Appointment of legal counsel non-indigency presumption

[heyday]

IN THE DISTRICT COURT OF PONTOTOC COUNTY ACTING WITHIN AND FOR THE 22nd JUDICIAL DISTRICT

STATE OF OKLAHOMA

STATE OF OKLAHOMA v. MARY JAN MARTINEZ Case No. . CF-07-00182

MOTION FOR EVIDENTIARY HEARING

The Defendant in the above-styled criminal case appears now before the honorable court without legal counsel and does now move the court to set a date for an evidentiary hearing upon your movant’s indigent status so that the court record may properly reflect whether your movant herein is or is not eligible for court appointment of legal counsel.

The defendant herein relies upon SMITH v. STATE, 2007 OK CR 6, 155 P.3d 793 (2007):

[T]he posting of bond by a defendant or by another on behalf of a defendant creates only a rebuttable presumption that the defendant is not indigent. 22 O.S.Supp.2006, § 1355A(D). In order to insure that a defendant is not improperly denied counsel to which he or she is constitutionally entitled, the district court must make a record inquiring about the defendant’s financial status and reflecting that the defendant understands that the presumption of non-indigency created by the posting of bond is rebuttable and that he or she may still be entitled to court appointed counsel upon sufficient proof of indigent status.
(Emphasis theirs)

Defendant shows the court that relatives posted bond for the defendant in the above styled case and that neither they, or any other relatives, or your movant herein, is financially able to secure private legal counsel to represent the defendant in this matter.

WHEREFORE, premises considered, your movant prays the court to schedule an evidentiary hearing upon the court record to determine the defendant’s indigent status.

Respectfully submitted to the clerk of the court this 5th day of May, 2008
_____________________
Mary Jan Martinez
By _____________________. Court Clerk
(Seal)

[heyday]

As styled above...

MOTION FOR CONTINUANCE

MARY JAN MARTINEZ, the defendant in the above-styled criminal case, here-in-after defendant, comes now before the honorable court without aid of legal counsel, and shows that circumstances beyond the control of the defendant have rendered it impossible for the defendant to have the preliminary hearing on the scheduled date of May 5th, 2008, as she has not been able to procure legal counsel to represent her legal interests at said hearing, and therefore she has a Sixth Amendment right under the United States Constitution to not be forced into proceeding with a critical stage preliminary examination without effective legal counsel.

That is to say that on the 20th day of February, 2008, the defendant filed with the Pontotoc County Court Clerk a bona fide APPLICATION FOR COURT APPOINTED LAWYER, said application being properly made a part of the court record, which was subsequently denied by this court on the alleged grounds that because the defendant had secured bond to be released from pre-trial detention pending resolution of the cause that therefore the defendant is not eligible for court appointment of legal counsel.

But your defendant shows that ruling to be in error. SEE: Defendants MOTION FOR EVIDENTIARY HEARING filed and made a part of the court record with this instrument. (EXHIBIT A)

Defendant believes that forcing her to proceed to the now scheduled Preliminary Hearing without legal counsel would constitute reversal should she be convicted, as this court has failed to make a part of the court record that it inquired “about the defendant’s financial status and reflecting that the defendant understands that the presumption of non-indigency created by the posting of bond is rebuttable and that he or she may still be entitled to court appointed counsel upon sufficient proof of indigent status” . SMITH v. STATE, 2007 OK CR 6, 155 P.3d 793 (2007)

SEE ALSO HOGG v. STATE. 2008 OK CR 8 (Decided 02/13/2008) Contempt proceeding not proper for a defendant who who comes to court without legal counsel after being ordered to retain same, absent proper hearing. Especially see Footnote Four:

“Appellant’ s further claim, that the trial court’s threat of a contempt charge was an improper attempt to coerce her into hiring counsel, is moot. In a separate action, this Court directed the trial court to hold a proper hearing on Appellant’s eligibility for appointed counsel in the underlying criminal case. The trial court ultimately ruled that Appellant was entitled to appointed counsel. Hogg v. Bass-Jones, Case No. HC-2005-1242 (Okl.Cr. Dec. 22, 2005) (unpublished). See also Smith v. State, 2007 OK CR 6, 155 P.3d 793 (setting forth procedure for trial courts to follow in determining eligibility for appointed counsel).”

