author: REAVIS, Justice.

text:
    Kevin Dee LINDLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 07-00-0041-CR.
    Court of Appeals of Texas, Amarillo.
    Dec. 15, 2000.

      Hurley Reyes & Guinn (Aaron R. Clements), Lubbock, for appellant.
    Lisa M. Tanner, Asst. Atty. Gen., Austin, for appellee.

      Before BOYD, C.J., and QUINN and REAVIS, JJ.
   REAVIS, Justice.

By one issue, appellant Kevin Dee Lind-ley argues the trial court erred in denying his motion to dismiss an indictment against him with prejudice because the State failed to bring him to trial on the charges contained in the indictment within the time allotted by Article 111(a) of the Interstate Agreement on Detainers Act (IADA), and that dismissal was therefore required under Article V(c). Based upon the rationale expressed herein, we affirm.

On November 5, 1993, appellant was indicted by a Lubbock County grand jury for the offenses of burglary of a habitation and unauthorized use of a motor vehicle. Appellant retained attorney William Sow-der to represent him. However, before appellant could be brought to trial for these charges, Mr. Sowder was elected as Lubbock County Criminal District Attorney in November 1994. Upon taking his office, Mr. Sowder and the Lubbock County Criminal District Attorney’s office were disqualified from prosecuting any cases in which he or any of his partners had previously represented the defendant, including the case at bar. By an order signed June 16, 1995, the prosecution of this and other cases was assigned to the Attorney General’s office and twelve named assistants were appointed criminal district attorneys pro tempore in 1995. Also, as relevant to appellant’s case, an order was signed on June 21, 1995, which substituted Billy D. Price as retained counsel of record for appellant. Another order was signed on November 20,1996, which substituted Tracy McKinzie as counsel of record for appellant in place of Billy Price.

On December 23, 1996, appellant, his retained counsel, and the appointed criminal district attorney pro tem that had been assigned to prosecute appellant’s case appeared in the trial court for a hearing of a plea bargain agreement. However, this hearing was eventually postponed because a court reporter was not available. While they were waiting for a court reporter, a conversation between appellant, his counsel, and the attorney pro tem took place in which they discussed how the attorney pro tem had come from the Attorney General’s office in Austin for this particular plea hearing and how she would have to return since a court reporter was not available during this time of year.

While the charges were still pending in Lubbock County, appellant was convicted of felony criminal mischief in Colorado and sentenced to four years confinement. On December 29, 1998, while confined in Colorado, appellant executed a Request for Final Disposition of Detainer pursuant to the Interstate Agreement on Detainers Act. See generally Tex.Code Crim.Proc.Ann. art. 51.14 (Vernon 1979). This request was certified by the Colorado Department of Corrections and two copies were sent by certified mail, return receipt requested, to the Lubbock County District Attorney’s office and to the clerk of the court. Both of these copies were received and signed for by a Lubbock County employee on January 11, 1999, and were subsequently forwarded to a prosecutor in the Lubbock County District Attorney’s Office who held them until August 9, 1999, at which time the request was forwarded to the criminal district attorney pro tem assigned to appellant’s case. Appellant filed a pro se Motion for Dismissal of Extradition De-tainer on September 21, 1999, based upon the State’s failure to comply with the 180 day provision of the IADA. After a hearing, this motion was denied and appellant entered into a plea agreement which allowed him the right to appeal the trial court’s order denying his motion to dismiss.

By his sole issue, appellant questions whether a request for final disposition under the IADA must be delivered to an attorney pro tem appointed pursuant to Texas Code of Criminal Procedure article 2.07 when the detainer does not contain information regarding the existence of an attorney pro tem, or whether notice to an otherwise appropriate prosecution office is sufficient under those circumstances. Based upon the facts presented here, we conclude that appellant’s request should have been delivered to the attorney pro tem and that notice to an otherwise appropriate office is not sufficient under these circumstances.

THE INTERSTATE AGREEMENT ON DETAINERS ACT

The IADA is a congressionally-sanctioned compact between the United States and the states. Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 709, 66 L.Ed.2d 641 (1981). As stated in Article I of the Act, “the policy of the party states and the purpose of the IADA is to encourage the expeditious and orderly disposition of outstanding charges and determination of the proper status of any and all detain-ers based on untried indictments, informations, or complaints.” Birdwell v. Skeen, 983 F.2d 1332, 1335 (5th Cir.1993). Consistent with this purpose, the IADA permits a state to file a detainer against a defendant residing in a prison in another state, gain temporary custody of the defendant, and prosecute the defendant on the charge that forms the basis of the detainer. U.S. v. Mauro, 436 U.S. 340, 351-53, 98 S.Ct. 1834,1842-44, 56 L.Ed.2d 329 (1978).

The IADA also provides a mechanism for a person incarcerated in one jurisdiction with charges pending against him in another jurisdiction to be tried on the pending charges before being released from incarceration in the first jurisdiction. Tex.Code Crim.Proc.Ann. art. 51.14, art. I (Vernon 1979). Either the defendant or the jurisdiction where charges are pending may demand that the defendant be tried on the pending charges. Id. arts. I, III, V.

ARTICLE III
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180-days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint ...
ARTICLE V
(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information, or complaint on the basis of which the de-tainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

To request final disposition under article III, the defendant must cause “to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment.” Id. art. 111(a) (emphasis added). The IADA provides that a defendant can perform this requirement by sending the written notice and request for final disposition to the official having custody of him, who would then forward it to the appropriate prosecuting official and court by registered mail. Id. art. 111(b). The Supreme Court has held that the 180 day provision “does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.” Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 1091, 122 L.Ed.2d 406 (1993); State v. Powell, 971 S.W.2d 577, 580 (Tex.App.—Dallas 1998, no pet.). “The inmate bears the burden of demonstrating compliance with the formal procedural requirements of Article III.” U.S. v. Henson, 945 F.2d 430, 434 (1st Cir.1991); Bryant v. State, 819 S.W.2d 927, 930-31 (Tex.App.—Houston [14th Dist.] 1991, pet. ref'd). The denial of a defendant’s motion to dismiss an indictment under the IADA is a question of law reviewed de novo and the factual findings underlying that decision are reviewed on a clearly erroneous standard. United States v. Hall, 974 F.2d 1201, 1204 (9th Cir.1992).

Here, upon initial review, it would appear that appellant has satisfied his burden under the IADA. Appellant properly completed the request for final disposition and sent it by certified mail to the clerk of the court and to the Lubbock County Criminal District Attorney’s office. However, although appellant and his retained counsel of record knew that his former defense counsel had been elected District Attorney and that an attorney pro tem had been appointed, appellant failed to send his request to the appropriate prosecuting officer — here, the attorney pro tem appointed from the Attorney General’s office.

An attorney pro tem is appointed by the district court in accordance with statutory provisions. Tex.Code Crim. Proc.Ann. art. 2.07 (Vernon Supp.2001). After taking the required constitutional oath of office, the appointee assumes all of the duties and powers of the elected district attorney and is, for that case, the district attorney. State v. Rosenbaum, 852 S.W.2d 525, 528 (Tex.Cr.App.1993) (emphasis added). Here, because appellant and his retained counsel of record had actual knowledge that an attorney pro tem had been appointed, it was incumbent upon him to ensure that the appropriate prosecuting officer was notified of his request for disposition. Having failed to properly notify the prosecuting officer, appellant’s request remained in the information “pipeline” until August 9, 1999, when the prosecuting officer finally did receive notice of his request and the 180 day provision under the IADA began running. Under such limited circumstances as these, where the appellant knew of the appointment of an attorney pro tem and still wished to exercise his rights under the IADA, it became his duty to notify the appropriate prosecuting officer. Therefore, appellant’s substantial rights under the IADA were not violated.

Also, by his brief, appellant contends that the error in not sending his request to the appropriate prosecuting officer was due to the State of Colorado’s negligence. This is because the detainer only named the Lubbock County Sheriffs Office as the prosecuting authority which left the Colorado Department of Corrections to their own surmises as to who and where to send the request. However, the failure of one state to comply with requirements of the IADA does not require the dismissal of charges in another state. Bryant, 819 S.W.2d at 930. Moreover, the duty of notifying the appropriate prosecuting officer, in order to invoke the 180 day provision, is specifically placed upon a criminal defendant under the Texas version of the IADA, “after he shall have caused to be delivered to the prosecuting officer ... his request.” Tex.Code Crim. Proe.Ann. art. 51.14, art. 111(a) (Vernon 1979) (emphasis added). And where, as here, a criminal defendant has specific knowledge of the identity of the prosecuting office (the Attorney General’s Office), it becomes more especially incumbent upon the out-of-state criminal defendant to ensure compliance with the statute’s dictates. Were we to hold otherwise would allow out-of-state criminal defendants to escape prosecution for crimes committed in the State of Texas by circumventing the very laws designed to protect their rights,

Accordingly, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: LUMPKIN, PRESIDING JUDGE:

license: Public Domain

text:
    David Neil DUNN, Petitioner v. The STATE of Oklahoma, Respondent.
    Case No. C-2017-1050
    Court of Criminal Appeals of Oklahoma.
    Decided: November 8, 2018
    SUMMARY OPINION GRANTING CERTIORARI AND REMANDING FOR EVIDENTIARY HEARING
   LUMPKIN, PRESIDING JUDGE:

¶1 Petitioner, David Neil Dunn, was charged by Information in the District Court of Muskogee County Case No. CF-2015-1155 with Robbery in the First Degree (Count 1) ( 21 O.S.2011, § 798 ), First Degree Burglary (Count 2) ( 21 O.S.2011, § 1431 ), Kidnapping (Count 3) ( 21 O.S.Supp.2012, § 741 ), Larceny of an Automobile (Count 4) ( 21 O.S.2011, § 1720 ), and Possession of a Firearm After Former Felony Conviction (Count 5) ( 21 O.S.2011, § 1283(A) ). The State further alleged that Appellant had committed these offenses After Two or More Felony Convictions.

