JERRY LEE IRWIN, Appellant v. THE STATE OF OKLAHOMA, Appellee

¶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.



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¶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.

¶15 The Judgment and Sentence of the District Court is AFFIRMED. Appellant's motion to supplement the record and alternative application for evidentiary hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2024), the MANDATE is ORDERED issued upon delivery and filing of this decision.



AN APPEAL FROM

THE DISTRICT COURT OF TULSA COUNTY

THE HONORABLE DAWN MOODY, DISTRICT JUDGE