Petition for Writ of Certiorari — Oklahoma, Petitioner v. Donta Keith Davis

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Criminal Appeals,

State of Oklahoma (March 18, 2021) ....................... 1a

Order of the District Court in and for Tulsa

County State of Oklahoma

(November 12, 2020) ............................................... 10a

Agreed Stipulation

(October 5, 2020, Filed November 12, 2020) ... 16a

Order Remanding for Evidentiary Hearing

(October 9, 2020) ..................................................... 20a

App.1a

OPINION OF THE COURT OF CRIMINAL

APPEALS, STATE OF OKLAHOMA

(MARCH 18, 2021)

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

________________________

DONTA KEITH DAVIS,

Appellant,

v.

THE STATE OF OKLAHOMA,

Appellee.

________________________

NOT FOR PUBLICATION

Case No. F-2019-420

Before: Dana KUEHN, President Judge.,

Scott ROWLAND, Vice President Judge.,

Gary L. LUMPKIN, Judge., David B. LEWIS, Judge.,

Robert L. HUDSON, Judge.

ROWLAND, VICE PRESIDING JUDGE:

Appellant Donta Keith Davis appeals his Judgment and Sentence from the District Court of Tulsa

County, Case No. CF-2018-1994, for Robbery with a

Dangerous Weapon (Count 1), in violation of 21

O.S.2011, § 801 and Assault with a Dangerous Weapon

(Count 2), in violation of 21 O.S.2011, § 645, both

After Former Conviction of Two or More Felonies. The

App.2a

Honorable Kelly Greenough, District Judge, presided

over Davis’s jury trial and sentenced him, in accordance

with the jury’s verdict, to life imprisonment on each

count. Judge Greenough ordered the counts to run

consecutively.

Davis appeals raising the following issues:

(1) whether impermissible voir dire undermined

his right to a fair trial;

(2) whether the State presented evidence in

violation of the discovery code;

(3) whether restrictions on the testimony of

expert witnesses operated to undermine his

ability to present a defense;

(4) whether the trial court erred by admitting

testimony of two lay witnesses who did not

witness the robbery;

(5) whether the trial court erred in allowing the

State to elicit irrelevant and prejudicial

evidence;

(6) whether he received effective assistance of

trial counsel;

(7) whether the pretrial identification process

was impermissibly suggestive and unreliable;

(8) whether prosecutorial misconduct denied

him a fair trial;

(9) whether the trial court erred in denying his

request to present alternate perpetrator

evidence;

(10) whether his convictions for both robbery

and assault violated 21 O.S.2011, § 11; and

App.3a

(11) whether his sentences are excessive.

In conjunction with his claim of ineffective

assistance of counsel in Proposition 6, Davis filed a

motion for an evidentiary hearing under Rule 3.11(B),

Rules of the Oklahoma Court of Criminal Appeals,

Title 22, Ch.18, App. (2021). In this motion he asserted

that defense counsel was ineffective for failing to

raise a jurisdictional defect in his prosecution under

18 U.S.C. § 1153 and McGirt v. Oklahoma, 591 U.S.

___, 140 S. Ct. 2452 (2020). We find relief is required

on Davis’s jurisdictional challenge in Proposition 6,

rendering his other claims moot.

On October 9, 2020, this Court remanded this

case to the District Court of Tulsa County for an

evidentiary hearing. The District Court was directed

to make findings of fact and conclusions of law on

two issues: (a) Davis’s status as an Indian; and (b)

whether the crime occurred within the boundaries of

the Muscogee Creek Reservation. Our order provided

that, if the parties agreed as to what the evidence

would show with regard to the questions presented,

the parties could enter into a written stipulation

setting forth those facts, and no hearing would be

necessary.

On November 5, 2020, the parties filed a written

stipulation in the District Court of Tulsa County in

which they agreed: (1) that Davis has some Indian

blood; (2) that he was a registered citizen of the

Muscogee Creek Nation on the date of the charged

offense; (3) that the Muscogee Creek Nation is a

federally recognized tribe; and (4) that the charged

crime occurred within the Muscogee Creek Reservation.

The Honorable Tracy L. Priddy, District Judge, accepted

the parties’ stipulation.

