Tulsa Attorney BlogMcGirt: OCCA Hearing Appeal on Reinstated Conviction & Sentence

McGirt Has Led To Confusion in Oklahoma

Video Transcribed: OCCA hearing appeal regarding reinstated conviction and sentence. Oklahoma Attorney James Wirth, and we’re talking about the case of Summer Shaw. That is the latest one I’ve stumbled across related to McGirt, post-conviction relief, Wallace, and then trying to reinstate those sentences. So I want to give you a little bit of background information.

It looks like Summer Shaw was charged with a grave offense, I believe it was murder, was convicted, sentenced, incarcerated. Then McGirt comes out indicating that the state did not have subject matter jurisdiction over this case because it occurred in an Indian country and the defendant or victim was Native American, no jurisdiction.

So the defendant files post-conviction relief based on that, and then ultimately the state does not object, and the court grants post-conviction relief, acknowledging the court, never had jurisdiction to hear the case in the first place. So the conviction, the sentence, and in the case, all dismissed, all gone.

attorney in OklahomaThen, a few months later, we have the Wallace decision that says that, well, yeah, there’s subject matter jurisdiction, but we’re going to treat it as a new procedural rule.

And that way we can say that it only applies retroactively and they completely did a 180, reversed the decision that they had made months earlier on Bossi, where they tried to find grounds to prevent having to do these post-conviction relief cases, but they couldn’t find any.

But then ultimately they came up with this theory that we’re just going to pretend that it’s a new procedural rule and not actually a subject matter jurisdiction issue, even though we’re not going to say that. We’re just going to gloss over it.

So now they’re saying that we’re not going to apply post-conviction relief to any of these. So the state, in this case, is like, well, we already dismissed this one, but now we’ve got Wallace. Let’s file to vacate the vacation of that conviction and sentence and try to get that reinstated.

So, that is filed. And then in these cases that I’ve seen where they’ve granted it, the defendants have been pro se or not had representation. In this case, the court actually denies the defendant’s request for court-appointed counsel, puts on the hearing, grants the state’s motion, and reinstates the conviction and sentence.

But there’s just one problem with that. What authority is there to do that? One of the premier, base-level, foundation legal theories is related to finality, that we don’t want these cases going on forever and relitigating things.

So once a final order is entered, if you don’t appeal that, most of the time that means it’s final, it’s a done deal. Nothing can be done about it. So how do the state and the judge, in this case, have the authority to vacate a final order after five months when it was unappealed?

So ultimately the defendant appealed this, went to the Oklahoma Court of Criminal Appeals and they don’t have a final decision yet, but I can give you the case number. It’s Summer Shaw v State of Oklahoma PC20211477, and the Oklahoma Court of Criminal Appeals did come out with an order staying proceedings and directing the response.

And what that order says is that the judge that granted the state’s motion of reinstating the conviction and sentence is ordered to provide authority and the reasoning on how the judge determined that the judge was going to and had the authority to grant that.

Let’s see what the exact language is saying. It says, “The District Court of Pontotoc County, the Honorable C. Steven Kessinger, District Judge, or a designated representative is directed to respond to petitioner’s pleadings by identifying the authority that authorized the court to vacate its own order, granting post-conviction relief.” So the court is ordered to find and provide authority to support its decision, to vacate this vacation and reinstate the conviction.

So now, the judge has filed that response. It says, “District Court’s authority for vacating post-conviction order,” and in there is pretty much just talks about Wallace and how the Oklahoma Court of Criminal Appeals has said that it is not retroactive, cannot apply to post-conviction relief cases.

That’s the authority that would allow the court to deny the post-conviction relief in the first place, had the timing been different, but nothing in that document indicates an authority where the court retains jurisdiction to vacate its own decision five months later when it was unappealed. And that’s the authority that they were looking for, they came up and provided nothing.

So I think there’s an excellent chance here the Oklahoma Court of Criminal Appeals is going to rule, although has not done so yet that there was no authority to vacate this after five months, that we have to have finality in our orders.

If you have an order entered and it’s not appealed, the court loses jurisdiction, can’t change it after that point. Unless the court lacks subject matter jurisdiction in the first place, which is what the McGirt cases are based on, in which case the order itself is void ab initio from the beginning because the court had no jurisdiction and therefore it’s an exception to that general rule.

So if you’ve got any questions about these types of cases, McGirt, or anything else related to law in Oklahoma, you’re going to want to talk to an attorney about that specifically confidentially. Don’t just watch the videos on here, they give general information. You’re going to want information specific to you and your circumstances. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.

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