Abuse of Discretion

F-2018-1082

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**Court of Criminal Appeals of Oklahoma** **Antonio Deondre Smith, Appellant, v. The State of Oklahoma, Appellee.** **Case No. F-2018-1082** **Summary Opinion** **Judges:** Kuehn, Vice Presiding Judge; Lewis, P.J.; Lumpkin, J.; Hudson, J.; Rowland, J. **Date Filed:** January 16, 2020 **Opinion Information:** - Appellant was convicted of Accessory to Murder, After Conviction of Two or More Felonies, related to the killing of his former step-father. - Sentenced to life imprisonment by Judge Kelly Greenough. **Propositions of Error:** 1. The trial court erred in admitting evidence of assault rifles and ammunition, impacting Appellant's right to a fair trial. 2. The sentence of life for Accessory to Murder is excessive. **Decision:** - The Court affirms the District Court’s judgment and sentence. **Details:** - Appellant was charged with First Degree Murder but was convicted of Accessory to Murder. - Evidence indicated that he was present at the murder and helped dispose of the weapon. He testified that another person was the actual killer. - The Court reviewed the admission of firearms evidence for abuse of discretion and found the introduction of the assault rifles irrelevant. - While acknowledged as an abuse, it was deemed harmless error given the trial court's jury instructions and Appellant's admissions during testimony. **On Sentencing:** - The circumstantial evidence and Appellant's criminal history made the life sentence appropriate, and it was not considered shocking. **Final Judgment:** - The District Court’s decision is upheld. - The mandate is to be issued upon filing this decision. **Dissenting Opinion:** - Judge Hudson concurs with the results but disagrees with the major opinion regarding the admissibility of firearms evidence, asserting it was relevant and that the trial court did not abuse its discretion. **Download PDF:** [Click Here To Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1082_1734857545.pdf)

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F-2017-963

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In OCCA case No. F-2017-963, Randall Duane Throneberry appealed his conviction for Lewd Acts with a Child Under 16. In an unpublished decision, the court decided to affirm the conviction and the sentence of life imprisonment without the possibility of parole. One judge dissented. Randall Duane Throneberry was tried and found guilty in an Oklahoma court for lewd acts with an child under the age of 16. The jury recommended that he be sentenced to life in prison without any chance for parole because he had a prior conviction for a similar crime. The case began when a young girl named R.F. reported that Throneberry had molested her while she was sleeping on a couch. The events happened in August 2015 when R.F. and her mother were staying at a family friend's house, where Throneberry was also visiting. One night, while R.F. was sleeping, Throneberry was found standing too close to her and had his hand under her blanket. The next morning, R.F. woke up to find Throneberry touching her inappropriately. During the trial, Thorneberry argued that some testimonies regarding R.F.'s behavior after the incident should not have been allowed, claiming that it unfairly impacted the jury. However, the court ruled that this evidence was relevant to show the credibility of R.F.'s testimony. Throneberry also challenged the admission of testimony from another victim, D.W., who had been molested by him when she was seven years old. The court allowed this testimony as it demonstrated Throneberry's pattern of behavior. Despite Throneberry's claims, the court found that the testimony was relevant and important for the case. Throneberry's argument that his life sentence without parole was unconstitutional was also denied. The court stated that the sentence was not excessively harsh compared to the serious nature of the crime and Throneberry's history of similar offenses. The judge noted that sentencing is ultimately a matter for the legislature, and in these kinds of cases, severe punishments are justified. In summary, the court upheld Throneberry's conviction and life sentence, finding no errors in the trial or the evidence presented. The judgment was affirmed, with one judge expressing a different opinion.

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S-2019-479

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This document is a summary opinion from the Oklahoma Court of Criminal Appeals regarding the case involving Chris Forte and Skyla Forte, who were charged with Child Abuse by Injury and Child Neglect. The order of the District Court, which quashed the child abuse charge due to insufficient evidence, has been reversed by the appellate court. Key points from the document include: 1. The appellate court held that the District Court abused its discretion in determining that the magistrate's bind-over order for Count 1 (Child Abuse by Injury) was not based on competent evidence. 2. The preliminary hearing established that the alleged victim, a six-year-old girl named K.K., suffered extensive bruising and malnourishment which were reported as a result of the conduct of the Appellees. 3. Evidence included testimony from a child abuse pediatrician whose findings indicated that the injuries were consistent with abuse rather than legitimate disciplinary actions. 4. The court stated that the determination of whether the force used was reasonable or excessive is typically a matter for a jury to decide. 5. Ultimately, the matter has been remanded to the District Court for further proceedings consistent with the appellate court's opinion. The case illustrates the legal standards for assessing probable cause during preliminary hearings and clarifies the threshold for determining whether the use of physical discipline may cross into abusive conduct under Oklahoma law.

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J-2019-578

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** S.M.W.B., Appellant, v. No. J-2019-578 THE STATE OF OKLAHOMA, Appellee. **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JAN - 2 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant was charged as a youthful offender in Caddo County District Court Case No. YO-2019-1 on February 13, 2019, with five counts of Lewd or Indecent Acts to Child Under 12. On March 28, 2019, the State filed a Motion to Impose an Adult Sentence pursuant to 10A O.S.Supp.2018, § 2-5-208. On April 3, 2019, Appellant filed a Motion for Certification to the Juvenile Justice System pursuant to 10A O.S.Supp.2018, § 2-5-206. Following a hearing on these motions, Honorable David Stephens, Special Judge, denied Appellant's motion and granted the State's motion. From this order, Appellant appeals, raising the following issues: 1. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING CERTIFICATION OF S.M.W.B. AS A JUVENILE; and 2. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING APPELLEE'S MOTION TO CERTIFY AS AN ADULT. Pursuant to Rule 11.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), this appeal was automatically assigned to the accelerated docket of this Court. Oral argument was held on November 21, 2019. After a review of the record and the arguments presented, we find no merit to the propositions of error raised by Appellant. The key issue before this Court is whether the trial court abused its discretion in denying Appellant's motion for certification as a juvenile and granting the State's motion to impose adult sentencing. An abuse of discretion is defined as a clearly erroneous conclusion and judgment that contradicts the logic and effect of the facts. The trial court's decision must be supported by the evidence presented, and our review is limited to the record. Judge Stephens appropriately considered the criteria mandated by Sections 2-5-206 and 2-5-208 of Title 10A, leading us to conclude that the record supports his decision. **DECISION** The order of the District Court of Caddo County denying Appellant's motion for certification as a juvenile and granting the State’s motion for imposition of adult sentencing is **AFFIRMED**. The State's motion to file a properly verified response brief is **GRANTED**, and the Amended Response to Application for Accelerated Docket is ordered to be **FILED** by the Clerk of this Court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is **ORDERED** issued upon the filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY, THE HONORABLE DAVID STEPHENS, SPECIAL JUDGE** **APPEARANCES AT TRIAL** **MARK OSBY** P.O. BOX 850126 YUKON, OK 73085 COUNSEL FOR APPELLANT **APPEARANCES ON APPEAL** **ANDREW BENEDICT** CADDO CO. ASST. DIST. ATTY. 110 S.W. 2ND ST. ANADARKO, OK 73005 COUNSEL FOR THE STATE **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR IN RESULTS **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/J-2019-578_1734445561.pdf)