¶2 On June 5, 2017, Petitioner entered a blind plea of no contest to the charges with the assistance and advice of his appointed counsel. The Honorable Michael Norman, District Judge, accepted Petitioner's plea and set the matter for sentencing pending receipt of the pre-sentence investigation report. On September 8, 2017, the District Court sentenced Petitioner to imprisonment for life in Counts 1 and 2, twenty (20) years in Count 3, ten (10) years in Count 4, and five (5) years in Count 5. The District Court imposed various fines, fees, and costs and further ordered the sentences to run consecutively.

¶3 On September 15, 2017, Petitioner filed his Motion to Withdraw Plea. On October 8, 2017, the District Court held an evidentiary hearing on Petitioner's request. Petitioner had been transported to the Department of Corrections and was not present at the hearing. The District Court denied Petitioner's motion. Petitioner timely filed his Notice of Intent to Appeal seeking to appeal the denial of his application to withdraw plea.

¶4 Petitioner raises the following propositions of error in support of his appeal.

I. Petitioner was denied his due process right to be present and assist in presenting to the Court his Motion to Withdraw Plea.
II. Petitioner was deprived of his right to effective assistance of counsel.

¶5 After thorough consideration of these propositions and the entire record before us on appeal, we find the case must be remanded to the District Court for a proper hearing on the motion to withdraw.

¶6 In Proposition One, Petitioner contends that he was denied due process when the District Court proceeded to hear his motion to withdraw in his absence. He argues this violated his right to be present and assist in his case.

¶7 The United States Supreme Court has held that under the Due Process Clause of the Fourteenth Amendment "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer , 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987). Thus, we have recognized that "a defendant has a due process right to be present where his presence 'bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend.' " Lockett v. State , 2002 OK CR 30, ¶ 9, 53 P.3d 418, 423, quoting Snyder v. Massachusetts , 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). " '[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.' " Ryder v. State , 2004 OK CR 2, ¶ 29, 83 P.3d 856, 864 (quoting Snyder , 291 U.S. at 107-08, 54 S.Ct. at 333 ). However, "[t]he defendant's presence is not required where such 'presence would be useless, or the benefit but a shadow.' " Ryder , 2004 OK CR 2, ¶ 29, 83 P.3d at 864 (quoting Snyder , 291 U.S. at 106-07, 54 S.Ct. at 332 ).

¶8 Although this Court has recognized that the evidentiary hearing held on a motion to withdraw plea is a "critical stage" for the purposes of the Sixth Amendment right to the assistance of counsel, Randall v. State , 1993 OK CR 47, ¶ 6, 861 P.2d 314, 315, we have not recognized that a criminal defendant has the right to be present at such an evidentiary hearing. We now explicitly recognize this right.

¶9 Our primary concern in evaluating the validity of a guilty plea is whether the plea was entered voluntarily and intelligently. Tate v. State , 2013 OK CR 18, ¶ 40, 313 P.3d 274, 285, (citing Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ). These issues focus on the defendant's knowledge and volition. Often, it is the defendant who offers crucial testimony on these matters. Thus, his or her absence from the evidentiary hearing held on the motion to withdraw plea would tend to thwart a fair and just determination of these issues. Even when the defendant does not testify, his or her familiarity with the circumstances would greatly benefit defense counsel and, therefore, his or her presence is likely critical to the fairness of the proceedings. Accordingly, we find that a defendant has a due process right to be present at the evidentiary hearing held on his or her motion to withdraw plea.

¶10 Turning to the present case, we find that Petitioner was denied the right to be present at the hearing held on his motion. When the matter came on for hearing, the District Court announced on the record that Petitioner did not appear because he had already been transported to the Department of Corrections. The District Court inquired and defense counsel affirmed that he had spoken with Petitioner and "fe[lt] comfortable proceeding without him." Counsel then renounced Petitioner's request to withdraw his plea and, instead, reargued for the merger of three of the counts.

¶11 The right of a defendant to be present is not an absolute right; it may be waived. Watson v. State , 2010 OK CR 9, ¶ 12, 234 P.3d 111, 114. However, this Court will not presume the waiver of a defendant's right to be present from a silent record. Id. ; Van White v. State , 1999 OK CR 10, ¶ 31, 990 P.2d 253, 265. This Court has upheld a defendant's waiver of his or her right to be present at trial where a knowing and voluntary waiver was found in the record, i.e. , "a verbal waiver after the defendant was advised of his/her rights, a voluntary absence, or disruptive conduct after an advice of rights." Watson , 2010 OK CR 9, ¶ 12, 234 P.3d at 114.

¶12 Defense counsel's announcement of his feelings in the present case did not operate to waive Petitioner's constitutional and statutory rights. As nothing in the record establishes that Petitioner knowingly and voluntarily waived his right to be present at the evidentiary hearing, we find that he was denied due process.

¶13 Citing Petitioner's failure to argue on appeal that his plea was not knowingly or voluntarily entered, the State argues that this error was harmless. The denial of the constitutional and statutory right to be present is subject to harmless error review. Watson , 2010 OK CR 9, ¶ 16, 234 P.3d at 115 ; Van White , 1999 OK CR 10, ¶ 32, 990 P.2d at 265. In order for a constitutional error to be deemed harmless the Court must find beyond a reasonable doubt, that it did not contribute to the verdict. Watson , 2010 OK CR 9, ¶ 16, 234 P.3d at 115 (citing Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) ). "The standard for constitutional violations is well-known: reversal is in order unless the State can show the error was harmless beyond a reasonable doubt." Id. , (citing Arizona v. Fulminante , 499 U.S. 279, 295, 111 S.Ct. 1246, 1258, 113 L.Ed.2d 302 (1991) ).

¶14 We cannot agree with the State's assertion. Petitioner entered a no contest blind plea on the morning of his jury trial. Petitioner's Motion to Withdraw Plea alleged all of the counts should have merged pursuant to 21 O.S.2011, § 11 and that the plea was not knowingly and voluntarily entered. Petitioner did not withdraw either claim prior to the evidentiary hearing. Because Petitioner was the only person who could fully explain why the plea was not knowingly or voluntarily entered, his testimony was essential to the outcome of the hearing. As Petitioner was not present at the hearing, he was unavailable to provide testimony in support of this claim and defense counsel withdrew that portion of the motion challenging the validity of the plea. On appeal, Petitioner could not properly raise this issue because there was no evidence presented at the evidentiary hearing. See Anderson v. State , 2018 OK CR 13, ¶ 4, 422 P.3d 765, 767 ("If a matter is not presented to the trial court, there is nothing for this Court to review."). The effect of Petitioner's absence was to deny him the record required for this Court's review of the voluntariness of his no contest plea. Id. , 2018 OK CR 13, ¶ 4, 422 P.3d 765, 767. Therefore, we conclude the State has not shown that this error was harmless beyond a reasonable doubt. We find the case must be remanded to the District Court for a proper hearing on Petitioner's motion to withdraw.

¶15 In Proposition Two, Petitioner challenges the effectiveness of counsel throughout the proceedings. In light of the error which occurred and the relief granted in Proposition One, we find that this issue is moot.

DECISION

¶16 The Petition for a Writ of Certiorari is GRANTED . The case is REMANDED TO THE DISTRICT COURT FOR AN EVIDENTIARY HEARING ON THE MOTION TO WITHDRAW PLEA CONSISTENT WITH PETITIONER'S RIGHT TO BE PRESENT . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

LEWIS, V.P.J.: Concur in Part Dissent in Part

HUDSON, J.: Concur

KUEHN, J.: Concur

ROWLAND, J.: Concur

LEWIS, VICE PRESIDING JUDGE, CONCURS IN PART AND DISSENTS IN PART:

¶1 I agree in principle with the majority that the hearing on a motion to withdraw the plea is a critical stage of a criminal prosecution, and that due process protects the right to be present when necessary to a full and fair hearing. We need not explicitly "recognize" this right or enhance it with new procedural requirements, because it already exists. I respectfully disagree that the Petitioner here was denied the right to be present at this hearing, or that he has shown any constitutional harm as a result.

