341 P.3d 87
Okla. Crim. App.2015Background
- In 2009 Whitaker pleaded guilty to distribution of a controlled substance; sentencing was deferred for four years with probation.
- In May 2013 the State filed an application to accelerate the deferred sentence, alleging Whitaker committed domestic assault and battery (a new offense).
- At the acceleration hearing the alleged victim, Whitaker's former girlfriend, testified that during an argument Whitaker took her phone, prevented her from leaving, and bit her shoulder; a photograph of the bite mark was admitted.
- Whitaker admitted a prior altercation in which the victim bit his finger and argued that her conduct amounted to consent to the fight, so his retaliatory bite was not unlawful.
- The district court accelerated Whitaker’s deferred sentence and imposed four years; Whitaker appealed, claiming (1) insufficient evidence to support the allegation justifying acceleration, and (2) his sentence is excessive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence was sufficient to accelerate deferred sentence for domestic assault and battery | Whitaker: evidence insufficient; the victim consented to the fight (she bit him first) so his conduct was not unlawful | State: victim’s testimony and photo showed Whitaker bit her shoulder; evidence met preponderance standard for acceleration | Court: Acceleration hearing standard is preponderance; evidence was sufficient; no abuse of discretion |
| Whether Whitaker’s sentence is excessive and reviewable on acceleration appeal | Whitaker: sentence is excessive and should be modified; asks Court to expand scope of review to address excessiveness | State: sentence length is not properly reviewed in an acceleration appeal; excessive-sentence claims belong in certiorari appeal with proper record | Court: Excessive-sentence claims are not properly raised in an acceleration appeal; must be preserved and presented in district court and then via certiorari for review |
Key Cases Cited
- Degraffenreid v. State, 599 P.2d 1107 (Okla. Crim. App. 1979) (acceleration proceedings afford narrower due-process protections than criminal trials)
- Edwards v. State, 747 P.2d 968 (Okla. Crim. App. 1987) (standard of review for acceleration is abuse of discretion)
- Hagar v. State, 990 P.2d 894 (Okla. Crim. App. 1999) (reiterating abuse-of-discretion standard for acceleration)
- Vigil v. State, 765 P.2d 794 (Okla. Crim. App. 1988) (scope of certiorari review after guilty plea is limited)
- Frederick v. State, 811 P.2d 601 (Okla. Crim. App. 1991) (addressing plea-withdrawal claims tied to sentencing dissatisfaction)
- Gonseth v. State, 871 P.2d 51 (Okla. Crim. App. 1994) (review of sentencing authority on certiorari)
- Beihl v. State, 762 P.2d 976 (Okla. Crim. App. 1988) ("shock the conscience" standard applied in reviewing excessive sentence claims)
- Davis v. State, 704 P.2d 497 (Okla. Crim. App. 1985) (excessive-sentence claim reviewed where record preserved in district court)