Abuse of Discretion Archives

RE-2021-1290

Post author:Staff
Post published:March 23, 2023
Post category:RE

In OCCA case No. RE-2021-1290, Vernon Shawn Miller, Jr. appealed his conviction for the revocation of his suspended sentences. In a published decision, the court decided to affirm the order revoking Miller's suspended sentences but vacated the part of the order that imposed post-imprisonment supervision. One member of the court dissented. Vernon Shawn Miller, Jr. had a serious legal history. He pleaded guilty to multiple charges, including kidnapping and domestic assault, and was given a sentence but had part of it suspended after he completed a special drug program. However, in August 2021, the State filed a motion to revoke his suspended sentence because he broke the rules of his probation, which included failing to complete a required assessment and getting arrested for a new crime. The trial court held a hearing and decided to revoke all of Miller's suspended sentence. Miller argued against this decision, claiming it violated the rules because he should not serve more time than the sentence he was given. The court explained during the hearing that it intended to revoke all of the suspended time left on his sentence. Miller raised several arguments during his appeal. He thought the sentence should not exceed what he had left to serve and believed that the facts used to revoke his sentence came from an earlier trial rather than the hearing itself. Miller also said he did not get good help from his lawyer during the process. The court reviewed Miller's arguments closely. It confirmed that the judge's decision to revoke the entire suspended sentence was valid and within their rights. They found no specific errors in what the trial court did, except for the imposition of post-imprisonment supervision, which should not have been added since it was not part of the original sentence. In the end, the court upheld the revocation of Miller's suspended sentence but removed the part about post-imprisonment supervision, meaning Miller had to serve the time his sentence required without additional conditions.

RE-2021-1042

Post author:Staff
Post published:January 19, 2023
Post category:RE

In OCCA case No. RE-2021-1042, Matthew Bryan Buttery appealed his conviction for a series of crimes including distribution of controlled substances and petit larceny. In a published decision, the court decided to affirm the revocation of his suspended sentence but ordered that his new sentence run concurrently with a prior sentence from another case. One judge dissented on the issue of how the sentences should relate to one another. Matthew Buttery had previously pled guilty to several charges. He was given a ten-year suspended sentence, which means he didn't have to serve time in prison at that moment but had to follow certain rules. If he broke any rules, the court could take back that suspended sentence and send him to prison. The state claimed that Buttery did not report as required, did not pay his probation fees, and committed a new crime, for which they wanted to revoke his suspended sentence. During the hearing, the court found Buttery had violated the terms of his probation and revoked his suspended sentence. Buttery argued that the court made a mistake by not giving him credit for time he had already served and by ordering that his new sentence run after a different sentence from another county. The court explained that it had the right to revoke Buttery's suspended sentence because he violated the rules. They stated they didn't have to give him credit for time served because the suspended sentence is not changed by the violation. They also found that the judge improperly decided his new sentence would run after the one from the other county rather than at the same time. The judges clarified that when a sentence is revoked, it should not change how sentences from different cases affect each other. In the end, Buttery's appeal led to some changes. The court ordered that his new sentence should run concurrently, meaning he would serve them at the same time, rather than one after the other. However, the court upheld the overall decision to revoke his suspended sentence for breaking the rules of his probation. One judge agreed with the decision to affirm the revocation but disagreed with other parts of the analysis regarding the relationship between the sentences. So, to summarize, the main points from the case are that Matthew Bryan Buttery's suspension was revoked because he violated probation rules, but the court made a mistake when deciding how his new sentence should relate to an older sentence. He is to serve them at the same time now, according to the latest court ruling.

S-2022-41

Post author:Staff
Post published:December 15, 2022
Post category:S

In OCCA case No. S-2022-41, the State of Oklahoma appealed the conviction of Joshua Kyle Rhynard for unlawful possession of a controlled drug with intent to distribute, possession of a firearm after a felony conviction, possession of a controlled dangerous substance (marijuana), and unlawful possession of drug paraphernalia. In an unpublished decision, the court decided that the appeal was improperly brought and dismissed it. One judge dissented, arguing that the State made a sufficient case for review based on the importance of the evidence that had been suppressed. The dissenting opinion believed that the trial court made an error in suppressing the evidence found during a search because the officers executing the warrant used reasonable belief about the address they were searching.

F-2021-211

Post author:Staff
Post published:June 30, 2022
Post category:F

In OCCA case No. F-2021-211, Michael Ray Dawkins appealed his conviction for assault and battery with a deadly weapon, felon in possession of a firearm, and maiming. In an unpublished decision, the court decided to affirm the conviction for assault and battery with a deadly weapon and felon in possession of a firearm but reversed the conviction for maiming and instructed to dismiss it. A dissenting opinion was not noted. The case involved a jury trial where Dawkins was found guilty on all counts after shooting a woman named Krystal Traylor. He received a sentence of 45 years for the assault and battery, 25 years for the firearm possession, and another 45 years for the maiming, with some sentences running concurrently and others consecutively. Dawkins raised several claims on appeal, including that his constitutional right to an attorney of his choice was violated, that he faced double punishment for the same act, and that there were errors in admitting certain evidence during his trial. Upon review, the court concluded that the trial court did not abuse its discretion when it denied Dawkins's request for a new attorney, as he did not provide valid reasons for wanting to change lawyers. It was also determined that Dawkins’s convictions for assault and battery and maiming stemmed from a single act, which should not result in multiple punishments. Therefore, the court reversed the maiming conviction. Further, the court found that the identification of Dawkins by the victim was correctly admitted as evidence, dismissing the hearsay claim. Dawkins's assertions about prior bad acts being admitted were also rejected, as they were deemed relevant and essential for establishing motive and intent. The court noted that a limiting instruction had been provided to jurors, mitigating concerns over the impact of these past acts. Finally, regarding Dawkins's claim for a speedy trial violation, the court found that the delays were mainly attributable to him or his defense strategies, concluding that he was not prejudiced by the delay. Overall, most of Dawkins's claims were denied, leading to the affirmation of his main convictions and the reversal of the maiming charge.