¶2 Petitioner's technical challenge to counsel's waiver of his presence rather cleverly avoids any material substance about how his presence might have contributed to, or possibly altered, the outcome. Trial counsel appeared at the hearing and informed the court that he and the Petitioner had discussed the motion, and that counsel was prepared to proceed on Petitioner's behalf. Counsel then specifically renounced the prior written claim that the plea was involuntary, and argued for sentencing relief based on a theory of merger.

¶3 The lawyer is an officer of the court as well as an agent of the client, and is generally presumed to possess the authority to act for a client in the matter under representation until the contrary is shown. North Side State Bank v. County Commissioners , 1994 OK 34, ¶ 25, 894 P.2d 1046, 1055. Petitioner has not rebutted this presumption, and thus has not shown that his presence was "denied" in any meaningful sense. Counsel was not simply stating his "feelings" about Petitioner being present. A fair reading of counsel's comments was that Petitioner's presence was unnecessary to a fair presentation of his actual claims. Indeed, if the record before us is "silent" in some important respect, it is deafeningly so as to any facts that would draw into question the Petitioner's waiver of his right to a jury trial, and his consent to being found guilty and sentenced by the court.

¶4 We have never held that a personal waiver of the right to be present on the record is necessary for every important hearing in a criminal prosecution, especially when counsel is present to protect the defendant's interests. Such a rule would effectively demand the defendant's presence at all times, if only to consent not to be present. Nor does the Fourteenth Amendment guarantee this right " 'when presence would be useless, or the benefit but a shadow.' " Jones v. State , 2006 OK CR 5, ¶ 70, 128 P.3d 521, 544 (quoting Snyder v. Massachusetts , 291 U.S. 97, 106-107, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) ).

¶5 The procedural right to be present is not a license to trifle with the court, or for appellate counsel to revoke every ostensibly disadvantageous act or declaration made by trial counsel in the defendant's absence. Petitioner pled no contest, knowing that he would be found guilty and sentenced by the court within the statutory ranges, which he was. He was understandably disappointed with those sentences, but he has offered no credible, factual reason, either in the trial court or in this appeal, to doubt the knowing and voluntary nature of his pleas.

¶6 There are cases where the denial of a Petitioner's right to be present at the hearing on a motion to withdraw plea "would tend to thwart a fair and just determination of the issues," and violate due process of law. This is not one of those cases, and no relief is warranted.

      Petitioner is required to serve 85% of his sentences for First Degree Robbery and First Degree Burglary prior to becoming eligible for consideration for parole. 21 O.S.Supp.2014, § 13.1.


text:
    STATE of Oklahoma, Appellant, v. Shelley Marie BRADLEY, Appellee.
    State of Oklahoma, Appellant, v. Dylan Thomas Brodie, Appellee.
    Case Nos. S-2018-5 S-2018-6
    Court of Criminal Appeals of Oklahoma.
    Decided: November 15, 2018

      On our own motion, we consolidate these cases for disposition together for reasons of judicial economy. Rule 3.3(D), Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App. (2018).

   APPEARANCES IN THE DISTRICT COURT DOUGLAS G. DRY, Assistant District Attorney, Wagoner County, 307 E. Cherokee, Wagoner, OK 74467, COUNSEL FOR THE STATE

MICHON HASTINGS HUGHES, Attorney at Law, 1634 South Denver Ave., Tulsa, OK 74119, COUNSEL FOR DEFENDANT BRADLEY

CLINTON C. HASTINGS, Attorney at Law, 1634 South Denver Ave., Tulsa, OK 74119, COUNSEL FOR DEFENDANT BRODIE

APPEARANCES ON APPEAL DOUGLAS G. DRY, Assistant District Attorney, Wagoner County, 307 E. Cherokee, Wagoner, OK 74467, COUNSEL FOR THE STATE

MICHON HASTINGS HUGHES, Attorney at Law, 1634 South Denver Ave., Tulsa, OK 74119, COUNSEL FOR APPELLEE BRADLEY

CLINTON C. HASTINGS, Attorney at Law, 1634 South Denver Ave., Tulsa, OK 74119, COUNSEL FOR APPELLEE BRODIE

SUMMARY OPINION

ROWLAND, JUDGE:

¶ 1 The State of Oklahoma, Appellant, appeals to this Court from an order entered by the reviewing judge, the Honorable Mark L. Dobbins, Associate District Judge, affirming a ruling by the magistrate, the Honorable Dennis N. Shook, Associate District Judge, which sustained the defendants' demurrers to the evidence on Counts 1 and 2; and denied the State's request to amend the Informations, in Case Nos. CF-2017-445 and CF-2017-446 in the District Court of Wagoner County. See 22 O.S.2011, §§ 1089.1 - 1089.7.

STATEMENT OF THE CASE

¶ 2 In Case Nos. CF-2017-445 and CF-2017-446, the Appellees, Shelley Marie Bradley ("Appellee Bradley") and Dylan Thomas Brodie ("Appellee Brodie"), were each charged with Count 1: Intimidation of a Witness, in violation of 21 O.S.Supp.2013, § 455 (" Section 455") and Count 2: Conspiracy to Commit a Felony, either Intimidation of a Witness or in the alternative Subornation of Perjury, in violation of 21 O.S.2011, § 421. At the preliminary hearing, Judge Shook sustained the Appellees' demurrers to the evidence as to both counts. Judge Shook also sustained demurrers to the State's request to amend the Informations to include a charge of False Preparation of Exhibits as Evidence, in violation of 21 O.S.2011, § 453. The State announced its intent to appeal from the adverse rulings of Judge Shook. The matter was assigned to Judge Dobbins, as reviewing judge pursuant to 22 O.S.2011, § 1089.2(C), who affirmed Judge Shook's ruling. The State appealed.

¶ 3 Pursuant to Rule 11.2(A)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018), this appeal was automatically assigned to the Accelerated Docket of this Court. The propositions or issues were presented to this Court in oral argument on August 9, 2018, pursuant to Rule 11.2(E). At the conclusion of oral argument, this Court reversed the ruling of the reviewing judge and announced that this written opinion would follow.

SUMMARY OF FACTS

¶ 4 Appellees Bradley and Brodie are the mother and brother of Jacob Ode ("Ode"), who was charged in Wagoner County District Court Case No. CF-2017-413 with Count 1 - Endangering Others While Attempting to Elude Police Officer; Count 2 - Running a Roadblock; and Count 3 - Reckless Driving. Makenzie Janelle Hawkins ("Hawkins") is the niece of Appellee Bradley; a cousin of Appellee Brodie; and a cousin of Ode.

¶ 5 On June 1, 2017, Hawkins was a passenger in Ode's vehicle during the police pursuit that resulted in the charges filed against Ode in Case No. CF-2017-413. At the end of the pursuit, Ode and a male passenger fled the vehicle and eluded officers, but Hawkins stayed inside. Hawkins was detained, questioned by police, and gave a written statement concerning the pursuit. Hawkins' written statement said that Ode was the driver of the vehicle being pursued by the police. A copy of Hawkins' written statement was introduced as State's Exhibit No. 1 during the preliminary hearing in this case.

¶ 6 Hawkins testified that on June 18, 2017, Appellee Brodie called and asked Hawkins to come to Hawkins' grandmother's house, where Appellees Bradley and Brodie both lived. Hawkins testified Appellee Brodie came to Hawkins' house, picked her up, and drove her to the grandmother's house. Hawkins testified she had not had any contact with Appellees Bradley and Brodie since the police pursuit and was "sort of glad" when Appellee Brodie called her and asked her to go to the grandmother's house on June 18, 2017, because it meant the family was talking to her.

¶ 7 While at the grandmother's house, Appellee Brodie asked if she would change her statement about the police pursuit and Hawkins testified that "I said yes." Hawkins testified that Appellee Brodie and Appellee Bradley both asked her to change her statement because Ode's bond was going to be revoked if she didn't. Hawkins testified that Appellees Bradley and Brodie walked her through what to write and, after Appellees tore up her first attempt at writing the changed statement, got her to write a statement saying that Ode was not in the vehicle on the night of the police pursuit. That statement written by Hawkins was admitted at the preliminary hearing as State's Exhibit No. 2. During the preliminary hearing, the State twice asked Hawkins whether Appellees or anybody else told her they wanted her to testify in court in accordance with her written statement in State's Exhibit No. 2, and both times Hawkins replied "No." During her preliminary hearing testimony, Hawkins was given use and transactional immunity by the State.

