RE-2019-80

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**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).

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RE-2018-925

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JAREN GLENN SELLERS,** **Appellant,** **V.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. RE-2018-925** **Filed May 23, 2019** **SUMMARY OPINION** **KUEHN, VICE PRESIDING JUDGE:** Appellant Jaren Glenn Sellers appeals from the revocation of his suspended sentences in Pontotoc County District Court Case No. CF-2012-390. On September 13, 2013, Appellant entered negotiated Alford pleas to First Degree Rape (21 O.S.2011, § 1114) (Count 1) and Forcible Sodomy (21 O.S.2011, § 888) (Count 2). He was sentenced to a term of imprisonment for ten years on each count, all suspended, to be served concurrently. On January 16, 2018, the State filed an amended application to revoke the suspended sentences alleging that Appellant committed the new crime of Aggravated Assault and Battery. A revocation hearing was held on August 27, 2018, before the Honorable Gregory Pollard, Special Judge. Judge Pollard granted the State's application and revoked seven years of Appellant's ten-year suspended sentences. On appeal, Appellant asserts the revocation was excessive. **ANALYSIS** At a hearing where the State seeks revocation of a suspended sentence, the question is whether the suspended portion of the sentence should be executed. The court makes a factual determination as to whether the terms of the suspension order have been violated. The violation need be proven only by a preponderance of the evidence. A trial court's decision to revoke a suspended sentence should not be overturned absent a finding of an abuse of discretion. We do not find the decision to revoke seven years of Appellant's suspended sentences to be an abuse of discretion. The credibility of witnesses and the weight given their testimony are within the exclusive province of the trier of fact, who may believe or disbelieve the witnesses as it desires. The decision of the trial court to revoke a suspended sentence, in whole or in part, is within the sound discretion of the trial court and will not be disturbed absent an abuse thereof. Judge Pollard considered all evidence presented during the revocation hearing. His decision to partially revoke Appellant's suspended sentence cannot be considered an abuse of discretion. **DECISION** The order of the district court of Pontotoc County revoking a portion of Appellant's suspended judgments and sentences in Case No. CF-2012-390 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. --- **AN APPEAL FROM THE DISTRICT COURT OF PONTOTOC COUNTY** **THE HONORABLE GREGORY POLLARD, SPECIAL JUDGE** **APPEARANCES ON APPEAL** **COUNSEL FOR DEFENDANT:** LLOYD B. PALMER 1609 ARLINGTON ADA, OK 74820 **COUNSEL FOR APPELLANT:** MARK P. HOOVER INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 **COUNSEL FOR THE STATE:** TARA M. PORTILLO ASST. DISTRICT ATTORNEY P.O. BOX 146 ADA, OK 74821 **ASST. ATTORNEY GENERAL:** MIKE HUNTER JENNIFER B. MILLER COUNSEL FOR APPELLEE 313 N.E. 21st STREET OKLAHOMA CITY, OK 73105 **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-2018-925_1734359840.pdf)

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