sure that all suggestions for improvement have been implemented and that the respondent has complied with them.
(4) The monitoring attorney shall have access to and monitor, to the extent he deems necessary, all financial accounts of the respondent, including personal accounts, in order to assure that no commingling of funds occurs.
D. Within ten days following each meeting, the respondent shall submit to the Office of Attorney Regulation Counsel a written report of the meeting, which report shall be signed by the monitoring attorney.
E. -The monitoring attorney shall immediately disclose to the Office of Attorney Regulation Counsel, 600 17th Street, Suite 200-South, Denver, Colorado 80202, any matters which are uncorrected or which represent significant problems requiring corrective attention. Copies of such correspondence shall be sent to the respondent.

2. FINANCIAL MONITORING:

A. - The respondent will maintain the following minimum records as to all bank accounts instituted or utilized by the respondent in any fashion whatsoever in the practice of law:

(1) A separate bank account or accounts and, if utilized, a separate savings and loan association account or accounts, located in Colorado, in the name of the lawyer or law firm and clearly labeled and designated as "trust account."
(2) Original or duplicate deposit slips and, in the case of currency or coin, an additional cash receipts book, clearly identifying:
(a) The date and source of all trust funds received;
(b) The client or matter for which the funds were received.
(8) Original cancelled checks, all of which must be numbered consecutively.
(4) Other documentary support for all disbursements and transfers from the trust account.
(5) A separate cash receipts and disbursements journal, including columns for receipts, disbursements, transfers, and the account balance, and containing at least:
(a) The identification of the client or matter for which the funds were received, disbursed, or transferred;
(b) The date on which all trust funds were received, disbursed, or transferred;
(c) The check number for all disbursements;
(d) The reason for which all trust funds were received, disbursed, or transferred.
(6) A separate file or ledger with an individual card or page for each client or matter showing all individual receipts, disbursements, or transfers and any unex-pended balance and containing:
(a) The identification of the client or the matter for which trust funds were received, disbursed, or transferred;
(b) The date on which all trust funds were received, disbursed, or transferred;
(c) The check number for all disbursements;
(d) The reason for which all trust funds were received, disbursed, or transferred.
(7) All bank or savings and loan association statements for all trust accounts.

B. The respondent will perform the following trust-accounting procedures:

1. The lawyer shall cause to be made monthly:
(a) Reconciliation of all trust bank or savings and loan association accounts, disclosing the balance per bank, deposits in transit, outstanding checks identified by date and check number, and other items necessary to reconcile the balance per bank with the balance per the checkbook and the case receipts and disbursements journal;
(b) A comparison between the total of the reconciled balances of all trust accounts and the total of the trust ledger cards or pages, together with specific descriptions of any differences between the two totals and reasons therefor.
2. At least annually, a detailed listing identifying the balance of the unexpended trust money held for each client or matter.
8. The above reconciliation's, comparisons, and listing shall be retained for at least six years.

C. The respondent shall direct any bank or savings and loan association where the respondent is a signatory on any bank account utilized in the practice of law to notify the Office of Attorney Regulation Counsel in the event any law firm or trust account check is returned due to insufficient funds or uncollected funds, absent bank error. Further, if any such check is returned, the respondent shall, likewise, notify the Office of Attorney Regulation Counsel.

D. The respondent shall file a written report with the Office of Attorney Regulation Counsel each year for a period of five years beginning one year from the date of the reinstatement order regarding the satisfactory maintenance of the financial aspect of the respondent's law practice and demonstrating the respondent's compliance with the conditions set forth above. The said report shall contain the certificate of a certified public accountant verifying that the procedures set forth above were followed and that an audit demonstrated no irregularities in the handling of the trust accounts. Said audit and report shall be conducted and complied with at the respondent's sole expense.

E. The respondent shall obtain malpractice insurance coverage of no less than $100,000.00 for each claim and, within thirty days of the order of reinstatement, shall deliver to the Office of Attorney Regulation Counsel documentary proof of the existence of such coverage; further, the annual written report filed with the Office of Attorney Regulation Counsel referred to hereinabove shall specifically include documentary proof of the continued existence of malpractice insurance coverage during the entire period of monitoring by the Office of Attorney Regulation Counsel described herein.