¶ 8 The State's second witness at the preliminary hearing was Major Dustin Dorr ("Dorr"), with the Wagoner County Sheriff's Office. Dorr testified that on June 19, 2017, Appellee Bradley gave Hawkins written statement, State's Exhibit No. 2, to him and asked him to consider it in the investigation of pending and anticipated charges against her son, Ode. The State's final witness was Deputy Danny Elliott ("Elliott"), with the Wagoner County Sheriff's Office. Elliott said he was asked to investigate who was actually driving the vehicle involved in the police pursuit on June 1, 2017. Elliott interviewed Hawkins on June 21, 2017, and she told him that her statement to police on June 1, 2017, was the truth, that Ode was driving the vehicle during the police pursuit. Elliott also testified that he listened to phone conversations Ode made from jail, which indicated the stories had been fabricated that he was not driving the vehicle being pursued. After Elliott's testimony, the State rested.

¶ 9 Appellees Bradley and Brodie demurred to the evidence. First, Appellees argued that as to the intimidation of a witness and conspiracy charges the State presented no evidence either that they actually threatened or procured physical or mental harm through force or fear against Hawkins, or that they had prevented or attempted to prevent Hawkins from giving testimony. Second, as to perjury and subornation of perjury and conspiracy charges, Appellees argued Hawkins never made and was never forced to make any false statements under oath or affirmation. In response, the State first asked that the Informations be amended to add a count of falsely preparing exhibits as evidence, pursuant to 21 O.S.2011, § 453. The State argued their evidence satisfied the elements of threatening a witness, but even if it didn't Section 455 is satisfied if a person prevents or attempts to prevent a person from testifying.

¶ 10 Judge Shook sustained the Appellees' demurrer as to the charge of intimidation of a witness and conspiracy, by finding there was insufficient evidence Hawkins was threatened or placed in fear of giving testimony. Judge Shook sustained the Appellees' demurrer as to the charge of conspiracy to commit subornation of perjury, by finding Hawkins' statement was not made under oath. Judge Shook sustained the demurrer as to False Preparation of Exhibits as Evidence without making any findings or conclusions. On appeal, Judge Dobbins affirmed Judge Shook's decision without findings or conclusions.

¶ 11 The State filed this appeal asserting the same four propositions of error in both appeals:

I. THE STATE OF OKLAHOMA PRESENTED SUFFICIENT EVIDENCE TO SHOW PROBABLE CAUSE THAT THE DEFENDANT COMMITTED THE CRIME OF PREVENTING WITNESS FROM GIVING TESTIMONY - THREATENING WITNESS WHO HAS GIVEN TESTIMONY ( 21 O.S. § 455 ), AS DEFINED BY OKLAHOMA LAW;
II. THE STATE OF OKLAHOMA PRESENTED SUFFICIENT EVIDENCE TO SHOW PROBABLE CAUSE THAT THE DEFENDANT COMMITTED THE CRIME OF CONSPIRACY ( 21 O.S. § 421 ), AS DEFINED BY OKLAHOMA LAW;
III. SHOULD THIS COURT FIND THAT THE STATE HAS NOT MET ITS BURDEN IN SHOWING THAT THE DEFENDANT COMMITTED THE CRIME OF PREVENTING WITNESS FROM GIVING TESTIMONY - THREATENING WITNESS WHO HAS GIVEN TESTIMONY AND THE CRIME OF CONSPIRACY TO COMMIT THE CRIME OF SUBORNATION OF PERJURY [SIC]; and
IV. THE STATE OF OKLAHOMA PRESENTED SUFFICIENT EVIDENCE OF OTHER CRIMES TO SHOW PROBABLE CAUSE THAT THE DEFENDANT COMMITTED THE ADDITIONAL CRIME OF PREPARING FALSE EVIDENCE ( 21 O.S. § 453 ), AS DEFINED BY OKLAHOMA LAW TITLE 22 SECTION 264.

ANALYSIS

¶ 12 "The purpose of the preliminary hearing is to establish probable cause that a crime was committed and probable cause that the defendant committed the crime." 22 O.S.2011, § 258(8) ; see also State v. Vincent , 2016 OK CR 7, ¶ 5, 371 P.3d 1127, 1129. The standard of review to be used by the reviewing District Court Judge in a State appeal from an adverse ruling of the preliminary hearing magistrate is "whether the evidence, taken in the light most favorable to the state, is sufficient to find that a felony crime has been committed and that the defendant probably committed said crime." 22 O.S.2011, § 1089.5 ; see also Vincent , supra . As we noted in Berry :

When considering whether or not a crime has been committed, the State is required to prove each of the elements of the crime .... The magistrate must consider the proof established by the State in light of the statutory elements of the given offense. If the elements of the crime are not proven, then the fact of the commission of a crime cannot be said to have been established. A defendant cannot be held to answer for actions which do not amount to a crime as defined by our statutes.

State v. Berry , 1990 OK CR 73, ¶ 9, 799 P.2d 1131, 1133. Absent an abuse of discretion in reaching that determination, the magistrate's ruling will remain undisturbed. Vincent , supra (citation omitted). An abuse of discretion has been described as "a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented." Neloms v. State , 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

¶ 13 In Proposition I, the State argues that sufficient evidence was presented to show probable cause that the Appellees committed the crime charged in Count 1: Intimidation of Witness, pursuant to 21 O.S.Supp.2013, § 455(A). We begin by rejecting Appellees' claim that the definition of testimony in Pinkley provides the fatal flaw to the State's argument under this proposition. Pinkley v. State , 2002 OK CR 26, 49 P.3d 756. Appellees note that Pinkley defines testimony as evidence given by a competent witness under oath or affirmation. Pinkley , 2002 OK CR 26 at ¶ 8, 49 P.3d at 759. Appellees argue that neither of Hawkins' written statements were made under oath or affirmation and are thus not testimony as contemplated by Section 455(A) and by Pinkley . Appellees fail to consider the determination in Pinkley that Section 455 encompasses not only the completed crime of witness intimidation, but also attempts to intimidate a witness intending to prevent testimony, which necessarily would occur prior to the witness giving testimony under oath or affirmation. Pinkley , 2002 OK CR 26 at ¶ 10, 49 P.3d at 759-60 (citing Mehdipour v. State , 1998 OK CR 23, 956 P.2d 911 ). Pinkley's definition of testimony is thus not dispositive of this proposition because a witness can be intimidated under the terms of Section 455 before testimony is ever given.

¶ 14 Despite rejecting Appellees' arguments, we cannot find that the refusal by Judge Shook and Judge Dobbins to bind Appellees over for trial on the State's charges under Section 455 rises to the level of error or abuse of discretion as argued by the State. Section 455(A) provides:

A. Every person who willfully prevents or attempts to prevent any person from giving testimony or producing any record, document or other object, who has been duly summoned or subpoenaed or endorsed on the criminal information or juvenile petition as a witness, or who makes a report of abuse or neglect pursuant to Section 1-2-101 of Title 10A of the Oklahoma Statutes or Section 10-104 of Title 43A of the Oklahoma Statutes, or who is a witness to any reported crime, or threatens or procures physical or mental harm through force or fear with the intent to prevent any witness from appearing in court to give his or her testimony or produce any record, document or other object, or to alter his or her testimony is, upon conviction, guilty of a felony punishable by not less than one (1) year nor more than ten (10) years in the custody of the Department of Corrections.

21 O.S.Supp.2013, § 455(A). Subsection A of Section 455 is very poorly written. As shown by the Oklahoma Jury Instructions - Criminal and published authority of this Court, the subsection contains two separate parts. OUJI-CR 3-39; 21 O.S.Supp.2013, § 455(A). The first part criminalizes the preventing or attempting to prevent a summoned or subpoenaed person from testifying (or producing documents, etc.). OUJI-CR 3-39; 21 O.S.Supp.2013, § 455(A) ; see also Mehdipour , 1998 OK CR 23 at ¶ 7, 956 P.2d at 914 (the plain language of Section 455, now Section 455(A), "refers to two separate actions a defendant may take [the first being] willfully preventing testimony"). The second part criminalizes the threatening or procuring of harm through force/fear to a person with the intent to make the person alter his or her testimony. OUJI-CR 3-39;

21 O.S.Supp.2013, § 455(A) ; see also Mehdipour , 1998 OK CR 23 at ¶ 7, 956 P.2d at 914 (the second separate action "a defendant may take [is] threats of physical or mental harm through force or fear with the intent to prevent a witness from testifying at all, or to cause a witness to alter his testimony").

¶ 15 As applied to this case, and to the State's arguments, there is no evidence in this appeal record showing that either of the Appellees prevented or attempted to prevent Hawkins from testifying, from giving testimony, or from appearing in court. Therefore, the decision of both Judge Shook and Judge Dobbins, that the Appellees should not be bound over for trial as to the first part of subsection A of Section 455, cannot be considered a clearly erroneous conclusion and judgment that is clearly against the logic and effect of the facts presented. 21 O.S.Supp.2013, § 455(A) ; Vincent , supra ; Neloms , supra .