App.4a

On November 12, 2020, the District Court filed

its Findings of Fact and Conclusions of Law. The

District Court found the facts recited above in

accordance with the stipulation. The District Court

concluded that Davis is an Indian under federal law

and that the charged crimes occurred within the

boundaries of the Muscogee Creek Reservation. The

District Court’s findings are supported by the record.

The ruling in McGirt governs this case and requires

us to find the District Court of Tulsa County did not

have jurisdiction to prosecute Davis. Accordingly, we

grant relief on Proposition 6.

DECISION

The Judgment and Sentence of the district court

is VACATED and the matter is REMANDED WITH

INSTRUCTIONS TO DISMISS. Pursuant to Rule

3.15, Rules of the Oklahoma Court of Criminal Appeals,

Title 22, Ch. 18, App. (2021), the MANDATE is

ORDERED to issue in twenty (20) days from the

delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF

TULSA COUNTY, THE HONORABLE KELLY

GREENOUGH, DISTRICT JUDGE

APPEARANCES AT TRIAL AND REMAND

Sofia Johnson

Tulsa County Public

Defender’s Office

423 S. Boulder Ave.,

Suite 300

Tulsa, Ok 74103

Counsel for Defendant

App.5a

Erik Grayless

First Asst. District Attorney

John Tjeerdsma

Ray Penny

Asst. District Attorneys

500 S. Denver, Ste. 900

Tulsa, Ok 74103

Counsel for State

APPEARANCES ON APPEAL AND REMAND

Stuart W. Southerland

Tulsa County Public

Defender’s Office

423 S. Boulder Ave.,

Suite 300

Tulsa, Ok 74103

Counsel for Appellant

Mike Hunter

Attorney General of Oklahoma

William R. Holmes

Theodore M. Peeper

Jennifer L. Crabb

Randall Young

Assistant Attorneys General

313 N.E. 21st Street

Oklahoma City, Ok 73105

Counsel for Appellee

OPINION BY: ROWLAND, V.P.J.

KUEHN, P.J.: Concur

LUMPKIN, J.: Concur in Results

LEWIS, J.: Concur

HUDSON, J.: Specially Concur

App.6a

LUMPKIN, JUDGE:

CONCURRING IN RESULTS

Bound by my oath and the Federal-State relationships dictated by the U.S. Constitution, I must at a

minimum concur in the results of this opinion. While

our nation’s judicial structure requires me to apply

the majority opinion in the 5-4 decision of the U.S.

Supreme Court in McGirt v. Oklahoma, ___ U.S. ___,

140 S. Ct. 2452 (2020), I do so reluctantly. Upon the

first reading of the majority opinion in McGirt I

initially formed the belief that it was a result in

search of an opinion to support it. Then upon reading

the dissents by Chief Justice Roberts and Justice

Thomas I was forced to conclude the Majority had

totally failed to follow the Court’s own precedents,

but had cherry picked statutes and treaties, without

giving historical context to them. The Majority then

proceeded to do what an average citizen who had

been fully informed of the law and facts as set out in

the dissents would view as an exercise of raw judicial

power to reach a decision which contravened not only

the history leading to the disestablishment of the

Indian reservations in Oklahoma, but also willfully

disregarded and failed to apply the Court’s own

precedents to the issue at hand.

My quandary is one of ethics and morality. One

of the first things I was taught when I began my

service in the Marine Corps was that I had a duty to

follow lawful orders, and that same duty required me

to resist unlawful orders. Chief Justice Roberts’

scholarly and judicially penned dissent, actually

following the Court’s precedents and required analysis,

vividly reveals the failure of the majority opinion to

App.7a

follow the rule of law and apply over a century of

precedent and history, and to accept the fact that no

Indian reservations remain in the State of Oklahoma.1

The result seems to be some form of “social justice”

created out of whole cloth rather than a continuation

of the solid precedents the Court has established over

the last 100 years or more.

1 Senator Elmer Thomas, D-Oklahoma, was a member of the

Senate Committee on Indian Affairs. After hearing the

Commissioner’s speech regarding the Indian Reorganization

Act (IRA) in 1934, Senator Thomas opined as follows:

I can hardly see where it (the IRA) could operate in a

State like mine where the Indians are all scattered

out among the whites and they have no reservation,

and they could not get them into a community

without you would go and buy land and put them on

it. Then they would be surrounded very likely with

thickly populated white section with whom they

would trade and associate. I just cannot get through

my mind how this bill can possibly be made to operate

in a State of thickly-settled population. (emphasis

added).