F. The respondent shall specifically maintain separate accounts for any funds coming into the respondent's possession as real estate broker and shall not utilize the respondent's law firm business account nor trust accounts for any broker functions whatsoever.

8. In the event that Price returns to the practice of law in some capacity such as in-house counsel to a company, or as an associate or member of a firm with built-in possibilities for monitoring, then the conditions specified above may modified accordingly to obtain the same goals therein which contemplate that Price will return to a solo practice.

II. ORDER OF REINSTATEMENT

It is therefore ORDERED:

George C. Price, attorney registration number 10652 is reinstated to the practice of law effective thirty-one days from the date of this order, subject to the conditions set forth above. Price shall pay all costs of the reinstatement proceeding. Respondent shall file a Statement of Costs or Notice that costs have been paid within fifteen (15) days of the date of this Order. Petitioner shall have five (5) days thereafter to file a Response.

      . Price was immediately suspended from the practice of law on January 12, 1995 due to the allegations set forth in this matter. The immediate suspension was subsequently vacated on February 7, 1995, pending final disposition of the disciplinary proceeding.

      . Effective Jaﬁuary 1, 1999, Disciplinary Counsel was designated as the Office of Attorney Regulation Counsel. See C.R.C.P. 251.3.

      . During the same time frame, Price received three letters of admonition dated June 11, 1991, July 28, 1993, and August 22, 1994. These letters concerned Price's neglect of a client matter, failure to communicate with clients, and on one occasion, failing to reduce a contingent fee agreement to writing.

      . Price completed 16 Continuing Legal Education courses and read twenty-four other treatises, journals or law related reading material.

      . CRCP. 251.29(b) provides in relevant part: [aln attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for reinstatement. ... [Ilf the attorney remains suspended for five years or longer, reinstatement shall be conditioned upon certification by the state board of law examiners of the attorney's successful completion, after the expiration of the period of suspension, of the examination for, admission to practice law and upon a showing by the attorney of such other proof of professional competence as the Supreme Court or a Hearing Board may require; provided, however, that filing a petition for reinstatement within five years of the effective date of the suspension of the attorney tolls the five-year period until such time as the Hearing Board rules on the petition.

      . Any modifications of the conditions set forth herein shall be submitted to the PDJ for review.


text:
    2001 OK 104
    Representative Fred MORGAN, Minority Floor Leader of the Oklahoma House of Representatives, et al., Petitioners, v. Tom DAXON, Director of State Finance, and Robert Butkin, State Treasurer, Respondents.
    No. 96,613.
    Supreme Court of Oklahoma.
    Dec. 13, 2001.
   ORDER

We hold that the Joint Motion of All Parties to Stay Writ of Prohibition's Effectiveness thru February 15, 2002, is HEREBY GRANTED.

Today's order constitutes the Court's pronouncement that foreshadows its unwillingness to act as an accommodating agent in future invalid approprations controversies by postponing the effective date of the nullifying opinion.

All Justices concur.


author: LILE, Vice Presiding Judge: JOHNSON, P.J.: CHAPEL, J.,

text:
    2003 OK CR 4
    Jerald C. LEECH, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2001-754.
    Court of Criminal Appeals of Oklahoma.
    Feb. 18, 2003.
    As Corrected March 21, 2003.

      Charles Holdstock, Oklahoma City, OK, Attorney for Defendant at trial.
    Bryan Slabotsky, Assistant District Attorney, Enid, OK, Attorney for the State at trial.
    Mary S. Bruehl, Appellate Defense Counsel, Norman, OK, Attorney for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Brant M. Elmore, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
   OPINION

LILE, Vice Presiding Judge:

11 Jerald C. Leech, Jr., was convicted at jury trial of Trafficking in a Controlled Dangerous Substance (Methamphetamine) in violation of 63 O.S. Supp.1999, § 2-415 in Case No. CF-2000-304 in the District Court of Garfield County. The Honorable Ronald G. Franklin, District Judge, sentenced Leech to Twenty (20) years imprisonment and a Fine of $100,000 in accordance with the jury verdict. Appellant has perfected his appeal to this Court.