Therefore, in support of this application, defendant holds that she diligently has made every effort to obtain counsel, that she is not able to hire an attorney to represent her in this matter, and that she further made a timely application to this court for appointment of legal counsel, which was improperly denied without a hearing made a part of the court record, and that she believes that the legal authority will show that if she is forced to proceed to the Preliminary Hearing scheduled on todays date, May 5th. 2008, she will be denied her Constitutionally mandated rights due to her under the law, and that such a denial would be a clear abuse of the court’s discretion.


Respectfully submitted this 5th day of May, 2008

by____________________________
Mary Jan Martinez, without legal counsel


____________________________
Clerk of the Court
(SEAL)

[heyday]

As styled above...

BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR CONTINUENCE

The law regarding a court’s discretion in allowing a Motion for Continuance in a criminal case is clear in Oklahoma. Briefly stated, the rule seems to be finalized thusly:

“A motion for continuence is addressed solely to the trial court's sound discretion. Renfro v. State, 607 P.2d 703 (Okl.Cr. 1980). A ruling on such will not be disturbed without a showing of abuse of discretion.” Nobles v. State, 668 P.2d 1139 (Okl.Cr. 1983).
SEE: YATES v. STATE, 1988 OK CR 179, 761 P.2d 878,(1988)

Additionally, 22 O.S. § 251 holds as follows:

“When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination before any further proceedings are had.”

Duncan v State, 1949 OK CR 69, 89 Okl.Cr. 325, 207 P.2d 324, 334(1949) addresses the question presented here fully.

“It is fundamental in criminal law that a defendant is entitled to aid of counsel of his own choice, when able to employ one, and if not it is the duty of the court to appoint one for him. If he is able to employ counsel the choice is a personal right of which he cannot be deprived by arbitrary action. It is ordinarily secured to him by express constitutional and statutory provisions… It has been held, in felony cases, that this right is not limited to the trial alone but extends to every stage of the proceeding. Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Sutton v. State, 35 Okla. Cr. 263, 250 P. 930; Brown v. State, 39 Okla. Cr. 406, 266 P. 476. The foregoing conclusion is all the more apparent in light of the provisions of the Bill of Rights of the Constitution, Art. II, § 20,…”

The Oklahoma Court of Criminal Appeals has granted a habeas petition to a criminal defendant who was denied appointment of counsel at the preliminary hearing stage of the proceedings, and that case has not been overturned. SEE: APPLICATION OF GILLETTE, 1960 OK CR 14, 349 P.2d 769

Furthermore, in the case of WYATT v. WOLF, 1958 OK CR 37, 324 P.2d 548(1958) the higher court (Oklahoma Criminal Appeals) granted a mandamus directed at the examining magistrate to appoint counsel for the accused at the preliminary hearing. Likewise, that case also still stands as not being overturned.

As the court record reflects the clear facts in this case that the defendant herein applied for appointment of legal counsel in a timely manner, which was wrongfully denied in error by the examining magistrate, said denial being made without a hearing making a record that defendant understands that posting of bail makes only a rebuttable presumption of ineligibility of appointed legal counsel as prescribed by SMITH v. STATE, 2007 OK CR 6, 155 P.3d 793 (2007) , the facts clearly show that continuance is proper in the instant case, as the relevant legal authority clearly hold that bringing the defendant herein to the jeopardy of preliminary hearing without the aid of counsel against her will would not only be a clear abuse of discretion, but a reversible error for depriving her of her clear constitutional and statutory rights as well.