John Collier, Commissioner of Indian Affairs, Memorandum of

Explanation (regarding S. 2755), p. 145, hearing before the

United States Senate Committee on Indian Affairs, February

27, 1934. Senator Morris Sheppard, D-Texas, also on the Senate

Committee on Indian Affairs, stated in response to the

Commissioner’s speech that in Oklahoma, he did not think “we

could look forward to building up huge reservations such as we

have granted to the Indians in the past.” Id. at 157. In 1940, in

the Foreword to Felix S. Cohen, Handbook of Federal Indian

Law (1942), Secretary of the Interior Harold Ickes wrote in

support of the IRA, “[t]he continued application of the allotment

laws, under which Indian wards have lost more than two-thirds

of their reservation lands, while the costs of Federal administration of these lands have steadily mounted, must be terminated.”

(emphasis added).

App.8a

The question I see presented is should I blindly

follow and apply the majority opinion or do I join with

Chief Justice Roberts and the dissenters in McGirt

and recognize “the emperor has no clothes” as to the

adherence to following the rule of law in the application

of the McGirt decision?

My oath and adherence to the Federal-State relationship under the U.S. Constitution mandate that I

fulfill my duties and apply the edict of the majority

opinion in McGirt. However, I am not required to do so

blindly and without noting the flaws of the opinion

as set out in the dissents. Chief Justice Roberts and

Justice Thomas eloquently show the Majority’s mischaracterization of Congress’s actions and history with the

Indian reservations. Their dissents further demonstrate

that at the time of Oklahoma Statehood in 1907, all

parties accepted the fact that Indian reservations in

the state had been disestablished and no longer existed.

I take this position to adhere to my oath as a judge

and lawyer without any disrespect to our FederalState structure. I simply believe that when reasonable

minds differ they must both be reviewing the totality

of the law and facts.

App.9a

HUDSON, J., SPECIALLY CONCURS

Today’s decision dismisses convictions for robbery

with a dangerous weapon and assault with a dangerous

weapon from the District Court of Tulsa County based

on the Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). This decision is unquestionably correct as a matter of stare decisis based on

the Indian status of Appellant and the occurrence of

these crimes on the Creek Reservation. Under McGirt,

the State has no jurisdiction to prosecute Appellant

for the crimes in this case. Instead, Appellant must

be prosecuted in federal court. I therefore as a matter

of stare decisis fully concur in today’s decision. Further,

I maintain my previously expressed views on the

significance of McGirt, its far-reaching impact on the

criminal justice system in Oklahoma and the need for

a practical solution by Congress. See Bosse v. State,

2021 OK CR 3, ___ P.3d ___ (Hudson, J., Concur in

Results); Hogner v. State, 2021 OK CR 4, ___ P.3d

___ (Hudson, J., Specially Concurs); and Krafft v.

State, No. F-2018-340 (Okl. Cr., Feb. 25, 2021) (Hudson,

J., Specially Concurs) (unpublished).

App.10a

DISTRICT COURT FOR TULSA COUNTY,

STATE OF OKLAHOMA, FINDINGS OF FACT

AND CONCLUSIONS OF LAW

(NOVEMBER 12, 2020)

IN THE DISTRICT COURT IN AND FOR TULSA

COUNTY STATE OF OKLAHOMA

________________________

DONTA KEITH DAVIS,

Defendant/Appellant,

v.

THE STATE OF OKLAHOMA,

Plaintiff/Appellee.

________________________

Tulsa County District Court Case No. CF-2019-1994

Court of Criminal Appeals Case No. F-2019-420

Before: Tracy L. PRIDDY, District Judge.

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

Pursuant to the remand order of the Oklahoma

Court of Criminal Appeals (“OCCA”) issued October

9, 2020, this matter is before the court. The parties

informally advised the court that they had agreed

and stipulated to facts supporting the issues to be

determined and submitted an Agreed Stipulation

including attached documentation from the Muscogee

(Creek) Nation of Oklahoma Citizenship Board that

App.11a

was filed on November 5, 2020. Stuart Southerland

appeared on behalf of Appellant, Donta Keith Davis,

who was not present. Assistant Attorney General

Randall Young appeared for Appellee. Tulsa County

First Assistant District Attorney Erik M. Grayless

also appeared. An evidentiary hearing was deemed

unnecessary.