T2 The uncontradicted evidence established that Leech and the State's informant, Peterman, had an ongoing relationship. Leech would supply Peterman with cash to purchase supplies for manufacturing methamphetamine and receive drugs in payment. Leech would also sell methamphetamine for Peterman. On June 14, 2000, Peterman gave Leech approximately an ounce of methamphetamine, half as repayment for the most recent cash advance and half for sale on consignment. An immediate arrest was made and the drugs were recovered from Leech's car, An additional small amount of methamphetamine was recovered from Leech's pocket.

T8 Leech first claims that the evidence was insufficient to support the trafficking conviction because there was no proof that he knowingly possessed twenty or more grams of methamphetamine. The well established standard for analyzing insufficiency of evidence claims is set forth in Spuehler v. State, 1985 OK CR 132, 709 P.2d 202. We review the evidence in the light most favorable to the State and ask whether a rational trier of fact could have found the essential elements of the erime beyond a reasonable doubt. The State's evidence was that Peter-man and Leech discussed the amount and purpose of the methamphetamine delivered to Leech immediately prior to Leech taking possession. This evidence was accepted by the jury and is sufficient under Spuchler. We will not disturb a jury verdiet without legal justification. Torres v. State, 1998 OK CR 40, ¶38, 962 P.2d 3, 16, cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999).

%4 Leech further claims that the trial judge should have given a lesser included offense instruction covering possession of methamphetamine. The record is silent as to any objections to the court's instructions and as to any defense requested instructions. Appellant has a duty to provide a sufficient record for review. Hill v. State, 1995 OK CR 28, ¶10, 898 P.2d 155, 160. We must assume that the lack of a lesser included instruction is raised for the first time on appeal. Under these circumstances, we review for plain error only. Simpson v. State, 1994 OK CR 40, ¶23, 876 P.2d 690, 698-99. We find none. An underlying requirement of Shrum v. State, 1999 OK CR 41, ¶10, 991 P.2d 1032, 1036, is that a lesser offense instruction should not be given unless the evidence would support a conviction for the lesser offense. The uncontradicted evidence in this case is that Appellant knowingly possessed a trafficking quantity and not a quantity for personal use. Even if requested at trial, the lesser offense instruction would properly have been refused. Hill v. State, 1988 OK CR 251, ¶11, 764 P.2d 210, 213.

15 The more interesting issue, that was not raised at trial but which is presented on appeal, is also an issue of first impression for this Court. As above, we review for plain error only. Simpson, 876 P.2d at 698-99. Leech claims that he was entrapped into possessing a trafficking quantity of methamphetamine and asserts that he could only be convicted of possession of methamphetamine, a lesser offense.

T6 It is undisputed, in this reverse sting operation, that law enforcement agents determined the quantity of methamphetamine to be offered to Leech.

T7 Sentencing entrapment is said to occur when the State causes a defendant initially predisposed to commit a lesser crime to commit a more serious offense. This differs from traditional entrapment situations where an otherwise innocent person is caused to commit a erime. Traditional entrapment situations may occur when an unwary innocent person is trapped into committing a crime. See Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848. The concept of sentence entrapment applies to those situations where one admittedly predisposed to criminal activity is enticed into committing a greater crime of the same general character. If an innocent person is entrapped into committing an illegal possession of any amount of illegal drugs, the traditional entrapment principals and our traditional entrapment instruction found at OUJI-CR 2d 8-25 would apply.

18 That instruction makes it clear that an entrapped person is one who had "no previous intent or purpose to violate the law;" that was not "willing to commit a crime such as that charged" and that had "no previous intent or purpose to commit any offense of the character here charged."

T9 This language would not apply in the case of asserted sentencing entrapment. The defendant may have intended to "violate the law." The defendant may have intended to commit a crime "such as that charged" if that language means a drug related crime. The defendant may have intended to commit an "offense of the character here charged" if that language means a drug related crime.

