Tulsa Attorney BlogOCCA Refuses State’s Request to Expand Wallace Precedent: Waiver Claim Denied

The Court Made Their Decision Very Clear

Video Transcribed: The Oklahoma Court of Criminal Appeals refuses the state’s request to expand the Wallace precedent. I’m Oklahoma attorney James Wirth, and I’m talking about a new decision from the Oklahoma Court of Criminal Appeals disseminated December 15th in 2021.

That’s the date that it’s stamped with, but it has been marked as not for publication. That’s the case of Jeffrey Don McClain. That is somebody who was charged with some serious offenses in state court and ended up getting 10 years, seven-year, and three-year sentences that were ordered to be served consecutively.

Now that happened in 2020, and then he filed a direct appeal of that conviction to the Oklahoma Court of Criminal Appeals. He filed a brief in that case on December 18th of 2020. So that is months after the United States Supreme Court had decided the McGirt case.

And although according to this, the defendant, in that case, Jeffrey Don McClain is Native-American, in the brief, they did not assert that the state lacked jurisdiction to prosecute him. And as we know at this point, what the Wallace precedent has said is that once a state conviction is final, the argument that the court lacked jurisdiction based on McGirt, they’re going to treat that as a new procedural rule and say it’s only retroactive, so it’s only going to apply to those cases that weren’t final at the time that McGirt was decided.

So in this case, it was not yet final, and the conviction actually came after that. The appeal came after McGirt. However, the defense failed to make an issue out of the court’s lack of subject matter jurisdiction and the state’s lack of authority to prosecute when they filed their brief.

Later, they filed a request for the case to be remanded for a hearing on those issues. Oklahoma Court of Criminal Appeals granted that. Ultimately ordered that the case be dismissed. And then the state requested rehearing.

attorney in OklahomaEssentially in the rehearing, they’re requesting an expansion of the Wallace precedent and say, even though the convictions, in this case, were not final because the defendant failed to make the argument in their brief.

Normally when you fail to make an argument in the initial brief filed with the Oklahoma Court of Criminal Appeals, pursuant to court rules, that is waived, but this isn’t a normal issue.

This is the issue of subject matter jurisdiction where not only can the defendant make that an issue, but it’s actually the court’s job to ensure that it has subject matter jurisdiction. And if the state is going to be prosecuting somebody, it’s their job to make sure they have the authority to prosecute it.

So what the court did, in this case, is it ultimately sided with the defendant, refused the state’s request to expand the Wallace precedent, and said, and I quote, “Since McGirt, this court has consistently addressed challenges raised on direct appeal,” and that’s to differentiate it from being post-conviction where they’ve said, “Wallace says we don’t have to do anything about it when it’s post-conviction.”

“So challenges raised on direct appeal to the authority of the state of Oklahoma to prosecute crimes committed by Indians on Indian land. Whether the issue was raised in the brief in chief, supplemental briefings, or as in this case, a motion to remand for an evidentiary hearing on the appellant’s claim of Indian status, this court has consistently found the challenge to the state’s prosecutorial authority cannot be waived or forfeited.”

So the court again is very clear, it can never be waived, it can never be forfeited. So they’re treating it very similar to what it actually is, subject matter jurisdiction. However, since the Wallace decision, the court has been more careful about using that term subject matter jurisdiction, because in the Wallace case, they very oddly found that it is a new procedural rule where they could decide not to apply it retroactively.

Nonetheless, the court that made Wallace is now saying we cannot expand it beyond where it is now. If it was not a final conviction at the time, then the subject matter jurisdiction is going to apply. It cannot be waived.

The defendant can bring it up, even if they don’t bring it up in their brief. As long as it’s brought up before that conviction is final, then the court is going to hear that and find that the state lacked jurisdiction, and to say that the conviction has to be vacated, sentence vacated, and the charges dismissed. They could potentially be refiled in federal court or tribal court, depending on the circumstances, but that would be up to those governments to handle, not the state of Oklahoma.

So, that is the issue in this case. If you’ve got questions about your circumstances, how it may apply to you, you’re going to want to talk to a Tulsa attorney privately, confidentially about that. To speak with somebody at my office, you can go online to makelaweasy.com.

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