GUTIERREZ v. STATE OF OKLAHOMA

OSCN Found Document:GUTIERREZ v. STATE OF OKLAHOMA GUTIERREZ v. STATE OF OKLAHOMA 2026 OK CR 20 Case Number: F-2024-355 Decided: 10/29/2026 Mandate Issued: 10/29/2026 THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA Cite as: 2026 OK CR 20 , __ P.3d __ JAIME JOSE GUTIERREZ, Appellant, v. THE STATE OF OKLAHOMA, Appellee. O P I N I O N MUSSEMAN, VICE PRESIDING JUDGE: ¶1 Appellant, Jaime Jose Gutierrez, appeals his Judgment and Sentence from the District Court of Texas County, Case No. CF 2022 189, Possession of a Firearm While on Probation, in violation of 21 O.S.2021, § 1283 ¶2 The Honorable Jon K. Parsley, District Judge, presided over the bench trial. Judge Parsley found Appellant guilty and imposed a seven year sentence, all suspended. Appellant appeals his Judgment and Sentence and raises a single issue: I. whether Appellant's conviction and sentence for possessing a firearm is an unconstitutional infringement of his Second Amendment rights and must therefore be vacated. ¶3 We affirm the Judgment and Sentence of the district court. BACKGROUND ¶4 Police responded to Appellant's residence following a call by his roommate that he was being aggressive, possessed firearms, and the roommate needed assistance leaving the apartment. Appellant was on probation for felony unauthorized use of a motor vehicle at the time police responded. After obtaining a search warrant for the residence, police located a Glock 9mm handgun and a disassembled Palmetto Arms 5.56 semi-automatic rifle in Appellant's bedroom along with ammunition, holsters, magazines, and a bulletproof vest. ANALYSIS ¶5 In his sole proposition, Appellant argues that Section 1283(C) of Title 21, which makes it a crime for a person on felony probation to possess a firearm, is unconstitutional as applied to Appellant under the Second Amendment of the United States Constitution. de novo , but defer to the trial court's findings of facts unless they are clearly erroneous. See Vanderpool v. State , 2018 OK CR 39 434 P.3d 318 State v. Raby , 2022 OK CR 30 522 P.3d 822 Seabolt v. State , 2006 OK CR 50 152 P.3d 235 ¶6 Appellant's argument focuses on the United States Supreme Court's recent precedent regarding the Second Amendment. First, in Heller , the Supreme Court held as unconstitutional Washington D.C.'s "ban on handgun possession in the home" as well as a "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self defense." District of Columbia v. Heller , 554 U.S. 570, 635 (2008). Next, the Supreme Court held the Second Amendment applied to the states and struck down as unconstitutional a city's bans on handgun possession similar to the bans found in Heller . McDonald v. City of Chicago , 561 U.S. 742, 749 (2010) (plurality opinion). The Supreme Court's next major Second Amendment case came in Bruen where the Court struck down as unconstitutional a licensing scheme that restricted an individual's ability to carry a firearm in public for self defense because it "prevent[ed] law abiding citizens with ordinary self defense needs from exercising their right to keep and bear arms." New York State Rifle Pistol Association, Inc. v. Bruen , 597 U.S. 1, 70-71 (2022). Then the Supreme Court held a federal statute constitutional that criminalized the possession of a firearm by a person subject to a restraining order where the order included a finding that the defendant poses a credible threat to the physical safety of another. United States v. Rahimi , 602 U.S. 680, 693, 702 (2024); see also 18 U.S.C. § 922 (g)(8)(C)(i). Finally, the Supreme Court held this year that the federal government could not generally disarm all unlawful users of controlled dangerous substances without more and that Hawaii could not set a default rule that those carrying firearms cannot enter private property open to the public absent express consent. United States v. Hemani , 608 U.S. 772 (2026) (regarding disarmament of unlawful users of controlled dangerous substances); Wolford v. Lopez , 609 U.S. 185 (2026) (regarding access to private property open to the public). ¶7 However, the Supreme Court has also consistently reiterated that these cases do not affect statutes criminalizing possession of firearms by felons. The Supreme Court in Heller noted that the Second Amendment right "is not unlimited" and that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . ." Heller , 554 U.S. at 626 . The Supreme Court then reiterated they "made it clear in Heller that [its] holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons . . .'" and then again "repeat[ed] those assurances [in McDonald ]." McDonald , 561 U.S. at 786 (quoting Heller , 554 U.S. at 626 ). In Bruen , the Supreme Court again reinforced its original statement in Heller that the Second Amendment is "subject to certain reasonable, well defined restrictions," describing generally what it had specifically delineated in Heller . Bruen , 597 U.S. at 70 (citing Heller , 554 U.S. at 581 ). The Supreme Court in Rahimi again endorsed Heller 's understanding that "prohibitions, like those on the possession of firearms by 'felons . . .' are 'presumptively lawful.'" Rahimi , 602 U.S. at 699 (quoting Heller , 554 U.S. at 626 , 627 n. 26). Finally, this year the Supreme Court continued to reinforce it was not addressing laws "disarming individuals convicted of felonies" and reiterated "that 'nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . ." Hemani , 608 U.S. at 794; Wolford , 609 U.S. at 193 (quoting Heller , 554 U.S. at 626 ). ¶8 We are persuaded that the Supreme Court meant what it said in each of these cases--statutes prohibiting felons from possessing firearms are not unconstitutional under the Second Amendment. ¶9 Appellant received a deferred sentence after he pled no contest to one count of Unauthorized Use of a Motor Vehicle, a felony, and one count of Domestic Abuse, a misdemeanor. Appellant was still on his deferred sentence at the time he was in possession of the firearms in this case. A deferred sentence follows a verdict or plea but occurs before a judgment of guilt. 22 O.S.2021, § 991c Id .; but see 22 O.S.2021, § 991c 22 O.S.2021, § 991c ¶10 Following the acceptance of a plea or the rendering of a verdict, a deferred sentence does not end criminal proceedings, rather it leaves a charge pending and the defendant remains under criminal proceedings until completing the deferred sentence. See United States v. Saiz , 797 F.3d 853, 856 (10th Cir. 2015); 22 O.S.2021, § 991c Nguyen v. State , 1989 OK CR 6 772 P.2d 401 overruled on other grounds by Gonseth v. State , 1994 OK CR 9 871 P.2d 51 See 22 O.S.2021, § 991c ¶11 Deferred sentences are still considered by the court system in many situations. Dickerson v. New Banner Institute, Inc. , 460 U.S. 103, 112-13 (1983) (holding that a state deferred sentence was equivalent to a conviction under federal law for the purposes of the disarmament of convicted felons), superseded by statute as recognized in Logan v. United States , 552 U.S. 23 (2007). "'A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.'" Id . (quoting Kercheval v. United States , 274 U.S. 220, 223 (1927)) (citing Boykin v. Alabama , 395 U.S. 238, 242 (1969)). The same is true here. ¶12 Ultimately, a defendant entering a plea to a felony and having the presumption of innocence removed makes one a felon for purposes of the Second Amendment's protections. Since the Supreme Court's cases consistently reiterate the disarmament of felons is constitutional, and Appellant entered a plea to a felony, his sole proposition must fail. Accordingly, Appellant's Proposition I is denied. DECISION ¶13 The Judgment and Sentence of the district court is AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App. (2026), the MANDATE is ORDERED issued upon delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF TEXAS COUNTY, THE HONORABLE JON K. PARSLEY, DISTRICT JUDGE APPEARANCES AT TRIA L VONDA WILKINS ATTORNEY AT LAW P.O. BOX 1486 GUYMON, OK 73942 ATTORNEY FOR DEFENDANT APPEARANCES ON APPEAL JAMES H. LOCKARD APPELLANT DIVISION WEST 111 N. PETERS NORMAN, OK 73069 COUNSEL FOR APPELLANT TAOS SMITH ZACHARY SIMMONS ASSISTANT DISTRICT ATTORNEYS 319 N. MAIN STREET, #103 GUYMON, OK 73942 COUNSEL FOR STATE GENTNER F. DRUMMOND ATTORNEY GENERAL OF OKLAHOMA KALE D. PARKER ASST. ATTORNEY GENERAL 313 N.E. 21 ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: MUSSEMAN, V.P.J. LUMPKIN, P.J.: Concur in Result LEWIS, J.: Specially Concur HUDSON, J.: Specially Concur ROWLAND, J.: Specially Concur FOOTNOTES 63 O.S.2021, § 2 It shall be unlawful for any person serving a term of probation for any felony in any court of this state or of another state or of the United States or under the jurisdiction of any alternative court program to have in his or her possession or under his or her immediate control, or at his or her residence, or in any passenger vehicle which the person is operating or is riding as a passenger, any pistol, shotgun or rifle, including any imitation or homemade pistol, altered air or toy pistol, shotgun or rifle, while such person is subject to supervision, probation, parole or inmate status. Heller and its progeny did not impact statutes disarming felons. United States v. McCane , 573 