The 85% Rule mandates that defendants convicted of enumerated crimes must serve 85% of the sentence, by virtue of the conviction alone, regardless whether the sentence is enhanced with prior convictions.1 Penalties for 85% crimes may be subject to further enhancements under the Habitual Offender Act, 21 O.S.2021, § 51.1 et seq. Under that law, any person previously convicted of a felony, who commits a new felony ≤ 10 years of the date following completion of the execution of sentence, is subject to enhanced punishment for the new crime.2
The principal enhancement criteria are (1) whether the new crime is a “571” violent crime, listed in 57 O.S.2021, § 571(2); (2) the minimum sentence for a first (or more properly, unenhanced) offense; and (3) the number of prior convictions. Prior felony convictions for simple drug possession (currently a misdemeanor) may no longer be used to enhance punishment under § 51.1. Several new, potentially lower enhancements for drug crimes are provided in Title 63;3 and nine property crimes are subject to reduced enhancements if prior convictions were non-571 (non-violent) crimes.4
After 1 prior conviction, the penalty for a new “571” (violent) offense, punishable as a first offense for > (“any term exceeding”) 5 years (and note that this includes crimes with a minimum lower than 5 years), is generally 10 years to life. Any 571 offense, after two prior convictions, is punishable by 20 years to life, or in the case of certain child sex offenses, life imprisonment.5 A new 571 offense, punishable as a first offense by ≤ 5 years, is punishable after 1 prior conviction by ≤ 10 years, but after two or more priors, also carries 20 years to life imprisonment.6
Non-571 offenses, punishable as a first offense for any term > 5 years, are punishable after 1 former conviction by 2x the minimum term for a first offense (or if no minimum is specified, by a minimum of 2 years), up to life imprisonment. Non-571 offenses punishable ≤ 5 years for a first offense are punishable after 1 prior felony conviction by ≤ 10 years. A non-571 offense, after two prior convictions, is punishable by 3 times the minimum, (or if no minimum is specified, by a minimum of 4 years), up to life imprisonment.
Phrases like “second offense,” “second or subsequent offense,” and “third or subsequent offense,” in the Oklahoma Statutes are context-specific. Such phrases sometimes refers to repeat violations of the same statute, or even a specific subsection. Other times the context and other available punishments suggests a law violation committed after a prior felony conviction of any kind.
Several Oklahoma crimes carry specific enhancements, including the mandatory life without parole sentence for “second or subsequent” rape, sodomy, child sexual abuse, or lewd molestation,7 and penalties for repeat sex crimes and crimes involving younger children.8 These provisions dispense with the 10 year limitation on prior convictions. Under SB 649, effective Nov. 1, 2018, several theft and property crimes9 have new, potentially lower enhancements of ≤ 2x the maximum for the unenhanced crime, if the prior conviction was a non-571(non-violent) crime. And SB 649 repealed the law making petit larceny, after former conviction of a felony, a felony punishable by ≤ 5 years imprisonment.
Felony crimes against elderly (≥ 62) or incapacitated persons10 are subject to specific enhanced punishments. If a first offense for the crime is punishable by < 5 years, the enhanced sentence for 1 prior conviction is ≥ 10 years, essentially 10 years to life. If a first offense for the crime is punishable by ≤ 5,years, the enhanced sentence for 1 prior conviction is ≤ 15 years, effective a 5 year increase in the range over ordinary 571 crime enhancement under section 51.1(A)(2) of Title 21. A person with 2 prior convictions for crimes against against elderly or incapacitated persons, who commits a third crime against the elderly or incapacitated person within 10 years of completing the first sentence, is punishable by ≥ 20 years, effectively 20 years to life imprisonment. Transactional limitations mentioned below apply.11
Felony convictions generally may not be used for enhancement 10 years after the completion of the sentence unless the person has, in the meantime, been convicted of another felony. A prior child abuse conviction, regardless when it occurred, can enhance punishment on a current child abuse conviction.12 Convictions “shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location,”13 limiting the DA to 1 prior conviction per “transaction,” though the defendant may have been convicted of several felonies.14 The same conviction cannot serve as both an element of an underlying offense and as a prior for enhancement.15
References
- Lacy v. St., 2007 OK CR 20 ↩︎
- 21 O.S.2021, § 51.1(A) ↩︎
- 63 O.S.2021, § § 2-401, 2-415 ↩︎
- 21 O.S.2021, § 51.1(D), (E) ↩︎
- 21 O.S.2021, § 51.1(A)(1), (B); 21 O.S.Supp.2022, § 1123. ↩︎
- 21 O.S.2021, § 51.1(A)(3), (C) ↩︎
- 21 O.S.Supp.2022, § 1123; 21 O.S.2021, § 51.1a ↩︎
- 21 O.S.2021, §§ 843.5(K)(sex crimes with children under 14); 888, 1115, 1123 (enhanced sex crime penalties for acts with children under 16 and 12); § 1031(D)(fine only remains an option for second or subsequent prostitution crimes ≤ 1,000 feet of school or church). ↩︎
- Uttering a forged instrument, 21 O.S., § 1592; receiving or concealing stolen property, 21 O.S., § 1713; false personation of another, 21 O.S., § 1531 ; unauthorized use of a motor vehicle, 47 O.S., § 4-102; grand larceny, 21 O.S., § 1705; false declaration of ownership to a pawnbroker, 59 O.S., § 1512; 2nd degree forgery, 21 O.S., § 1577; receiving, possessing or concealing a stolen vehicle, 47 O.S., § 4-103; larceny of merchandise from a retailer, 21 O.S. § 1731 ↩︎
- Incapacitated here means a mental or physical disability preventing effective protection of self or property. 22 O.S.2021, § 991a-13 ↩︎
- 21 O.S.2021, § 991a-20 ↩︎
- 21 O.S.2021, § 51.2 ↩︎
- 21 O.S.2021, § 51.1(B) ↩︎
- Levering v. St., 2013 OK CR 19 ↩︎
- Chapple v. St., 1993 OK CR 38 ↩︎