State of Oklahoma v. Brittany Dawn McKelvy

Magnum, Oklahoma criminal defense lawyer represented the Defendant charged with grand larceny.

Brittany Dawn McKelvy pleaded guilty and was sentenced to the Delayed Sentencing Program for Young Adults at the Department of Corrections, Mabel Bassett Correctional Center on a five year deferred sentence. Appellant was placed on supervised probation with the District Attorney's Office for eighteen months. Appellant's rules and conditions of probation required, in part, that she complete a drug and alcohol assessment, and refrain from possessing or consuming controlled dangerous substances. The State filed an application to accelerate deferred judgment on August 12, 2024. The application alleged Appellant violated the terms and conditions of her probation by testing positive for methamphetamine and amphetamine on August 7, 2024. A hearing on the State's application was held on September 4, 2024. Judge Hall accelerated the deferred judgment and sentenced Appellant to a five year suspended sentence.

From this judgment and sentence, McKelvy appeals, raising a sole proposition of error:

Because a single failed drug test amounts only to a "technical violation" of the conditions of a deferred sentence, the trial court was without authority to enter judgment of guilt against McKelvy and proceed to sentencing.

Appellant argues that the trial court had no legal authority to enter a judgment of guilt against her, based on a technical violation of the rules and conditions of her deferment. In support of her argument, Appellant points to the language of 22 O.S.Supp.2021, § 991c(G), which states, "upon any violation of the deferred judgment, other than a technical violation, the court may enter a judgment of guilt and proceed as provided in Section 991a of this title or may modify any condition imposed." Id.

A deferred sentence is given after a verdict or plea of guilty, and with the consent of the defendant. 22 O.S.Supp.2021, § 991c(A). This type of sentence allows a defendant the benefit of not receiving a judgment of guilt and, upon successful completion of specific conditions prescribed by the court, a discharge without a court judgment of guilt and expungement of the guilty plea from the defendant's record. See 22 O.S.Supp.2021, §§ 991c(A) & (D). If there is an allegation that the defendant failed to meet any of the conditions of deferment, the State may file an application to accelerate the deferred sentence. 22 O.S.Supp.2021, § 991c(F).

It is uncontested by the parties that an application to accelerate was filed by the State, Appellant did violate a condition of her probation, and that the violation was a "technical violation" as defined in 22 O.S.Supp.2021, § 991b(C).

After the 2018 amendments, 22 O.S.Supp.2018, § 991c(F) stated:

F. Whenever a judgment has been deferred by the court according to the provisions of this section, deferred judgment may not be accelerated for any technical violation unless a petition setting forth the grounds for such acceleration is filed by the district attorney with the clerk of the sentencing court and competent evidence justifying the acceleration of the judgment is presented to the court at a hearing to be held for that purpose. The hearing shall be held not more than twenty (20) days after the entry of the plea of not guilty to the petition, unless waived by both the state and the defendant. Any acceleration of a deferred sentence based on a technical violation shall not exceed ninety (90) days for a first acceleration or five (5) years for a second or subsequent acceleration. (emphasis added)

he language contained in 22 O.S.Supp.2015, 991c(F), is what has always given trial courts the authority, when there is any violation of probation, to accelerate one's deferred sentence and impose a sentence. The 2018 amendment removed that authority in the case of technical violations, and this authority was not replaced anywhere else in the statute. The result is that trial judges no longer have the authority to accelerate one's deferred sentence and impose a sentence pursuant to Section 991a, based only on a technical violation. 1

If an application to accelerate a deferred sentence is based solely on technical violations, the trial court is authorized to sustain the State's application to accelerate the deferred sentence, not enter a judgment of guilt, and impose up to ninety days in jail for a first technical violation, and up to five years in prison for a second or subsequent violation. 22 O.S.Supp.2021, 991c(F)

The entry of judgment and five year suspended sentence in Kiowa County District Court Case No. CF-2023-46 is REVERSED and REMANDED to the District Court for further proceedings consistent with this ruling. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2026), the MANDATE is ORDERED issued upon the delivery and filing of this decision.