{10 In a case where sufficient evidence is presented to raise the issue of sentence entrapment, this language must be modified to make it clear to the jury that the issue is whether or not the defendant, although intending to commit a lesser offense, has been entrapped into committing a greater offense. If the defendant had no previous intent to commit the greater erime or did not become ready and willing to commit a greater crime during the course of the transaction, even though predisposed to commit the lesser crime, then a finding that law enforcement agents committed sentencing entrapment would require that the defendant be found not guilty of the greater crime, and guilty of the lesser offense.

{11 In Robinson v. State, 1973 OK CR 152, ¶ 11, 507 P.2d 1296, 1299, overruled on other grounds in McInturff v. State, 1976 OK CR 226, 554 P.2d 837, this Court said:

"[Olne who is instigated, induced, or lured by officer of law or other person, for purpose of prosecution, into commission of crime which he had otherwise no intention of committing may avail himself of defense of entrapment".

We further said that an officer "acting in good faith with view to detecting crime" may make use of deception, trickery or artifice. Id.

112 Those same principals apply where one claims sentencing entrapment. A defendant who intended to possess small amounts of an illegal drug could be entrapped by officers into possessing a trafficking quantity or even a quantity sufficient to support a charge of intent to distribute. In that event, the defendant would be entitled to an instruction on sentencing entrapment to allow the jury to determine whether the defendant was guilty of the greater or lesser charge.

{13 We then turn to the facts of Leech's case to apply these principals. Leech never claimed entrapment, whether in a traditional sense or in the nature of sentencing entrapment. There is no evidence of entrapment in the record. The trial court did not err in failing to instruct on entrapment in the absence of a request. Further, if requested, the instruction would have properly been refused as not being supported by any evidence.

{14 Leech claims that his sentence of twenty (20) years imprisonment is excessive. - Leech was fifty-eight years old at the time of sentencing and will be denied access to most good time credits. In a reverse sting operation such as this, it is not unusual to encounter informants who are more blameworthy than the defendant. We find, under all the facts of this case, that the sentence should be modified to ten (10) years imprisonment. Rea v. State, 2001 OK CR 28, ¶5, 34 P.3d 148, 149. The case is remanded to the trial court for re-sentencing in accordance with this opinion.

DECISION

{15 The judgment of the trial court is AFFIRMED and the sentence is MODIFIED to ten (10) years imprisonment. The case is REMANDED to the trial court for re-sentencing in accordance with this opinion.

L UMPKIN, J., concurs.

JOHNSON, P.J., specially concurs.

LANNING, J., concurs in results.

CHAPEL, J., dissents.

JOHNSON, P.J.:

specially concurs.

T1 I wish to specially concur in the fine opinion written by Judge Lile. It is indeed unfortunate that law enforcement would entice someone to commit a crime either unwittingly or even if they know they are committing a crime but yet the crime is greater than one they would have committed otherwise. Because of this opinion, obviously, the Oklahoma Uniform Jury Instruction committee will have to propose one or two additional instructions.

T2 The justice system should look with a jaundiced eye upon reverse sting operations. This effectively is the justice system becoming involved in committing crime and not stopping it.

CHAPEL, J.,

dissenting:

T1 In Proposition II Leech claims the State engaged in "sentence entrapment" by setting him up with an ounce of methamphetamine, which would automatically warrant a trafficking charge. As the majority notes, sentencing entrapment occurs when the State causes a defendant initially predisposed to commit a lesser crime to commit a more serious offense. Sentencing entrapment is often associated with reverse sting operations where mandatory sentences result from a particular quantity of drugs.

T2 Leech claims the police department's decision to provide him (through the confidential informant, Peterman) with an ounce of methamphetamine, ensuring he would be charged with trafficking, unfairly entrapped him into the more serious charge and longer sentence associated with that crime. A charge for trafficking is dependent solely on the amount of the drug possessed and has significant sentencing implications, including mandatory punishment and loss of Department of Corrections credits while serving the prison sentence.