RE-2019-80

Post author:Staff
Post published:December 14, 2021
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JODY LYNN BAILEY,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2019-80** **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. A hearing on the application was held on January 22, 2019, 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 the hearing where the State seeks revocation of a suspended sentence, the court must determine whether the suspended portion of the sentence should be executed based on whether the terms of the suspension order have been violated. A violation need be proven only by a preponderance of the evidence. Furthermore, a trial court's decision to revoke a suspended sentence should not be overturned unless there is an abuse of discretion. An abuse of discretion occurs when there is an unreasonable or arbitrary action taken without proper consideration of the facts and law, or a clearly erroneous conclusion that goes against the logic and effect of the evidence presented. In this case, we find no abuse of discretion in Judge Elliott's decision to revoke Appellant's suspended sentences. The determination of witness credibility and the weight given to their testimony is within the exclusive jurisdiction of the trier of fact. Therefore, Judge Elliott's decision to revoke the suspended sentences has not been established as 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. --- **APPEARANCES ON APPEAL:** **THOMAS P. HURLEY** ASST. PUBLIC DEFENDER 320 ROBERT S. KERR, STE 611 OKLAHOMA CITY, OK 73102 COUNSEL FOR APPELLANT **HALLIE BOVOS** ASST. PUBLIC DEFENDER 320 ROBERT S. KERR, STE 400 OKLAHOMA CITY, OK 73102 COUNSEL FOR APPELLANT **DAN POND** ASST. DISTRICT ATTORNEY 320 ROBERT S. KERR, STE 505 OKLAHOMA CITY, OK 73102 COUNSEL FOR STATE **MIKE HUNTER** OKLA. ATTORNEY GENERAL **CAROLINE HUNT** ASST. ATTORNEY GENERAL 313 N.E. 21st STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE **OPINION BY: LUMPKIN, J.** **LEVIS, P.J.: Concur** **KUEHN, V.P.J.: Concur** **HUDSON, J.: Concur** **ROWLAND, J.: Concur** --- For further information, you may download the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2019-80_1734335833.pdf).

RE-2020-398

Post author:Staff
Post published:October 21, 2021
Post category:RE

In OCCA case No. RE-2020-398, Kenneth Joe Norton appealed his conviction for Failure to Register as a Sex Offender and Larceny of Merchandise from a Retailer. In a published decision, the court decided to affirm the revocation of his suspended sentences but ordered the trial court to modify the term executed on one charge to one year. One judge dissented. Norton was charged with two crimes, Failure to Register as a Sex Offender and Larceny of Merchandise, and he pleaded no contest in both cases. He was sentenced to ten years in prison, but part of that sentence was suspended as long as he completed a program. Later, the State claimed he broke the terms of his suspended sentence by getting into more trouble, which led to a court hearing. Norton argued that the sentence that was given to him was too long. He believed that the old law allowed a shorter sentence. The court looked at his claims and noted that, since the law changed after he was convicted, he should only serve one year on the larceny charge. This part of his appeal was accepted. Norton also tried to argue that some of the evidence during his revocation hearing should not have been allowed because it was obtained without proper procedures. He claimed that he had not been warned about his rights when he made a statement that led to his arrest. The court explained that during a revocation hearing, the same protections as a criminal trial do not apply. Therefore, the evidence was allowed. Moreover, he claimed his lawyer did not do a good job because they did not raise certain points about his case. However, since one of his claims was accepted, the court decided that it did not matter if the lawyer made mistakes because his issue was already resolved. In conclusion, the court allowed some changes to the sentence but maintained that his revocation was valid. The court focused on the rules for reviewing revocation cases and kept Norton accountable for his actions that led to the revocation of his suspended sentences.

RE-2020-452

Post author:Staff
Post published:September 30, 2021
Post category:RE

In OCCA case No. RE-2020-452, Katlin Maye Ford appealed her conviction for Assault and Battery with a Dangerous Weapon. In a published decision, the court decided to reverse the order revoking her suspended sentence. One judge dissented. Katlin pled guilty to Assault and Battery with a Dangerous Weapon and received a ten-year sentence that was suspended. This means she did not have to go to prison right away but had to follow certain rules. One rule was that she needed to pay restitution, which is money that goes to the victim to help with their losses. In October 2018, the State of Oklahoma asked the court to end her suspended sentence because she had not paid the restitution. In November 2018, Katlin decided to represent herself in court, meaning she did not want a lawyer. She admitted that she had not paid the restitution as ordered. The court then allowed more time for her to get back on track with her payments. However, in June 2020, the court decided to take away three years of her suspended sentence because she still had not paid the restitution. Katlin thought this was unfair and appealed the decision, making some important claims: 1. She said she was not given proper legal help when she needed it. 2. She believed the court should have helped her get a lawyer for her hearing. 3. She argued that any failure to pay the restitution was not intentional. In examining her first claim, the court noted that people have the right to have a lawyer when their suspended sentences are being revoked. For someone to give up that right, they must do it knowingly, which means they understand what they are doing. The court found that there was no clear record showing that Katlin had enough information about self-representation or that she made her decision with full understanding of the consequences. Since the court did not make sure she understood everything about waiving her right to a lawyer, the appeal was successful. The original decision to revoke her suspended sentence was reversed, meaning Katlin would get another chance to address her restitution payments and have proper legal representation. Therefore, the court instructed for the case to go back to the lower court for further actions that are consistent with its opinion. One judge disagreed with the majority's decision.