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RE-2018-1217

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DEXTER JEROME BIGLOW,** Appellant, **V.** **THE STATE OF OKLAHOMA,** Appellee. **Case No. RE-2018-1217** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA DEC 19 2019** **JOHN D. HADDEN CLERK** **SUMMARY OPINION** KUEHN, VICE-PRESIDING JUDGE: Appellant Dexter Jerome Biglow appeals from the revocation of his suspended sentences in Oklahoma County District Court Case No. CF-2017-3262. On February 14, 2018, Appellant entered negotiated guilty pleas to Aggravated Attempting to Elude and Possession of a Controlled Dangerous Substance (marijuana). He was sentenced to five years of imprisonment on the eluding count and to one year of incarceration on the drug charge, to be served concurrently, with both sentences suspended. On November 6, 2018, the State filed an application to revoke the suspended sentences, alleging that Appellant had committed the new crimes of domestic abuse by strangulation and domestic abuse resulting in great bodily injury. A hearing on the application to revoke was held on November 27, 2018, before the Honorable Ray C. Elliott, District Judge, who granted the State's application and revoked Appellant's suspended sentences in full. On appeal, Appellant contends that the State failed to present sufficient evidence to prove the allegations contained in the application to revoke. We respectfully disagree. **ANALYSIS** At a revocation hearing, the focus is whether the terms of the suspension order have been violated, with the standard of proof being a preponderance of the evidence. The trial court's decision should not be overturned unless there is a clear abuse of discretion. In this case, both Officers Taylor and Mueggenborg testified at the hearing, having individually interviewed the alleged victim of the domestic abuse. The judge found their testimony had substantial guarantees of trustworthiness, which allowed the court to consider the victim's out-of-court statements. Notably, while the testimony was contradictory, the court did not abuse its discretion by finding the State adequately proved its case for revocation. The credibility of witnesses is a matter for the trial court, which may choose to believe or disbelieve any witness. **DECISION** The order of the District Court of Oklahoma County revoking Appellant's suspended judgments and sentences in Case No. CF-2017-3262 is therefore AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, the MANDATE is ORDERED issued upon delivery and filing of this decision. **APPEARANCES:** Thomas P. Hurley - Assistant Public Defender Marva A. Banks - Assistant Public Defender Danielle Connolly - Assistant District Attorney Mike Hunter - Oklahoma Attorney General Tessa L. Henry - Assistant Attorney General **OPINION BY:** KUEHN, V.P.J.: LEVIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR

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F-2018-691

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The document you provided outlines a legal case involving Jose Santiago Hernandez, who had his suspended sentences revoked due to alleged perjury. Here’s a summary of the key points: 1. **Background**: Hernandez entered a guilty plea to charges of robbery with a firearm and conspiracy in January 2017, resulting in a ten-year sentence with the last five years suspended. 2. **Revocation**: The State filed an application to revoke his suspended sentences on the grounds that he committed perjury by providing false statements regarding his co-defendant's involvement in the robbery during court proceedings. 3. **Hearing**: A revocation hearing took place on December 19, 2018, where the judge found that Hernandez did not provide truthful testimony. The judge ruled in favor of the State's application to revoke his suspended sentences. 4. **Appeal**: Hernandez appealed the revocation, arguing that the State did not present sufficient evidence of perjury, violating his due process rights. 5. **Court's Decision**: The appellate court affirmed the lower court's decision, stating that violations of suspended sentences need only be shown by a preponderance of the evidence. The court concluded that there was sufficient evidence to support the revocation and found no abuse of discretion by the trial court. 6. **Conclusion**: The revocation of Hernandez's suspended sentences was upheld. For any further inquiries or specific details about the case, feel free to ask!

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RE 2018-1288

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In OCCA case No. RE 2018-1288, Jose Santiago Hernandez appealed his conviction for robbery with a firearm and conspiracy to commit a felony. In an unpublished decision, the court decided to affirm the revocation of his suspended sentences. One judge dissented. Hernandez had pleaded guilty to robbery with a firearm and conspiracy in 2017, getting a ten-year sentence for each count, but only had to serve five years if he followed the rules set for his probation. The State accused him of perjury, claiming he lied during a court proceeding about his co-defendant's involvement in the crime. During a hearing in December 2018, the judge found enough evidence to revoke Hernandez’s suspended sentences because he did not truthfully testify. Hernandez argued that the State did not show he committed perjury, but the court explained that they only needed to prove the violation of his probation terms by presenting a greater weight of evidence. The court concluded that they had enough evidence to believe Hernandez had broken the rules. Ultimately, the court upheld the decision to revoke his suspended sentences, meaning he would have to serve the full ten years.

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C-2019-25

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This decision from the Oklahoma Court of Criminal Appeals pertains to Conner E. Dover's petition for writ of certiorari, which was denied. Dover had pled guilty to unauthorized use of a motor vehicle and aggravated attempting to elude a police officer. His sentencing followed the completion of a regimented inmate discipline program, resulting in five years of imprisonment for each count, to be served consecutively. Dover sought to withdraw his plea based on an argument that the court did not sentence him according to his plea agreement. However, the court found that his plea was entered voluntarily and intelligently, and dissatisfaction with the sentence is not a valid reason for withdrawal. The court confirmed that the plea met the necessary legal standards and was not abusive, hence no relief was granted. The denial of the writ indicates the court's decision to affirm the original judgment and sentence. The legal principles applied include reviewing whether a plea was voluntarily and intelligently made, whether the sentence is excessive, the effectiveness of counsel, and the state's power to prosecute. Overall, the court held that there was no abuse of discretion in denying Dover's motion to withdraw the plea, supporting the conclusion that his plea agreement was validly applied.