T3 Although I agree with the majority's adoption of the doctrine of sentencing entrapment, I cannot agree with the majority opinion's analysis of the "entrapment" issue. The majority initially correctly states that sentencing entrapment differs from the traditional defense of entrapment. However, the opinion appears to conflate the two doctrines, viewing sentencing entrapment entirely through the prism of entrapment principles. The opinion suggests that the traditional instruction on entrapment, which does not apply here, should be modified where necessary to reflect factual cireum-stances underlying sentencing entrapment. Finally, the majority completely fails to apply even this sketchy understanding of sentencing entrapment to the facts of this case. After very briefly discussing the doctrine of sentencing entrapment, the majority even more briefly concludes "[tlhere is no evidence of entrapment in the record." The majority concludes without discussion that, had Leech requested an instruction on entrapment it would not have been supported by the evidence. This is neither surprising, since Leech has no entrapment claim, nor relevant, since entrapment and sentencing entrapment are fundamentally different doctrines.

{4 Every state and federal jurisdiction but one, whether or not they recognize the doe-trine, defines sentencing entrapment as the claim that a defendant, although predisposed to commit a minor or lesser offense, is entrapped by the State into committing a greater offense subject to greater punishment. The question here is whether a defendant is predisposed to possess or sell the greater quantity of drugs required for trafficking, or merely predisposed to commit a lesser drug offense. The Eighth Circuit de-seribed the standard used by the majority of the courts analyzing this issue: "The government's conduct, however, does not have to be outrageous. Rather, the facts should be evaluated by focusing on the defendant's predisposition." The government's conduct is relevant to the extent that the State provides the inducement for the defendant to commit a greater offense.

15 Several courts have defined and discussed sentencing entrapment before declining to reject or adopt it, ultimately concluding it was not factually supported in particular cases. Hawaii and Pennsylvania, along with the United States District Court for the Eastern District of Pennsylvania, have adopted the doctrine but found it did not apply to the facts before it. The Eighth and Ninth Circuits have adopted sentencing entrapment. The Eleventh Circuit has rejected the sentencing entrapment defense. The D.C. Circuit discussed sentencing entrapment but concluded a defendant predisposed to sell powder cocaine and eager to commit a crime was not entrapped by government agents' insistence that he sell crack cocaine. Congress has also recognized the potential for government misconduct inherent in sting operations. In 1998 Congress modified the federal Sentencing Guidelines to allow for some sentencing relief in reverse sting cases. Where a law enforcement agent sells a drug for a substantially lower price so a defendant will buy significantly more than he would have otherwise, the sentencing court may depart downward from the sentence recommended in the guidelines.

T6 This claim has the most foree when made in connection with reverse sting operations and situations where government agents choose to deal in a specific amount of drugs expressly in order to charge a greater offense. Our criminal justice system allots wide discretion to prosecutors to determine the appropriate charge for any person accused of committing a crime. This discretion is bounded on the one hand by the Legislature's strict definitions of specific crimes, and on the other by a particular defendant's actions. In drug cases, the Legislature has defined certain offenses solely by the weight or amount of drugs possessed, and made sentencing provisions mandatory on the weight or amount alone. Where State agents exert undue influence on a person to commit a crime greater than the one he would normally commit, and where that action determines the defendant's sentence, the prosecutor no longer has any discretion. Instead, the charging decision-making is moved back to the individual drug agent, or even the confidential informant. Law .enforcement agents may take a person suspected of past drug dealing and create a specific crime. In this case Peterman approached Leech at a police officer's request, suggested a drug deal, named the amount, and provided the drugs. The officers intended to supply enough methamphetamine to convict Leech of trafficking.

T7 As the Eighth Cireuit put it in United States v. Stavig, "[We continue to be deeply concerned about the proclivity of reverse-sting operations, such as this one, to raise questions of sentencing entrapment. Sentencing entrapment claims arise in this context largely because 'sentencing discretion is delegated all the way down to the individual drug agent operating in the field'" The Court went on, "Because of the great potential for abuse, these cases require the most careful serutiny and a probing examination by the district court." In United States v. Searcy the Eighth Circuit continued this theme: "The danger of government abuse is great because in many cases, including this one, the government may influence and, in some cases control, the quantity and kind of a drug involved in the offense."

