OKLAHOMA CITY – A woman freed erroneously two years ago after serving 14 years of a 107-year prison sentence for multiple manslaughter convictions is back behind bars because of a state appellate court ruling.
Kimberly Graham, 52, of Broken Arrow, was convicted in 2009 by a Tulsa County District Court jury on five counts of first-degree manslaughter and one count of leaving the scene of a fatality accident.
During the trial, a prosecutor said Graham was impaired by alcohol when she drove a pickup into a group of motorcycle riders who had gathered on South Memorial Drive in Tulsa to help an injured motorist on Nov. 9, 2007. Five people were killed.
The jury recommended 20 years’ imprisonment on each manslaughter count and seven years’ imprisonment for leaving the scene of the accident. Judge Tom Gillert, now retired, imposed the prison terms consecutively, one after the other.
The convictions and sentences were affirmed by the Oklahoma Court of Criminal Appeals.
Graham filed an application for post-conviction relief in 2017, claiming the state had no authority to prosecute her because she is Native American – she is 1/16 degree Indian blood of the Cherokee Tribe – and her crimes were committed in “Indian country,” within the boundaries of the Muscogee (Creek) Reservation.
On July 9, 2020, the Supreme Court of the United States decreed in McGirt v. Oklahoma that the Creek Nation Reservation was never dissolved by Congress. Consequently, Native Americans convicted in state courts of having committed serious crimes in Indian country had to be prosecuted anew in federal or tribal courts or discharged from prison and their records expunged.
Based on the McGirt ruling and a state appellate decision (that subsequently was withdrawn), District Judge Tracy Priddy in April 2021 ordered Graham released from prison.
Almost five months later the State of Oklahoma filed a motion asking the district court to vacate that order. Prosecutors pointed to an August 2021 decision which held that McGirt does not apply to convictions which were final at the time that ruling was issued.
Graham’s application in 2017 was submitted several years after her first appeal was rejected, and in that appeal she did not cite her Native American status. Consequently, on Nov. 18, 2021, the district court granted the state’s motion to vacate the April 2021 order and reinstated Graham’s judgment and sentence.
The next day Tulsa attorney Richard O’Carroll filed a petition for a writ of prohibition, arguing that Priddy didn’t have the authority to reverse her prior order that freed Graham.
The Court of Civil Appeals disagreed, in a 3-2 opinion released on April 18, 2023.
“Because the convictions in this matter were final” prior to the SCOTUS McGirt decision, “the holding in McGirt does not apply and the District Court’s order vacating those convictions was unauthorized by law,” the majority of the appellate judges decided. “The effect of the District Court’s order was to discharge an offender who was under lawful [judgment and] sentence.”
The “erroneous judicial release” of a prisoner by the district court “is subject to prompt correction by the court.”
Judge David B. Lewis wrote the majority opinion, in which Judge William J. Musseman and Vice Presiding Judge Robert L. Hudson concurred in separate opinions.
In dissent, Presiding Judge Scott Rowland wrote that Judge Priddy should have rejected Graham’s application for post-conviction relief because of her “failure to raise it until 10 years after these charges were first filed.”
Furthermore, the State had 30 days in which to appeal Priddy’s order, but didn’t do so until several months later, after her order became final, Rowland noted.
“It is noteworthy that despite the State’s failure to properly appeal that order, both sides agreed the trial court’s order releasing the prisoner was wrong,” Rowland added.
In an earlier case the OCCA reinstated a judgment and sentence “that was erroneously dismissed on post-conviction review and ordered the defendant to be recommitted to Department of Corrections custody even though the State failed to timely appeal” the district court’s inaccurate ruling, Hudson wrote.
Judge Gary Lumpkin also dissented, criticizing the majority’s “flawed analysis.” Because Priddy’s order releasing Graham was not appealed, the state and the Criminal Appeals Court “are bound by that judgment,” Lumpkin asserted. “The rule of law and the finality of judgments are basic tenets which comprise the foundation of our jurisprudence.”
The heart of the issue in the Graham case, Musseman contended, is whether “under these unique and rare circumstances, district courts have the authority to timely correct an order unauthorized by law.”
After the OCCA ruling, Tulsa County District Judge David Guten ordered Graham to surrender to Tulsa County Jail officials.
Graham’s attorney filed an appeal in Tulsa’s federal district court on April 25, challenging her “unconstitutional confinement” and describing the Court of Criminal Appeals ruling as an “unprecedented and lawless action.”
U.S. District Judge Claire V. Egan directed Tulsa County District Judge Tracy Priddy and Sheriff Victor Regalado to respond to Graham’s claims by May 9, and sent a copy of the petition to Oklahoma Attorney General Gentner Drummond.