F.3d 1037, 1047 (10th Cir. 2009); Vincent v. Garland , 80 F.4th 1197 , 1201-02 (10th Cir. 2023); Vincent v. Bondi , 127 F.4th 1263, 1264-65 (10th Cir. 2025). E.g. 22 O.S.2021, § 991c 47 O.S.Supp.2026, § 11-902 63 O.S.2021, § 2 Platt v. State , 2008 OK CR 20 188 P.3d 196 United States v. Vela , 992 F.2d 1116, 1117-18 (10th Cir. 1993) (holding a sentencing court could consider a defendant's deferred sentence as a criminal justice sentence for purposes of punishment enhancement under the federal sentencing guidelines). LUMPKIN, PRESIDING JUDGE: CONCURRING IN RESULTS ¶1 While I agree with the results in this case, I do so on a different legal basis. The opinion seems to define all deferred sentencing orders as falling under its analysis. That is incorrect. This case is controlled by the specific language of Section 1283(C) which allows a defendant serving a deferred sentence to be charged with unlawful possession of a firearm. ¶2 We are not holding that orders deferring sentencing are convictions since that is not what the statute provides. The Supreme Court has established that the Second Amendment does not prohibit states from restricting actual felons from possessing firearms and this Court recognizes that. We should make it clear that this case is controlled by statutory language and is the underlying authority for treating a deferred sentence in this manner in Oklahoma. ¶3 While I appreciate the historical analysis provided by the opinion regarding the Supreme Court evolution in application of the 2 nd Amendment, the focus in this case should be on the application of lawful restrictions on citizens in certain categories. For that reason, I also join in Judge Rowland's excellent explanation of the different categories of 2 nd Amendment cases. This case certainly falls within the second category of citizens where the Supreme Court has allowed restrictions on 2 nd Amendment rights. This statute correctly identifies those citizens who are now subject to those lawful restrictions, and I join with Judge Rowland in making that finding in this case. While Oklahoma law does not identify those persons on probation as "felons", the statutory provision adheres to restrictions allowed on certain offenders in this category. FOOTNOTES LEWIS, J: SPECIALLY CONCURRING ¶1 Primarily, I join Judge Rowland's special writing, and I write separately to note that the statute prohibiting persons from possessing firearms who are serving a deferred sentence of probation for a felony crime is a temporary prohibition, lasting until the deferred term of probation ends in successful completion and dismissal of the charges. See 21 O.S.2021, § 1283 ¶2 Furthermore, the majority Opinion is correct that the prohibition against felons being in possession of a firearm has been affirmed numerous times by the United States Supreme Court. Other writings have artfully explained why Appellant falls within the status of a felon. It is important to add that under our plea proceedings, a defendant not only gives up his presumption of innocence, but the trial court also makes findings that there is a factual basis for his plea. King v. State, 1976 OK CR 103 553 P.2d 529 ¶3 In this case, Appellant not only forfeited his presumption of innocence, but the trial court also made a finding that Appellant had indeed committed a felony crime. Therefore, Appellant clearly falls within the felon category whose right to keep and bear arms may be restricted. I find the Opinion to be well reasoned and I, therefore, specially concur. HUDSON, J., SPECIALLY CONCURS: ¶1 I specially concur in today's decision but write separately to observe that the constitutionality of statutes criminalizing the possession of firearms by felons will ultimately be determined by the United States Supreme Court. As the majority opinion reveals, the Supreme Court has been active in addressing the constitutionality of gun restrictions in varying contexts, handing down six notable decisions in recent years on that topic. The Court's decisions have noted the "central" concern of the Second Amendment, namely, securing for citizens "the fundamental right of self-defense." Wolford v. Lopez , 609 U.S. 185 , 192 (2026). Nonetheless, the Supreme Court has repeatedly stated that laws prohibiting felons from possessing firearms are presumptively lawful and are not called into doubt by its recent Second Amendment holdings. E.g. , United States v. Hemani , 608 U.S. 772 , 794 (2026). Today's decision represents the status quo set forth in the Supreme Court's most recent statements on this point. Until the Supreme Court revisits the matter, today's decision