Deo v. Parish

• Docket Number: MA-2022-937
• Decision Date: 14 December 2023
• Citation: 2023 OK CR 20
• Parties: BILLY ZANE DEO, Petitioner v. THE HONORABLE LAWRENCE PARISH, DISTRICT JUDGE OF OKFUSKEE COUNTY, TWENTY-FOURTH JUDICIAL DISTRICT, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2023 OK CR 20

BILLY ZANE DEO, Petitioner
v.
THE HONORABLE LAWRENCE PARISH, DISTRICT JUDGE OF OKFUSKEE COUNTY, TWENTY-FOURTH JUDICIAL DISTRICT, Respondent.

No. MA-2022-937

Court of Criminal Appeals of Oklahoma

December 14, 2023

A WRIT OF MANDAMUS FROM THE DISTRICT COURT OF OKFUSKEE COUNTY, THE HONORABLE LAWRENCE PARISH, DISTRICT JUDGE

CURTIS M. ALLEN, COUNSEL FOR PETITIONER

HONORABLE LAWRENCE PARISH DISTRICT JUDGE RESPONDENT

GENTNER F. DRUMMOND ATTORNEY GENERAL OF OKLAHOMA RANDALL YOUNG ASSISTANT ATTORNEY GENERAL RESPONSE DIRECTED BY COURT

OPINION

MUSSEMAN, JUDGE

¶1 Petitioner, through counsel Curt Allen, petitions this Court for an extraordinary writ compelling the dismissal of Okfuskee County District Court Case Nos. CF-2018-56 and CF-2018-104 based on a lack of jurisdiction pursuant to McGirt v. Oklahoma, 591 U.S. __, 140 S.Ct. 2452 (2020). For the reasons discussed below, the writ is Denied.

PROCEDURAL HISTORY

¶2 On August 15, 2018, Petitioner entered a guilty plea to Second Degree Burglary in Case No. CF-2018-56 and the trial court entered an order deferring his sentencing for seven years. On December 17, 2018, Petitioner was charged with Grand Larceny and Knowingly Concealing Stolen Property in Case No. CF-2018-104. On December 19, 2018, the State filed an application to accelerate Petitioner's deferred sentencing in Case No. CF-2018-56. Pursuant to a drug court plea agreement, Petitioner entered a plea of guilty in Case No. CF-2018-104, stipulated to the application to accelerate in Case No. CF-2018-56, and was admitted to drug court in January of 2019. The trial court delayed sentencing in both cases pending the outcome of Petitioner's participation in drug court.

¶3 On February 27, 2019, the State filed an application to terminate Petitioner's participation in drug court that has not been ruled upon. On August 31, 2022, Petitioner, through counsel Curt Allen, filed a motion to dismiss for lack of subject matter jurisdiction in the trial court. ^[1] After a hearing on the matter, Judge Parish denied Petitioner's motion to dismiss in an order filed in the trial court September 26, 2022. It is from that order that Petitioner seeks extraordinary relief.

ANALYSIS

¶4 To receive extraordinary relief via a writ of mandamus, Petitioner must establish that "(1) he has a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief." Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023). Two shortcomings present themselves in Petitioner's attempt to meet his burden of proof on the first and second element. First, in showing that he has a clear legal right. Specifically, has Petitioner either waived or forfeited this right, or that the right goes to the subject matter jurisdiction of the trial court and can be raised at any time. Second, in demonstrating that his clear legal right actually applies to his case, meaning it works to preempt the trial court's jurisdiction and triggers a plain legal duty in the trial judge to dismiss Petitioner's case. Ultimately, the petition for a writ of mandamus fails on both.

¶5 Petitioner failed to raise his claim that the trial court lacks subject matter jurisdiction prior to entering his pleas. However, this Court has held that subject matter jurisdiction cannot be waived and can be raised at any time. Cox v. State, 2006 OK CR 51, ¶ 8, 152 P.3d 244, 248, overruled on other grounds by State v. Vincent, 2016 OK CR 7, ¶ 12, 371 P.3d 1127, 1130.

¶6 The question of our district courts' criminal subject matter jurisdiction was largely unimportant, a curiosity that was rarely, if ever, substantively dispositive prior to McGirt and especially after the lower courts were unified into one district court. ^[2] However, it is now critically important that this Court analyze the question. Ultimately, in reviewing this Court's precedent, other courts' reasoning on similar issues, and the United States Supreme Court's treatment of jurisdiction in Indian Country, this Court is no longer satisfied that Oklahoma district courts' subject matter jurisdiction is implicated in the preemption analysis.

