Jody Lynn Bailey v The State Of Oklahoma

RE-2019-80

Filed: Dec. 14, 2021

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jody Lynn Bailey appealed his conviction for identity theft and computer fraud. Conviction and sentence were upheld by the court. Judge Ray C. Elliott revoked his suspended sentences because Bailey committed a new crime, robbery. The court did not find this decision to be excessive and affirmed the revocation.

Decision

The order of the District Court of Oklahoma County revoking Appellant's suspended judgments and sentences in Case No. CF-2016-2879 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a violation of the terms of the suspended sentence?
• Did the trial court abuse its discretion in revoking the suspended sentences?
• Was the evidence presented sufficient to support the revocation of the suspended sentences?

Findings

• the court did not err
• the evidence was sufficient
• the decision to revoke the suspended sentences was not an abuse of discretion

RE-2019-80

Dec. 14, 2021

Jody Lynn Bailey

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Jody Lynn Bailey appeals from the revocation of his suspended sentences in Oklahoma County District Court Case No. CF-2016-2879. On February 1, 2017, Appellant entered negotiated guilty pleas to four counts of Identity Theft (21 O.S.Supp.2011, § 1533.1) and two counts of Using a Computer with the Intent to Defraud (21 O.S.Supp.2013, § 1953 (A) (2)). He was sentenced to a term of imprisonment for fifteen years on each count with all but the first four years suspended. The sentences were ordered to be served concurrently. On November 1, 2018, the State filed an application to revoke the suspended sentences alleging Appellant committed the new crime of robbery. On January 22, 2019, a hearing on the application to revoke was held before the Honorable Ray C. Elliott, District Judge. Judge Elliott granted the State’s application and revoked Appellant’s suspended sentences in full. On appeal, Appellant asserts the revocation was excessive. We disagree.

ANALYSIS

At a hearing where the State seeks revocation of a suspended sentence, the question is whether the suspended portion of the sentence imposed should be executed, and the court makes a factual determination as to whether the terms of the suspension order have been violated. Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320, 1322. The violation “need be proven only by a preponderance of the evidence.” Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556. A trial court’s decision to revoke a suspended sentence should not be overturned absent a finding of an abuse of discretion. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Neloms U. State, 2012 OK CR 7, 2 I 35, 274 P.3d 161, 170. We do not find the decision to revoke Appellant’s suspended sentences to be an abuse of discretion. See State v. Kudron, 1991 OK CR 92, I 19, 816 P.2d 567, 570-71 (“the credibility of witnesses and the weight given their testimony is within the exclusive province of the trier of fact, who may believe or disbelieve the witnesses as it desires”). Judge Elliott’s decision to revoke the suspended sentences has not been shown to be an abuse of discretion.

DECISION

The order of the District Court of Oklahoma County revoking Appellant’s suspended judgments and sentences in Case No. CF-2016-2879 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Robinson v. State, 1991 OK CR 44, IT 3, 809 P.2d 1320, 1322.
2. Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556.
3. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565.
4. Neloms U. State, 2012 OK CR 7, 2 I 35, 274 P.3d 161, 170.
5. State v. Kudron, 1991 OK CR 92, I 19, 816 P.2d 567, 570-71.
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1533.1 (2011) - Identity Theft
• Okla. Stat. tit. 21 § 1953 (2013) - Using a Computer with the Intent to Defraud

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Robinson v. State, 1991 OK CR 44, I 3, 809 P.2d 1320, 1322.
• Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556.
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565.
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170.
• State v. Kudron, 1991 OK CR 92, I 19, 816 P.2d 567, 570-71.