Big changes in sentencing in Oklahoma regarding: sentence modification, payment plans, mandatory minimums, community sentencing, domestic violence, suspended sentences, and deferred sentences. SB 689 was part of a package of criminal justice reform bills aimed at reducing the prison population and easing the burden on defendants. It went into effect November 1, 2018.
Modify LWOP Sentence
The court imposing the sentence of someone sentenced to life without parole may modify that prisoner’s sentence.
- Offense must be non-violent.
- Prisoner must have served at least 10 years in prison.
- There must be a finding that the best interests of the public will not be jeopardized.
- Prior to granting a sentence modification under these provisions, the court must provide notice of the hearing to determine sentence modification to the victim or representative of the victim and shall allow the victim or representative of the victim the opportunity to provide testimony at the hearing.
- The court will consider the testimony of the victim or representative of the victim when rendering a decision to modify the sentence of an offender.
Payment Plans For Indigents
The Court of Criminal Appeals will implement procedures and rules for methods of establishing payment plans of fines, costs, fees, and assessments by indigents.
Departing From Mandatory Minimum Sentence
It’s easier for judges to depart from a mandatory minimum sentence. When sentencing a person convicted of a criminal offense for which there is a mandatory minimum sentence of imprisonment, the court may depart from the applicable sentence if the court finds substantial and compelling reasons on the record, after giving due regard to the nature of the crime, history, and character of the defendant and his or her chances of successful rehabilitation, that:
- The mandatory minimum sentence of imprisonment is not necessary for the protection of the public; or
- Imposition of the mandatory minimum sentence of imprisonment would result in substantial injustice to the defendant; or
- The mandatory minimum sentence of imprisonment is not necessary for the protection of the public and the defendant, based on a risk and needs assessment, is eligible for an alternative court, a diversion program or community sentencing, without regard to exclusions because of previous convictions, and has been accepted to the same, pending sentencing.
Previously, if #3 from above didn’t apply, then the judge would have to find that both the mandatory minimum sentence of imprisonment is not necessary for the protection of the public and imposition of the mandatory minimum sentence of imprisonment would result in substantial injustice to the defendant.
Any departure from the mandatory minimum sentence as authorized in this law won’t not reduce the sentence to less than 25% of the mandatory term.
Level of Service Inventory (LSI) is now replaced with “risk and needs assessment.” There is no longer a requirement that someone already have a felony conviction to be eligible for community sentencing. This law removed the language in one statute requiring an eligible offender to score in a range other than the low range in on the risk and needs assessment. However, that requirement was left in the language of another statute.
New services available for eligible offenders include specialized supervision for repeat offenders, offenders with convictions for sex crimes, offenders with conviction for domestic violence offenses, and offenders with diagnosed mental health needs; and cognitive behavioral treatment and any other programming or treatment needs as identified based on the results of the risk and needs assessment.
When considering community punishment, an assessment and evaluation of the defendant is no longer required in all instances. The judge may determine that no additional assessment is required if one was completed within the last six months. Community punishment is no longer limited to 30 days in jail.
SB 904 changed the statute covering community punishments. It now states that unless otherwise prohibited by law, only eligible offenders (as defined in 22 O.S. 988.2) are be eligible for any state-funded community punishments.
Domestic Violence Suspended Sentence
When suspending the sentence of someone convicted of a domestic violence crime, the court may order the defendant to receive an assessment for batterers. In addition to the other sentencing powers of the court, in the case of a person convicted of any crime related to domestic abuse, the court may require the defendant to undergo the treatment or participate in an intervention program for batterers certified by the Office of the Attorney General, necessary to bring about the cessation of domestic abuse. If the defendant alleges that he or she is a victim of domestic abuse and the current conviction is a response to that abuse, the court may now require the defendant to undergo an assessment by a domestic violence program certified by the Office of the Attorney General, and, if based upon the results of the assessment, the defendant is determined to be a victim of domestic violence, the defendant will undergo treatment and participate in a certified program for domestic violence victims. The defendant may be required to pay all or part of the cost of the treatment or counseling services.
Previously, someone wasn’t eligible for a suspended sentence if he or she was being sentenced to their third or subsequent felony. Now, people not eligible for a suspended sentence are those who are being sentenced for:
- A third or subsequent conviction of a violent crime;
- A fourth or subsequent conviction for any other felony crime; or
- A second or subsequent DUI felony (subject to exceptions).
Probation supervision of someone on a suspended sentence may not be extended for a failure to pay fines, fees, and other costs, excluding restitution, except upon a finding of willful nonpayment.
In addition to other misdemeanor crimes, someone convicted of unlawful carry of a firearm, illegal transport of a firearm, and discharging of a firearm must now also submit to a DNA test.