F-2020-291

Post author:Staff
Post published:June 10, 2021
Post category:F

In OCCA case No. F-2020-291, Christopher Alan Vaughn appealed his conviction for Trafficking in Illegal Drugs. In a published decision, the court decided to reverse his sentence and remanded the case for resentencing. No one dissented. Vaughn was found guilty by a jury after being accused of trafficking drugs. During the trial, there was a mistake with how the jury understood the punishment for his crime. The jury first marked that he had multiple prior convictions incorrectly, which was fixed when the judge voided it and asked the jury to fill out a proper verdict form. Eventually, the jury marked his prior felony convictions correctly but failed to suggest a sentence. The judge then decided to give him a life sentence without the possibility of parole. Vaughn argued that the judge gave the jury wrong instructions about what the punishment should be. He claimed that the law at the time of his crime said that punishment could range from 20 years to life or life without parole, not just life without parole. The State agreed that there was a mistake in how Vaughn was sentenced. The court reviewed the arguments and found that the jury should have been given proper instructions about the range of punishment. The law in effect when Vaughn committed his crime said that if someone had two or more previous felony convictions, the person could receive a sentence of at least 20 years to life or life without parole, but his prior convictions were not for trafficking, so the incorrect instructions could lead to an unfair sentence. Because of this issue, the court decided to reverse Vaughn’s sentence and sent the case back to the lower court for him to be resentenced properly under the correct guidelines.

RE-2019-683

Post author:Staff
Post published:January 21, 2021
Post category:RE

In OCCA case No. RE-2019-683, the appellant appealed his conviction for the revocation of his suspended sentence. In an unpublished decision, the court decided to affirm the revocation but modify it to be limited to six months. One member dissented. The case involved the appellant who had earlier been sentenced for multiple crimes, including possession of a controlled substance and driving under the influence. Initially, he was given a suspended sentence where he would serve time in jail only on weekends. However, he violated the terms of his probation several times by failing to report, pay fees, and complete required programs. After a while, he faced new charges for more serious crimes, which led to the state seeking to revoke his suspended sentence altogether. During the hearing for the revocation, the judge decided to revoke all five years of his suspended sentence. However, the court found later that this action was not appropriate. The court ruled that even though the appellant had committed technical violations, he could only be punished with a maximum of six months because the alleged new crimes occurred after his probation had expired. The court concluded that the trial judge had made a mistake when revoking the whole five years instead of just six months based on the technical violations proven. Thus, the revocation punishment was modified by the court to six months instead of five years.

C-2019-815

Post author:Staff
Post published:January 14, 2021
Post category:C

In OCCA case No. C-2019-815, the petitioner appealed his conviction for First Degree Burglary, Second Degree Burglary, and Knowingly Concealing Stolen Property. In an unpublished decision, the court decided to vacate the denial of his motion to withdraw his guilty plea and remand the case for a new hearing. One member of the court dissented. The case began when the petitioner, after entering guilty pleas for the charges, expressed a desire to withdraw those pleas. He believed he had not been properly represented by his attorney and filed a letter to withdraw his plea. A hearing was held where the petitioner appeared without his attorney. During this hearing, he claimed that he felt misled regarding the likely outcome of his plea. The petitioner argued that the hearing to withdraw his plea was unlawful because he was not given proper legal representation. He said that he didn’t effectively waive his right to counsel at that hearing and claimed there was a conflict of interest since his attorney had represented him in the original plea. The court found that there was no valid waiver of his right to counsel, meaning he didn’t fully understand the implications of representing himself. The trial court had not thoroughly questioned him about his need for counsel or his rights, leading to confusion about whether he was proceeding with an attorney or alone. The state agreed that the hearing had issues because the petitioner didn’t receive conflict-free representation. Therefore, the court ruled that the previous denial of his motion to withdraw his plea was a mistake and sent the case back for a new hearing where these issues could be properly addressed.

S-2020-79

Post author:Staff
Post published:August 20, 2020
Post category:S

In OCCA case No. S-2020-79, Stricker appealed his conviction for First Degree Murder and Desecration of a Human Corpse. In an unpublished decision, the court decided to affirm the ruling of the District Court that dismissed the alternative charge of First Degree Felony Murder during the commission of a kidnapping. None dissented. On April 17, 2019, Stricker was charged with serious crimes including First Degree Murder in Kingfisher County. Later, he faced an amended charge stating he could be guilty of First Degree Premediated Murder or First Degree Felony Murder related to kidnapping. During a hearing, the judge decided to dismiss the kidnapping charge based on insufficient evidence, which led the State to appeal the decision. The State argued that the judge’s decision was incorrect because they believed there was enough evidence to show that a crime occurred and that Stricker was involved. They said that at a preliminary hearing, it's essential to prove that probably a crime was committed and that the person involved might have done it. The judge ruled that although Stricker was in a position to manage his victim, there wasn't enough proof to suggest he intended to kidnap her. The second argument from the State was about the timing of Stricker's motion to quash the charges. They claimed the judge should not have considered this motion because it was filed after he pleaded not guilty. However, the court found that the judge did have the authority to hear the motion, even though the prosecution thought otherwise. Ultimately, the court found no error in the District Court's decision to dismiss the charge of First Degree Felony Murder related to kidnapping and decided to uphold that dismissal.