The Appellant, in his motion to remand for

evidentiary hearing filed in conjunction with his

Brief-in-Chief claims the District Court lacked jurisdiction to try him as he is a citizen of the Muscogee

(Creek) Nation and that his crime occurred within

the boundaries of the Creek Reservation. Appellant’s

claim raises two questions: (a) his Indian status, and

(b) whether the crime occurred on the Creek

Reservation. These issues require fact-finding to be

addressed by the District Court per the OCCA Order

Remanding.

I.

Appellant’s status as an Indian

To determine the Indian status of the Appellant,

the OCCA directed the District Court to make findings

of fact as to whether (1) Davis has some Indian blood,

and (2) is recognized as an Indian by a tribe or the

federal government.1 The Court finds as follows:

Findings of Fact

1. Donta Keith Davis is the named Defendant/

Appellant in the above-entitled matter.

1 United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012);

United States v. Prentiss, 273 F.3d 1277, 1280-81(10th Cir. 2001).

Generally Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114, 116.

App.12a

2. The parties hereto stipulated and agreed that

Appellant has 3/32 degree Creek blood.2

3. The parties hereto stipulated and agreed that

Appellant is an enrolled member of the Muscogee

(Creek) Nation and was such at the time of the charged

offenses.3

The parties hereto stipulated and agreed that

the Muscoge (Creek) Nation is an Indian Tribal Entity

recognized by the federal government.4

Conclusions of Law

Regarding the first determination, the Court

answers the first inquiry in the affirmative. The Court

adopted the Agreed Stipulation of the parties, including

the attached documentation filed on November 5,

2020 and made findings of fact thereon. Donta Keith

Davis has 3/32 Creek blood. Although the term

“Indian” is not statutorily defined and various terms

such as “sufficient”5, “substantial”6, “significant percentage of’7 or “some”8 have been used by courts in an

attempt to define the quantity of Indian blood required

to satisfy this inquiry, the OCCA mandate ordered

2 Exhibit 1, Agreed Stipulation 1.

3 Exhibit 1, Agreed Stipulation 2.

4 Exhibit 1, Agreed Stipulation 3.

5 United States v. LaBuff, 658 F.3d 873, 874-75 (9th Cir. 2011)

6 Vialpando v. State, 640 P.2d 77, 79-80 (Wyo. 1982).

7 Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114, 116.

8 United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012).

App.13a

this Court to determine “whether the Appellant has

some Indian blood.”9 Thus, according to the term used

by the OCCA in its Order, this Court concludes

Donta Keith Davis has some Indian blood.

Additionally, the Court answers the second part

of the inquiry in the affirmative. The Court adopted

the Agreed Stipulation including the attached

documentation and made findings of fact thereon.

Donta Keith Davis was enrolled as a citizen of the

Muscogee (Creek) Nation on September 27, 2001 and

was recognized as a citizen of the Muscogee (Creek)

Nation at the time of the offenses. The Muscogee

(Creek) Nation is an Indian Tribal Entity recognized

by the federal government. Therefore, Donta Keith

Davis is recognized as an Indian by a tribe or the

federal government.

Having answered both inquiries in the affirmative,

this Court concludes Donta Keith Davis is an Indian.

II. Whether the Crime

Occurred on the Creek Reservation

The OCCA further ordered the District Court to

determine whether the crime occurred on the Creek

Reservation, referred to as Indian Country.10 The

Court finds as follows:

9 Order Remanding for Evidentiary Hearing October 9, 2020.

10 McGirt v. Oklahoma, 140 S. Ct.2452 (2020); 18 U.S.C. §§ 1152,

1153.

App.14a

Findings of Fact

1. The parties hereto stipulated that the crime

in this case occurred within the Creek reservation

boundaries.11

Conclusions of Law

The final inquiry is answered in the affirmative.

This Court adopted the parties’ Agreed Stipulation and

made findings of fact thereon. Although, the specific

address and location of the crimes was not stipulated

to by the parties, the parties agreed that the location

where the crimes occurred was within the Creek Reservation boundaries. These boundaries were established

through a series of treaties between the Muscogee

(Creek) Nation and the United States Government,

and are explicitly recognized as a reservation defined

by 18 U.S.C. § 1151(a). Based upon the Supreme

Court’s ruling in McGirt v. Oklahoma, 140 S. Ct. 2452,

207 L.Ed.2d 985 (2020), this Court concludes that

the crime occurred on the Creek Reservation which is

Indian Country.

