RE-2018-426
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **CALVIN TAYLOR HERRIEN,** **Appellant,** **-VS-** **THE STATE OF OKLAHOMA,** **Appellee.** **No. RE-2018-426** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **SEP 19 2019** **JOHN D. HADDEN** **CLERK** **SUMMARY OPINION** **LEWIS, PRESIDING JUDGE:** Appellant, Calvin Taylor Herrien, appeals from the revocation of four years of his twenty-five year suspended sentences in Case No. CF-2011-4693 in the District Court of Oklahoma County, presided over by the Honorable Cindy H. Truong. **Background:** On November 2, 2012, Appellant entered a guilty plea to two counts of Lewd Acts With a Child Under Sixteen, resulting in a twenty-five year sentence for each count, both suspended under specific probation conditions. The State filed an Application to Revoke Suspended Sentence on November 1, 2017, alleging Appellant violated probation by failing to reside in a lawfully approved residence and not truthfully answering inquiries from the DOC and law enforcement. A hearing commenced on November 21, 2017, where evidence was presented, including testimony from police chief Allen Lane, who testified regarding Appellant's residence proximity to a park and his notification to Appellant to relocate. Further testimony came from probation officer Daniel Straka, who reported Appellant's admission about the residence, discrepancies about probation requirements, and additional violations not included in the revocation application. Appellant testified on his own behalf, offering explanations but ultimately, after considering arguments, Judge Truong found that Appellant had committed the two breaches alleged in the application. Following a continuance, on December 1, 2017, Judge Truong revoked four years of the suspended sentence. **Propositions of Error:** 1. **Inadequate Notice:** Appellant contends that the consideration of testimony regarding uncharged violations denied him adequate notice, which impeded his ability to prepare a defense. 2. **Right to Confront:** Appellant alleges deprivation of his right to confront witnesses and due process during the hearing. 3. **Excessive Sentence:** Appellant argues that the four-year revocation of his suspended sentence is excessive. **Analysis:** The evidence presented at the revocation proceedings clearly showed that Appellant violated the terms of his probation. Appellant does not contest the findings concerning the recognized violations. He does not argue that he was unaware of the specifics related to the alleged probation violations or that he lacked the opportunity to defend himself against those violations. In regards to Propositions I and II, while Appellant claims other violations were improperly admitted, the court's finding that he committed the alleged violations outlined in the application suffices to validate the revocation. Furthermore, due process entitles Appellant to argue mitigating circumstances, which was provided by Judge Truong. Concerning Proposition III, revocation decisions are primarily at the discretion of the trial court and will only be overturned in cases of demonstrable abuse of that discretion. Appellant has not shown that the four-year revocation was disproportionate relative to the violations committed. **Decision:** The order of the District Court of Oklahoma County revoking four years of Appellant's twenty-five year suspended sentences in Case No. CF-2011-4693 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 filing of this decision. --- **Appearances:** **For Appellant:** Joshua C. Smith Attorney at Law 217 N. Harvey, Ste. 108 Oklahoma City, OK 73102 **For Appellee:** Ryan P. Stephenson Assistant District Attorney Oklahoma County 320 Robert S. Kerr, Ste. 505 Oklahoma City, OK 73102 **OPINION BY:** LEWIS, P.J. **CONCUR IN RESULTS:** KUEHN, V.P.J.; LUMPKIN, J.; HUDSON, J.; ROWLAND, J. *Click Here To Download PDF*