T8 In United States v. Staufer, the Ninth Cireuit discussed the concerns raised when government agents convince a defendant to deal in significantly larger quantities of drugs than his previous history would support, and concluded courts must ensure the State "has some reason to believe that defendants are predisposed to engage in a drug deal of the magnitude for which they are prosecuted." The Court stated it is unfair and arbitrary to let agents put unwarranted pressure on a defendant to commit a crime which would increase his sentence without regard for his predisposition, his capacity to commit the crime unaided, and the extent of his culpability. "Drug agents can decide, apparently without any supervision by anybody to negotiate with somebody for an ounce, a pound, a kilo, 100 kilos, a million kilos of a substance and, of course, if the defendant bites at the bait, then that amount chosen by the drug agent will determine his drug sentence. That is exactly what happened here,

T 9 The Tenth Cireuit is the only jurisdiction which does not define "sentencing entrapment" as State entrapment of a defendant, predisposed to a lesser crime, into committing a greater offense. In 1992, in United States v. Mosley, the Tenth Cireuit considered the defense of outrageous government conduct. In a thorough and well-reasoned discussion Mosley adopted the defense, delineated the factors necessary to prove outrageous government conduct occurred, and noted very few instances of government conduct would warrant any type of relief The Court specifically concluded "it is not outrageous for the government to induce a defendant to repeat or continue a crime or even to induce him to expand or extend previous criminal activity." Mosley did not consider, discuss or rule on either sentencing entrapment or sentencing manipulation.

T 10 In 1996, the Tenth Circuit considered a sentencing entrapment claim resulting from a reverse sting in United States v. Lacey. Rather than join every other jurisdiction which had discussed the issue of sentencing entrapment, and treat it as a separate defense, the Court returned to Mosley. In a footnote the Court rejected the common consensus that sentencing entrapment focuses on a defendant's predisposition, and stated that, in the Tenth Cireuit, the claim would be treated as one of outrageous conduct focusing on the actions of the government. Having determined that sentencing entrapment was merely another form of a claim of outrageous government conduct, the Court applied Mosley, and held government conduct could not be outrageous where agents induce a defendant to expand or extend his criminal activity by making a bigger buy. Lacey also determined that sentencing manipulation was merely another outrageous government conduct claim and, applying Mosley, rejected Lacey's arguments.

T11 The Tenth Cireuit stands alone in refusing to treat sentencing manipulation and sentencing entrapment as doctrines separate from the defense of outrageous government conduct. - The Court gave no reason for this decision, other than the fact that the Court already had a discussion of outrageous government conduct available in Mosley. The weight of authority, analysis of the claims themselves, and common sense suggests there is a difference between sentencing entrapment or manipulation and outrageous government conduct. That difference has been articulated by the other jurisdictions. After carefully considering all the arguments, definitions, discussions and claims, I would adopt the sentencing entrapment doctrine as traditionally defined, and hold that sentencing entrapment occurs when official conduct leads a defendant, predisposed to commit a lesser crime, into committing a greater offense subject to greater punishment. Further, while I do not dispute the Tenth Circuit's conclusion that government conduct is not outrageous simply because agents induce a defendant to expand his activity by making a bigger buy, that is not the question for sentencing entrapment. The analysis should focus not on the agent's conduct in encouraging a defendant to engage in a larger transaction, but on the defendant's predisposition. The question becomes: did State agents induce a defendant, who was otherwise predisposed to a lesser crime, to commit a significantly greater offense leading to greater punishment?

{12 In the majority of jurisdictions considering sentence entrapment, the issue is resolved by the court because most jurisdictions do not have jury sentencing. The United States Supreme Court has held that Oklahoma defendants have a liberty interest in having a jury impose sentence. The Supreme Court based this holding on Oklahoma's statute creating the right to have a Jury fix punishment. Although this right is not absolute, the statute does grant to the defendant the right to jury sentencing in the first instance. I would hold that, after a trial court determines evidence has been presented to support a claim of sentencing entrapment, the defense shall be presented to the jury. A properly instructed jury may determine whether, under the facts of each case, sentencing entrapment applies I would promulgate a separate instruction on sentence entrapment, rather than modify the language of the existing entrapment instruction as the majority suggests.

