Sentencing in Oklahoma 9th Edition

3.1 Time for judgment

Upon conviction by a jury or trial court verdict, or by plea of guilty (usually entered at arraignment or other time set by the court), the court must remand the defendant to custody, and appoint a time for judgment at least 2 days after the verdict. The causes against judgment are insanity (which, in case of a doubt, must be tried by jury), or any matter in arrest of judgment or warranting a new trial. Unless judgment is arrested or a new trial ordered, judgment must be rendered. Where the court determines punishment, it may summarily hear victim impact statements and other testimony in aggravation or mitigation upon notice to the parties. The court may order sentences served concurrently or consecutively in its discretion.¹

3.2 Pre-sentence investigation

The court may order a pre-sentence investigation upon conviction of any non-capital felony, and may order the defendant to pay a fee of $50.00-$500.00, but is not required to do either. DOC’s investigation must address the circumstances of the offense and the characteristics of the offender. Sources shall include, at least, a voluntary statement from each victim about the nature and impact of the offense on the victim and immediate family, and losses incurred as a result of the offense. Defendant’s age, marital status, living arrangements, financial obligations, income, family history, education, prior juvenile and criminal records, associations with felons, predisposition to violence or substance abuse, remorse or guilt, job skills, and employment history must be investigated. The investigation may also include a physical and mental examination of defendant.²

The district attorney may have a pre-sentence investigation made by DOC on each person charged with a violent non-capital felony and entering a negotiated guilty or no contest plea to a felony before the negotiated plea is finalized. The court shall review the pre-sentence investigation before accepting the negotiated plea, and order the payment of the investigation fee as a condition of accepting the negotiated plea. The Court shall advise the parties of the contents of the pre-sentence investigation and afford a fair opportunity to controvert facts or conclusions in the report. Pre-sentence investigations must not be referred to or considered in any appeal.

3.3 Deferral of judgment, generally

With the consent of a qualified offender³ found guilty or pleading guilty, the court may defer judgment and sentence for ≤ 7 years on conditions prescribed the court, which can be extended ≤ 3 additional years to satisfy an order of restitution. The court may also order:

• Any assessments or court costs authorized by law;
• the lesser of the maximum jail sentence, or ≤ 90 days in jail;
• ≤ 18 months community supervision, unless a petition alleging violation of any condition of the deferred judgment is filed during the period of supervision;
• community service;
• restitution to the community or victim;
• any of the conditions for a suspended sentence;
• a fee for court-appointed counsel;
• $40 monthly DOC supervision fee;
• $40 per month fee to DA for the first 2 years of probation for costs of prosecution⁴

3.4 Restitution

Restitution to victims of crime is a principal focus of sentencing in Oklahoma. The statutes repeatedly emphasize restitution as a condition of any favorable sentencing option, including youthful offender, community, delayed, deferred (RID), and suspended sentencing. The DA can also impose restitution for bogus check and eligible property crimes as a condition of non-prosecution under the discretionary Bogus Check and Restitution and Diversion Programs. Of course, restitution may also be ordered when jail or prison is imposed.⁵

Criminal offenders are usually poor, and their apprehension and punishment usually do little to increase their resources. The constitution and statutes prohibit punishments inflicted based on an inability to pay, creating an obvious tension between adequate restitution and manifest hardship on the offender. Restitution is largely governed by § 991f of Title 22, which makes its provisions generally applicable to criminal sentencing. This section examines restitution as a feature applicable to all Oklahoma sentencing schemes, and is the principal discussion of the topic within this work.⁶

Restitution is a payment by the offender to compensate the victim for up to three times the economic loss caused by a crime. The DA will ordinarily identify crime victims in the course of prosecution and provide an official restitution claim form requesting documentation of economic loss. The DA will then present a restitution claim at sentencing or in connection with a plea agreement, which the judge must review before accepting the plea.⁷

Restitution by the offender is mandatory upon conviction for any crime where property was stolen, converted, unlawfully obtained, or its value substantially decreased; or where the victim was injured, lost income, or incurred out-of-pocket costs as a direct result. The amount of the victim’s loss must be determinable with reasonable certainty, by a preponderance of the evidence. Restitution is cumulative to other punishments allowed by law.⁸