RE-2019-619

Post author:Staff
Post published:July 30, 2020
Post category:RE

In OCCA case No. RE-2019-619, the appellant appealed his conviction for endangering others while trying to avoid the police and possession of a stolen vehicle. In an unpublished decision, the court decided to affirm the revocation of his suspended sentence but ordered the district court to give him credit for four days he had already served in jail. One judge dissented from this decision.

C-2019-15

Post author:Staff
Post published:June 25, 2020
Post category:C

In OCCA case No. C-2019-15, Nicholas Allan Daniel appealed his conviction for First Degree Felony Murder (Distribution of a Controlled Dangerous Substance) and Robbery with a Firearm. In an unpublished decision, the court decided to grant his request for a writ of certiorari, modifying his conviction for First Degree Felony Murder while reversing his conviction for Robbery with a Firearm. One judge dissented from this opinion. Nicholas Daniel faced serious charges after being accused of killing a man while trying to sell drugs and also robbing him. He pleaded guilty to these charges but later wanted to withdraw his plea. He felt that his lawyer did not help him enough during the process, and he raised several reasons for this claim. He argued that the lawyer had a conflict of interest, that he did not fully understand the consequences of his plea, that the plea lacked a good factual basis, and that he did not get effective help from his lawyer. The court carefully examined each of Daniel's arguments. In the first argument, the court found no real conflict of interest because Daniel’s dissatisfaction stemmed from the state’s evidence and the sentence, not from his lawyer's performance. In the second argument, it was decided that Daniel had entered the plea with a clear understanding that he would face sentencing and that it was done voluntarily. For the third argument, about the factual basis for his felony murder conviction, the court found that there were issues with how the charges were presented. It was determined that the way Daniel described the incident in his plea was inadequate to meet the legal requirements for felony murder because he was treated primarily as a buyer, not a seller of drugs. Thus, the combined crimes could not both stand. In terms of Daniel's claims against his lawyer's effectiveness, the court acknowledged that his lawyer could have done better. However, it ruled against some of Daniel's more serious arguments on the effectiveness of his lawyer, finding that he did not provide sufficient proof that his lawyer’s actions negatively affected his defense. In the final decision, the court adjusted Daniel's felony murder conviction based on the issues around how the charges were processed and reversed the robbery conviction, as it should not stand alongside the adjusted murder charge. Ultimately, the court confirmed Daniel's modified conviction for felony murder but sent the case back regarding the robbery count. One judge disagreed with parts of this conclusion, stating that the trial court had not made a mistake in the first place and therefore should not have granted the appeal. The judge argued that since Daniel's plea was expressed clearly and voluntarily, it should have been upheld without modification. The judge emphasized the importance of adhering to proper legal processes and rules when making such determinations. Thus, the outcome celebrated the importance of ensuring that legal principles and procedures are correctly applied, even as it affirmed Daniel’s conviction under modified circumstances.

S-2019-242

Post author:Staff
Post published:June 18, 2020
Post category:S

In OCCA case No. S-2019-242, the State of Oklahoma appealed Wesley Warren Peritt Weaver, II's conviction for Sexual Abuse of a Child Under 12. In an unpublished decision, the court decided to affirm the trial court's ruling that denied the State's request to introduce evidence of the defendant's prior sexual offenses as propensity evidence. One judge dissented. This case started on January 5, 2017, when the defendant, Weaver, was charged with sexually abusing his daughter, A.W., from 2011 to 2016. During a preliminary hearing, A.W. claimed that her father abused her and shared this information with her mother. The case involved testimonies from both A.W.'s mother and a forensic interviewer who assessed A.W. The State later sought to present evidence of previous sexual offenses allegedly committed by Weaver against another child, A.A., to demonstrate a pattern of behavior. A.A. testified that Weaver had molested her several years earlier. However, during a hearing, the trial court decided not to allow this evidence, stating that its probative value was less than the potential for unfair prejudice against Weaver. The State of Oklahoma appealed this ruling. They argued that the trial court made an error in not permitting the sexual propensity evidence, which could provide context for Weaver's behavior in the current case. The appellate court looked closely at the details of the case and the rules surrounding the admissibility of such evidence. Ultimately, the appellate court ruled to affirm the trial court's decision, meaning that the prior offense evidence would not be allowed during the trial against Weaver. The court concluded that the trial court's decision was reasonable and did not abuse its discretion. They found solid reasoning in the trial court's assessment of the evidence's relevance versus its potential negative impact on the jury's perception. One judge disagreed with the majority opinion, believing that the trial court had not fully considered the nuances of the sexual propensity laws and had conflated different types of evidentiary standards. This dissenting opinion emphasized the importance of acknowledging the differences between types of evidence when it comes to sexual offenses. In short, the case involved serious allegations against Weaver regarding his daughter, and while the State attempted to build a strong case by including prior incidents, the court ultimately felt that allowing such evidence would not be appropriate during the trial.