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C-2019-25

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **Filed December 12, 2019** **Conner E. Dover, Petitioner, Case No. C-2019-25** **v.** **The State of Oklahoma, Respondent.** **SUMMARY OPINION DENYING CERTIORARI** LEWIS, PRESIDING JUDGE: Conner E. Dover, Petitioner, pled guilty to Count 1, unauthorized use of a motor vehicle, in violation of 47 O.S.2011, § 4-402; and Count 2, aggravated attempting to elude a police officer, in violation of 21 O.S.2011, § 540(A)(B), in the District Court of Oklahoma County, Case No. CF-2018-610. The Honorable Ray C. Elliott, District Judge, accepted the plea and delayed sentencing pending Petitioner's completion of a Regimented Inmate Discipline program. Judge Elliott later sentenced Petitioner to five (5) years imprisonment for each count, to be served consecutively. Petitioner filed an application to withdraw the plea, which was denied. He now seeks a writ of certiorari, asserting the following proposition of error: The trial court abused its discretion by not allowing him to withdraw his guilty plea when the court did not intend to sentence him in accordance with the plea agreement. Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a court of competent jurisdiction (Weeks v. State, 2015 OK CR 16, ¶ 11, 362 P.3d 650, 654); whether the sentence is excessive (Whitaker v. State, 2015 OK CR 1, ¶ 9, 341 P.3d 87, 90); whether counsel was constitutionally effective (Lozoya v. State, 1996 OK CR 55, ¶ 27, 932 P.2d 22, 31); and whether the State has the authority to prosecute the defendant at all (Weeks, 2015 OK CR 16, ¶ 12, 362 P.3d at 654). A valid plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant (North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L.Ed.2d 162 (1970)). We review the denial of a motion to withdraw a plea for an abuse of discretion (Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998), unless it involves a question of statutory or constitutional interpretation, which we review de novo (Weeks, 2015 OK CR 16, ¶ 16, 362 P.3d at 654). We find that Petitioner's plea was knowingly and voluntarily entered. Petitioner’s dissatisfaction with the sentences he received does not provide sufficient grounds for withdrawal of a plea (Lozoya, 1996 OK CR 55, ¶ 44, 932 P.2d at 34; Estell v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380, 1383). The trial court did not abuse its discretion by denying Petitioner's motion to withdraw the plea. No relief is warranted. **DECISION** The petition for the writ of certiorari is DENIED. The Judgment and Sentence 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. **APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE** **APPEARANCES AT TRIAL** ROBIN BRUNO ANDREA DIGILIO MILLER DANNY WHITE 320 ROBERT S. KERR # 611 OKLAHOMA CITY, OK 73102 ATTORNEY FOR APPELLANT (PLEA & SENTENCING) **APPEARANCES ON APPEAL** THOMAS P. HURLEY 320 ROBERT S. KERR # 611 OKLAHOMA CITY, OK 73102 (WITHDRAWAL) ATTORNEYS FOR DEFENDANT DAN POND ASST. DISTRICT ATTORNEY 320 ROBERT S. KERR # 505 OKLAHOMA CITY, OK 73102 ATTORNEY FOR THE STATE **OPINION BY:** LEWIS, P.J. **KUEHN, V.P.J.:** Concur in Results **LUMPKIN, J.:** Concur **HUDSON, J.:** Concur **ROWLAND, J.:** Concur For more details, [click here to download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2019-25_1733763771.pdf).

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RE-2018-1006

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**Court of Criminal Appeals of the State of Oklahoma** **Case No. RE-2018-1006** **Jose Adolfo Rios, Appellant,** **vs.** **The State of Oklahoma, Appellee.** **Summary Opinion** **Judge Lumpkin:** Appellant, Jose Adolfo Rios, appeals from the revocation in full of his concurrent ten-year suspended sentences in Case No. CF-2006-6132. The Honorable Ray C. Elliott, District Judge, ruled on this matter. On April 4, 2008, Appellant entered a guilty plea to two counts of Rape in the First Degree and two counts of Indecent or Lewd Acts With a Child Under Sixteen, resulting in sentences of twenty-two years for the rape counts (with the first twelve years suspended) and twenty years for the lewd acts counts (with the first ten years suspended), all to run concurrently. On July 25, 2018, the State filed an Application to Revoke Suspended Sentence, asserting multiple violations of probation, including failing to report, change of address, pay supervision fees, attend mandated treatment, and committing a new crime—Domestic Assault and Battery With a Dangerous Weapon. During the revocation hearing before Judge Elliott, substantial evidence was presented regarding Appellant's violation of probation terms, including testimonies from Appellant’s probation officer and other evidence illustrating Appellant's failure to comply with treatment and reporting requirements. Appellant testified about personal struggles following a crime in which he was a victim, stating he had fallen victim to substance abuse and homelessness. After reviewing the evidence, Judge Elliott found sufficient basis to revoke the suspended sentences, having established by a preponderance of the evidence that Appellant had committed multiple violations, including failing to report and failing to attend treatment. **Proposition of Error:** Appellant argues that the trial court abused its discretion in fully revoking his sentence, asserting that Judge Elliott did not adequately consider alternatives to full revocation. **Analysis:** The decision to revoke a suspended sentence is within the discretion of the trial court and will not be overturned without evidence of abuse of that discretion. Here, Judge Elliott had unrefuted evidence of Appellant's violations. The record demonstrates that Appellant acknowledged his failures and did not meet the terms of probation. While Appellant claimed that less severe measures should have been considered, the applicable statutes do not mandate such considerations during revocation proceedings. As such, Appellant has not demonstrated that the trial court erred or abused its discretion in revoking the sentences in full. **Decision:** The order of the District Court of Oklahoma County revoking Appellant's concurrent ten-year suspended sentences is AFFIRMED. **Appearances:** **For Appellant:** Ben Munda, Assistant Public Defender Hallie Elizabeth Bovos, Assistant Public Defender 320 Robert S. Kerr, Suite 400 Oklahoma City, OK 73102 **For the State:** Suzanne Lavenue, Assistant District Attorney Mike Hunter, Attorney General of Oklahoma Tessa L. Henry, Assistant Attorney General 320 Robert S. Kerr, Suite 505 Oklahoma City, OK 73102 **Opinion By:** Lumpkin, J. **Concurred by:** Lewis, P.J.; Kuehn, V.P.J.; Hudson, J.; Rowland, J. MANDATE is ORDERED issued upon the filing of this decision. [Download Full Opinion PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1006_1734358375.pdf)