¶7 First, this Court must properly define subject matter jurisdiction. Jurisdiction is a word of many meanings and is often confused and misused. United States v. Tony, 637 F.3d 1153, 1157 (10th Cir.2011) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90 (1998)). In Tony, the Tenth Circuit considered if an Indian defendant whose crimes qualified under the Indian Major Crimes Act, ^[3] but for the fact that they did not occur in Indian Country, divested the federal district court of subject matter jurisdiction. Id. at 1158. The Tenth Circuit found the question of the federal district court's criminal subject matter jurisdiction to begin and end with § 3231, which states that "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." 18 U.S.C. § 3231. The Tenth Circuit ultimately found that "[t]he Indian Country nexus, like other similar nexuses in the context of federal crimes, has been called a 'jurisdictional element' but it is 'jurisdictional' only in the shorthand sense that without that nexus, there can be no federal crime." Tony, 637 F.3d at 1158-59 (quoting United States v. Martin, 147 F.3d 529, 531-32 (7th Cir.1998) and citing United States v. Prentiss, 256 F.3d 971, 981 (10th Cir.2001)) (internal quotations omitted).

¶8 Oklahoma has also defined the breadth of its district courts' subject matter jurisdiction broadly. "The District Court shall have unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this Article." Okla. Const. art. VII, § 7. This Court has said that "[s]ubject matter jurisdiction, cannot be waived to confer jurisdiction on a court lacking the power to adjudicate a particular type of controversy." Cox, 2006 OK CR 51, ¶ 8, 152 P.3d at 248 (emphasis added). "If the type of controversy at issue is within a court's subject matter jurisdiction, then all other defects or errors go to something other than subject matter jurisdiction." Id. (emphasis added) (internal quotations omitted).

¶9 This Court addressed Oklahoma courts' subject matter jurisdiction in Indian Country in Ex parte Wallace, 1945 OK CR 92, 81 Okl.Cr. 176, 162 P.2d 205. In Wallace, this Court was faced with a writ of habeas corpus alleging, for the first time after a plea of guilty, that the petitioner was an Indian, that his crime was committed in Indian Country, and that the district court did not have jurisdiction. Id. This Court held relief was not warranted. Id. After describing the facts and procedural history of the case, the Court noted that writs of habeas corpus were not designed to interfere with the courts where they had general jurisdiction of the subject matter and person. Id. 81 Okl.Cr. at 184, 162 P.2d at 209.

The Court then described subject matter jurisdiction as

the power to deal with the general abstract question, to hear the particular facts in any case relating to this question and to determine whether or not they are sufficient to invoke the exercise of that power. It is not confined to cases in which the particular facts constitute a good cause of action but it includes every issue within the scope of the general power vested in the court, by the law of its organization, to deal with the abstract question. Nor is this jurisdiction limited to making correct decisions. It empowers the court to determine every issue within the scope of its authority according to its own view of the law and the evidence whether its decision is right or wrong, and every judgment or decision so rendered is final and conclusive upon the parties to it, unless reversed by writ of error or appeal, or impeached for fraud

Id. 81 Okl.Cr. at 187, 162 P.2d at 210 (citing Foltz v. St. Louis & S.F.R. Co., 60 F. 316, [317-18] (8th Cir. 1894)). This Court ultimately found that the district court had "jurisdiction of the subject matter, to-wit, rape in the first degree" and held relief was not warranted since the petitioner did not preserve the issue and raise it on direct appeal. Id. 81 Okl.Cr. at 188, 162 P.2d at 211. Ultimately, subject matter jurisdiction considers the type of controversy before the district court.

¶10 This is consistent with the United States Supreme Court's holding in Castro-Huerta ^[4] where it held that "Indian country is part of the State, not separate from the State.... [F]ederal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country." Id. at 2493. As a result, we must now look at whether federal preemption acts on Oklahoma district courts' subject matter jurisdiction, or something else. The Supreme Court identified two types of preemption in these cases, ordinary federal preemption through a statute, or if the exercise of state jurisdiction would unlawfully infringe upon tribal self-government under the Bracker ^[5] balancing test. Id. at 2500-01.

¶11 In reviewing this Court's jurisprudence regarding Oklahoma district courts' subject matter jurisdiction being preempted in Indian Country, the first time the two are linked is in Magnan v. State, 2009 OK CR 16, ¶ 9, 207 P.3d 397, 402, where this Court held that such a claim alleged that the district court lacked the power to adjudicate a charge against the defendant. This Court then cited two cases for support of that proposition: Forester v. State, 1927 OK CR 33, 36 Okl.Cr. 111, 252 P. 861, 864, and Armstrong v. State, 1926 OK CR 259, 35 Okl.Cr. 116, 248 P. 877, 878. However,...