Billy Zane Deo v. The Honorable Lawrence Parish

Okmulgee, Oklahoma criminal defense lawyer represented the Defendant charged with Second Degree Burglary.

¶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.

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¶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.

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¶15 Ultimately, subject matter jurisdiction considers the type of controversy before the district court, not the parties, territory, or sovereigns at issue. While those other concerns may be relevant to a district court, they are not relevant to a determination of its subject matter jurisdiction. Therefore, we hold that Oklahoma district courts' subject matter jurisdiction is not preempted, and Petitioner waived his claim that the trial court lacked any personal or territorial jurisdiction. To the extent that our prior cases have held otherwise, they are overruled by today's decision.7 Just as a plea at formal arraignment "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[,]" so too does a plea of guilty or no contest to the charges. See Wright v. State, 1973 OK CR 9, ¶ 40, 505 P.2d 507, 514.

¶16 Moreover, Petitioner has wholly failed to prove preemption. State v. Brester, 2023 OK CR 10, ¶ 36, 531 P.3d 125, 137-38; Castro-Huerta, 142 S.Ct. at 2494 ("[T]he [United States Supreme] Court's precedents establish that Indian country is part of a State's territory and that, unless preempted, States have jurisdiction over crimes committed in Indian country."). Petitioner neither demonstrates to this Court that any federal statute preempted the trial court's jurisdiction (subject matter, personal, or territorial), nor that Bracker balancing worked to preempt.8 As a result, Petitioner cannot demonstrate a (1) clear legal right to dismissal, nor (2) that the trial court refused to perform a plain legal duty to dismiss. Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023).

¶17 To be clear, this case does not confer or recognize a power by the State to prosecute Indians in Indian Country.9 Nor does it bypass McGirt or address any substantive argument as to preemption, as the dissent alleges.10 This Court solely finds that Petitioner's claim is no longer shielded from procedural bars by the cloak of subject matter jurisdiction. As a result, this Court does not address any substantive claim as to preemption since Petitioner has forfeited such a claim from review.

¶18 In light of the above, Petitioner has failed to demonstrate he is entitled to the extraordinary relief of a writ of mandamus.

Application for extraordinary relief denied.