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RE-2018-645

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**Court of Criminal Appeals of the State of Oklahoma** **ANTWOIN LEE WALKER, Appellant, vs. THE STATE OF OKLAHOMA, Appellee.** **Case No. RE-2018-645** **Summary Opinion** **File Date: December 12, 2019** **KUEHN, VICE PRESIDING JUDGE:** Antwoin Lee Walker appeals the full revocation of his six-year suspended sentence in Case No. CF-2015-675 by District Judge Paul Hesse of the Canadian County District Court. **Background:** On October 27, 2015, Walker pled guilty to Petit Larceny (Count 1) and Knowingly Concealing Stolen Property (Count 2), resulting in a six-month county jail sentence on Count 1 and a ten-year sentence on Count 2, with four years suspended. On May 30, 2017, the State filed to revoke his suspended sentence, citing new charges including Attempt to Kill, Rape in the First Degree, and two instances of Petit Larceny, in Case No. CF-2017-445. Walker was subsequently convicted on May 10, 2018, of all counts in that case. During a hearing on June 19, 2018, which combined revocation and sentencing phases, Judge Hesse considered evidence from the jury trial and sentenced Walker to life imprisonment on Counts 1 and 2, among others. In the revocation portion, Walker’s attorney agreed to incorporate the trial evidence in assessing the probation violation. Judge Hesse found Walker had violated his probation and revoked the suspended sentence in full, ordering it to run concurrently with his sentences from Case No. CF-2017-445. **Proposition of Error:** Walker asserts the trial court erred by taking judicial notice of evidence from the prior trial. **Analysis:** The appellate court finds that there was no judicial notice taken. Walker consented to the combination of hearings and did not object to the incorporation of trial evidence into the revocation proceedings. The court notes the distinction from precedent cases, as Walker's situation involves a combined hearing rather than separate unrelated proceedings. Given that the trial court is afforded discretion in revocation matters and there was no abuse of that discretion, the court ultimately finds no reversible error. **Decision:** The order revoking Walker’s six-year suspended sentence is AFFIRMED. **Appearances:** - **For the Appellant:** Craig Corgan, Sarah MacNiven - **For the State:** Eric Epplin, Mike Hunter, Theodore M. Peeper **Opinion by:** KUEHN, V.P.J. **Concurred by:** LEWIS, P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. **Note:** For the full opinion, see [here](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-645_1734427729.pdf).

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C-2018-1184

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In the case of Hipolito John Herrera v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals addressed Herrera's appeal concerning his guilty plea to Conjoint Robbery. The key issues raised by Herrera were: 1. **Plea Validity**: Herrera argued that his guilty plea was not entered freely, knowingly, and intelligently, citing misadvice from his legal counsel regarding his potential maximum sentence. The State conceded this point, acknowledging that the plea was not made with the requisite understanding. The court found that this constituted an abuse of discretion by the trial court in denying Herrera's motion to withdraw his plea. 2. **Restitution Order**: Herrera's second and third propositions focused on the restitution order, arguing that the trial court did not have sufficient proof of actual losses incurred by the victim and a bail bondsman, and that the bail bondsman should not be considered a victim under Oklahoma restitution laws. However, these propositions became moot due to the decision on the plea validity. Ultimately, the Oklahoma Court of Criminal Appeals reversed the trial court's denial of Herrera's Motion to Withdraw Guilty Plea and remanded the case for further proceedings. This ruling emphasized the importance of ensuring a defendant's plea is made with full understanding and without coercion or misinformation. The judicial decision highlighted in the summary opinion grants Herrera relief, enabling him to withdraw his plea and possibly reassess the legal consequences and restitution implications of his case.

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C-2018-1040

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** *Case No. C-2018-1040* **ROLLO ROY WERLINE, IV,** *Petitioner,* *vs.* **THE STATE OF OKLAHOMA,** *Respondent.* **FILED** *IN COURT OF CRIMINAL APPEALS* *OCT 31 2019* *JOHN D. HADDEN, CLERK* **SUMMARY OPINION DENYING CERTIORARI** **LUMPKIN, JUDGE:** Petitioner Rolla Roy Werline, IV, represented by counsel, entered pleas of guilty to First Degree Manslaughter (Count I), Leaving the Scene of a Fatality Accident (Count II), and Failure to Maintain Insurance (Count III) in the District Court of Ottawa County, Case No. CF-2017-164. The pleas were accepted by the Honorable Robert G. Haney on April 19, 2018. On June 12, 2018, Petitioner was sentenced to twenty (20) years imprisonment for Count I, five (5) years imprisonment in Count II (suspended), and a $250.00 fine for Count III. On June 15, 2018, Petitioner filed a Motion to Withdraw Guilty Plea, which was denied at a hearing on June 26, 2018. Petitioner appeals this denial, raising two propositions of error: 1. Petitioner should be allowed to withdraw his plea as it was not entered knowingly and intelligently, given he did not understand the consequences of entering a blind plea. 2. The imposed fines and costs were excessive. **Proposition I:** Petitioner contends that his plea was not entered voluntarily and was the result of being misadvised regarding the plea process. The trial court reviewed this issue during the motion to withdraw hearing. Assessing whether the plea was entered voluntarily and intelligently is key. The record indicates the plea was knowing and voluntary, highlighting that the petitioner understood the court would determine punishment and could impose a sentence within statutory limits. The trial court's denial of the motion to withdraw is upheld. **Proposition II:** Petitioner claims his sentence is excessive, particularly citing a victim impact statement that contained a sentence recommendation, which he argues improperly influenced the court's decision. While acknowledging that victim impact statements may be considered during sentencing, those statements should not contain sentence recommendations. Any potential error here was harmless, as the overall sentence is seen as reasonable and within statutory limits. It was also noted that the issue of a $250.00 Victim Compensation Assessment in Count III was not raised previously and is thus waived for appeal. **DECISION:** The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. **OPINION BY:** **LUMPKIN, J.** *LEWIS, P.J.: Concur* *KUEHN, V.P.J.: Concur* *HUDSON, J.: Concur* *ROWLAND, J.: Concur* **Click Here To Download PDF** [Link to PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2018-1040_1734225145.pdf)

