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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA BRIAN SCOTT WILLESS, ) ) NOT FOR PUBLICATION Appellant, ) V. ) No. F-2018-973 ) THE STATE OF OKLAHOMA, ) ) Appellee. FILED ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SUMMARY OPINION OCT – 3 2019 LEWIS, PRESIDING JUDGE: JOHN D. HADDEN CLERK On May 23, 2018, Appellant Willess, represented by counsel, entered a plea of no contest to Stalking as charged in Cleveland County Case No. CF-2015-700. The District Court of Cleveland County, the Honorable Thad Balkman, District Judge, found Willess guilty and sentencing was deferred for five (5) years, subject to terms and conditions of probation. On July 5, 2018, the State filed an Application to Accelerate Deferred Judgment alleging that Willess violated the terms and conditions of probation by failing to take mental health medication and committing the crime of Stalking/harassment as alleged in NPD¹ incident # #18-49494. On 1 Norman Police Department. September 5, 2018, at the conclusion of a hearing on the State’s acceleration application, Judge Balkman accelerated Willess’ deferred judgment and sentenced him to five (5) years imprisonment. From this Judgment and Sentence Willess appeals and raises five propositions of error: I. Appellant did not receive effective assistance of counsel at the acceleration hearing; II. The order accelerating Appellant’s deferred sentence is void as the district court never obtained jurisdiction over Appellant’s case; Appellant was not bound over to the district court, and he neither had nor waived a preliminary hearing; III. As the State failed to prove an alleged violation by preponderance of the evidence, the court abused its discretion by accelerating Appellant’s sentence; IV. Appellant was not afforded due process at the hearing on the State’s Motion to Accelerate; and V. Appellant’s acceleration was premature, and the court abused its discretion by failing to impose intermediate sanctions or consider alternatives to incarceration. The acceleration of Willess’ deferred sentence is AFFIRMED. At Proposition I, Willess alleges counsel was ineffective for failing to provide the District Court with relevant authority requiring that Willess be credited with time served prior to the entry of his plea to the 2 stalking charge in Case No. CF-2015-700.2 Willess cites Holloway U. State, 2008 OK CR 14, 9 11, 182 P.3d 845, 848, in support of his claim that an indigent defendant who is unable to afford bond and who is sentenced to the maximum prison term must receive credit for all time served prior to trial. Willess claims at Proposition II that the district court did not have subject matter jurisdiction over the original proceeding (Case No. CF-2015-700) because a preliminary hearing was never conducted. The scope of review in an acceleration appeal is limited to the validity of the acceleration order. See Rule 1.2(D)(5)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). Willess’ claims presented at Propositions I and II are not properly presented in an acceleration appeal. These issues are only properly reviewed if the defendant appeals his judgment and sentence, which requires the filing of a petition for writ of certiorari and compliance with the procedures established by this Court’s Rules for perfecting a 2 Willess argues he was in custody for 885 days prior to the entry of his plea in Case No. CF-2015-700. 3 certiorari appeal. Whitaker U. State, 2015 OK CR 1, I 6, 341 P.3d 87, 89. Relief with respect to these claims is denied. Willess argues at Proposition III that the State presented insufficient evidence to warrant acceleration of his deferred sentence. Specifically, Willess argues that the evidence failed to establish that he did not abide with the probationary terms directing him to continue mental health treatment and medication. He also argues that the evidence admitted in support of the new charge that he stalked victim E.C. was hearsay and therefore inadmissible, rendering evidence of that violation insufficient. The standard of review in acceleration proceedings is abuse of discretion. Whitaker, 2015 OK CR 1, I 5, 341 P.3d at 89 (citing Hagar U. State, 1999 OK CR 35, I 10, 990 P.2d 894, 898). Violations of conditions of a deferred sentence need only be shown by a ‘preponderance’ of the evidence. Hagar, 1999 OK CR 35, “I 10, 990 P.2d at 898. Moreover, the credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts. Davis v. State, 2011 OK CR 29, I 83, 268 P.3d 86, 112-13. While there was conflicting evidence presented as to 4 Willess’ compliance with the court’s directive that he continue mental health treatment and take all medications prescribed for his condition, sufficient evidence was presented at the acceleration hearing to find, by a preponderance of the evidence, that Willess violated the terms and conditions of his probation. We also find no merit in Willess’ claim that the evidence presented by stalking victim E.C. was inadmissible hearsay. We note first that only a portion of her testimony falls into the hearsay category; the majority of her testimony did not. As to that testimony which could be considered hearsay, this Court has determined that a probationer’s due process right of confrontation when hearsay statements are proffered in a probationary hearing are generally satisfied when the proffered hearsay bears substantial guarantees of trustworthiness or otherwise has sufficient indicia of reliability. Hampton U. State, 2009 OK CR 4, I 18, 203 P.3d 179, 185. We find, based on the record presented in this matter, that the witness statements presented at Willess’ acceleration hearing meet that criteria. We find no error here. 5 Willess argues in his fourth proposition that he was denied due process. He argues that the State’s acceleration application did not provide proper notice and that the district court considered inadmissible hearsay evidence in addressing the State’s acceleration application. Willess did not raise this objection at the acceleration hearing, limiting our review to plain error only. Simpson U. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693. The Application alleged two violations of the rules and conditions of probation: “failure to comply with special conditions as directed – mental health medication” and “Violated the law, as follows: Committed the crimes of, Stalking/harassment as alleged in NPD incident number # #18-49494.” Willess does not deny that the State’s application with regard to the mental health claims was sufficient and provided him with proper notice. As to that claim, his due process challenge fails. As for the stalking allegation, we find the reference to the Norman Police Department incident number (in which the stalking victim was identified) provided sufficient notice to advise Willess of the allegations against him. The hearsay argument was 6 rejected at Proposition III, and that same analysis applies to this claim. We find no due process violation occurred. In his final proposition, Willess argues that the acceleration of his deferred sentence was improper because the trial court should have elected to enact a lesser sanction. This Court has repeatedly held that violation of even one condition of probation is sufficient to justify acceleration of a deferred sentence. Tilden U. State, 2013 OK CR 10, 9 10, 306 P.3d 554, 557; McQueen U. State, 1987 OK CR 162, I 2, 740 P.2d. 744, 745. On the record filed in this appeal, we find no abuse of discretion. DECISION The acceleration of Appellant’s deferred sentence in Cleveland County Case No. CF-2015-700 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 delivery and filing of this decision. 7 AN APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, THE HONORABLE THAD BALKMAN, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL DOUGLAS J. SMITH CHAD JOHNSON 104 E. EUFAULA STREET P.O. BOX 926 NORMAN, OK 73069 NORMAN, OK 73707 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT JACOBI WHATLEY MIKE HUNTER PATRICK CROWE ATTORNEY GENERAL ASST. DISTRICT ATTORNEYS KATHERINE R. MORELLI CLEVELAND COUNTY ASST. ATTORNEY GENERAL 201 S. JONES, SUITE 300 313 NE 21 ST STREET NORMAN, OK 73069 OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE COUNSEL FOR APPELLEE OPINION BY: LEWIS, P.J.: KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur RA/F 8

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