accurately states the law. ROWLAND, J., SPECIALLY CONCURRING: ¶1 The United States Supreme Court has handed down six notable decisions in recent years interpreting the right to keep and bear arms embodied in the Second Amendment to the United States Constitution, beginning with District of Columbia v. Heller , 554 U.S. 570 (2008). Heller , McDonald , Bruen , Hemani , and Wolford , the Court struck down restrictions on firearm possession, while in Rahimi , the Supreme Court upheld a federal law prohibiting firearm possession by one whom a court has found poses a credible threat of violence to another. Throughout these cases, the Supreme Court has stressed that their holdings "did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." McDonald, 561 U.S. at 786 (internal quotations omitted). See also Hemani, 608 U.S. at 779 ("[L]ike most individual rights, the Second Amendment has its limits. American legislatures have long regulated the possession and use of firearms to some degree." (internal citation omitted)). ¶2 These cases reveal two distinct categories of firearm restrictions which apply to two distinct categories of persons. In the first category are restrictions applicable to "law-abiding, responsible citizens" who have committed no crime nor pose a threat to others; these restrictions are presumed to be unlawful under the Second Amendment. Bruen, 597 U.S. at 26 . The second category of firearm restrictions are those applied to felons and the mentally ill, and these restrictions are presumed to be lawful. Rahimi , 602 U.S. at 699 ("many such prohibitions, like those on the possession of firearms by 'felons and the mentally ill,' are 'presumptively lawful'" (quoting Heller , 554 U.S. at 626 , 627 n.26)). ¶3 Under this dichotomy, I find that Appellant's status on a deferred sentence, after pleading no contest to conduct constituting a felony, puts him into the second category of persons discussed above and thus, 21 O.S.2021, § 1283 Heller nor any of the later cases does the Supreme Court refer to convicted felons, as opposed to confessed felons, i.e., those who have entered a plea of guilty or no contest to a charged felony. This indicates to me that what makes them different from law abiding citizens isn't the sentence they received, but rather the conduct in which they engaged. See Heller , 554 U.S. at 626 (the Court declined to "undertake an exhaustive historical analysis today of the full scope of the Second Amendment"). ¶4 In this case, Appellant pled no contest to a felony and was placed on probation without a finding of guilt, but the entry of his plea removed the presumption of innocence to which he was otherwise entitled. King v. State , 1976 OK CR 103 553 P.2d 529 21 O.S.2021, § 1283 ¶5 In my view, the question isn't whether a person on a deferred sentence is close enough to a convicted felon to fall under the Supreme Court's language, but whether, in referring to felons whose Second Amendment rights can be regulated, the Supreme Court means those who have been convicted of, or who have entered a plea confessing to, felonious acts regardless of what sentence or lack thereof they received in court. With that being said, I find the majority opinion to be thorough and thoughtful and I therefore specially concur. ¶6 I am authorized to state that Judge Lewis joins in this special concurrence. I am also authorized to state that Presiding Judge Lumpkin joins in this analysis but concurs in the result reached by the majority. FOOTNOTES Wolford v. Lopez, 609 U.S. 185 (2026); United States v. Hemani , 608 U.S. 772 (2026); United States v. Rahimi, 602 U.S. 680 (2024); New York State Rifle Pistol Ass'n, Inc. v. Bruen , 597 U.S. 1 (2022); McDonald v. City of Chicago, Ill ., 561 U.S. 742 (2010) (plurality opinion). United States v. Hemani , 608 U.S. 772 (2026), comes close to straddling the line separating these two categories. There, Respondent was disarmed under a federal statute prohibiting firearm possession by one who unlawfully uses a controlled dangerous substance because he used marijuana several times per week. The majority rejected the statute's broad sweep which would permanently disarm a "college student who routinely uses a friend's Adderall to cram for exams." Id . at 786. However, the majority made clear it was not addressing whether government may disarm illegal drug addicts or target a particular drug whose misuse might pose higher risk of misusing firearms, or even whether a prosecution might lie against an individual whose individualized marijuana use is shown to make them particularly dangerous to themself or others. Id . at 792.