New Rule: Waiver of Jurisdiction Claimed
Oklahoma Court of Criminal Appeals changes the McGirt rules again. Defendant on a deferred sentence denied relief. I’m Tulsa Attorney James Wirth. We’ve got a brand new case from the Oklahoma Court of Criminal Appeals that again redefines how we handle things under McGirt.
It doesn’t apply to all cases. Specifically, it applies to defendants who are on a deferred sentence. It is a published case, 2023 OKCR 20, Dio v. Parrish. And in that case, we’ve got a defendant who a long while ago, the day before McGirt was decided, entered into a deferred sentence, was in drug court, while there’s an application to accelerate on the deferred sentence that has not been adjudicated.
The Impact of McGirt on Jurisdiction
So going back to McGirt, that is where the United States Supreme Court held that the Muscogee Creek Nation reservation was never disestablished. That was since applied to the five civilized nations and a couple other tribal reservations, which means that all of northeast Oklahoma, half the state practically, is now considered to be Indian country.
And on Indian country, based on historic rules and laws, the state of Oklahoma lacks the jurisdiction to prosecute tribal members, Indians, who commit crimes during that, or in that area. So McGirt was convicted of a crime and is Indian. He got his conviction vacated and undone. He’s since been re-prosecuted and has a new sentence. But the high court, the United States Supreme Court, found the state of Oklahoma did not have the authority to prosecute him, so that was undone.
So then we have the Bossier decision that came out and said, yeah, the subject matter jurisdiction, the state doesn’t have jurisdiction, therefore all of these old convictions must be overturned. That’s based on historic law that’s been consistent.
The Matloff Decision and Changing Rules
However, four or so months later, they come out with the Matloff decision that has a complete 180 and says, you know what, we’re going to call this a new procedural rule, and therefore it only applies going forward. So if you have a case that is still pending, then McGirt applies, the state doesn’t have jurisdiction, case gets to be dismissed.
If you have a conviction that is final, meaning that you were convicted, judgment and sentence is entered, and the appeal is completed, or the appeal time has lapsed without an appeal being filed, if it’s a final conviction, well then at that point they’re going to say, oh, well this is a new procedural rule, doesn’t apply to those old ones. That was the Matloff decision.
But now we have this case in Dio where he does not have a final conviction. So by everything that’s been previously decided, the court should utilize the United States Supreme Court precedent to find that the state of Oklahoma doesn’t have jurisdiction, and this application to accelerate would be dismissed. But that’s not what they do, they change the rules again.
The Dio Case and Waived Jurisdiction
And now they say, and this is an opinion by Judge Musman, that says things we’ve heard a lot of times from the court, a lot of different opinions. This court has held that subject matter jurisdiction cannot be waived and can be raised at any time. That’s been consistent. So now they’re going to pivot and say this is not an issue despite what has been found previously. Musman says in the opinion, So they’re saying for the first time, straight out, now we’re going to say this is not a subject matter jurisdiction issue. And why are they doing that? Well, if they say it’s not subject matter jurisdiction, that means that it can be waived. So they can say that it’s been waived by these defendants, and that’s what they say here.
Because this guy was in court, state court, he didn’t address it, he entered a plea on a deferred, and this is before McGirt was decided. Well, even though since McGirt was decided, he’s filed for post-conviction relief and other things, they’re going to say he waived that issue. So now they are no longer applying McGirt to deferred sentences where there is not a final conviction.
Dissents and Complications
So it’s yet again, another moving of the goalpost by the Oklahoma Court of Criminal Appeals in order to save these convictions. And unfortunately, it’s kind of mucking up the law in the process. However, it was not a unanimous decision. We’ve got two pretty strong dissents on there, and I’ve got some quotes from at least one of those on there.
Judge Hudson says, The majority opinion reinvents Indian country jurisdiction and offers very little that is new or useful. He further says, The majority opinion rebrands consideration of Indian country jurisdictional challenges based on McGirt v. Oklahoma from matters involving subject matter jurisdiction under the state law to matters involving only personal and territorial jurisdiction, thereby bypassing McGirt.
Goes on to further state, The majority says nothing about tribal, federal, or state interests, let alone attempt to balance these interests with the state’s assertion of jurisdiction over tribal citizens of the Creek Reservation as required by the Supreme Court’s cases. This is surprising considering, one, the Supreme Court’s explicit application of the Brecker balancing test in Castro-Horta to affirm the state’s jurisdiction, and two, the court’s clear pronouncement in Castro-Horta that this case does not involve the converse situation of the state’s prosecution of crimes committed by an Indian against a non-Indian Indian country. We express no view on state jurisdiction over a criminal case of that kind.
Says, When petitioner has not ever been convicted of the crimes at issue, he is still serving a deferred sentence with an application to accelerate pending, we must apply McGirt, a new procedural rule, to this case.
So, two dissents, both have a lot of criticism for the majority decision that it’s not based on law and would have found differently. So this is just another evolution in the way the courts are applying McGirt, specifically the Oklahoma Court of Criminal Appeals bending over backwards to save these convictions. And like I said, it does, unfortunately, make the law much more complicated. Things used to mean one thing, now they mean different things. Words, legal, you know, phrases that go back, you know, not just decades, but potentially longer than that, are now being contorted in order to fit a results-based analysis.
Takeaway and Free Consultation
But that’s a lot more of the same that we’ve seen with these McGirt decisions. But the takeaway from this and what practitioners and people need to know is that according to the Oklahoma Court of Criminal Appeals, even if you do not have a final conviction because you’re on a deferred, they’re still going to say you’re out of luck because you waived application of McGirt when you pled to a deferred sentence before McGirt was even known to anybody. So that’s the law of the land right now. If you’ve got any questions about that, have a case pending or anything, you’re probably going to want to talk to an attorney privately and confidentially to get legal advice about your specific circumstances. To get that scheduled with an attorney at my office, you can go online to makelaweasy.com.