WHEREFORE, this Court finds that Donta Keith

Davis is an Indian and that the crimes for which he

was convicted occurred in Indian Country for purposes

of the General Crimes Act, 18 U.S.C. § 1152 and the

Major Crimes Act, 18 U.S.C. § 1153.

11 Exhibit 1, Agreed Stipulation 4.

App.15a

IT IS SO ORDERED this 12th day of November,

2020.

/s/ Tracy L. Priddy

District Judge

App.16a

AGREED STIPULATION

(OCTOBER 5, 2020, FILED NOVEMBER 5, 2020)

IN THE DISTRICT COURT IN AND FOR TULSA

COUNTY STATE OF OKLAHOMA

________________________

DONTA KEITH DAVIS,

Appellant/Defendant,

v.

THE STATE OF OKLAHOMA,

Appellee/Plaintiff.

________________________

Case No. F-2019-420, CF-2018-1994

Following the United States Supreme Court’s

decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020),

the Oklahoma Court of Criminal Appeals remanded

Appellant’s case to this Court on October 9, 2020, for

an evidentiary hearing to determine 1) Appellant’s

status as an Indian, and 2) whether the crimes

occurred on the Creek Reservation. The parties hereby

announce, and request this Court to accept, the

following stipulations:

1.

Appellant has 3/32 degree Creek blood.

2.

Appellant is an enrolled member of the

Muscogee (Creek) Nation and was such at

the time of the charged offenses.

App.17a

3.

The Muscogee (Creek) Nation is an Indian

Tribal Entity recognized by the federal government.

4.

The charged crimes occurred within the Creek

Reservation.

Respectfully submitted this 5th day of October,

2020.

/s/ Stuart W. Southerland

Assistant Public Defender,

Tulsa County

423 S. Boulder Ave.,

Suite 300

Tulsa, Ok 74103

/s/ Jennifer L. Crabb

No. 20546

Assistant Attorneys General

313 N.E. 21st Street

Oklahoma City, Ok 73105

/s/ Erik Grayless

No. 21197

First Asst. District Attorney,

Tulsa County

500 S. Denver, Ste. 900

Tulsa, Ok 74103

App.18a

MUSCOGEE (CREEK)

NATION ENROLLMENT VERIFICATION

(SEPTEMBER 25, 2020)

MUSCOGEE (CREEK) NATION

CITIZENSHIP BOARD

Date: 7/16/2020

To:

Whom It May Concern

From: Muscogee (Creek) Nation

Citizenship Board PO Box 580

Okmulgee, OK 74447

Subject: Enrollment Verification

Re: Name: Donta Keith Davis

Address: 2719 W Easton PI

Tulsa OK 74127-6131

Birthdate: 4/24/1982

Enrollment Date: September 27, 2001

Roll Number: 66305

Degree of Creek Blood: 3/32

I hereby certify that Donta Keith Davis, DOB:

4/24/1982 is enrolled with the Muscogee (Creek) Nation.

Enrollment Date: 9/27/2001 Roll Number: 66305,

Degree of Creek Blood: 3/32

App.19a

/s/ Nathan Wilson

Director

Muscogee (Creek) Nation

Citizens

App.20a

ORDER REMANDING

FOR EVIDENTIARY HEARING

(OCTOBER 9, 2020)

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

________________________

DONTA KEITH DAVIS,

Appellant,

v.

THE STATE OF OKLAHOMA,

Appellee.

________________________

Case No. F-2019-420

Before: David B. LEWIS, President Judge.,

Dana KUEHN, Vice President Judge.,

Gary L. LUMPKIN, Judge., Scott ROWLAND, Judge.,

Robert L. HUDSON, Judge.

Appellant Donta Keith Davis appeals his Judgment and Sentence from the District Court of Tulsa

County, Case No. CF-20181994, for Robbery with a

Dangerous Weapon (Count 1), in violation of 21

O.S.2011, § 801 and Assault with a Dangerous Weapon

(Count 2), in violation of 21 O.S.2011, § 645, both After

Former Conviction of Two or More Felonies. The

Honorable Kelly Greenough, District Judge, presided

over Davis’s jury trial and sentenced him, in accordance

with the jury’s verdict, to life imprisonment on each

App.21a

count.1 Judge Greenough ordered the counts to run

consecutively.