" 13 Nothing in the record suggests Leech had previously dealt in large quantities of methamphetamine. Peterman testified he had borrowed $100 to buy ingredients, and said fourteen grams (half an ounce) as payment for that debt was about right. Of course, fourteen grams is not within the amount necessary for a trafficking charge. Agent Snowden testified Officer Pritchett asked him for an ounce of methamphetamine, and Officer Pritchett testified he arranged to do a "trafficking reverse" with Peterman and Leech. Peterman offered Leech half an ounce as payment for the $100, and explained he wanted Leech to take the other half ounce and sell it for him. Peterman testified he had borrowed money from Leech before to make methamphetamine, which he repaid or planned to repay in "product". Peterman also testified that Leech had both sold and given him drugs in the past. Peterman said he usually used a quarter of a gram at a time and he would buy small quantities-often a $20 "bump"-from Leech. Peterman also provided Leech eight-balls (8 1/2 grams) of crank to sell for him four or five times.

T14 All the evidence shows Leech was predisposed at most to accept and/or sell the 14 grams of methamphetamine Peterman owed him. In fact, the record shows Leech usually dealt in much smaller quantities than 14 grams, which itself is 6 grams short of the minimum quantity necessary for trafficking. Had the State not set up a "trafficking reverse," Leech would have committed the crime of possession of methamphetamine with intent to distribute. The State acquired a confidential informant in Peterman, targeted Leech, asked Peterman to set up a deal, and both determined and provided the quantity of drugs used. The record amply supports Leech's contention that government agents improperly enlarged the seope of the crime Leech was prepared to commit, in order to secure a trafficking conviction. This fits squarely within the traditional scope of sentencing entrapment. Leech should have had an opportunity to present this defense to the jury for a determination of sentencing entrapment. I would reverse and remand the case for a new trial.

      . See, eg., United States v. Kaczmarski, 939 F.Supp. 1176, 1180 (E.D.Penn.1996), aff'd by U.S. v. Kaczmarski, 114 F.3d 1173 (3rd Cir.1997), cert. denied, Sliwowski v. U.S., 522 U.S. 901, 118 S.Ct. 251, 139 L.Ed.2d 179 (1997). There is no credible claim that Leech was entrapped in the traditional sense; it is not entrapment where police furnish a defendant an opportunity to commit a crime. See, eg., Cooper v. State, 1991 OK CR 54, 810 P.2d 1303, 1305.

      . 63 0.$.2001, §§ 2-415(B)(1), (C)4, (D)(1) (first offender subject to not less than twice the term of imprisonment provided in the non-trafficking drug statutes, and the terms of imprisonment not subject to statutory provisions for suspension, deferral or probation, or state correctional institution earned credits other than achievement credits).

      . Op. at 990.

      . United States v. Raven, 39 F.3d 428, 438 (3rd Cir.1994); United States v. Jones, 18 F.3d 1145, 1153 (4th Cir.1994); United States v. Garcia, 79 F.3d 74, 75 (7th Cir.1996); United States v. Okey, 47 F.3d 238, 240 (7th Cir.1995); United States v. Searcy, 233 F.3d 1096, 1099 (8th Cir.2000); United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir.1994); United States v. Sancher, 138 F.3d 1410, 1414 (11th Cir.1998), cert. denied, 525 U.S. 967, 119 S.Ct 414, 142 L.Ed.2d 336 (1998); United States v. Walls, 70 F.3d 1323, 1329 (D.C.Cir.1995), cert. denied 517 U.S. 1147, 116 S.Ct. 1445, 134 L.Ed.2d 565 (1996); People v. Graves, 93 Cal.App.4th 1171, 113 Cal.Rptr.2d 708, 713 (2001); State v. Yip, 92 Hawai'i 98, 987 P.2d 996, 1010 (Haw.Ct.App.1999); State v. Phillips, 2000 WL 328074 (Iowa App.2000) (unpublished opinion); People v. Ealy, 222 Mich.App. 508, 564 N.W.2d 168, 170 (1997) Commonwealth v. Petzold, 701 A.2d 1363, 1365 (Pa.Super.1997).