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C-2019-227

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CYNTHIA ROWSHELL GAY,** Petitioner, **V.** **THE STATE OF OKLAHOMA,** Respondent. **Case No. C-2019-227** **FILED IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **OCT 31 2019** **JOHN D. HADDEN, CLERK** **LUMPKIN, JUDGE:** **SUMMARY OPINION DENYING CERTIORARI** Petitioner Cynthia Rowshell Gay, represented by counsel, entered guilty pleas as part of a plea agreement with the State to the charges of Count 1, Driving While Under the Influence, a violation of 47 O.S.2011, § 11-902, and Count 2, Driving While Under Suspension, a violation of 47 O.S.2011, § 6-303(B), in the District Court of Oklahoma County, Case No. CF-2019-369. The Honorable Kathryn R. Savage, Special Judge, accepted the pleas on February 19, 2019. The plea agreement included a five-year sentence on Count 1, with all but the first thirty days suspended, and a one-year suspended sentence on Count 2, with the sentences running concurrently. On March 1, 2019, Petitioner filed an Application to Withdraw Guilty Plea, and a hearing was held on March 21, 2019, which resulted in the denial of her application. Petitioner claims the following error: Ms. Gay did not knowingly and voluntarily enter her plea of guilty, and thus the District Court erred when it denied her Application to Withdraw her Guilty plea. Upon thorough review of the record, including original documents, transcripts, and briefs, we find no need for reversal or modification. Our evaluation of a guilty plea focuses on its voluntary and intelligent nature (Boykin v. Alabama, 395 U.S. 238, 242-43, 1969; Ocampo v. State, 1989 OK CR 38, ¶ 3). We review the denial of a petitioner's motion to withdraw a plea for an abuse of discretion (Lewis v. State, 2009 OK CR 30, ¶ 5). Petitioner acknowledged signing the Plea of Guilty Summary of Facts form, which reflected her voluntary decision to plead guilty and accept a suspended sentence. With prior felony convictions, she was familiar with the process. Her motivations for signing the plea agreement, including a desire to expedite her release from jail, do not render the plea involuntary (United States v. Webb, 433 F.2d 400, 404 (1st Cir. 1970)). Petitioner’s change of heart after consulting relatives does not provide grounds for withdrawal, nor does disappointment with her sentence (Miles v. U.S., 385 F.2d 541, 544 (10th Cir. 1967); Lozoya v. State, 1996 OK CR 55, ¶ 44). The trial court found her plea was entered knowingly and voluntarily, and its findings during the hearing on the application to withdraw were credible. The record shows that Petitioner was fully informed of and understood the consequences of her plea. Her later claim regarding misunderstanding the conditions of her suspended sentence was deemed incredible by the trial court. We find no abuse of discretion in the denial of the motion to withdraw the guilty plea. Therefore, the proposition is denied. **DECISION:** The Petition for a Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court 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 to be issued upon the delivery and filing of this decision.** **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE KATHRYN R. SAVAGE, SPECIAL JUDGE** **APPEARANCES IN DISTRICT COURT:** NICOLE BURNS, ASST. PUBLIC DEFENDER HALLIE E. BOVOS, ASST. PUBLIC DEFENDER 320 ROBERT S. KERR, #400 OKLAHOMA CITY, OK 73102 COUNSEL FOR THE DEFENSE **APPEARANCES ON APPEAL:** RICKY LUTZ, ASST. DISTRICT ATTORNEY 320 ROBERT S. KERR, #505 OKLAHOMA CITY, OK 73102 COUNSEL FOR THE STATE **NO RESPONSE NECESSARY** **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.: Concur** **KUEHN, V.P.J.: Concur** **HUDSON, J.: Concur** **ROWLAND, J.: Concur** [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/C-2019-227_1734232520.pdf)

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F-2018-1187

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In the Court of Criminal Appeals of the State of Oklahoma, the case reviewed is that of Pearlena Hall, who appealed the decision of the district court following her termination from the mental-health court program. On May 4, 2017, Hall entered guilty pleas in two cases related to larceny, obstructing an officer, and possession of drug paraphernalia. After entering the mental-health court program, she faced a motion to terminate her participation due to allegations of committing a new crime and various rule violations. The court reviewed the appeal for any abuse of discretion regarding the termination. The decision to terminate a defendant from a mental-health court must uphold minimum due process standards, which includes proper notice of violations, an opportunity to be heard, and the ability to confront witnesses. Hall argued that her due process rights were violated because the State did not file a new application for removal and thus did not provide adequate notice about the allegations against her. However, the court found that Hall was aware of the allegations, which she confessed to during the proceedings. The judge provided opportunities for her to comply with program requirements, and a delay in sentencing that favored Hall did not equate to a due process violation. The court highlighted that she could not complain about delays she acquiesced to during the processes. Ultimately, the court affirmed Hall's termination from the mental-health court, ruling that her procedural rights had been sufficiently met. Thus, her appeal was denied, and the termination order was upheld. The court's opinion was delivered by Judge Rowland, with Judges Lewis, Kuehn, Lumpkin, and Hudson concurring with the decision. The mandate was ordered as per Oklahoma Court rules, and the relevant parties were identified for representation. For further reference, you can view the full opinion [here](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1187_1734785215.pdf).

