D'Angelo Landon Burgess v The State Of Oklahoma

F-2018-893

Filed: Sep. 26, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

D'Angelo Landon Burgess appealed his conviction for Grand Larceny. Conviction and sentence were affirmed. Judge Lewis dissented. In this case, D'Angelo Burgess had a five-year deferred sentence after pleading guilty to Grand Larceny in 2013. In 2017, the state asked to speed up this sentence, saying he committed new crimes, including a high-speed chase. The court held a hearing and decided to accelerate his sentence. Burgess argued that the state didn’t handle this situation properly, which he believed violated his rights. However, the court found no major errors in how things were done and upheld the original decision to speed up his sentence.

Decision

The order of the district court of Oklahoma County accelerating Appellant's deferred judgment and sentencing in Case No. CF-2012-1069 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 due process rights in the acceleration of the deferred sentence?
• Did the State fail to prosecute the application to accelerate the deferred sentence diligently?
• Was there an abuse of discretion by the district court in ordering the sentence to be accelerated?
• Did the scheduling of the acceleration hearing negatively impact the appellant's rights?

Findings

• the court found no plain error in the timing of the acceleration hearing
• the court declined to find an abuse of discretion by the district court in accelerating the sentence
• the order of the district court accelerating Appellant's deferred judgment and sentencing is affirmed

F-2018-893

Sep. 26, 2019

D'Angelo Landon Burgess

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant D’Angelo Landon Burgess appeals from the acceleration of his deferred sentence in Oklahoma County District Court Case No. CF-2012-1069. On January 23, 2013, Appellant entered a guilty plea to Grand Larceny (21 O.S. § 1704). Pursuant to a plea agreement, Appellant received a five (5) year deferred sentence. On July 17, 2017, the State filed an amended application to accelerate the deferred sentence alleging Appellant had committed new offenses. At the conclusion of a hearing held August 21, 2018, the Honorable Ray C. Elliott, District Judge, accelerated the sentence. Mr. Burgess appeals the acceleration of his deferred sentence. We affirm.

The hearing on the State’s motion to accelerate consisted of the testimony of Oklahoma Highway Patrol Trooper Micah Freeman. Trooper Freeman testified that around midnight on June 11, 2016, he attempted to pull the car Appellant was driving over for speeding. A high-speed chase ensued. Appellant was arrested after his car struck a tree. The State also introduced the preliminary hearing transcript of Cleveland County District Court Case No. CF-2017-1084. There, Appellant was bound over for aggravated attempting to elude that occurred July 14, 2017.¹ Appellant presents a single proposition of error: THE STATE’S FAILURE TO PROSECUTE DILIGENTLY THE APPLICATION TO ACCELERATE MR. BURGESS’ DEFERRED SENTENCE DEPRIVED HIM OF HIS DUE PROCESS RIGHTS UNDER THE 5TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ART. II, § 7 OF THE OKLAHOMA CONSTITUTION.

Appellant did not raise this objection before the district court. Thus, our review is for plain error. Plain error requires Appellant to show: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error impacted his substantial rights, meaning the error affected the outcome of the proceeding. Simpson U. State, 1994 OK CR 40, ¶ 3, 11, 23, 876 P.2d 690, 694-95, 698. If these elements are met, this Court will correct plain error only if the error seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Simpson, 1994 OK CR 40 at 30, 876 P.2d at 701. We do not find the presence of plain error.

An acceleration proceeding does not require the same broad scope of due process protections as a criminal proceeding. Degraffenreid v. State, 1979 OK CR 88, ¶ 14, 599 P.2d 1107, 1110. Appellant points to nothing to indicate he was harmed by the timing of the acceleration hearing. Where the record suggests the scheduling of the hearing was affected by the charges Appellant faced in Cleveland County, we decline to find the district court abused its discretion by ordering the sentence to be accelerated. See Whitaker U. State, 2015 OK CR 1, ¶ 5, 341 P.3d 87, 89 (A trial court’s decision to accelerate a deferred sentence is reviewed for an abuse of discretion.).

DECISION

The order of the district court of Oklahoma County accelerating Appellant’s deferred judgment and sentencing in Case No. CF-2012-1069 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. ¹ The pursuit resulted in the death of Oklahoma Highway Patrol Lieutenant Heath Meyer. Appellant was subsequently convicted of first-degree murder. The appeal of that conviction is pending before us in Case No. F-2019-433.
2. ² Simpson U. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694-95, 698.
3. ³ Degraffenreid v. State, 1979 OK CR 88, "I 14, 599 P.2d 1107, 1110.
4. ⁴ Whitaker U. State, 2015 OK CR 1, I 5, 341 P.3d 87, 89.
5. ⁵ 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.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1704 (2011) - Grand Larceny
• Okla. Stat. tit. 22 § 3.15 (2019) - Mandate
• Okla. Stat. tit. 21 § 701.8 (2011) - First-Degree Murder

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:

• Simpson v. State, 1994 OK CR 40, I 3, 876 P.2d 690, 694-95
• Degraffenreid v. State, 1979 OK CR 88, I 14, 599 P.2d 1107, 1110
• Whitaker v. State, 2015 OK CR 1, I 5, 341 P.3d 87, 89