¶ 16 With regard to the second part of subsection A of Section 455, the State contends it presented sufficient evidence of Appellees' threats or procurement of mental or physical harm through force or fear concerning Appellees' intent to cause Hawkins to alter her testimony. The State argues Hawkins felt mental harm from her extended family because they had ceased to have a relationship with her, resulting in her feeling alienated. The State also uses a statement written by Hawkins, which was ruled to be hearsay and not admitted into evidence, where Hawkins stated she felt pressure to change her statement as directed by Appellees because the family had not talked to her since her original statement. We find that the evidence in this appeal record is weak at best relating to threats or the procurement of physical or mental harm through force or fear. Hawkins' feelings of being alienated by her family, and feeling pressure because they were not talking to her, even if considered as properly admitted evidence, do not rise to the level of Section 455(A) requirements to constitute intimidation of a witness. Judge Shook found that there was no evidence that Hawkins was threatened or placed in fear when she wrote the second statement at the direction of Appellees. To the contrary, Judge Shook found that Hawkins indicated she was glad to be there. Again, the decision of the District Court judges, that the Appellees should not be bound over for trial as to the second part of subsection A of Section 455, cannot be considered a clearly erroneous conclusion and judgment that is clearly against the logic and effect of the facts presented. 21 O.S.Supp.2013, § 455(A) ; Vincent , supra ; Neloms , supra . The State's Proposition I is denied.

¶ 17 In Proposition II, the State argues that it presented sufficient evidence to show probable cause that the Appellees committed the crime of conspiracy to commit the crime of intimidation of a witness. As addressed in Proposition I above, there was insufficient evidence to show that Appellees prevented or attempted to prevent Hawkins from testifying, from giving testimony, or from appearing in court. We find there is also insufficient evidence to show that Appellees engaged in any conspiracy to prevent or attempt to prevent Hawkins from testifying, from giving testimony, or from appearing in court. Also as addressed in Proposition I above, there was insufficient evidence to show that Appellees threatened or procured physical or mental harm through force or fear with the intent to cause Hawkins to alter her testimony. We find there is also insufficient evidence to show that Appellees engaged in any conspiracy to threaten Hawkins or to procure physical or mental harm through force or fear against her with the intent to cause her testimony to be altered. Judges Shook and Dobbins did not err or abuse their discretion by refusing to bind Appellees over for trial on the crime of conspiracy to commit the crime of intimidation of a witness. 21 O.S.2011, § 421 ; 21 O.S.Supp.2013, § 455(A) ; Vincent , supra ;

Neloms , supra . The State's proposition II, concerning proof of conspiracy to commit the crime of intimidation of a witness, is denied.

¶ 18 In Proposition III, the State contends that it presented sufficient evidence to show probable cause that the Appellees committed the crime of conspiracy to commit the crime of subornation of perjury. The record contains evidence that Appellees both told Hawkins that the purpose of the written statement was for it to be taken to court and used to fight or defend the revocation of Ode's bond.

¶ 19 Perjury by Subornation - Attempted Perjury by Subornation is defined as:

Whoever procures another to commit perjury is guilty of perjury by subornation. Perjury by subornation is a felony, punishable as provided in Section 505 of this title. Whoever does any act with the specific intent to commit perjury by subornation but fails to complete that offense is guilty of attempted perjury by subornation.

21 O.S.2011, § 504.

¶ 20 Hawkins was the key eyewitness against their family member, and had given a statement to police implicating him in a felony crime. The natural first act of one seeking to cause Hawkins to change her projected trial testimony would be to have her first change her official statement to police. Thus, the act of making or causing her to write a contrary statement and provide it to police could easily be viewed by a jury as "any act with the specific intent to commit perjury by subornation but [which] fails to complete that offense." Id. As the preliminary hearing magistrate is required to view the evidence in the light most favorable to the State, Judges Shook and Dobbins abused their discretion in finding that because no actual sworn statement had yet been sought or given, no conspiracy to suborn or attempt to suborn perjury could be proved. We find that relief under Proposition III should be granted and the matter remanded to the District Court with instructions to bind the Appellees over for trial on the charge of Count 2: Conspiracy to Commit the felony crime of Perjury by Subornation.

¶ 21 We find that the State's arguments under Proposition IV also require relief. The State argues that the evidence presented at the preliminary hearing in this case shows that the Appellees committed the crime of conspiracy to commit false preparation of exhibits as evidence, pursuant to 21 O.S.2011, § 453 ; and thus Judge Shook erred by failing to endorse that crime on the Informations in this case, pursuant to 22 O.S.2011, § 264. Section 453 provides that "[a]ny person guilty of falsely preparing any book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced as genuine upon any trial, proceeding or inquiry whatever, authorized by law, shall be guilty of a felony." 21 O.S.2011, § 453. Section 264 provides that when it appears from the evidence presented at a preliminary hearing that any public offense has been committed, the magistrate must order that the offense be endorsed on the Information. 22 O.S.2011, § 264.

¶ 22 After the evidence was presented at the preliminary hearing in this case, the State specifically asked Judge Shook to amend the charges to conform to the evidence presented under Section 264. The State also specifically asked Judge Shook to add an additional count of False Preparation of Exhibits as Evidence under Section 453. Judge Shook summarily sustained a demurrer to False Preparation of Exhibits as Evidence without making any findings of fact or conclusions of law to support his finding. Judge Dobbins also summarily affirmed Judge Shook's decision without comment.

¶ 23 The State is correct that the evidence presented at Appellees' preliminary hearing showed that Hawkins' written statement, State's Exhibit No. 2, is a "paper" or "instrument in writing" "falsely prepar[ed]" by Hawkins under the direction of both Appellees "with the intent to produce it, or allow it to be produced as genuine upon" the "proceeding[s]" and "inquiry" prior to or during Ode's criminal case and/or at Ode's "trial." 21 O.S.2011, § 453.

¶ 24 On the other hand, Appellees' arguments are not correct. First, Appellees' argument the State was required to proffer an explanation or argument for amendment of the Informations is contrary to the plain language of Section 264. 22 O.S.2011, § 264. Second, Appellees incorrectly argue Section 453 applies to tampering with or altering evidence, because Section 453 expressly applies to the "preparing" of evidence. 21 O.S.2011, § 453. Third, Appellees argument that there was insufficient evidence to show that Hawkins' written statement was ever intended to be introduced at a legal proceeding is clearly wrong because evidence showed Appellee Bradley introduced the statement into the Sheriff's "inquiry" into Ode's crimes and both Appellees clearly intended for the statement to be produced at Ode's bond hearing. Finally, Appellees' argument that the State did not sufficiently ask to amend the Informations is contrary to the record in this case and to the plain language of Section 264.

¶ 25 Neither Judge Shook nor Judge Dobbins gave any explanation why the evidence was insufficient to endorse the crime of False Preparation of Exhibits as Evidence on the Informations. The evidence presented at the preliminary hearing in this case clearly showed that Appellees conspired with Hawkins to commit the crime of false preparation of exhibits. We find the decision of Judges Shook and Dobbins that the Informations should not be amended to include a charge of False Preparation of Exhibits as Evidence is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. 21 O.S.2011, § 453 ; 22 O.S.2011, § 264 ; Vincent , supra ; Neloms , supra . We find that this matter should be remanded to the District Court of Wagoner County with instructions to endorse on the Informations the offense of False Preparation of Exhibits as Evidence, pursuant to 21 O.S.2011, § 453.

DECISION

¶ 26 The order of the District Court of Wagoner County sustaining the magistrate's ruling adverse to the State in Case Nos. CF-2017-445 and CF-2017-446 is REVERSED , and the cases are REMANDED to the District Court with instructions to bind the Appellees over for trial on the charge of Count 2: Conspiracy to Commit the felony crime of Perjury by Subornation, and to amend the Informations and bind the Appellees over for trial on the charge of False Preparation of Exhibits as Evidence, pursuant to 21 O.S.2011, § 453. Pursuant to Rule 3.15, Rules , supra , the MANDATE is ORDERED issued upon the delivery and filing of this decision.