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F-2018-360

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In OCCA case No. F-2018-360, McNeary appealed his conviction for lewd acts with a child under 16. In an unpublished decision, the court decided to affirm the conviction. No one dissented. Goldy Romeo McNeary was found guilty by a jury for two counts of committing lewd acts with a child under 16 years old. The jury sentenced him to ten years in prison for each count, and these sentences were ordered to be served one after the other. The court also decided that McNeary must serve 85% of his sentence before he could be considered for parole. McNeary appealed his conviction, arguing several points. First, he claimed that the trial court wrongfully allowed evidence of other bad acts, which he said made his trial unfair. Second, he said that this evidence was more harmful than helpful, violating his right to a fair trial. Third, he argued that the trial court did not give the jury proper instructions about how to use this evidence. Fourth, he felt that the trial court was wrong to not allow him to present evidence about Speck Homes, where the acts took place. Lastly, he believed that when considering all the errors together, they warranted a new trial. For the first two points, the court looked at whether the admission of the other crimes evidence was an obvious mistake and if it affected McNeary’s rights. They concluded that even if there was a mistake, it did not change the outcome since there was clear evidence of his guilt. Thus, the evidence did not rise to the level of a serious error. For the third point, the judge had promised to give instructions about the other crimes evidence but failed to do so at the right time. However, since the judge provided some instructions later, the court found no harm was done to McNeary from this. On the fourth point about Speck Homes, the court reasoned that the evidence was not allowed mainly because it was not relevant and also tried to avoid bad effects such as confusion. The trial judge made a choice based on their understanding of the law, and the appellate court did not find it to be a mistake. Lastly, the court examined McNeary's claim that all the errors combined were enough to grant him a new trial. They determined that no significant individual errors had occurred that would justify this request. In conclusion, the court upheld the judgment and sentencing, affirming McNeary’s conviction without any dissent from the other judges involved.

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C-2018-1050

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This document appears to be a summary opinion from the Court of Criminal Appeals of the State of Oklahoma regarding James Michael Simmons, who sought a writ of certiorari after pleading nolo contendere to a misdemeanor charge of making threats by electronic device. ### Key Points of the Summary Opinion: 1. **Case Information**: - **Petitioner**: James Michael Simmons. - **Respondent**: The State of Oklahoma. - **Case Number**: C-2018-1050. - **Trial Court**: Mayes County, Case No. CF-2017-350. 2. **Background**: - Simmons pled nolo contendere (no contest) to the charge and was granted deferred judgment for one year under probation conditions. - He later filed a motion to withdraw the plea, which the trial court denied. 3. **Propositions of Error**: - **Proposition 1**: Failure to use the uniform guilty plea form. - The court found no prejudice from the omission of the uniform form since the record was adequate for review. - **Proposition 2**: Claim of not understanding the plea’s consequences. - The court determined that the trial court provided sufficient advice regarding the plea's nature and consequences. - **Proposition 3**: Insufficient factual basis for the plea. - The court concluded there was a sufficient factual basis for the plea, affirming that the plea was entered correctly. - **Proposition 4**: Denial of effective assistance of counsel for both the plea and withdrawal process. - The court found no deficient performance by counsel or resulting prejudice. 4. **Decision**: - The petition for a writ of certiorari was denied, and the judgment and sentence were affirmed. 5. **Appearance**: - Various attorneys represented Simmons throughout the trial and appeal processes. ### Conclusion: The Court of Criminal Appeals ultimately affirmed the lower court's decision, finding no basis for reversing the judgment based on the claims presented by Simmons. The opinion indicates that procedural and substantive requirements were satisfactorily met during the plea process.

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RE-2018-604

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **LEROY ALEXANDER, JR.,** **Appellant,** **-VS-** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-604** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **OCT 10 2019** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant Leroy Alexander, Jr., was sentenced to a total of fifteen years for the crime of Rape in the Second Degree, with all but the first year suspended. This appeal arises from the revocation of the remainder of his suspended sentence by the Honorable George W. Butner, District Judge of Seminole County. **Facts:** On April 5, 2018, the State of Oklahoma filed a motion to revoke Appellant's suspended sentence, alleging violations related to failure to attend sex offender treatment and failure to submit to required polygraph examinations. An amended motion on June 1, 2018, added allegations of inappropriate employment at a children's carnival ride during a festival. During the revocation hearing, the State's probation officer testified that Appellant had initially attended treatment sessions but was terminated for non-attendance. Appellant claimed his violations stemmed from financial hardship and lack of transportation. The Court ultimately found that Appellant had not made genuine efforts to comply with the terms of his probation. **Points of Error:** 1. **Proposition I:** Appellant argues that the trial court lacked authority to revoke more than the actual suspended portion of his sentence. He claims the written order incorrectly states that all of the fifteen years was revoked. However, the oral pronouncement during the hearing indicated the revocation was for the remainder of the suspended sentence. The court later issued an amendment to clarify the written judgment, aligning it with the oral ruling. 2. **Proposition II:** Appellant contends the full revocation of his suspended sentence was excessive, arguing that his violations were a result of indigence and lack of resources. The court's discretion in revoking a suspended sentence is established unless there is an abuse of discretion. Judge Butner found the violations were due to Appellant's lack of effort rather than financial difficulties, which was supported by evidence in the record. **Decision:** The order of the District Court of Seminole County revoking the remainder of Appellant's fifteen-year suspended sentence is AFFIRMED. The Mandate is ordered issued upon the filing of this decision. --- **ATTORNEYS:** - **ZACHARY L. PYRON** - **CHAD JOHNSON** (Appellate Defense Counsel) - **CHRISTOPHER G. ANDERSON** - **MIKE HUNTER** - **THEODORE M. PEEPER** (Assistant District Attorney / Attorney General of Oklahoma) **OPINION BY:** **KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-604_1734429602.pdf)

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F 2017-1055

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In OCCA case No. F 2017-1055, William Singleton Wall, III, appealed his conviction for Possession of Controlled Dangerous Substance (Oxycodone). In an unpublished decision, the court decided to affirm the termination of Appellant from the Pontotoc County Drug Court Program. One judge dissented. William was charged in 2014 and entered a plea for the Drug Court program, where if he succeeded, his case would be dismissed. However, if he failed, he faced a ten-year prison sentence. In April 2017, the State filed to terminate him from the program because he tested positive for THC, which is a substance found in marijuana. During the termination hearing, the judge decided that the State had enough evidence to terminate William from the program. He was given a ten-year prison sentence with credit for time already served. William argued that he should not have been terminated because he did not receive proper notice of the program's rules and because the State filed its motion after the allowed time for his participation in the Drug Court expired. The court explained that the decision to terminate a participant from Drug Court is at the judge's discretion. William did not object when the evidence of his drug use was presented at the hearing. Furthermore, the records showed that William had understood the terms of the Drug Court when he entered. The court also found that although the approval for his Drug Court participation had a time limit, he was still under the court's jurisdiction until he was properly sentenced. The court ruled that they did not see any errors in how the trial court acted. They affirmed the decision to terminate William, meaning he would serve his ten-year sentence for not following the rules of the Drug Court program.