C-2019-489

Post author:Staff
Post published:March 26, 2020
Post category:C

In OCCA case No. C-2019-489, Taheerah Ayesha Ahmad appealed her conviction for Assault and Battery by means likely to produce death, Child Neglect, and Arson in the First Degree. In a published decision, the court decided to deny her petition for a writ of certiorari and affirmed the District Court's judgment. However, the case was remanded to the District Court to correct errors in the judgment regarding the imposition of costs. One judge dissented.

RE-2019-155

Post author:Staff
Post published:February 13, 2020
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **MICHELLE MARIE MESPLAY,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **No. RE-2019-155** **FILED** IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA FEB 13 2020 **JOHN D. HADDEN** CLERK --- **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant Michelle Marie Mesplay appeals from the revocation of her suspended sentences in Ottawa County District Court Case No. CF-2015-134. On October 2, 2015, Appellant entered a plea of no contest to Child Neglect under 21 O.S.Supp.2014, § 843.5(C). The trial court accepted her plea, withheld a finding of guilt, and delayed proceedings for ten years. On December 23, 2016, the State filed an Application to Accelerate Deferred Judgment, to which Appellant stipulated. The court then accelerated her deferred sentence to a conviction, sentencing her to ten years imprisonment with all ten years suspended. On May 3, 2018, the State moved to revoke the suspended sentence, citing failures to pay supervision fees and court costs, continued methamphetamine use, repeated failures to report, and unknown whereabouts. Appellant stipulated to the motion, and the Honorable Robert Haney revoked seven and a half years of her remaining ten-year suspended sentence. Appellant contends this revocation was excessive and claims an abuse of discretion regarding the length of the revocation. The court's decision to revoke is grounded in the understanding that a suspended sentence is a matter of grace (Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147). The State must demonstrate only one violation of probation to revoke a suspended sentence in full (Tilden v. State, 2013 OK CR 10, I 10, 306 P.3d 554, 557). In this case, Appellant’s stipulation to violating the terms of her suspended sentence validates the trial court’s revocation decision. The trial court’s discretion in revocations remains crucial, and disturbances to this discretion are reserved for clear abuse (Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565). Evidence presented to justify the revocation aligned with statutory requirements (22 O.S.Supp.2018, § 991b(A)), and Appellant has not substantiated any claim of abuse of discretion. **DECISION** The revocation of Appellant's suspended sentences in Ottawa County District Court Case No. CF-2015-134 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), MANDATE is ORDERED issued upon filing of this decision. **APPEARANCES:** **ANDREW MELOY** – Counsel for Defendant **MARK HOOVER** – Counsel for Appellant **ROGER HUGHES**, **MIKE HUNTER** – Counsel for Appellee **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR --- For the complete opinion in PDF format, [click here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2019-155_1734334834-1.pdf).

F-2018-1004

Post author:Staff
Post published:February 13, 2020
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **SHANNON SHEREE JOHNSON,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-1004** **FILED FEB 13, 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** On April 18, 2017, Appellant Shannon Sheree Johnson entered a plea of guilty in Oklahoma County District Case No. CF-2015-8771. The trial court delayed her sentencing in this case and suspended the probation requirements for her prior cases—CF-2013-2846, CF-2014-1596, and CM-2015-1832—pending successful completion of the Oklahoma County Mental Health Court program. According to the plea agreement, if Appellant did not successfully complete the Mental Health Court, the trial court would revoke her suspended sentences in Case Nos. CF-2013-2846 and CF-2014-1596, convert her deferred sentences to convictions with a one-year prison sentence in Case No. CM-2015-1832, and impose concurrent ten-year sentences for Counts 1 and 2 in Case No. CF-2015-8771. The State filed a motion to terminate Appellant’s participation in the Mental Health Court, alleging her non-compliance with the program, including failure to follow court rules, lack of progress, unauthorized departure from inpatient treatment, and not graduating from treatment. After a hearing, Special Judge Geary Walke terminated her participation in Mental Health Court and sentenced her in accordance with her plea agreement. Appellant contends that the termination was an abuse of discretion, arguing that the judge should have considered intermediate sanctions before imposing the sentences. She cites her period of sobriety prior to the hearing as a reason for less severe punishment options. However, evidence presented at the hearing indicated that Appellant had consistently missed meetings, court appearances, and drug tests, and had not made adequate efforts to complete her treatment. Appellant's counsel argues that Judge Walke should have recognized relapses as part of the rehabilitation process under 22 O.S.Supp.2014, § 472(F). This section allows for discretion in determining whether conduct justifies revocation of a participant from the program. The record does not support Appellant's position that Judge Walke acted unreasonably or arbitrarily in the face of substantial evidence demonstrating her failure to comply with the program. As Appellant has not shown that the trial court's decision was contrary to law or the facts of the case, we conclude that there was no abuse of discretion. **DECISION** The termination of Appellant's participation in the Mental Health Court program is AFFIRMED. The mandate is ordered to be issued upon the filing of this decision. --- **APPEARANCES** **ON APPEAL** Melissa French, Counsel for Defendant Andrea Digilio Miller, Counsel for Appellant Heather Coyle, Assistant District Attorney Mike Hunter, Oklahoma Attorney General Tessa Henry, Assistant Attorney General **OPINION BY:** KUEHN, V.P.J. LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR

RE-2018-1287

Post author:Staff
Post published:February 6, 2020
Post category:RE

Here is a summary of the Court of Criminal Appeals decision regarding Darryn Lamar Chandler, Jr.: **Case Summary:** - Appellant: Darryn Lamar Chandler, Jr. - Appellee: The State of Oklahoma - Case Numbers: CF-2015-2683 and CF-2016-534 - Date of Decision: February 6, 2020 - Judge: Honorable Glenn Jones **Background:** - Chandler was previously convicted in two separate cases involving serious crimes: 1. Case No. CF-2015-2683: Guilt for possession of a controlled substance with intent to distribute, possession of an offensive weapon during a felony, and possession of an imitation controlled substance. 2. Case No. CF-2016-534: Guilt for robbery with a firearm and conspiracy to commit robbery with a firearm. - Sentences: In both cases, he received suspended sentences with the first year of incarceration. **Allegations of Violation:** - On September 21, 2018, the State filed to revoke Chandler’s suspended sentences due to new charges related to his involvement in a violent robbery while on probation. **Revocation Hearing:** - The hearing began on November 27, 2018, where evidence was presented by the State indicating Chandler's direct involvement in the robbery of a loan business, during which he threatened employees with a firearm. - Chandler did not present any evidence in his defense. - The judge found Chandler in violation of probation, leading to the revocation of his suspended sentences. **Sentencing Hearing:** - A presentence investigation report was requested and filed before the sentencing hearing, which took place on December 20, 2018. - The State argued for full revocation based on the violent nature of the robbery, while Chandler's counsel argued for a more lenient approach citing Chandler's background and potential for rehabilitation. **Court's Decision:** - The Court upheld the trial court's decision to revoke the suspended sentences in full, emphasizing that Chandler committed a violent crime in direct violation of the conditions of his probation, which warranted no abuse of judicial discretion. **Conclusion:** - The Court affirmed the revocation of Chandler's suspended sentences, noting the trial court’s discretion in making its determination based on the evidence of Chandler’s actions while on probation. **Final Note**: For more detailed information, there is a downloadable PDF available [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1287_1734352969.pdf).

J-2019-620

Post author:Staff
Post published:February 6, 2020
Post category:J

This document is a court opinion from the Oklahoma Court of Criminal Appeals regarding the case of C.G., who was charged with First Degree Murder, First Degree Burglary, and Conspiracy to Commit Second Degree Burglary. The case revolves around the denial of C.G.'s motion to be certified as a juvenile or youthful offender, which would have allowed for a different legal treatment due to his age at the time of the offense (14 years old). Here is a summary of the key points: 1. **Background of the Case**: - C.G. was charged as an adult for serious crimes, and he filed a motion for certification as a juvenile or youthful offender. - The preliminary hearing and certification hearing took place, with conclusions drawn about C.G.'s amenability to treatment and public safety considerations. 2. **Court's Decision**: - The trial court denied C.G.'s request for certification, stating that the public could not be adequately protected if C.G. was treated as a youthful offender. - C.G. appealed this decision, raising several claims including abuse of discretion, evidentiary errors related to interrogation, and ineffective assistance of counsel. 3. **Ruling by the Court of Criminal Appeals**: - The appellate court affirmed the trial court's decision, agreeing that there was no abuse of discretion. - It also found that certain evidentiary claims were not properly presented for appeal. 4. **Dissenting Opinions**: - Two judges dissented, arguing that the evidence did not support the trial court's conclusion about public safety. - They contended that C.G. was amenable to treatment and that the trial court could still have ensured public protection through existing safeguards while classifying him as a youthful offender. - The dissenters also criticized the majority's handling of evidentiary issues, arguing that the ability to challenge the decision not to certify C.G. should include a review of the evidence that influenced that decision. 5. **Final Notes**: - The decision underscores the complexities involving juveniles charged with serious crimes and the judicial considerations balancing public safety and the potential for rehabilitation. - It emphasizes the potential limitations in appealing certain evidentiary matters in the context of certification hearings for juvenile offenders. Overall, the court affirmed the trial court's decision, while dissenting opinions highlighted concerns regarding the treatment of juvenile defendants.

F-2018-1072

Post author:Staff
Post published:February 6, 2020
Post category:F

The document is a summary opinion issued by the Court of Criminal Appeals of Oklahoma in the case of D'Angelo Keiyawn Threatt. The appellant, Threatt, was convicted of being a felon in possession of a firearm and sentenced to eight years in prison. The opinion addresses three propositions of error raised by Threatt on appeal: 1. **Admission of Prior Felony Conviction**: Threatt contended that the trial court abused its discretion by allowing the State to name his specific prior felony conviction (forcible oral sodomy) despite his offer to stipulate that he had a felony conviction. He cited the case Old Chief v. United States to support his argument. The Court ruled that Threatt did not preserve this issue adequately for appeal due to the timing and nature of his objections and ultimately found that there was no plain error affecting his substantial rights. 2. **Prosecutorial Misconduct**: Threatt claimed that the prosecutor's closing argument included highly prejudicial statements that unfairly influenced the jury. The Court examined the statements and determined they were reasonable comments based on the evidence presented at trial. Thus, they did not constitute prosecutorial misconduct that would warrant relief. 3. **Cumulative Effect of Errors**: Threatt argued that the combined effect of the alleged errors warranted a new trial. The Court disagreed, noting that the individual errors did not affect the overall outcome of the trial and therefore did not justify relief. In conclusion, the Court affirmed the judgment and sentence imposed by the District Court of Oklahoma County, finding no reversible error in the trial proceedings. The opinion underscores the importance of proper procedural objections and the evaluation of trial conduct in the context of the entire trial. For more detailed information, a PDF of the full opinion can be downloaded from the provided link.