In the motion to remand for evidentiary hearing

filed in conjunction with his Brief-in-Chief, Davis claims

the District Court lacked jurisdiction to try him.

Davis argues that he is a citizen of the Muscogee

(Creek) Nation and that his crime occurred within

the boundaries of the Creek Reservation. Davis relies

on jurisdictional issues addressed in Murphy v. Royal,

875 F.3d 896 (10th Cir. 2017), which was affirmed by

the United States Supreme Court in Sharp v. Murphy,

591 U.S. ___, 140 S. Ct. 2412 (2020) for the reasons

stated in McGirt v. Oklahoma, 591 U.S. ___, 140 S.

Ct. 2452 (2020).

Davis’s claim raises two separate questions: (a)

his Indian status and (b) whether the crime occurred

on the Creek Reservation. These issues require factfinding. We therefore REMAND this case to the

District Court of Tulsa County, for an evidentiary

hearing to be held within sixty (60) days from the

date of this Order.

Recognizing the historical and specialized nature

of this remand for evidentiary hearing, we request

the Attorney General and District Attorney work in

coordination to effect uniformity and completeness in

the hearing process. Upon Davis’s presentation of

prima facie evidence as to his legal status as an

Indian and as to the location of the crime in Indian

Country, the burden shifts to the State to prove it

has subject matter jurisdiction.

1 Under 21 O.S.Supp.2014, § 13.1, Davis must serve 85% of his

sentence of imprisonment before he is eligible for parole

consideration.

App.22a

The hearing shall be transcribed, and the court

reporter shall file an original and two (2) certified

copies of the transcript within twenty (20) days after

the hearing is completed. The District Court shall

then make written findings of fact and conclusions of

law, to be submitted to this Court within twenty (20)

days after the filing of the transcripts in the District

Court. The District Court shall address only the

following issues:

First, Davis’s status as an Indian. The District

Court must determine whether (1) Davis has some

Indian blood, and (2) is recognized as an Indian by a

tribe or the federal government.2

Second, whether the crime occurred within the

boundaries of the Creek Reservation. In making this

determination the District Court should consider any

evidence the parties provide, including but not limited

to treaties, statutes, maps, and/or testimony.

The District Court Clerk shall transmit the record

of the evidentiary hearing, the District Court’s findings

of fact and conclusions of law, and any other materials

made a part of the record, to the Clerk of this Court,

and counsel for Appellant, within five (5) days after

the District Court has filed its findings of fact and

conclusions of law. Upon receipt thereof, the Clerk of

this Court shall promptly deliver a copy of that

record to the Attorney General. A supplemental

brief, addressing only those issues pertinent to the

evidentiary hearing and limited to twenty (20) pages

2 See United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012);

United States v. Prentiss, 273 F.3d 1277, 1280-81 (10th Cir. 2001).

See generally Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114,

116.

App.23a

in length, may be filed by either party within twenty

(20) days after the District Court’s written findings

of fact and conclusions of law are filed in this Court.

Provided however, in the event the parties agree

as to what the evidence will show with regard to the

questions presented, they may enter into a written

stipulation setting forth those facts upon which they

agree and which answer the questions presented and

provide the stipulation to the District Court. In this

event, no hearing on the questions presented is

necessary. Transmission of the record regarding the

matter, the District Court’s findings of fact and

conclusions of law and supplemental briefing shall

occur as set forth above.

IT IS FURTHER ORDERED that the Clerk of

this Court shall transmit copies of the following, with

this Order, to the District Court of Tulsa County:

Appellant’s Brief-in-Chief and Motion to Remand for

Evidentiary Hearing filed January 10, 2020; Appellee’s

Answer Brief filed June 9, 2020; and Appellant’s

Reply Brief filed June 25, 2020.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF

THIS COURT this 9th day of October, 2020.

/s/ David B. Lewis

Presiding Judge

/s/ Dana Kuehn

Vice President Judge

App.24a

/s/ Gary L. Lumpkin

Judge

/s/ Robert L. Hudson

Judge

/s/ Scott Rowland

Judge

ATTEST

/s/ John D. Hadden

Clerk