      . Searcy, 233 F.3d at 1100 (internal quotation omitted).

      . Searcy, 233 F.3d at 1101.

      . Raven, 39 F.3d at 438; Jones, 18 F.3d at 1154; Okey, 47 F.3d at 240 (the Seventh Circuit subsequently specifically rejected the doctrine of sentencing manipulation, see supra n. 15, but has neither adopted nor rejected sentencing entrapment); Graves, 113 Cal.Rptr.2d at 713; Ealy 564 N.W.2d at 170.

      . Yip 987 P.2d at 1010; Petzold, 701 A.2d at 1336-37; Kaczmarski, 939 F.Supp. at 1182. The Third Circuit has neither adopted nor banned sentencing entrapment. See United States v. Scavetti, 1999 WL 80368 (E.D.Pa.1999) (not for publication).

      . Searcy, 233 F.3d at 1099; United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993); Staufer, 38 F.3d at 1108.

      . Sanchez, 138 F.3d at 1414.

      . Walls, 70 F.3d at 1329 (the Court also concluded there is no basis for outrageous government conduct to support a downward sentence modification, but this appears to be a separate discussion of the "outrageous government conduct" defense).

      . 18 U.S.CAUSSG FSG § 2D1.1, comment (n. 12, 17) (Nov.1994).

      . See, e.g., State v. Yip, 987 P.2d at 1010.

      . - Government agents acting with unlimited discretion may, as they did here, create crimes. While not finding sentencing entrapment because the defendant was explicitly willing to act as courier for any amount of heroin, the Third Circuit was extremely troubled where an offense was entirely set up by the Government, with a willing defendant who had no means otherwise to carry out his plan, and where the narcotics transaction never took place. (Raven, 39 F.3d at 439).

      . United States v. Stavig, 80 F.3d 1241, 1247 (8th Cir.1996), quoting United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir.1994) (internal quotation omitted).

      . Id.

      . Searcy, 233 F.3d at 1099.

      . Staufer, 38 F.3d at 1107.

      . Id.

      . Staufer, 38 F.3d at 1107-08.

      . 965 F.2d 906, 908 (10th Cir.1992).

      . Mosley, 965 F.2d at 911.

      . 86 F.3d 956 (10th Cir.), cert. denied, 519 U.S. 944, 117 S.Ct. 331, 136 L.Ed.2d 244 (1996).

      . Lacey, 86 F.3d at 963, n. 5.

      . Lacey, 86 F.3d at 965.

      . Lacey, 86 F.3d at 963.

      . In a more recent unpublished opinion on outrageous government conduct, a panel of the Tenth Circuit discusses evidence on a defendant's predisposition to commit a crime, cites Lacey to note that proof of predisposition to the larger crime is not a part of Tenth Circuit analysis ("even were our analysis to turn on such a distinction''), but cites Staufer as well, suggesting that at least one panel may be factually inclined to consider predisposition. This case had no claim of sentencing entrapment or manipulation. United States v. Sims, 153 F.3d 729 (Table), 1998 WL 380970(10th Cir.1998).

      . Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980).

      . 22 0.$.2001, § 926.

      . 22 0.$.2001, § 927 (trial court may fix punishment where none recommended by jury); 22 0.S.2001, § 970 (granting defendant right of al-locution); 22 0.9.2001, § 982a (trial court may modify a sentence by directing imposition of another penalty at any time within twelve months after the sentence is imposed); 22 0.8. 2001, § 982 (to aid in its sentencing determination, a trial court must require a presentence investigation upon conviction of certain violent felonies); 22 0.$.2001, § 973 (where the trial court hears extra evidence in the case of a plea, or determines punishment, the trial court may schedule a hearing on evidence of aggravation or mitigation of punishment.)

      . Peterman testified that an ounce of methamphetamine, sold whole, was worth about $1000; a tenth of a gram was worth $20, and an eight-ball (3 1/2 grams, a common amount) was worth $250 or $300. [Trial Tr. I 130, 149, 157, 160-61] Leech's half ounce was worth as much as $2800.

      . 63 0.$.2001, § 2-401(B)(2).