The court’s restitution order must be sufficient to restore the victim to their economic status before the losses resulting from the crime. The court must consider pre-existing restitution or compensation orders imposed on the defendant in other civil and criminal proceedings; and may allow the victim up to treble the actual economic loss, or direct the return of property.In setting restitution, the court may:

• consider the loss of value to, or use of, the property;
• order payment of a lump sum or scheduled payments;
• order 12% interest on the unpaid balance.⁹

Restitution should be set without regard to the offender’s financial resources, but the court may direct the offender to submit any information it deems relevant prior to determining the amount of restitution. The failure to provide such information is both a contempt and a forfeiture of the right to appeal or seek future amendment of the restitution order.¹⁰ 

A restitution order can always be amended for good cause, and may be increased or canceled, in whole or part, if actual payment would result in manifest hardship to the offender or offender’s immediate family.¹¹ 

The obligation to pay restitution (as well as fines, fees, and other assessments) survives any term of probation or confinement and remains collectible as a judgment against the offender until paid in full, but is not an ordinary debt dischargeable in bankruptcy. When the court orders restitution to more than one victim, payments must first go to the victim or victims, then to any agency providing reimbursement to victims.

When a financially able defendant refuses or neglects to pay restitution, the court may:

• punish the act as contempt
• enter the amount on the judgment docket
• revoke/accelerate a suspended/deferred sentence
• order community service at $5/day against the amount due
• or 5 days in jail for each failure to do community service.¹²

Restitution proceedings are equitable in nature and do not require a trial by jury to determine the amount of damages, either for the offender or parents of a juvenile ordered to pay restitution. The Legislature intended restitution to compensate for actual loss, not to provide a windfall or further punish a defendant. The requirement of “reasonable certainty” in the amount of loss requires proof by a preponderance of the evidence.¹³

The Court of Criminal Appeals reviews initial restitution orders and any subsequent modifications for abuse of discretion. The Court tends to confine scrutiny of restitution to whether the facts support the amount ordered, rather than the offender’s ability to pay. This is understandable, given the trial court’s primary responsibility for determining current ability to pay and adjusting restitution orders accordingly throughout their existence.¹⁴

3.5 Intoxication-related traffic crimes

In cases of operating or actual physical control of a motor vehicle under the influence of, or while impaired by, alcohol or drugs, the court may, in addition to the sanctions above, also order:

• a pre-sentence substance abuse evaluation (with $75 fee);
• a substance abuse course;
• a victims impact panel (with $75 fee);
• the ignition interlock condition as with suspended sentences;¹⁵

3.6 Acceleration and judgment

Upon violation of any condition of the deferred judgment, the court may enter a judgment of guilt and proceed as provided in § 991a of this title or modify any condition. Offenders supervised by DOC during a deferred sentence are subject to the intermediate sanction process for technical violations of the conditions of the sentence. A court considering acceleration for a drug or property crime subsequently reduced to a misdemeanor by state law (SQ 780) can impose only the lower penalty applicable as if the offense was committed after July 1, 2017. The procedures for acceleration of the deferred judgment are substantially similar to those for revocation of a suspended sentence in Chapter 4.¹⁶

3.7 Completion of deferral

Upon satisfaction of the conditions of the deferred judgment and payment of all fines, fees, and assessments, the court must discharge the offender without judgment of guilt, order the guilty verdict or plea of guilty or no contest expunged from the record, and dismiss the charge with prejudice. Expunged records are sealed from public inspection but available to law enforcement; and are admissible in a subsequent prosecution to prove the existence of a prior conviction or deferred judgment without a court order.¹⁷

3.8 Delayed Sentencing Program (R.I.D.)

The Delayed Sentencing Program for Young Adults (DSPYA), also known as the Regimented Inmate Discipline Program (RID), is a specific deferred sentencing option for young adults who are neither juveniles nor youthful offenders. Eligible offenders are adults 18 to 25 as of the date of a guilty plea or verdict for a non-violent felony,and juveniles certified to stand trial as adults for a non-violent felony, who (in either case) have not been: (1) previously admitted to RID; (2) convicted of a violent felony or specified offenses, or adjudicated as a juvenile delinquent or youthful offender, and (3) have no violent charges pending.¹⁸

RID is 180 days to 1 year of a structured and intense confinement or probation, supervision, treatment, discipline, and vocational or educational components designed for the offender. The court shall delay sentencing for this period when it orders an offender to successfully complete RID. Within 90 days of placement in RID, DOC must file with the court a specialized offender accountability plan (in lieu of a § 982 pre-sentence investigation).¹⁹

The plan shall include information requested by the court, the probation officer’s investigation, assessment of security risks and offender needs, and a recommended course of action that may include counseling, psychiatric or medical treatment, education or vocational training, work, restitution, and other programs offering the best opportunity for rehabilitation. The plan must recommended the type and duration of confinement, boot camp, substance abuse treatment, and vocational or educational placement.

