Kenneth Allen Day v The State Of Oklahoma

F-2017-1166

Filed: Mar. 14, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Kenneth Allen Day appealed his conviction for Unauthorized Use of a Vehicle. His conviction and sentence were for five years in prison and a $100 fine. Judge Hudson dissented.

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.

Issues

• was there an abuse of discretion by the trial court in accelerating Appellant's deferred sentence?
• did the Appellant adequately demonstrate that there was no violation of the terms of the deferred sentence?
• was the evidence presented sufficient to justify the acceleration of Appellant's sentencing date?

Findings

• the court did not err in accelerating Appellant's deferred sentence
• the evidence was sufficient to support the acceleration of Appellant's deferred sentence
• the trial court did not abuse its discretion in its decision

F-2017-1166

Mar. 14, 2019

Kenneth Allen Day

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

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, ¶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 been described as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. State v. U. Delso, 2013 OK CR 5, ¶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 APPEAL ACCELERATION HEARING

RICHARD HULL
ASSISTANT PUBLIC DEFENDER
OKLAHOMA COUNTY PUBLIC DEFENDER’S OFFICE
611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR AVENUE
OKLAHOMA CITY, OK 73102
COUNSEL FOR DEFENDANT

GINA K. WALKER
ASSISTANT PUBLIC DEFENDER
OKLAHOMA COUNTY PUBLIC DEFENDER’S OFFICE
611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR AVENUE
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

LORI MCCONNELL
ASSISTANT DISTRICT ATTORNEY
OKLAHOMA
505 COUNTY OFFICE BUILDING
320 ROBERT S. KERR AVE.
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE STATE

MIKE HUNTER
GENERAL ATTORNEY
JENNIFER B. MILLER
ASSISTANT ATTORNEY GENERAL
COUNSEL FOR THE STATE
313 N.E. 21st STREET
OKLAHOMA CITY, OK 73105

OPINION BY: ROWLAND, J.

LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur
LUMPKIN, J.: Concur
HUDSON, J.: Concur

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Footnotes:

1. Hagar v. State, 1999 OK CR 35, 10, 990 P.2d 894, 898.
2. State v. Delso, 2013 OK CR 5, 5, 298 P.3d 1192, 1193-94.
3. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019).

Oklahoma Statutes citations:

No Oklahoma statutes found.

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:

No case citations found.