LUMPKIN, P.J.: Concur

LEWIS, V.P.J.: Concur

HUDSON, J.: Concur

KUEHN, J.: Concur

      The second part of subsection A of Section 455 also contains a clause criminalizing threats of harm through force/fear to a person with the intent to prevent the person from appearing in court to testify (or produce documents, etc.). OUJI-CR 3-39; 21 O.S.Supp.2013, § 455(A). That clause is wholly superfluous/unnecessary because the first part of subsection A of Section 455 criminalizes willfully preventing testimony regardless of whether there are threats of harm through force/fear. Mehdipour , 1998 OK CR 23 at ¶ 7, 956 P.2d at 914. Such poor writing adds significantly to the difficulty in interpreting and applying subsection A of Section 455.


text:
    JUDICIAL ETHICS OPINION 2018-5
    No. 2018-5
    Judicial Ethics Advisory Panel of Oklahoma.
    SEPTEMBER 17, 2018
    ¶1. FACTS
    A Special Judge has interest in applying for an open position as a Supreme Court Justice for the Cherokee Nation, while maintaining her position as a Special Judge. This would result in a "dual" judge role.
    ¶2. QUESTION
    The Judge inquires of this panel "if there are any ethical concerns" in her application for the position.
    ¶3. ANSWER
    Yes. The Oklahoma Code of Judicial Conduct prohibits any judge from holding a tribal judicial position concurrently with the judge's employment as a district court judge for the State of Oklahoma, unless the judge has the express approval of the Oklahoma Supreme Court.
    ¶4. DISCUSSION
    From a strictly ethical standpoint, Canon 3, Oklahoma Code of Judicial Conduct, Rule 3.1, states that a judge shall not:
    (A) Participate in activities that will interfere with the proper performance of the judge's judicial duties.
    ¶5. While the Judge requesting this opinion states that her duties as a tribal justice could be performed on her "personal time", even minimal time spent away from her employment as a special judge while she functions as a tribal justice, could be a violation of this section.
    ¶6. Canon 4, Rule 3.4 is dispositive on this issue. While the rule specifically addresses appointments to "governmental positions" and does not specifically mention judicial appointments, the catch-all phrase, "or the judge has specific approval of the Supreme Court" seems to cover any ambiguities that arise outside the plain language of Rule 3.4. Thus permission of the Supreme Court would be required before a judge could make application for employment as a tribal judge or justice.
    ¶7. Attached to this opinion is a 1995 SCAD Order which apparently recognizes this procedure. SCAD 1995-20 directly answered a request by a District Judge who sought permission from the Supreme Court to apply for a position as a tribal Appellate Judge. The District Judge's request was denied. While the SCAD order was specific to another Judge, it does indicate that the Supreme Court has recognized that it has the final answer on the issue of whether a state district court judge may apply for a position as a tribal judge or justice. Even if no ethical issues exist (we believe they do exist), the permission of the Oklahoma Supreme Court is required before any application could be made by a state district court judge for appointment as a tribal judge or justice.
    ¶8. This is also a "Chain of Command" issue as much as an ethical issue, especially as this opinion is requested by a special judge who is appointed by the district judge or judges in the judicial district, and who is under the supervisory authority of the presiding judge of the judicial administrative district, the district judges who employ the special judge would also have to be consulted and approve of this "dual" judgeship. Whether these "supervisory" judges would have to join in a special judge's request for employment as a tribal judge or justice is a matter best resolved by the Supreme Court.
   WITNESS OUR HANDS AS OF THIS 17th DAY OF September, 2018.

/s/ The Honorable April Sellers White, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Edward C. Cunningham, (Retired)

Judicial Ethics Advisory Panel Chair

/s/ The Honorable William C. Hetherington, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Allen McCall, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Thomas Landrith, (Retired)

Judicial Ethics Advisory Panel Member

Attachment

In re: Appointment of Farrell Hatch to Choctaw Nation Court of Appeals

SCAD 1995-20

Decided: 05/30/1995

Filed in the Office of the Clerk of the Supreme Court June 2, 1995

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

IN RE: APPOINTMENT OF FARRELL HATCH TO CHOCTAW NATION COURT OF APPEALS

SCAD No. 95-20

ORDER

The Honorable Farrell Hatch, District Judge of the Nineteenth Judicial District, requested Supreme Court approval for his appointment as Chief Judge of the Appeals Division of the Choctaw Nation Court of Indian Offenses. After consideration by the Court, the request is denied.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 30th DAY OF MAY, 1995.

/s/ ______________________________

Chief Justice

WILSON, C.J., KAUGER, V.C.J., LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS, and WATT, JJ., concur.

HODGES, J., dissents.

Citationizer© Summary of Documents Citing This Document

Cite Name Level

None Found.

Citationizer: Table of Authority

Cite Name Level

None Found.


text:
    JUDICIAL ETHICS OPINION 2018-8
    No. 2018-8
    Judicial Ethics Advisory Panel of Oklahoma.
    OCTOBER 19, 2018
    ¶1. QUESTION
    The question presented to the Advisory panel asks for an Advisory Opinion from a duly elected District Judge who does not have an opponent and is not involved in the 2018 election process. His question is whether or not his participation as a board member for Parents Helping Parents, Inc. as a 501c3 nonprofit organization, which includes his image, description of his judicial position and a quote from him in a promotional brochure available online, violates any judicial ethical rules.
    ¶2. ANSWER
    No
    ¶3. DISCUSSION
    Parents Helping Parents, Inc. is a nonprofit organization whose mission statement reads as follows: "Through a network of communities, Parents Helping Parents, Inc., provides education, resources, shared experiences and support to parents whose children, no matter the age, are struggling with substance use disorder." Contained in the brochure is a picture of the District Judge describing him as "Presiding Judge for the Cleveland County Adult Drug Court Program" and quotes him as follows "Substance use affects the individual, but it affects the entire family. Even when things seem like they can't get any worse, patience, compassion, accountability all play together. Just don't give up hope. Parents Helping Parents is a place where you can learn how."
    Our Code of Judicial Conduct, Appendix 4, Section Rule 3.7 provides -"Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities", subpart (A) allows for "... a Judge to participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, ..." This rule describes permissible activities and there is no indication the Judge actively solicits membership or funds in his capacity as a Judge.
   The organization is a charitable and educational organization related in purpose and mission to the Judge's role as the Presiding Judge of the Cleveland County Adult Drug Court. The organization does not participate politically or appear in court and is not an activity that reflects adversely upon the Judge's independence, integrity, or impartiality.

In this context, participation in an extrajudicial activity must also comply with Rule 3.1. This rule prohibits conduct by participation in activities that interfere with the judicial duties; frequently causes disqualification; places into question the judge's independence, integrity or impartiality; could be considered coercive or, improperly makes use of court premises, staff or court resources.

We find nothing in this Judge's relationship with this organization that violates either Rule 3.1 or Rule 3.7 of the Code of Judicial Conduct.

/s/ The Honorable April Sellers White, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Edward C. Cunningham, (Retired)

Judicial Ethics Advisory Panel Chair

/s/ The Honorable William C. Hetherington, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Allen McCall, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Thomas Landrith, (Retired)

Judicial Ethics Advisory Panel Member


text:
    JUDICIAL ETHICS OPINION 2018-7
    No. 2018 - 7
    Judicial Ethics Advisory Panel of Oklahoma.
    OCTOBER 16, 2018
    ¶1. FACTS
    An upcoming book entitled "Prudent Jurisprudence" containing law reviews and other articles written by District Judge Bill Graves will be published by the Center for Cultural Leadership in California. Judge Graves wants to include in this book an article from The Oklahoma Constitution newspaper, "Conservative Heroes of Oklahoma: Bill Graves", which was published about him in the Spring 2016 issue at page 6. The article also discussed at some length Graves v. McElderry, 946 F.Supp. 1569 (WD Okla. 1996), in which practicing attorney Graves brought suit to challenge the constitutionality of the long-standing Oklahoma practice of printing the name of the Democrat candidate in the top position on each ballot.
   ¶2. QUESTION

Does inclusion of the article, "Conservative Heroes of Oklahoma: Bill Graves", especially the portions about Graves v. McElderry, 946 F.Supp. 1569 (WD Okla. 1996) in the upcoming publication of "Prudent Jurisprudence" constitute a legal or ethical violation of 20 O.S. § 1404(6) ?

¶3. ANSWER

Yes

¶4. DISCUSSION

Although 20 O.S. § 1404(6) does not restrain what a newspaper reporter can write, a violation arises if a judge knowingly permits the publication of an article which makes publicly known, directly or by implication, his political party affiliation. The article's clear identification of Bill Graves as a conservative makes its inclusion in the new book a violation because in Oklahoma "conservative" means a person affiliated with the Republican party.

Bill Graves filed the lawsuit against McElderry alleging that the established Oklahoma election practice of always placing the Democratic candidate at the top of each ballot was unconstitutional because it gave Democrats an advantage to be listed first on every ballot. No registered Democrat would ever object to the candidates of his own party having preferential placement on the ballots. Bill Graves' participation as plaintiff in the lawsuit clearly implies that he is a Republican. As with the other contents of the newspaper article, the discussion of Graves v. McElderry becomes a violation of 20 O.S. § 1404(6) when it is published with Judge Graves' knowledge by inclusion in "Prudent Jurisprudence".

¶5. AUTHORITIES

Title 20 O.S. § 1404(6)"A judicial officer, while serving as such officer or while a candidate for judicial office, making publicly known in his campaign material or speeches, or knowingly permitting others to make publicly known, either directly or by implication, his political party affiliation."

/s/ The Honorable April Sellers White, (Retired)

Judicial Ethics Advisory Panel Member

/s/ /The Honorable Edward C. Cunningham, (Retired)

Judicial Ethics Advisory Panel Chair

/s/ The Honorable William C. Hetherington, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Allen McCall, (Retired)

Judicial Ethics Advisory Panel Member

/s/ The Honorable Thomas Landrith, (Retired)

Judicial Ethics Advisory Panel Member


text:
    JUDICIAL ETHICS OPINION 2018-10
    No. 2018-10
    Judicial Ethics Advisory Panel of Oklahoma.
    DECEMBER 18, 2018
   ¶1. FACTS

A Judge inquires whether she is permitted to host a "meet & greet" in her home to acquaint people with the new dean of OCU law school. She has made clear that no fundraising will be involved.