DOC shall provide the plan to the district attorney, offender, offender’s counsel, and the court. Any party may file written objections to the plan ≤ 10 days of receipt, which the court shall hear ≤ 10 days of filing. After hearing, the court may order a plan of action for the offender in RID, or sentence the offender as provided by law. Upon the offender’s successful completion of RID, the court may defer judgment under § 991c; suspend the sentence under § 991a, with rules and conditions of probation; or impose a sentence in DOC custody provided by law. The court may also impose community sentencing or dismiss the charges. RID offenders committed to DOC may be housed in minimum or medium security, halfway house, community facility, or the combination of facilities needed to comply with the plan and the offender’s criminogenic needs. Offenders who violate the conditions of delayed sentencing under the DSPYA are subject to acceleration of the delayed sentence as with a deferred sentence and subsequent imposition of a sentence of imprisonment, with or without suspension.²⁰

3.9 Deferred sentences and subsequent offenses

The deferred sentence, which upon completion discharges the offender without a judgment of guilt, provides an important opportunity to avoid conviction. However, the deferred sentence (some statutes still speak of deferred judgment, but these are the same) is a prior conviction for some purposes. A prior deferred sentence for a felony generally precludes a deferred sentence for a second offense (felony or misdemeanor).²¹

A criminal record expunged on completion of a deferred sentence remains admissible in a subsequent prosecution to prove a prior conviction or prior deferred sentence. The Controlled Dangerous Substances Act provides that a deferred sentence for a drug crime is a conviction under any criminal law for which prior conviction is relevant for 10 years after completion of probation; or permanently if, “in the meantime,” the defendant is convicted of a moral turpitude misdemeanor or a felony. The DUI statutes also provide that a person who commits a second DUI offense within 10 years of completing a deferred sentence is guilty of felony DUI.²²