WHEREFORE, PREMISES CONSIDERED, your defendant prays the Honorable Court to grant the requested postponement of the scheduled preliminary hearing in this manner so that she may be granted the lawfully prescribed evidentiary hearing due her under the law and therefore show that she is lawfully due appointment of legal counsel to represent her and cross examine witnesses and therefore challenge the State’s case made against her at the forthcoming preliminary examination.

Respectfully submitted this 5th day of May, 2008

by____________________________
Mary Jan Martinez, without legal counsel


____________________________
Clerk of the Court
(SEAL)

[heyday]

Woman held in drug smuggle, death case [LINK]

Randy Mitchell Staff Writer

Ada — District Judge John David Miller, after hearing witness testimony Monday, ruled there is probable cause for Mary Jan Martinez, 38, Allen, to be bound over for formal arraignment on the charge of first-degree murder.

Martinez was charged in 2007 after officials alleged she smuggled drugs to her brother in Pontotoc County jail who later died of a drug overdose. Officials said she disguised herself as a nurse and smuggled drugs into the Pontotoc County jail, giving them to David Wayne Ellis, 47, Allen. He was found dead in his cell April 16, 2007. Toxicology reports indicated Ellis’ system contained several controlled substances, including Fentanyl. An autopsy report listed the probable cause of death as Fentanyl intoxication.

Miller began by denying Martinez, who was without an attorney, a continuance because the case had been delayed several times over the past year. He said she was denied an attorney through the Oklahoma Indigent Defense System because she posted a $75,000 bail and could have used the money to hire an attorney.

Martinez argued she never knew posting bail would hurt her chances of getting an attorney through OIDS and she didn’t know at the time of bail she would be charged with first-degree murder. Miller said she has had plenty of time to find counsel and was told the preliminary hearing would proceed Monday with or without an attorney.

District attorney Chris Ross called Justin Miller to the stand. Miller was employed as a jailer at the time of the incident and told the court Martinez showed him an ID card saying she was a nurse with the Oklahoma Department of Corrections and requested a medical visit with Ellis.

Undersheriff Joe Glover testified Martinez’s visit with Ellis was captured on video.

During a review of the tape, Martinez is clearly seen giving Ellis something which he appeared to put in his mouth before the visit was over, Glover said.

Martinez’s niece, Dana Deatherage, said Martinez told her shortly after the incident she smuggled “pento patches,” "soma" and “norco” pills to Ellis, but said she believed Martinez would never intentionally hurt Ellis.

Martinez must appear for a formal arraignment May 29.

[heyday]

WTF????

I wasn't pleased, to say the least.

I told her, never mind, and advised her to just sit there and refuse to take part in the sham proceeding where the DA proceded to admit hearsay evidence without restraint.

Because she had documented her attempts to find a lawyer, and refused to back down, and most importantly, preserve her right to appeal by refusing to plead May 29th at formal arraignment without an attorney, filing her own MOTION FOR NEW PRELEMINARY HEARING (I wrote all the above), she had to prevail!

[heyday]

County: Pontotoc - County Last Updated: 08/01/2008 11:33
Case: CF-07-00182
STATE OF OKLAHOMA vs. MARTINEZ, MARY JAN
Date Filed: 04/17/2007
Amount Owed: $601.30 (as of 08/01/2008 11:33)
Offenses
MURDER, FIRST DEGREE
BRINGING CONTRABAND INTO JAIL/PENAL INSTITUTION