Revocation of Suspended Sentence
It’s a little more difficult to revoke a suspended sentence. Now, whenever a sentence has been suspended by the court after conviction of a person for any crime, the suspended sentence of the person may not be revoked in whole for a technical violation unless a petition setting forth the grounds for such revocation is filed by the district attorney with the clerk of the sentencing court and competent evidence justifying the revocation of the suspended sentence is presented to the court at a hearing to be held for that purpose within 20 days after the entry of the plea of not guilty to the petition, unless waived by both the state and the defendant. The State may dismiss the petition without prejudice one time upon good cause shown to the court, provided that any successor petition must be filed within 45 days of the date of the dismissal of the petition. Any revocation of a suspended sentence based on a technical violation must not exceed six months for a first revocation and five years for a second or subsequent revocation.
A “technical violation” means a violation of the court-imposed rules and conditions of probation, other than:
- Committing or being arrested for a new crime;
- Attempting to falsify a drug screen, or three or more failed drug or alcohol screens within a three month period;
- Failing to pay restitution;
- Tampering with an electronic monitoring device;
- Failing to initially report or missing assigned reporting requirements for an excess of 60 days;
- Unlawfully contacting a victim, co-defendant or criminal associates;
- Five or more separate and distinct technical violations within a ninety-day period; or
- Any violation of the Specialized Sex Offender Rules.
Absent a finding of willful nonpayment by the offender, the failure of an offender to pay fines and costs may not serve as a basis for revocation, excluding restitution.
The maximum length of probation for a deferred sentence was reduced from ten years to seven. The maximum length of supervision while on a deferred sentence is now 18 months, down from two years. When the court has ordered restitution as a condition of supervision and that condition hasn’t been satisfied, the court may, at any time prior to the termination or expiration of the supervision period, order an extension of supervision for a period not to exceed three years.
A deferred judgement can’t 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 must be held not more than 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 can’t exceed 90 days for a first acceleration or five years for a second or subsequent acceleration.
Previously, someone was ineligible for a deferred sentence if they had received a deferred sentence for a felony within the ten years prior to the commission of the current offense. Now, you can have one deferred sentence for a felony within the ten years prior to the commission of the current offense and still be eligible for a deferred sentence on the current offense.
Previously, a conviction for petit larceny within ten years of completing a felony sentence carried a punishment of up to five years in the Department of Corrections. This change removes the ability to enhance that petit larceny conviction to a felony.
Now, a previous conviction for possession of a controlled dangerous substance pursuant to 63 O.S. 2-402, or the equivalent law for possession of a controlled dangerous substance from any other jurisdiction, may not be used to enhance punishment pursuant to this section of law. This is a HUGE change. The most common way subsequent felonies were enhanced was to use a prior felony conviction for drug possession. Now, that “tool” can no longer be used by prosecutors. Note that the impact of this subsection will diminish over time. Since SQ 780 went into effect, all simple drug possession crimes became misdemeanors. Therefore, nobody since July 1, 2017 has been convicted of a felony for simple possession of drugs.
A section that added possibilities for sentence enhancement was added to this law. It states that anyone who, having previously been convicted of non-violent felony, is convicted of a second or subsequent felony is punishable by imprisonment in the custody of the Department of Corrections for a term of not more than twice the maximum sentence that could have been imposed for a first conviction of the current offense. This applies only to the following crimes:
- Uttering a subscription on instrument as that of one with the same name;
- Receiving or concealing stolen property;
- False personation of another;
- Unauthorized use of a motor vehicle;
- Grand larceny;
- False declaration of ownership to a pawnbroker;
- Forgery in the second degree;
- Receiving, possessing or concealing a stolen vehicle; or
- Larceny of merchandise from a retailer.
Except for the crimes of rape in the first degree, forcible sodomy, lewd molestation, and sexual abuse of a child, nobody may be sentenced as a second and subsequent offender under the sentencing enhancement statute, or any other section of the Oklahoma Statutes, when a period of ten years has elapsed since the completion of the sentence imposed on the former conviction; provided, the person has not, in the meantime, been convicted of a felony. Previously, the person may not have been convicted of a felony OR a misdemeanor involving a crime of moral turpitude during that ten-year period.
Eligibility Changes to Regimented Inmate Discipline (RID)
The definition of “offender” under the Delayed Sentencing Program for Young Adults has changed. Someone adjudicated as a juvenile delinquent or youthful offender is now excluded from this program. Additionally, upon completion of the program now, the Department of Corrections must notify the Sheriff of the county from where the order by the court placing an offender in the Delayed Sentencing Program for Young Adults was filed and the Sheriff must take custody of the offender. This went into effect May 1, 2018.
Sources: SB 689; SB 649; SB 904; SB 900; 22 O.S. §§ 982a, 983, 985.1, 988.2, 988.8, 988.18, 988.19, 988.20, 988.22, 991a, 991b, & 991c; and 21 O.S. §§ 51.1 & 51.2
Arrested in Oklahoma? Call Oklahoma attorney Frank Urbanic in OKC at 405-633-3420.