References

1. 22 O.S.2021, §§ 924, 961, 970, 972, 991a(C); 22 O.S.2021, § 973-75. The court may specifically consider post-traumatic stress disorder upon sentencing a veteran upon proof of prior service and a diagnosis of service-related PTSD. § 973a, 976 ↩︎
2. 22 O.S.2021, § 982; Rowe v. State, 1987 OK CR 102  (“A convicted person is clearly entitled to waive his right to a pre-sentence investigation”). ↩︎
3. Unless waived by the court on written application of the district attorney, deferred judgment applies only to defendants not previously convicted of a felony and not subject to deferred judgment for a felony within the 10 years of committing the pending offense. 22 O.S.2021, § 991c (H). Defendants found guilty or pleading guilty to a sex offense requiring registration under the Sex Offenders Registration Act are ineligible for a deferred sentence. Id. 1st time drug offenders are also eligible for a deferred sentence. 63 O.S.2021, § 2-410(A) ↩︎
4. 22 O.S.2021, § 991c (A)(7, 10, 11). Defendants who are supervised by the Department of Corrections pursuant to this section shall be subject to the intermediate sanction process as established in subsection B of § 991b of this title, discussed in Chapter 4. Probation fees are paid to the court fund if not supervised. The statute prohibits a denial of supervision based solely on inability to pay. The total of such assessments must not exceed the maximum fine for the offense. ↩︎
5. 22 O.S.2021, § 991a(A)(1)(a)(providing any order of restitution shall be made in conjunction with probation and a condition of a suspended sentence). Restitution to the victim is the first of the general sentencing powers mentioned in 22 O.S.2021, § 991a(A)(1)(a). The law directs the court at sentencing to “first consider a program of restitution for the victim,” § 991a(C); and the court imposing a deferred sentence is also directed to “first consider restitution among the various conditions it may prescribe.” 22 O.S.2021, § 991c(A). Restitution procedures largely faithful to § 991f are reiterated in connection with sentencing for crimes against elderly and incapacitated victims. § 991a-17(2) (requiring restitution); 991a-18 (setting forth procedure for determining amount of restitution, credit for certain payments, and authority to seize real or personal property to satisfy restitution order); see also 10A O.S.2021, § 2-2-503 (A)(7)(c)(1-5)(establishing restitution procedures for children adjudged delinquent, including orders that the child, and/or parent(s), and/or legal guardian(s), make full or partial restitution to the victim of an offense resulting in property damage or personal injury); 22 O.S.2021, §§ 111-115 (referral is discretionary with DA based on 5 statutory factors measuring severity of the offense and circumstances of the offender); 22 O.S.2021, § 991f-1.1 (referral is discretionary with DA based on 7 statutory factors including severity of the offense, circumstances of the offender, and wishes of the victim). ↩︎
6. The Supreme Court has famously said that in criminal cases, “a State can no more discriminate on account of poverty than on account of religion, race, or color.” Griffin v. Illinois, 351 U.S. 12, 17-18 (1956). Article 2, § 13 of the Oklahoma Constitution prohibits imprisonment for debt “except for the non-payment of fines and penalties imposed for violation of law;” and Article 2, § 6 guarantees that court “shall be open to every person,” and justice administered “without sale, denial, delay, or prejudice.” See also, Williams v. Illinois, 399 U.S. 235 (1970) (indigent confined beyond maximum term for involuntary nonpayment of fine denied equal protection); Tate v. Short, 401 U.S. 395 (1971) (crime punishable by fine only may not be converted to imprisonment by inability to pay). ↩︎
7. “Victim” includes any person or legal entity (corporation, partnership) that suffers economic loss as a direct result of the crime. 22 O.S.2021, § 991f(A)(2) “Economic loss” is actual financial detriment, including medical expenses actually incurred, damage or loss of real and personal property, earnings, and other out-of-pocket expenses. No other elements of damage (and this seems principally to mean pain and suffering) are included. 22 O.S.2021, § 991f(A)(2). In ordering restitution in juvenile delinquency cases, the court may consider “damages for injury or loss of property and actual expenses of medical treatment for personal injury, excluding pain and suffering.” 10A O.S.2021, § 2-2-503(A)(7)(c)(1). The same exclusion of restitution “on account of pain and suffering” appears in 22 O.S.2021, § 991a-18(C), the Elderly and Incapacitated Victim’s Protection Program; 22 O.S.2021, § 991f(A)(1), (E) ↩︎
8. Good faith purchasers of unlawfully obtained property are entitled to restitution along with rightful owners. 22 O.S.2021, § 991a-3 (excluding pawnbrokers who refuse to produce property for inspection or sell before default on a pledge, and those knowingly receiving stolen property, and creating civil cause of action); 22 O.S.2021, § 991a(A)(1)(a); Honeycutt v. St., 1992 OK CR 36; 22 O.S.2021, § 991f(C)(1) ↩︎
9. 22 O.S.2021, § 991f(C)(2); Coble v. Shepherd, 2008 OK CIV APP 71 (plaintiff in civil battery who received $5000 in criminal restitution was “fully compensated;” defendant was entitled to credit against later $4776.86 jury verdict for actual damages, but not punitive damages, which are intended to punish); 22 O.S.2021, § 991f(C)(2)(a), (C)(3)(a, b). The court may order interest to be paid to the victim(s) or proportion it between victims and the court fund, and/or the Restitution and Diversion Program. 22 O.S.2021, § 991f(C)(3)(d) ↩︎