RE-2019-57

Post author:Staff
Post published:January 30, 2020
Post category:RE

In the Court of Criminal Appeals of the State of Oklahoma, Toni Lynn Cook appeals the revocation of her suspended sentence from the McIntosh County District Court. Cook had originally pled guilty to the charge of Obstructing an Officer. Following her guilty plea, the State filed a Motion to Revoke her suspended sentence, claiming she committed new crimes while on probation, which included multiple counts of Assault and Battery on a Police Officer and Indecent Exposure. The revocation hearing saw evidence presented, including testimonies from jailers detailing that Cook had exposed herself and physically resisted their attempts to move her to a solitary cell, leading to injuries to the officers involved. The trial court found that the State met its burden to show by a preponderance of the evidence that Cook had violated her probation. Cook raised several propositions on appeal: 1. **Insufficient Evidence**: Cook argued that the evidence presented was insufficient to prove the alleged probation violations. However, the court found that the evidence sufficient and credible, affirming that the trial judge did not abuse his discretion. 2. **Waiver of Hearing Within Twenty Days**: Cook contended that her waiver of the right to a hearing within twenty days was not valid. The court ruled that Cook had waived this right knowingly, as she had not requested an early hearing and did not provide evidence that she was unaware of this right. 3. **Excessiveness of Revocation**: Cook argued the revocation was excessive. The court noted that revocation is a matter of grace, and since Cook committed multiple new offenses while on probation, the trial judge's decision to revoke her sentence in full was not an abuse of discretion. In conclusion, the Court of Criminal Appeals affirmed the trial court’s decision to revoke Cook's suspended sentence, finding no merit in her claims. The mandate was ordered to be issued upon filing the decision.

F-2018-1161

Post author:Staff
Post published:January 30, 2020
Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **KENNETH ALLEN DAY,** Appellant, **V.** **STATE OF OKLAHOMA,** Appellee. Case No. F-2018-1161 **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant Kenneth Allen Day was tried and convicted by a jury in the District Court of Oklahoma County (Case No. CF-2017-2586) of: 1. **Count 1:** Sexual Battery (21 O.S.Supp.2015, § 1123(B)) 2. **Counts 2 and 3:** Indecent Exposure (21 O.S.2011, § 1021) The jury recommended a sentence of 30 days imprisonment on Count 1, and 1 year imprisonment each on Counts 2 and 3. The Honorable Timothy R. Henderson, District Judge, presided over the trial and executed the sentences as per the jury's recommendations, ordering them to run consecutively and consecutively to Oklahoma County Case No. CF-16-6470. Day was granted credit for 177 days served and was subject to various costs and fees. Day appeals, raising the following proposition of error: **I. THE TRIAL COURT INCORRECTLY INTERPRETED OKLA. STAT. TIT. 57, § 138(G) BY REFUSING TO GRANT MR. DAY CREDIT FOR ALL TIME SERVED WHILE AWAITING TRIAL AND SENTENCING, CLAIMING THAT THE STATUTE WAS DISCRETIONARY AND NOT MANDATORY.** Upon a thorough review of the entire record including transcripts, exhibits, and the parties' briefs, we find no legal error necessitating relief. Therefore, Day's judgments and sentences are AFFIRMED. **Proposition I:** Day's claim pertains to the nature of credit for time served—whether it is mandatory or discretionary. Citing *Loyd v. State*, 1981 OK CR 5, 624 P.2d 74, Day contends that 57 O.S.Supp.2015, § 138(G) mandates credit for all time served prior to judgment and sentence. However, as recently discussed and clarified in *Luna-Gonzales v. State*, 2019 OK CR 11, this argument has been rejected. This Court noted that *Loyd* is inconsistent with the majority of case law on this subject and that the Oklahoma Legislature has amended § 138 multiple times since 1980, which indicates a legislative intent to modify the ruling in *Loyd*. The current statute indicates that defendants automatically receive credit for jail time served only post-judgment and sentencing. Significantly, *Loyd* is overruled to the extent it conflicts with this interpretation. We also recognize that the district court exercised its discretion appropriately in awarding Day partial credit for time served, which aligns with previous ruling in *Luna-Gonzales* that grants sentencing judges discretion regarding credit for pre-sentencing incarceration. Thus, Day's argument is rejected, and his assertion is firmly denied. **DECISION** The judgments and sentences of the District Court are AFFIRMED. According to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals, the MANDATE shall be issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE** **APPEARANCES AT TRIAL** RICHARD HULL (Counsel for Appellant) HALLIE ELIZABETH BOVOS KRISTEN MESSINA, ASST. PUBLIC DEFENDER **APPEARANCES ON APPEAL** LORI MCCONNELL MIKE HUNTER RACHEL SMITH JULIE PITTMAN, ASST. ATTORNEY GENERAL, (Counsel for Appellee) **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR For further details and access to full judgment, [Click Here to Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1161_1734786325.pdf)