Parties Defendant MARTINEZ, MARY JAN - WEWOKA OK
DA ROSS, CHRIS - ADA OK
Officer GLOVER, JOE L.
Attorney CHRISTOPHER, JASON - ADA OK
Judge LANDRITH, THOMAS
Agency PONTOTOC COUNTY SHERIFF
Case Entries Date: Case Entries Amount
04/17/2007 AFFIDAVIT
04/19/2007 RIGHTS OF ACCUSED
04/19/2007 APPEARANCE BOND $75,000.00 $25.00
(Entry with fee only) $10.00
(Entry with fee only) $2.50
04/19/2007 CM (4/17/07) RE: 4/23/07 @ 1:30PM
04/26/2007 INFORMATION CT.I UNLAWFUL DELIVERY OF CONTROLLED $98.00
DANGEROUS SUBSTANCE
CT.II UNLAWFULLY BRINGING CONTRABAND INTO COUNTY JAIL
07/19/2007 MOTION FOR CONTINUANCE & ORDER PH 10/26/07 @ 9:00AM
08/08/2007 SUPPLEMENTAL AFFIDAVIT IN SUPPORT OF PROBABLE CAUSE
08/08/2007 AMENDED INFORMATION- FIRST DEGREE MURDER
08/13/2007 CM (8/10/07) RE: 8/28/07 @ 1:30PM
08/29/2007 CM (8/28/07) RE: 9/25/07 @ 1:30PM
09/26/2007 CM (9/25/07) RE: 10/30/07 @ 1:30PM
11/01/2007 CM (10/30/07) RE: 12/19/07 @ 1:30PM
12/19/2007 CM (12/19/07) RE: 1/9/08 @ 1:30PM
COURT MINUTE;1-8-08;DEF. TO RE 1-23-08
01/24/2008 CM (1/23/08) RE: 1/30/08 @ 1:30PM
01/31/2008 CM (1/29/08) RE: 2/6/08 @ 1:30PM
02/07/2008 CM (2/6/08) RE: 2/15/08 @ 1:30PM
02/20/2008 APPLICATION FOR COURT APPOINTED LAWYER(REQUEST APP.)
02/22/2008 CM (2/15/08) RE: 2/21/08 @ 1:30PM
02/22/2008 CM (2/21/08) RE: 3/5/08 @ 1:30PM
03/10/2008 ORDER SETTING PRELIMINARY HEARING PH 5/5/08 @ 10:00AM
05/01/2008 APPLICATION FOR APPOINTED COUNSEL $40.00
05/05/2008 MOTION FOR CONTINUANCE
05/05/2008 BRIEF IN SUPPORT OF DEF.'S MOTION FOR CONTINUANCE
05/05/2008 MOTION FOR EVIDENTIARY HEARING
05/23/2008 AMENDED BIND OVER INFORMATION CT.I MURDER, 1ST DEGREE
CT.II BRINGING CONTRABAND INTO JAIL
05/27/2008 NOTE TO FILE: CALLED JOHN ENSEY TO HAVE HER APPEAR
5/29/09 @9:00 A.M. RE: APPLICATION FOR COURT APPOINTED
ATTORNEY. HE SAID HE WOULD TRY TO FIND HER.
05/29/2008 REQUEST FOR NE PRELIMINARY HEARING
05/29/2008 BRIEF OF RECORD OF ATTORNEYS CONTACTED
06/02/2008 PRELIMINARY HEARING PHC 5/29/08 @ 9:00AM DEFENDANT
IS NOT INDIGENT. POSTED $75,000.00 BAIL. MOTION FOR
CONTINUANCE DENIED AS COURT HAS GIVEN DEFENDANT 1 YR.
06/02/2008 PRELIMINARY HEARING CT.II
06/03/2008 FILE JUDGE'S ORDER - COURT FINDS DEFENDANT HAS OVERCOME
THE PRESUMPTION AND IS INDIGENT. OIDS TO BE NOTIFIED
AND ATTORNEY APPOINTED. RE: 6/10/08 @1:00 P.M.
06/13/2008 ORDER DETERMINING INDIGENCY
07/22/2008 TRANSCRIPT OF PRELIMINARY HEARING
07/23/2008 MOTION FOR JOINDER OF TRIALS
07/23/2008 MOTION IN LIMINE
07/24/2008 STATE'S MOTION FOR DISCOVERY
07/24/2008 MOTION TO REMAND FOR PRELIMINARY HEARING
07/24/2008 ORDER FOR DISCOVERY

[heyday]

So, I guess she get's a new preliminary hearing, heh...