10. 22 O.S.2021, § 991f(C)(2)(b), (H, I) ↩︎
11. 22 O.S.2021, § 991f(C)(3)(c); 22 O.S.2021, § 991f(J)(providing authority for multiple hearings on initial restitution and requested amendments, and that restitution order can be altered on the court’s own motion, petition of the crime victim, or of the offender); see also, § 991a(A)(1) (stating manifest hardship standard in making initial restitution decision); see also, 22 O.S.2021, § 991b(E) (providing that when failure to timely pay restitution is a ground of petition for revocation, court may hear evidence and, if payment would result in manifest hardship, may cancel all or part of the amount due, or modify the terms); 22 O.S.2021, § 991f(K) (frivolous request by offender to amend restitution order shall be assessed costs of the proceeding and any loss of earnings and out-of-pocket loss incurred by the victim in responding); Hunter v. St., 1982 OK CR 133 (holding trial court had inherent authority to modify restitution order in connection with acceleration of deferred sentence, though statute at that time conferred no express authority) ↩︎
12. 22 O.S.2021, § 991f(B, D, M, N); 21 O.S.2021, § 566. This has the full effect of a civil judgment, and is collectible as such, but is not an ordinary debt dischargeable in bankruptcy; 22 O.S.2021, § 991f(M)(3). This provision must be applied in conjunction with 22 O.S.2021, § 983, which provides for imprisonment for non-payment of fines, fees, costs, or assessments only after a hearing and a determination that the offender is financially able to pay but refuses or neglects to do so. 22 O.S.2021, § 991f(O) ↩︎
13. In the Matter of T.L.B., 2009 OK CIV APP 70; Honeycutt v. St., 1992 OK CR 36 ↩︎
14. Honeycutt, 1992 OK CR 36; Haynes v. St., 1988 OK CR 164. In Honeycutt, the Court vacated a $47,000 restitution award, finding that the victim’s testimony concerning the value of a building and its contents, though uncontradicted at trial, was insufficient to support the award. In Logsdon v. St., 2010 OK CR 7, the Court vacated a $1.2 million restitution award because the record did not support the amount with reasonable certainty. The DA provided a grand restitution total but did not account for amounts paid by the defendant during the ongoing scheme. The DA’s figure also failed to specify actual economic loss of specific victims, possible payments received from other sources, and whether additional restitution was sought or allowed. The Court remanded for a proper determination of the amount. ↩︎
15. 22 O.S.2021, § 991a(A)(1)(n) ↩︎
16. 22 O.S.2021, § 991c(F, J); Acceleration of a deferred sentence for a technical violation is ≤ 90 days for the first technical violation and 5 years for a second or subsequent violation. 22 O.S.2021, § 991c(K) ↩︎
17. The name of the defendant shall be deleted from the docket sheet; the public index of the filing of the charge shall be expunged; the clerk shall keep a confidential index of cases and names obliterated pursuant to these provisions; and no information concerning the file shall be revealed except by written order of the district court or upon written request by the defendant for the purpose of updating the criminal history record of the defendant with the OSBI. Defendants may also petition the court under 22 O.S.2021, § 18, to have the information and dismissal expunged. 22 O.S.2021, § 991c(D); 22 O.S.Supp.2022, § 18(E) ↩︎
18. 22 O.S.2021, § 996.3 (E). Failure to advise an eligible offender of the DSPYA sentencing option does not render a plea of guilty involuntary. Lewis v. St., 2009 OK CR 30; 22 O.S.2021, §§ 996, 996.1. Disqualifying offenses for RID are assault and battery with a dangerous weapon, aggravated assault and battery on a law officer, poisoning with intent to kill, shooting or discharging a firearm with intent to kill, assault with intent to kill, using a vehicle to facilitate the intentional discharge of any kind of firearm, discharging any firearm or other deadly weapon at or into any dwelling, assault with intent to commit a felony, murder in the first degree, murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, kidnapping, burglary in the first degree, kidnapping for extortion, maiming, robbery, child beating, wiring any equipment, vehicle, or structure with explosives, forcible sodomy, rape in the first degree or rape by instrumentation, lewd or indecent proposition or lewd or indecent act with a child under 16, use of a firearm or offensive weapon to commit or attempt to commit a felony, pointing firearms, rioting, arson in the first degree, child pornography, unlawful manufacturing, attempting to unlawfully manufacture or aggravated manufacturing of any controlled dangerous substance, or any violation of the Trafficking in Illegal Drugs Act. ↩︎
19. 22 O.S.2021, § 996.2; 22 O.S.2021, § 996.3 (A, B) ↩︎
20. 22 O.S.2021, § 996.3 (A, B, C, D); 22 O.S.2021, § 991c(G) ↩︎
21. 22 O.S.2021, § 991c(D) ↩︎
22. 63 O.S.2021, § 2-410(B); Pratt v. St., 2008 OK CR 20 (deferred sentence for drug offense was prior felony conviction where defendant possessed a firearm prior to completion of deferred probation); Watts v. St., 2008 OK CR 27 (same result applying Pratt). The statutory amendment extended the danger period for 10 years longer than Pratt, which had limited the defendant’s exposure to the completion of probation; 47 O.S.2021, § 11-902(C)(2), (M); St. v. Salathiel, 2013 OK CR 16 ↩︎