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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA KENNETH ALLEN DAY, ) Appellant, NOT FOR PUBLICATION ) V. ) No. F-2017-1166 ) THE STATE OF OKLAHOMA, FILED IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA MAR 14 2019 SUMMARY OPINION JOHN D. HADDEN CLERK ROWLAND, JUDGE: Appellant, Kenneth Allen Day, was charged in Oklahoma County District Court Case No. CF-2016-6470, with Count 1 – Unauthorized Use of a Vehicle, a felony, and Count 2 – Concealing Stolen Property, a felony. On November 3, 2016, Appellant entered a plea of guilty to Count 1. Count 2 was dismissed. Sentencing was deferred to November 2, 2021, with rules and conditions of probation. On June 16, 2017, and amended on September 1, 2017, the State filed an application to accelerate Appellant’s deferred sentence alleging Appellant (1) absconded supervision, (2) failed to report as directed, and (3) committed the new crime of Count 1 – Sexual Battery and Counts 2 and 3 – Indecent Exposure, as alleged in Oklahoma County District Court Case No. CF-2017-2586. Following an acceleration hearing on November 13, 2017, Appellant’s deferred sentence was accelerated. He was sentenced to five years imprisonment and a $100.00 fine. Appellant appeals from the acceleration of his deferred sentence raising the sole proposition of error that the trial court abused its discretion in its decision that the probation violations it found justified the acceleration of Appellant’s sentencing date. We find reversal is not required and affirm the acceleration of Appellant’s deferred sentence. At an acceleration hearing, the court only makes a factual determination involving the existence of a violation of the terms of the deferred sentence. The consequence of the judicial determination that any conditions of the deferred judgment have been violated is to enter judgment and impose sentence. Violations of the conditions of a deferred sentence need only be shown by a preponderance of the evidence. The decision to accelerate a deferred sentence lies within the discretion of the trial court. Hagar v. State, 1999 OK CR 35, I 10, 990 P.2d 894, 898. 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. An abuse of discretion has also 2 been described as “a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented.” State 1 U. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1193-94. In this case, Appellant has not shown an abuse of discretion. DECISION The acceleration of Appellant’s deferred sentence in Oklahoma County District Court Case No. CF-2016-6470 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 the filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE APPEARANCES AT APPEARANCES ON APPEAL ACCELERATION HEARING RICHARD HULL GINA K. WALKER ASSISTANT PUBLIC DEFENDER ASSISTANT PUBLIC DEFENDER OKLAHOMA COUNTY PUBLIC OKLAHOMA COUNTY PUBLIC DEFENDER’S OFFICE DEFENDER’S OFFICE 611 COUNTY OFFICE BUILDING 611 COUNTY OFFICE BUILDING 320 ROBERT S. KERR AVENUE 320 ROBERT S. KERR AVENUE OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73102 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT 3 LORI MCCONNELL MIKE HUNTER ASSISTANT DISTRICT ATTORNEY GENERAL OF ATTORNEY OKLAHOMA 505 COUNTY OFFICE BUILDING JENNIFER B. MILLER 320 ROBERT S. KERR AVE. ASSISTANT ATTORNEY OKLAHOMA CITY, OK 73102 GENERAL COUNSEL FOR THE STATE 313 N.E. 21 st STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE OPINION BY: ROWLAND, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur 4

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