RE-2018-932

Post author:Staff
Post published:January 23, 2020
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **ANTHONY CURTIS CREEK,** Appellant, v. **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2018-932** **SUMMARY OPINION** **Filed January 23, 2020** ROWLAND, JUDGE: Anthony Curtis Creek, Appellant, entered a guilty plea on March 16, 2015, in Garfield County District Court Case No. CF-2013-393, to Count 1 - Possession of a Controlled Dangerous Substance, a misdemeanor, and Count 2 - Unlawful Possession of Drug Paraphernalia, a misdemeanor. He received a sentence of one year in the County Jail on Count 1, with 90 days to be served and the remainder suspended; Count 2 was sentenced to one year suspended, with penalties running consecutively. He was also fined $500.00. On January 20, 2017, the State applied for the revocation of Appellant's suspended sentence on Count 2, alleging violations: (1) possession or consumption of alcohol; (2) DUI-A, a misdemeanor; and (3) Defective Equipment, a misdemeanor, in Oklahoma County Case No. CM-2016-2776. During the revocation hearing on June 2, 2017, Appellant admitted to the first allegation. The trial judge, Honorable Dennis Hladik, determined that the State proved the other allegations and revoked six months of Appellant's suspended sentence. Appellant appeals this decision, raising several propositions of error: 1. **Abuse of Discretion:** The trial court allegedly utilized a strict liability standard, resulting in a cruel and excessive sentence. 2. **Prosecutorial Misconduct:** Claiming that Appellant was deprived of a fundamentally fair proceeding due to misconduct. 3. **Plain Error:** The trial court's finding on the State's evidence and the standard of proof was erroneous. 4. **Equal Protection Violation:** Appellant asserts he was denied equal protection under the law. 5. **Cumulative Error:** The accumulation of errors deprived Appellant of due process. Upon review, the Court affirms the District Court's order revoking six months of Appellant's suspended sentence. 1. The decision to revoke a suspended sentence is within the substantial discretion of the trial court and will not be disturbed absent a clear abuse of discretion. The evidence supported Judge Hladik’s decision to revoke only part of the sentence after considering a stipulation and witness testimonies. 2. The Court agrees with Appellant's counsel that prosecutorial misconduct is more appropriate for post-conviction matters. The record does not support claims of misleading behavior by the prosecutors. 3. The standard of proof for such violations is a preponderance of the evidence, adequately satisfied in Appellant's case. Revocation is valid with any proven violation. 4. The trial court's exclusion of evidence does not equate to an equal protection violation. The ruling was consistent and reasonable. 5. As there were no individual errors identified, the argument for cumulative error also fails. **DECISION** The revocation of Appellant's suspended sentence in Garfield County District Court Case No. CF-2013-393 is **AFFIRMED**. The mandate is ordered to be issued upon the filing of this decision. **APPEARANCES ON APPEAL:** **David J. Batton** Counsel for Defendant **Tallena Hart** Carter Jennings Assistant District Attorney Counsel for the State **OPINION BY: ROWLAND, J:** **LEWIS, P.J.: Concur** **KUEHN, V.P.J.: Concur** **LUMPKIN, J: Concur** **HUDSON, J.: Concur** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-932_1734358983.pdf)

C-2018-1018

Post author:Staff
Post published:January 16, 2020
Post category:C

**Summary Opinion Denying Certiorari** **Case:** Spencer Joe Cuccaro v. State **Judging Authority:** Judge Hudson **Background:** Spencer Joe Cuccaro appealed from a ruling by the District Court of Kay County, where Judge David Bandy denied his application to withdraw pleas entered in three criminal cases. Cuccaro had participated in the Kay County Drug Court program and entered no contest pleas in various counts related to drug possession and other offenses, with a plea agreement tied to his performance in Drug Court. Cuccaro was allegedly coerced into his plea by a law enforcement officer and claimed to be unaware of the severe penalties he would face if he was unsuccessful in completing the Drug Court program. After being terminated from Drug Court for failing to meet its requirements and committing new crimes, Cuccaro received significant prison sentences. **Propositions of Error:** 1. Cuccaro argued that his no contest pleas were entered due to coercion and therefore were not knowing or voluntary. 2. He claimed he did not fully understand the severe consequences of failing the Drug Court program. **Court Findings:** - The Court reviews denials of motions to withdraw guilty pleas for abuse of discretion, primarily assessing if pleas were made knowingly and voluntarily. - Cuccaro's challenge regarding coercion lacked evidence, and testimony at the hearing supported the conclusion that his plea was made with an understanding of the consequences. - Regarding the claim about the punishment understanding, the court noted that fully detailed documentation outlined the potential life sentence in the event of failure in Drug Court, which Cuccaro was aware of before entering his plea. **Conclusion:** The court denied Cuccaro’s petition for a writ of certiorari, affirmed the lower court's judgment, and ruled that there was no abuse of discretion in denying the plea withdrawal. The case exemplifies the requirement for defendants to understand the implications of their plea agreements and the importance of voluntary and informed consent in legal proceedings.

C-2019-329

Post author:Staff
Post published:January 16, 2020
Post category:C

In OCCA case No. C 2019 329, Feeling appealed her conviction for Aggravated Assault and Battery and Assaulting a Police Officer. In a published decision, the court decided to deny her appeal and affirm the lower court's decision. One judge dissented. [occa_caption]