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United States v. Dingman

United States District Court, N.D. Oklahoma

April 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHOL DALE DINGMAN, a/k/a Michael Dale Dingman, a/k/a Michol D. Dingman, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN, Judge

         On August 11, 2016, defendant Michol Dale Dingman, a federal prisoner appearing pro se, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Dkt. # 57. Section 2255 provides that “a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

         I.

         On January 5, 2009, defendant pled guilty to attempting to manufacture methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(c) (count one) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(I) (count two). Dkt. # 15. Defendant was sentenced to a total of eighty-one months imprisonment. The Court imposed a three-year term of supervised release for count one and a five-year term for count two, said terms to run concurrently, each with the other. Dkt. # 26. Standard conditions of supervised release were imposed, along with four special conditions: a substance abuse treatment and testing condition, a search condition, financial conditions, and a mental health condition. Id.

         On June 11, 2015, an order on supervised release (Dkt. # 28) was entered, alleging that defendant had violated standard condition of supervised release number seven by testing positive for methamphetamine on five occasions, as well as standard condition number three and special condition number one, by failing to report for substance abuse treatment and testing, as instructed by the probation officer. On August 17, 2015, a superseding order on supervised release (Dkt. # 39) was entered, alleging that defendant violated a mandatory condition by committing a new law violation, assault and battery with a dangerous weapon, in addition to the three previous violations alleged in the original order on supervised release. On August 18, 2015, a revocation hearing was held before the Court, at which defendant was represented by assistant federal public defender Rob Ridenour. Dkt. # 45. At the hearing, defendant stipulated to all allegations except the new law violation, and the Court declared the original order on supervised release (Dkt. # 28) moot. Dkt. # 64, at 2. The parties did not object to defendant's appearance in state court on the new law violation prior to an additional revocation hearing in this matter. Id. at 4. The Court set a final revocation hearing for January 27, 2016. Id. at 6.

         On January 27, 2016, a second revocation hearing was held before the Court regarding the single remaining allegation in the superseding order on supervised release (Dkt. # 39), that defendant had violated a mandatory condition of supervised release by committing the state law violation of assault and battery with a dangerous weapon. Defendant was represented at the hearing by assistant federal public defender William Widell, who was standing in for Ridenour. Dkt. # 65, at 3. After defendant denied that he violated a mandatory condition by committing assault and battery with a deadly weapon, the Court held an evidentiary hearing to determine by a preponderance of the evidence whether defendant had violated a mandatory condition. Id. at 3-4.

         The government's first witness was United States Probation Officer Alton Livingston, who testified that defendant called her and left a voice mail on the morning of June 10, 2015 advising her that defendant had gotten into a fight the night before, and that he stabbed the man he was fighting after the other man had pulled out a knife first. Id. at 7-8. Livingston testified that defendant said he had a black eye and was in fear for his life. Id. Livingston also testified that she spoke with Officer Chris Edwards of the Skiatook Police Department, who told Livingston that defendant had contacted their department because he was afraid someone was trying to kill him. Id. at 8. Livingston testified that Edwards told her that he told defendant to come to the police station so they could help him, and that when the defendant arrived, defendant told Edwards that he had stabbed a guy and now people were following him and trying to kill him. Id. Livingston further testified that she spoke to the detective investigating the stabbing, who told her that he had spoken to the victim and other witnesses to the stabbing and that they believed defendant was the person who had committed the crime. Id. Widell cross-examined Livingston, during which he attempted to characterize defendant's voice mail as defendant reporting an act of self defense. See id. at 12 (“And based on that conversation with [defendant], at least according to him, you learned that it appeared to be a self-defense situation?”).

         The government's second witness was Edwards, who testified that the Skiatook Police Department received a 9-1-1 call from defendant stating someone was trying to kill him, and that defendant was instructed to go to the police station for help. Id. at 17. Edwards stated that he was waiting in front of the station for defendant when he arrived, and that defendant told Edwards that someone was following him and trying to kill him because he stabbed a man in Bartlesville the night before. Id. Edwards testified that defendant appeared to be under the influence of methamphetamine, and that he found four individual bags of a crystal-like substance in the car that were later tested and confirmed to be methamphetamine. Id. at 18. On cross-examination, Widell emphasized that Edwards was not present during the stabbing and had not spoken to anyone other than defendant about the stabbing. Id. at 19.

         After the evidence was presented, Widell spoke on defendant's behalf, arguing that neither witness was present during the altercation, and that defendant's statements indicate the stabbing was self defense. Id. at 21. The Court noted that defendant had “four or five more assaults and batteries and other pending charges for assault and battery” since the date of the stabbing, and that the Court could postpone the matter to allow probation time to file a second order on supervised release to include the other assaults and batteries. Id. at 22-23. The following exchange then took place:

THE DEFENDANT: Could I get another lawyer? Let's just go ahead and get it over with, Judge. I don't want to do that.
MR. WIDELL: Let me see if we -
THE COURT: You need to talk to your lawyer.
MR. WIDELL: Let me see if we have a stipulation.
THE DEFENDANT: We don't need to do that. Let's just go ahead and plead out and ...

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