¶2. QUESTION

May a Judge host and participate in a "meet & greet" event, with no fundraising component, under the Oklahoma Code of Judicial Conduct?

¶3. ANSWER

Yes, a Judge may host and participate in an event such as a "meet & greet" where no fundraising occurs under the Oklahoma Code of Judicial Conduct.

¶4. DISCUSSION

While the Code of Judicial Conduct does place limitations on a Judge's participation in fundraising activities, the "meet & greet" activities described in this request are clearly encouraged and allowed under Rules 3.1 and 3.7. Judicial Ethics Opinion 2011-4 contains a thorough discussion of some of the issues pertinent to the current question. More specific to the question submitted here, comment (1) to Rule 3.1 states:

"To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7."

Therefore, we conclude that a judge's participation, as host or otherwise, in an activity such as a "meet & greet" does not violate any provision of the Code of Judicial Conduct.

/s/ Honorable Edward C. Cunningham, Chairman

/s/ Honorable William C. Hetherington

/s/ Honorable Thomas Landrith

/s/ Honorable Allen McCall

/s/ Honorable April Sellers White


text:
    JUDICIAL ETHICS OPINION 2018-9
    No. 2018-9
    Judicial Ethics Advisory Panel of Oklahoma.
    NOVEMBER 21, 2018
    ¶1. FACTS
    Associate District Judge-Elect will begin his term January 14, 2019. He is currently and has been for several years, a member of the Board of Commissioners for the Housing Authority of a Sovereign Tribal Nation. The Tribal Housing Authority was created by Oklahoma Statute and is exclusively federally funded. The Board is made up of five members with general oversight responsibilities. Judge-elect time requirements are minimal and he receives a per diem and expense check each month. He has enjoyed his service on the Trial Board and would like to continue after his judicial term begins.
   ¶2. QUESTION

Will the Associate District Judge-Elect continued participation on the Tribal Housing Board cause ethical concern?

¶3. ANSWER

Yes

¶4. DISCUSSION

Canon 3 Rule 3.4 states as follows:

"a judge should not accept appointments to governmental committees, boards, commissions or other governmental positions unless it is one that concerns the law, the legal system, or the administration of justice, or the Judge has the specific approval of the Supreme Court."

Associate District Judge-Elect would violate Canon 3, Rule 3.4 unless approval of the Supreme Court is obtained.

/s/ Honorable Edward C. Cunningham, Chairman

/s/ Honorable William C. Hetherington

/s/ Honorable Thomas Landrith

/s/ Honorable Allen McCall

/s/ Honorable April Sellers White


author: BALMER, J.

text:
    TRINITY, a division of Bank of the West, a foreign corporation, Plaintiff-Adverse Party, v. APEX DIRECTIONAL DRILLING LLC, an Oregon limited liability company, Defendant, and Michael Lachner, Defendant-Relator.
    CC 16CV00770 (SC S065147)
    Supreme Court of Oregon, En Banc.
    Argued and submitted April 11, 2018. July 5, 2018
    David Shannon, Troutdale, argued the cause and filed the petition for alternative writ of mandamus for the defendant-relator.
    Aaron J. Bell, Bell Law Firm PC, Wilsonville, argued the cause and filed the brief for the plaintiff-adverse party.
   BALMER, J.

This mandamus proceeding arises from a dispute about a contract's forum-selection clause. Trinity Bank-here, the adverse party-loaned money to Apex, a drilling company. Lachner, a part owner of Apex and the relator in this case, signed a personal guaranty of the loan. The personal guaranty, which Trinity drafted, contained a forum-selection clause:

"You agree that any litigation, related to or arising from this guaranty shall be brought only in the City and County of San Francisco, California and you consent to personal jurisdiction in either state or federal court."

Apex defaulted on the loan, and Lachner defaulted on the guaranty. Trinity filed an action in Clackamas County Circuit Court asserting separate breach of contract claims against Apex (on the loan) and Lachner (on the guaranty). Apex made no appearance, and a default judgment was entered against it. Lachner filed a motion to dismiss the action against him under ORCP 21 A(1), because the action was not filed in San Francisco as required by the forum-selection clause. See Roberts v. TriQuint Semiconductor, Inc., 358 Or. 413, 417, 364 P.3d 328 (2015) (party may move to dismiss action under ORCP 21 A(1) based on forum-selection agreement). Neither party disputed the meaning of the forum-selection clause, only whether it should be enforced. The trial court denied the motion, without making any findings or conclusions of law, stating that it "ha[d] discretion in [the] matter." We conclude that the clause should be enforced.

On Lachner's petition, this court issued an alternative writ of mandamus directing the trial court to vacate its order denying Lachner's motion to dismiss and grant that motion, or to show cause why it should not do so. The trial court declined to grant the motion to dismiss, but held another hearing on the motion, considered materials submitted by the parties, and issued written factual findings supporting its denial of the motion. Those findings generally concluded that Oregon was the more reasonable forum. Because the trial court declined to vacate its order and grant the motion to dismiss, the parties proceeded to argument in this court.

As a preliminary matter, Trinity argues that mandamus is not appropriate in this case, because the case can be litigated through trial to a final judgment and Lachner can raise his forum-selection clause issue in an appeal from that judgment. In that respect, Trinity argues, Lachner has a "plain" and "adequate" remedy by means of an appeal. See ORS 34.110 (writ of mandamus shall not issue "in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law"). Trinity's objection is not well taken. This court has held that mandamus is an appropriate mechanism for challenging a trial court's decision not to enforce a forum-selection clause. Roberts , 358 Or. at 417, 364 P.3d 328. When the decision not to enforce a forum-selection clause falls outside the trial court's permissible range of discretion, i.e. , when the law compels a single course of action, a party may challenge a trial court's contrary decision through a petition for writ of mandamus. Id. If the trial court committed legal error, this court, in its discretion, may issue a writ and effectively reverse the trial court decision.

Turning to the merits, this court has held that the law of the forum in which the action was filed governs the decision whether to enforce the forum-selection clause. Id. As to enforceability, we have stated that "forum-selection clauses are presumptively valid unless 'unfair or unreasonable.' " Id. at 426-27, 364 P.3d 328 (quoting Reeves v. Chem Industrial Co. , 262 Or. 95, 100-01, 495 P.2d 729 (1972) ). A party filing an action outside the selected forum bears the burden of persuading the court not to enforce the clause. Reeves, 262 Or. at 98, 495 P.2d 729.

This court most recently applied the "unfair or unreasonable" standard in Roberts , where we held that a forum-selection clause in a Delaware corporation's bylaws was enforceable and required the dismissal of shareholder derivative actions filed in Multnomah County. 358 Or. at 415, 364 P.3d 328. Although the forum provision was included in the corporate bylaws, rather than a separate contract, we applied the unfair or unreasonable standard set out in Reeves . We discussed, as examples, three circumstances where that standard may be met, only one of which is even arguably applicable here.

First, if the forum-selection clause is contained in a " 'contract[ ] of adhesion' that [was] 'the product of unequal bargaining power between the parties,' " the clause should be disregarded. Roberts , 358 Or. at 427, 364 P.3d 328 (quoting Reeves , 262 Or. at 101, 495 P.2d 729 ); see also Restatement (Second) of Conflict of Laws § 80 comment c (1988) (a relevant basis for refusing to enforce a forum-selection clause is if the contract is an adhesion contract or suffers from some other formation defect). Second, Oregon does not enforce contracts that are unconscionable or otherwise violate public policy, and this general rule also applies to contracts containing forum-selection clauses. Roberts , 358 Or. at 427-28, 364 P.3d 328 ; see also Bagley v. Mt. Bachelor, Inc. , 356 Or. 543, 553, 340 P.3d 27 (2014) (Oregon does not enforce contracts that are unconscionable or otherwise violate public policy.). Neither party asserts that the contract here was a contract of adhesion-after all, the contract was prepared by Trinity, the party now seeking to avoid the provision that it drafted-or that the contract or the forum-selection clause itself violated any public policy.

A third circumstance in which a court may refuse to enforce a forum-selection clause is when doing so would be "seriously inconvenient." Roberts , 358 Or. at 429, 364 P.3d 328 (quoting Reeves , 262 Or. at 98, 495 P.2d 729 ). The Restatement elaborates on that circumstance as occurring when the selected forum "would be so seriously an inconvenient forum that to require the plaintiff to bring suit there would be unjust." § 80 comment c. In other words, the inquiry is not whether, on balance, another forum is more convenient or more reasonable than the agreed upon forum, but whether the latter forum is so "seriously inconvenient" that it would be "unjust" to enforce the forum-selection clause.

