Tulsa Attorney BlogOCCA Affirms Revocation of Probation on Conviction That Is Illegal Under McGirt

Oklahoma Says This Defendant Violated Probation

Video Transcribed: Oklahoma Court of Criminal Appeals affirms a revocation of probation on a conviction that is illegal under McGirt. I’m McGirt attorney James Wirth, and we’re dealing with a new case out related to McGirt. There are all these kinds of different cases and different circumstances, and each one has to be dealt with as far as, how do we deal with McGirt?

How are the courts going to hear this? What is the appropriate thing to do? And what we see a lot, particularly from the Oklahoma Court of Criminal Appeals, as well as the state of Oklahoma, is doing anything possible in order to save these convictions and to try to maintain jurisdiction by the state of Oklahoma in spite of the United States Supreme Court decision in McGirt. This is a continuation of that.

The case is Colton Dwayne v. Oklahoma, and it’s an appeal filed by the defendant who was on probation based on a conviction that is illegal or would be illegal under McGirt. So in that case, ultimately, the person is a Native American, was tried in state court for a crime that occurred on what we now know is a tribal reservation.

So under McGirt, the court had no jurisdiction whatsoever to prosecute this person. Nonetheless, they were prosecuted, have been convicted, and are on probation. So they are not in custody in DOC. They are on probation out in the public but still have to comply with the rules and conditions of probation based on that sentence, assuming the court has jurisdiction, which is what’s decided here.

So the state of Oklahoma in this case, and that’s RE2020476, is the case number with the Oklahoma Court of Criminal Appeals. The state of Oklahoma says this person violated probation. We want them off the streets.

We want their suspended sentence revoked. We want them in custody. Now, in order to do that, they’ve got to show, by a preponderance of the evidence, that this person violated probation in some way. But what we’re seeing, of course, is that based on McGirt, the state of Oklahoma never had jurisdiction to prosecute it at all. So the case, arguably, the conviction, and all of that should have been vacated.

However, with the Bosse case being reversed by the Oklahoma Court of Criminal Appeals in Wallace, and then now saying, well, it’s not a subject matter jurisdiction issue, although it is a subject matter jurisdiction, we’re going to downplay that.

We’re going to use different words and forget that it’s subject matter jurisdiction, so we can call it a procedural rule, and therefore decide that we can decide whether to make it retroactive or not. We’re going to decide not to make it retroactive. So they’re saying that they’re not going to deal with these old cases. So that’s what Wallace decided.

attorney in OklahomaThe questions still remain, well, what about cases that the conviction is old, but the prosecution on an application to revoke or an application to accelerate is new? And that’s what we’re dealing with here.

So if we have a conviction that would be void under McGirt, but for the somewhat dubious decision in Wallace, does the court maintain jurisdiction over that probation? The state of Oklahoma tries to revoke the probation and throw you in jail. If they didn’t have jurisdiction or authority to prosecute you in the first place, do they have jurisdiction and authority to revoke you on that?

And what the Oklahoma Court of Criminal Appeals said is that… Let me get the right language here. They’re saying that they claim that the underlying judgments and sentences in the case are void based on McGirt of Oklahoma. That’s the main thing here.

And the decision essentially is that this is a quote, “The jurisdiction of the trial court to enter the original judgment and sentences is not properly before the court in this revocation appeal.” So they’re saying, we’re not going to deal with the fact this may be an illegal and proper sentence and the court had no jurisdiction entered in the first place. Because we got away with entering it in the first place, we’re going to say we maintain jurisdiction over it.

So the court affirms that revocation. So that was a win for the state of Oklahoma, but it’s kind of a loss for common sense. I mean, either the court has jurisdiction or it does not. If it does not have jurisdiction or authority, then that court has no more authority than some random person just throwing somebody in a shed somewhere and locking them up. Ultimately, if they don’t have jurisdiction to prosecute, then it’s just almost like kidnapping somebody else. Either they have jurisdiction or they don’t.

McGirt says that the reservation was never disestablished. So under existing law, the state of Oklahoma doesn’t have the authority. So, in Wallace, we’re going to ignore those old cases. And now we’re deciding, even if we have a new exercise or exercising of jurisdiction by filing a motion to revoke, we’re going to say that somehow the court maintains jurisdiction there even though they don’t have jurisdiction under the underlying one, had that been raised at the time.

So I think it’s another results-based decision by the Oklahoma Court of Criminal Appeals. Ultimately, it’s a subject matter jurisdiction issue, that can never be waived, but they’re bending over backward to find out ways to try to operate as usual. So this gives us, as an attorney, an idea of what to expect.

But these battles are ongoing and there’s likely to be some federal oversight, and I don’t know that the federal oversight is going to have quite the same deference to the state of Oklahoma that is currently being received by the state from the Oklahoma Court of Criminal Appeals.

So if you have a case where you’re dealing with these issues, you’re going to want to talk to an attorney about that privately, confidentially. To speak with an attorney at my office, you can get that scheduled by going online to makelaweasy.com.

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