Irwin v. State

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE DAWN MOODY, DISTRICT JUDGE

APPEARANCES AT TRIAL BRIAN BOEHEIM ATTORNEY AT LAW COUNSEL FOR DEFENDANT DANIEL LEVY JOHN TJEERDSMA ASST. DISTRICT ATTORNEYS TULSA COUNTY COUNSEL FOR THE STATE

APPEARANCES ON APPEA ARIEL PARRY OKLA. INDIGENT DEFENSE SYSTEM GENTNER F. DRUMMOND OKLA. ATTORNEY GENERAL CAROLINE E.J. HUNT JOSHUA R. FANELLI ASST. ATTORNEYS GENERAL OUNSEL FOR APPELLEE

SUMMARY OPINION

HUDSON, JUDGE

¶1 Appellant, Jerry Lee Irwin, was convicted by a jury in the District Court of Tulsa County, Case No. CF-2021-3185, of Count 1: Assault and Battery with a Deadly Weapon, in violation of 21 O.S.2011, § 652 (C); Count 4: Kidnapping, in violation of 21 O.S.Supp.2012, § 741; Count 5: Possession of a Firearm After Former Conviction, in violation of 21 O.S.Supp.2019, § 1283 (A); and Count 6: Trafficking in Illegal Drugs (Methamphetamine), in violation of 63 O.S.Supp.2019, § 2-415. ^[1] The jury found Irwin was previously convicted of two or more prior felonies and sentenced him to forty years imprisonment each on Counts 1 and 4; twenty years imprisonment on Count 5; and sixteen years imprisonment plus a $100,000.00 fine on Count 6.

¶2 The Honorable Sharon Holmes, District Judge, presided at Irwin's trial. The case, however, was transferred post-verdict to the Honorable Dawn Moody, District Judge, based on information that Irwin may have lodged threats against Judge Holmes. Judge Moody sentenced Irwin in accordance with the jury's verdicts except that she suspended the fine imposed on Count 6. Judge Moody ordered the sentences in this case to run consecutively and ordered credit for time served. ^[2] Irwin now appeals.

¶3 This case involves the drug-related kidnapping and torture of Jorge Israel Torres-Zapata by Irwin and his co-defendant, Jennifer Perea. The record shows Irwin bound, gagged, shot, beat and tortured the victim with a hammer, plank and other items. Irwin also used a lighter and aerosol spray can to torch the victim's exposed genitals, while the victim writhed and screamed in pain. During a traffic stop two weeks later, Irwin was found in possession of 91.78 grams of methamphetamine and a gun.

¶4 On appeal, Irwin raises two propositions of error. First, Irwin complains that the State of Oklahoma lacked jurisdiction to prosecute him in this case because he is Native American with a certified 1/32 quantum degree of Indian blood, and the offenses were committed within the jurisdictional boundaries of the Cherokee and Muskogee (Creek) Nations. Second, Irwin argues that trial counsel was constitutionally ineffective for failing to seek dismissal of the case for lack of jurisdiction.

¶5 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties' briefs, we find that no relief is required under the law and evidence. Appellant's judgment and sentence is AFFIRMED.

¶6 Proposition I. Appellant contends that the District Court of Tulsa County did not have jurisdiction over his crimes because he is a Choctaw Indian and the crimes occurred on the Muscogee Creek and/or Cherokee reservations. Appellant did not raise this claim below until after formal sentencing, when he filed a pro se motion to dismiss the case for lack of jurisdiction. ^[3] Appellant did not present any proof to support his claim before the district court that he was Indian. Noting this deficiency, and the fact that Appellant had not yet perfected his pending direct appeal, Judge Moody construed Appellant's motion as a request for post-conviction relief and dismissed the application.

¶7 Now on appeal, Appellant contends the State of Oklahoma lacked jurisdiction to try him for the crimes in this case. Appellant has filed a motion to supplement the record with 1) a copy of his Choctaw Nation of Oklahoma membership card certifying that he is 1/32 degree of Choctaw and is a member by blood of the Choctaw Tribe; and 2) a letter from the Choctaw Nation's membership director indicating that Appellant's tribal membership was issued on August 28, 1996. Should the Court decline his request to supplement the record with these documents, Appellant requests remand for an evidentiary hearing on his Indian country jurisdictional claim, pursuant to Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2024). ^[4]

¶8 This Court recently held that Indian country jurisdictional claims do not implicate Oklahoma district courts' subject matter jurisdiction, but rather personal and territorial jurisdiction. Deo v. Parish, 2023 OK CR 20, ¶ 15, 541 P.3d 833, 838. Appellant waived any claim that the trial court lacked personal or territorial jurisdiction in this case when he entered his plea of not guilty at district court arraignment and proceeded to trial. Id. "It is settled law in Oklahoma that where no demurrer, or motion to quash the information is filed, and a plea of 'not guilty' is entered and the trial is had, the defendant waives any defect in the information, except that the court has no jurisdiction of the subject matter and that no public offense has been committed." Wright v. State, 1973 OK CR 9, ¶ 40, 505 P.2d 507, 514. ^[5] In the present case, the record on appeal does not establish prima facie evidence of Appellant's Indian status because the claim was not raised during the trial court proceedings. See Wadkins v. State, 2022 OK CR 2, ¶ 3, 504 P.3d 605, 607. "Supplementation of the record under Rule 3.11(A) is not appropriate merely to cure a defendant's failure to preserve an issue below." Lamar v. State, 2018 OK CR 8, ¶ 42, 419 P.3d 283, 295. Based on this authority, Proposition I is denied.

¶9 Proposition II. Appellant claims that his trial counsel was constitutionally ineffective for failing to raise the Indian country jurisdictional challenge discussed in Proposition I. Appellant claims here, as he did in his motion below, that he told his trial counsel Brian Boeheim that he was Indian. Appellant contends that defense counsel nonetheless failed to investigate his Indian status and failed to investigate whether jurisdiction was proper.

¶10 To prevail on an ineffective assistance of counsel claim, the defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). See Harrington v. Richter, 562 U.S. 86, 104 (2011) (discussing Strickland two-part test). To show deficient performance, Appellant must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The reviewing court must afford a strong presumption that counsel's representation was within the wide range of reasonable professional assistance. Id. at 689. The defendant's burden is to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the...