Here, the trial court made factual findings that, Trinity asserts, indicate that litigating in San Francisco would be inconvenient to the parties. For purposes of this opinion, we assume that evidence in the record supported those findings. The court's findings included:

"8. Except for representatives of [Trinity], witnesses and attorneys for parties were, and are, located in Oregon;
"9. Plaintiff's interest in the collateral securing [Apex's and Lachner's] repayment of the loan was perfected in Oregon;
"10. At the time the loan was made [Apex and Lachner] represented that the equipment that was purchased using the loan funds was located in Oregon;
"11. Trial of the case will be more expeditious and inexpensive in Oregon;
"12. The enforcement of a judgment will be easier and more expeditious in Oregon;
"13. Dismissal of this case so that [Trinity] must refile in San Francisco, California, will delay resolution and slow the path to justice;
"14. The only party reasonably benefited by application of the venue provisions is [Trinity]."

Although the trial court did not fully explain its reasoning, those findings indicate that it applied the wrong standard. The trial court evidently sought to determine which forum-Oregon or California-would be more convenient, rather than whether enforcement the forum-selection clause would be "unfair or unreasonable," in the words of Roberts and Reeves, or so "seriously inconvenient" as to be "unjust," in the words of the Restatement . Findings 8 through 12 are facts that would have been known, or should have been anticipated, by the parties at the time they negotiated the agreement. It is not the role of the court to disturb the negotiated-for and agreed-upon distribution of benefits and disadvantages in a contract, absent good reason to do so. See Restatement § 80 comment c ("[A finding of serious inconvenience] is unlikely to be made when the claimed inconvenience can be assumed to have been in the minds of the parties at the time that they entered into the contract."). Finding 13 is a circumstance that Trinity itself created by filing in Oregon, contrary to the forum-selection clause that it drafted. Finally, finding 14 provides no basis for the trial court's decision because it essentially reverses the presumption in favor of validity that we discussed in Roberts by considering whether there would be benefits to any party from enforcement of the provision, rather than whether the party seeking to avoid enforcement can demonstrate "serious[ ] inconvenien[ce]."

In sum, none of the circumstances identified in Roberts as grounds for invalidating a contractual forum-selection clause are present here. Trinity's objections amount to little more than dissatisfaction with the forum-selection clause. The trial court's factual findings indicate that Oregon might be a marginally more convenient place than California to litigate the case, but that is not the applicable legal standard. The issue is not even close. As counsel for Trinity conceded at oral argument, it is not unfair or unreasonable to litigate the case in California. For that reason, the trial court did not have discretion to deny Lachner's ORCP 21A (1) motion to dismiss based on the forum-selection clause: The law required the court to dismiss the action. It was legal error not to do so.

A peremptory writ of mandamus shall issue.


text:
    STARRETT v. ROSENBLUM
    S066010 S066012 S066015
    Supreme Court of Oregon.
    June 18, 2018
    Petitioner's argument that the Attorney General's certified ballot title for Initiative Petition No. 44 (2018) does not comply substantially with ORS 250.035(2) to (6) is not well taken. The court certifies to the Secretary of State the Attorney General's certified ballot title for the proposed ballot measure.


text:
    RUELAS, Ivan De Santiago v. NOOTH
    A162681(S065919)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. A. A.
    A165795(S065776)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    VAN WINKEL and VAN WINKEL
    A160074(S065821)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    GOEI, Marques Paul v. STATE of Oregon
    A161451(S065818)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    KLEIN v. OREGON BUREAU OF LABOR AND INDUSTRIES
    A159899(S065744)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    MONRO, Shawn Richard v. NOOTH
    A162177(S065875)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    STATE v. GALLUP, Kirk Joseph
    A161568(S065844)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    STATE v. RILEY, Jemaell Diamond
    A160143(S065640)
    Supreme Court of Oregon.
    June 21, 2018
    Review Allowed.


text:
    DEPARTMENT OF HUMAN SERVICES v. A. D. F.
    A165998(S065918)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    HIMEBAUGH, Michael v. AMSBERRY
    A163005(S065873)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    PUTNAM, Glen Alan v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A161664(S065904)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.
    Walters and Nakamoto, JJ., would allow.


text:
    STATE v. BENTON, Gregory Clarence
    A162570(S065936)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    STATE v. LANTZ, Mitchell Allen
    A162350(S065926)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    STATE v. T. G.
    A161105(S065184)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    STATE v. WATKINS-MCKENZIE, Angela Malowe
    A158912(S065312)
    Supreme Court of Oregon.
    June 21, 2018
    Dismissed as moot.
    Review Dismissed.


text:
    LANDWATCH LANE COUNTY v. LANE COUNTY
    A166333(S065917)
    Supreme Court of Oregon.
    June 21, 2018
    Review Allowed.


text:
    BOWEN, Jagger M. v. TAYLOR
    A163456(S065850)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    DICKSON v. TRIMET
    A158572(S065794)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    JOHNSON, Richard Henry, Jr. v. AMSBERRY
    A163818(S065734)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    STATE v. MANNING, David James
    A159475(S065870)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    CARROLL v. DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING
    A152551(S065644)
    Supreme Court of Oregon.
    July 26, 2018
    Review Allowed.


text:
    COLUMBIA PACIFIC BUILDING TRADES COUNCIL v. CITY OF PORTLAND
    A165618(S065902)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    O'HARA, Kevin v. PREMO
    A161076(S065933)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. STEPHENS, Keaton Cole
    A163045(S065924)
    Supreme Court of Oregon.
    June 21, 2018
    Review Denied.


text:
    SMITH, Rian T. v. TAYLOR
    A163213(S065946)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. MCSHANE, Mark James
    Al63068(S065941)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. TOTH, Steven Jason
    A158281(A158282)(S065929)
    Supreme Court of Oregon.
    July 26, 2018
    Review Allowed.


text:
    DEPARTMENT OF HUMAN SERVICES v. S. E.
    A166353(S066021)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    GARCIA, Raul v. NOOTH
    A163038(S065947)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    HANNEMANN, Trent v. PREMO
    A162263(S065849)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    MORGAN v. VALLEY PROPERTY AND CASUALTY INSURANCE COMPANY
    A158506(S065842)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.
    Nakamoto and Flynn, JJ., would allow.


text:
    STATE v. EASLEY, Donald Lee
    A158033(S065928)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. SANCHEZ-ALFONSO, Luis
    S065991
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. URIG, Dallas
    A160695(S065834)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. VALENCIA, Jose
    A161138(S065927)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. K. M. F.
    A165954(A165955)(S066004)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    MURPHY, Robert Doyle v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A163368(S065916)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. KENT, Michael Damone, Jr.
    A162512(A162513)(S065890)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    GARCIA-SOLIS v. FANNERS INSURANCE COMPANY
    A156734(S065956)
    Supreme Court of Oregon.
    July 26, 2018
    Review Allowed.


text:
    STATE v. LOPEZ-MINJAREZ, Petronilo
    A158678(S065945)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    OSSANNA v. NIKE, INC.
    A157434(S065889)
    Supreme Court of Oregon.
    July 26, 2018
    Review Allowed


text:
    STATE v. PEREZ, Manuel
    A165619(S065855)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. MORENO-HERNANDEZ, Victor C.
    A158292(S065930)
    Supreme Court of Oregon.
    July 26, 2018
    Review Allowed.


text:
    STATE v. WALLS, Alicia Rose
    A159369(S065983)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    ANDREWS, Shawn Lee v. MYRICK
    A162140(S065935)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    TRACY, Ernest Alan v. NOOTH
    A160571(S065899)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    BERGER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    A160966(S065843)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    BROWN v. CITY OF GRANTS PASS
    A162006(S065979)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    COLON-LEBRON, Jhosuamil v. TAYLOR
    A162249(S065934)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. J. C.
    A166104705(S065977)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. JOHANESEN, Richard Eric
    A162337(S065826)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. LAYTON, Tom Jessten, Jr.
    A162255(S065949)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    SMITH, Albert Merrill v. KELLY
    A163200(S065932)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. ALLEN, Tyrone Lamonte
    A161731(S065931)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. ANDERSON, Rahshai
    A161925(S065898)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    STATE v. MILLER, Stephen Leo, Sr.
    A162762(S065958)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.


text:
    AKLES, Jerome Durrell v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A165999
    Court of Appeals of Oregon.
    January 9, 2019
    Affirmed without opinion.


text:
    DURHAM, David Raymond v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A163615
    Court of Appeals of Oregon.
    January 9, 2019
    Affirmed without opinion.


text:
    U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, Successor TO WACHOVIA BANK, N.A., as Trustee, for Merrill Lynch Mortgage Investors Trust, Series 2003-A5 v. STEPHENSON and Mortgage Electronic Registration Systems, Inc.
    A160860
    Court of Appeals of Oregon.
    January 3, 2019
    Affirmed without opinion.


text:
    WASSON v. CITY OF SALEM, BY AND THROUGH Its MAYOR
    A165025(S065937)
    Supreme Court of Oregon.
    July 26, 2018
    Review Denied.