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F-2018-973

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In the case of Brian Scott Willess v. The State of Oklahoma, the Oklahoma Court of Criminal Appeals addressed an appeal concerning the acceleration of Willess' deferred sentence for the crime of Stalking. The appeal was brought forth after the District Court of Cleveland County, under Judge Thad Balkman, found that Willess had violated the terms of his probation by not taking mandated mental health medication and committing a new stalking offense. **Background:** - On May 23, 2018, Willess entered a no contest plea to stalking, with sentencing deferred for five years, under probation terms. - The State later filed an Application to Accelerate Judgment, alleging violations of probation terms. A hearing was held on September 5, 2018, leading to the acceleration of Willess' sentence to five years imprisonment. **Propositions of Error:** Willess raised multiple arguments in his appeal: 1. **Ineffective Assistance of Counsel**: Claimed his counsel failed to argue for credit for time served prior to his plea. 2. **Jurisdiction Issues**: Argued that the district court lacked jurisdiction because there was no preliminary hearing held. 3. **Insufficient Evidence**: Contended that the State did not provide adequate evidence to prove a violation of probation terms. 4. **Due Process Concerns**: Suggested that he was not given adequate notice of the allegations against him and that hearsay evidence was improperly considered. 5. **Premature Acceleration**: Argued that the court should have considered intermediate sanctions instead of incarceration. **Court Opinion:** - The court affirmed the acceleration of Willess' deferred sentence, stating that the issues raised about ineffective counsel and jurisdiction were not valid in an acceleration appeal context. Proper processes for addressing these claims require filing a writ of certiorari. - On the sufficiency of evidence claim, the court found that the State had met its burden of proving violations by a preponderance of evidence, and the hearsay evidence presented had sufficient reliability. - Regarding due process, the court held that Willess had been duly notified of the allegations against him, and his hearsay concerns were addressed previously. - Finally, the court reiterated that even a single violation of probation conditions could warrant acceleration of the sentence, which was upheld in this case. The court's decision highlighted that procedural safeguards were followed and determined there was no abuse of discretion by the district court in accelerating Willess' sentence. In conclusion, the Oklahoma Court of Criminal Appeals ruled in favor of the State, affirming Willess' five-year sentence for the violations of probation.

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RE-2018-1071

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOSE ANGEL LOPEZ, ) Appellant, ) V. ) No. RE-2018-1071 THE STATE OF OKLAHOMA, ) Appellee.** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 26 2019** **SUMMARY OPINION** *KUEHN, VICE PRESIDING JUDGE:* Appellant, Jose Angel Lopez, pled guilty to Count 1 - Using a Vehicle to Facilitate the Intentional Discharge of a Firearm, a felony, and Count 2 - Possession of a Controlled Dangerous Substance, a misdemeanor, in Oklahoma County District Court Case No. CF-2010-3550. He was sentenced to ten years imprisonment for Count 1 and one year imprisonment for Count 2. The sentences were ordered to run concurrently, with all but the first five years suspended. Following a one-year Judicial Review hearing, Appellant’s sentence for Count 1 was modified to three years to serve and seven years suspended. The State filed an Application to Revoke Suspended Sentence, alleging Appellant violated the terms of his suspended sentence by failing to pay supervision fees, failing to report as directed, and committing the new crime of Possession of CDS, as alleged in Lincoln County Case No. CF-2014-343. The application to revoke was later amended to further allege Appellant committed the new crimes of Assault and Battery with a Deadly Weapon and Felon in Possession of a Firearm, as alleged in Oklahoma County Case No. CF-2017-4230. Following a revocation hearing before the Hon. Glenn M. Jones, District Judge, Appellant's suspended sentence was revoked in full. Appellant appeals the revocation of his suspended sentences, raising a sole proposition of error: the trial court abused its discretion in revoking Appellant's sentence based entirely upon hearsay evidence with no particularized guarantee of reliability. We affirm the order of the District Court revoking Appellant's suspended sentence in full. The decision to revoke a suspended sentence, in whole or in part, is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Tilden v. State, 2013 OK CR 10, 10, 306 P.3d 554, 557. An 'abuse of discretion' is defined by this Court as a 'clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application.' Walker v. State, 1989 OK CR 65, 5, 780 P.2d 1181, 1183. Alleged violations of conditions of a suspended sentence need be proven only by a preponderance of the evidence. Tilden, 2013 OK CR 10, 5, 306 P.3d at 556. Judge Jones determined that the State showed, by a preponderance of the evidence, that Appellant committed the new crimes alleged in Oklahoma County Case No. CF-2017-4230. This decision was reached after reviewing the preliminary hearing's transcript from Case No. CF-2017-4230, in which the victim testified Appellant entered his yard and shot him while he was sitting on his front porch. This Court has held that neither the relaxed due process standards nor the provisions of Section 991b are violated when a transcript of a previous judicial hearing is admitted into evidence at a revocation hearing so long as the defendant was allowed to confront and cross-examine the witnesses at the previous judicial hearing. Wortham v. State, 2008 OK CR 18, 15, 188 P.3d 201, 206. A review of the preliminary hearing transcript shows that Appellant’s trial counsel, who also represented him at the revocation hearing, cross-examined the State's only witness. The testimony of a witness about his personal knowledge of the events, under oath and subject to cross-examination, is not hearsay. Appellant has not shown an abuse of discretion. **DECISION** The District Court's revocation of Appellant's suspended sentence in Oklahoma County District Court Case No. CF-2010-3550 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. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE GLENN M. JONES, DISTRICT JUDGE** APPEARANCES AT HEARING: LYDIA FIELDS ANDREA DIGILIO MILLER COUNSEL FOR DEFENDANT TIFFANY NOBLE ASST. DISTRICT ATTORNEY, OKLAHOMA COUNTY COUNSEL FOR THE STATE MIKE HUNTER ATTORNEY GENERAL CAROLINE E.J. HUNT ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE **OPINION BY:** KUEHN, V.P.J.: LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: RECUSE 005 [Download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1071_1734355190.pdf)

