A McAlester man is withdrawing his plea deal that sent him to prison for 20 years.
Brandin Kyle Cathey, 36, of McAlester, was sentenced to a term in custody of the Oklahoma Department of Corrections after pleading no contest Jan. 22 to felony conspiracy to produce and distribute child pornography, felony distribution of child pornography, and three counts of felony possession of juvenile pornography.
Cathey was sentenced to 20 years imprisonment for conspiracy to produce and distribute child pornography; 20 years imprisonment for felony distribution of child pornography; and 10 years imprisonment apiece for three counts of felony possession of juvenile pornography with all sentencing to run concurrent with each other.
In March, Cathey’s attorney Brecken Wagner filed the motion to withdraw plea out of time due to a misunderstanding about Cathey’s sentence.
The motion stated “Defendant entered into the negotiated plea with the understanding with both the defendant and state that count 1 and count 2 would not be 85% crimes, and therefore agreed to 20 years per count to run concurrently based off of this information that was presented to him.”
In a letter addressed to Cathey’s attorney that was filed as “exhibit A” in the plea withdrawal, a sentencing administrator wrote that Cathey must serve 85% of his sentence before becoming eligible for parole and would not be eligible for earned credits or any other type of credits which have the effect of reducing the length of the sentence to less than 85%.
“It is the position of the Department of Corrections that all child pornography convictions fall under the 85% rule,” the letter stated.
Both Cathey and prosecutors misunderstood the rule, Wagner claimed in court documents.
“The defendant entered into a plea agreement that was misunderstood by the defendant and the sate at the time of the plea agreement,” the document states.
Documents show Pittsburg County Associate District Judge Tim Mills accepted the motion on May 8 with the District 18 District Attorney’s Office announcing their intent to appeal the decision.
A motion was also made by prosecutors to stay the proceedings, to which Wagner did not object.
Cathey was originally charged in 2017 after an investigation conducted by the Savanna Police Department, with the assistance of the Oklahoma State Bureau of Investigation, found that Cathey and a woman were communicating electronically and allegedly sent photos of young children to each other.
The woman was charged as a co-defendant in the case, but was later found to be incompetent to stand trial, according to court documents.
Court documents show a status hearing in the case is scheduled for 10 a.m. Aug. 14 in Judge Mills’ courtroom.
Contact Derrick James at firstname.lastname@example.org