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RE-2018-855

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DAKOTA MICHAEL SHANE BELL, Appellant,** **v.** **THE STATE OF OKLAHOMA, Appellee.** **No. RE-2018-855** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **SEP 26 2019** **JOHN D. HADDEN, CLERK** ### SUMMARY OPINION **HUDSON, JUDGE:** Appellant Dakota Michael Shane Bell appeals from the revocation of suspended sentences in Payne County District Court Case Nos. CF-2016-375 and CF-2016-952. He pleaded guilty on April 5, 2017, to Possession of a Firearm After Conviction of a Felony (Count 2) in Case No. CF-2016-375 and Unlawful Use of a Vehicle in Case No. CF-2016-952. He was sentenced to five years imprisonment in each case, with all but the first sixty days suspended, and the sentences ordered to be served concurrently. On January 22, 2018, the State filed motions to revoke these suspended sentences, citing several violations by Appellant, including failure to pay required fees, absconding from supervision, and failing to complete mandated evaluations. After a hearing, Judge Kistler allowed Appellant until May 16, 2018, to comply with the conditions. When he did not appear, a warrant was issued. On July 24, 2018, following further proceedings, the trial court revoked Appellant's remaining suspended sentence. A violation report submitted by the Oklahoma Department of Corrections indicated Appellant failed drug tests and several other requirements. On July 11, 2019, the State sought to supplement the record with an Amended Judgment and Sentence After Revocation, which was granted by the court. **Proposition I:** Appellant claims the revocation constituted an abuse of discretion based on his personal disadvantages. This argument is without merit, as a suspended sentence is a discretionary grace. The State must prove only one violation for revocation. Here, multiple violations were established, and Appellant received considerable leniency but failed to adhere to the conditions of his probation. Thus, no abuse of discretion is shown. **Proposition II:** Appellant asserts that the revocation order omitted credit for time served and mandated post-imprisonment supervision. This concern has been addressed by the filing of the amended revocation orders, rendering this proposition moot. ### DECISION The revocation of Appellant's suspended sentences in Payne County District Court Case Nos. CF-2016-375 and CF-2016-952 is **AFFIRMED**. Pursuant to Rule 3.15, the MANDATE is to be issued upon the filing of this decision. ### APPEARANCES - **For Appellant:** Virginia Banks, Ricki Walterscheid - **For Appellee:** Sierra Pfeiffer, Mike Hunter, Tessa Henry **OPINION BY:** HUDSON, J. **CONCUR:** LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J.

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F-2018-893

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The case presented involves D'Angelo Landon Burgess, who appealed the acceleration of his deferred sentence stemming from a guilty plea to Grand Larceny. The Oklahoma County District Court had originally awarded him a five-year deferred sentence in 2013. However, in 2017, the State sought to accelerate this sentence due to new offenses, including a high-speed chase and the resulting charges. The appeal centers around a claim of a lack of diligent prosecution by the State, which Burgess argued deprived him of his due process rights. However, the court determined that there was no plain error, meaning that the proceedings followed legal protocols adequately and Burgess had not demonstrated harm from the timing of the acceleration hearing. The court affirmed the district court's decision, stating that accelerations of deferred sentences do not require the same level of due process protections as full criminal proceedings. The decision also referenced a related case in which Burgess faced serious charges, including first-degree murder, which is currently under appeal. The court's opinion concluded with affirming the order of the district court to accelerate Burgess's deferred sentence. In conclusion, the Oklahoma Court of Criminal Appeals upheld the acceleration of Burgess's sentence, ruling there was no violation of due process and that the district court acted within its discretion.

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F-2018-542

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In OCCA case No. F-2018-542, Charles Henry Tarver, Jr. appealed his conviction for Possession of Controlled Dangerous Substance with Intent to Distribute and Unlawful Possession of Drug Paraphernalia. In an unpublished decision, the court decided that relief was required, and the case was remanded to the district court with instructions to dismiss. One judge dissented. Charles Henry Tarver, Jr. was tried by a jury and convicted of having illegal drugs with the intent to sell them and for having drug paraphernalia. He was given a long prison sentence and a fine. Tarver appealed this decision because he believed that the evidence used against him was obtained illegally when a police officer stopped him for a minor traffic violation. The events leading to Tarver's arrest happened on May 23, 2016. A deputy police officer stopped Tarver because the light on his truck’s license plate wasn’t working. During this stop, the officer noticed that Tarver was very anxious and had trouble staying still. Instead of quickly giving him a ticket and letting him go, the officer waited for backup and a dog trained to detect drugs. While waiting, the officer searched Tarver's truck, finding illegal drugs. Tarver argued that this search was not allowed under the law because it happened without enough reason to keep him there longer than necessary for the traffic stop. Initially, the judge at Tarver’s trial ruled that the stop was legal, but he did not consider whether the stop went on too long without proper reasons. This was an important mistake because the law says that once the reason for a stop is handled, the police cannot keep someone for longer without having a good reason to think that person is doing something illegal. The appeals court reviewed the case and found that the trial judge had incorrectly placed the burden of proving that the police action was legal on Tarver instead of where it should have been on the state. The appeals court agreed that the stop was carried out longer than necessary, and the police officer did not have enough solid reasons to justify keeping Tarver there longer than the original traffic issue. The court decided to reverse Tarver's convictions and told the district court to dismiss the charges against him because the search that found the drugs was not properly justified. One judge disagreed with this outcome, arguing that the police acted reasonably based on their experiences and knowledge about Tarver. This dissenting opinion held that the evidence might still be good enough to uphold the conviction. In the end, the decision meant that Tarver would not have to serve time for these charges, as the evidence against him was deemed to have been collected improperly.

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F-2018-341

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In OCCA case No. F-2018-341, Anthony Kejuan Day appealed his conviction for several charges. In a published decision, the court decided to affirm the judgment and sentence against him. One judge dissented. Mr. Day was convicted of assault and battery on a police officer, conspiracy to cause violence, possession of a firearm after a felony conviction, obstructing an officer, and resisting an officer. The trial court sentenced him to a total of twenty-five years for the first charge, with additional long sentences for the others. Mr. Day argued that the trial court made several mistakes. He claimed that the prosecution unfairly excluded African-American jurors, that changes to the charges against him were wrong, that he was punished too harshly for similar actions, and that his sentences should not have run one after the other but rather together. The court examined each argument. For the claim about jurors, it decided that the trial court acted properly and that there was no discrimination. Regarding the changes to the charges, the court found no clear mistakes that would have harmed Mr. Day's case. The court also rejected his argument about facing double punishment for similar offenses. Finally, it determined that the trial court was correct in allowing the sentences to be served consecutively. In conclusion, the court upheld the decision of the trial court and affirmed Mr. Day's convictions and sentences.

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