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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
COMMITTEE SUBSTITUTE
FOR
HOUSE BILL NO. 1639 By: Hasenbeck
COMMITTEE SUBSTITUTE
An Act relating to sentencing; creating the Oklahoma
Domestic Abuse Survivorship Act; defining terms;
directing courts to co nsider certain mitigating
factors during sentencing and pleas; requiring
defendants to provide certain documentary evidence;
providing sentencing ranges upo n finding by the
court; requiring the administration of an evaluation;
authorizing submission of results to the defendant
and the court; assigning responsibility of cost of
evaluations; allowing certain persons to make
application for sentencing relief; authorizing the
Court of Criminal Appeals to develop and disseminate
standard application form; stating absence of a
limitation period when applying for relief; providing
guidelines for when persons may apply for reli ef;
providing procedures for filing applications; stating
types of documentary evidence necessary for
consideration; providing for the filing of
applications without costs under certain
circumstances; allowing the state to object upon
showing of certain evidence; providing for the
dismissal of applications; authorizing courts to
grant leave to file amendment applications;
authorizing courts to grant certain motion; providing
for sentencing review hearings; stating procedures
for hearings; providing sentencing ranges upon
finding by the court; providing procedures for
amending judgment and sentences; establishing
restrictions on subsequent app lications; allowing
amended judgment and sentences to be appealed;
stating requirement for appeals; directing the
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Supreme Court to establish education and training
requirements; providing gui delines for rules;
requiring certain attorneys to complete annual
education and training; am ending 22 O.S. 2021,
Section 982, which relates to p resentence
investigations; expanding scope of circumstances;
providing for codification; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090 of Title 22, unless there
is created a duplication in numbering, reads as follows:
Sections 1 through 13 of this act shall be known and may be
cited as the "Oklahoma Domestic Abuse Survivorship Ac t".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statu tes as Section 1090.1 of Title 22, unless there
is created a duplication in numbering, reads as follows:
As used in this act:
1. "Conditional release" means a type of release from custody
that is not parole but which must comply with conditions such as
electronic monitoring;
2. "Deferred sentence" means a type of sentence as provided in
Section 991c of Title 22 of the Oklahoma Statues;
3. "Domestic abuse" means any act of physical harm or the
threat of imminent physical harm which is committed by an adult,
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emancipated minor, or minor child thirteen (13) years of age or
older against another adult, emancipated minor or minor child who is
currently or was previously an intimate partner or family or
household member;
4. "Economic abuse" means any behavior that has a substantial
and adverse effect on the ability of an individual to:
a. acquire, use, or maintain money or other property ,
b. obtain goods including, but not limited to , food and
clothing, or
c. obtain services including, but not limited to,
utilities;
5. "Parole" means a conditional release of an offender who has
served part of the term for which he or she was se ntenced to prison;
6. "Physical abuse" means any real or threatened physical
injury or damage to the body that is not accidental ;
7. "Posttraumatic stress disorder" means the same as such term
is defined in the Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition (DSM-5, 2013), and occurred as a result of
the victimization of a survivor;
8. "Psychological abuse" means a pattern of real or threatened
mental intimidation, threats, coercive control, and humiliation that
is intended to provoke fear of harm ; and
9. "Revocation hearing" means a type of hearing as provided in
Section 991b of Title 22 of the Oklahoma Statutes ;
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10. "Sentencing hearing" means a type of postconviction hearing
in which the defendant is brought before the court for imposition of
the sentence; and
11. "Suspended sentence" means a type of sentence as provided
in Section 991a of Title 22 of the Oklahoma Statutes.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.2 of Title 22, unless there
is created a duplication in numbering, reads as follows :
A. During a hearing to:
1. Sentence a person; or
2. Accept a plea of guilty,
for a person who is a survivor of domestic abuse, and has been
charged with the crime against his or her intimate partner where
self-defense could have been raised as an affirmative defense, the
court shall consider as a mitigati ng factor that the person has been
abused physically, sexually, economically, or psychologically by the
person the defendant defended his or herself against;
B. The defendant shall provide to the co urt evidence including,
but not limited to:
1. Documentary evidence, corroborating that the defendant was,
at the time of the offense or within one (1) year prior to the
commission of the offense, a victim of domestic abuse, as such term
is defined in Section 2 of this act, perpetrated by the person the
defendant defended his or herself against; and
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2. At least one piece of documentary evidence shall be a court
record, presentence report, social services record, hospital record,
sworn statement from a witness to the domestic violence who is not
the defendant, law enforcement record, domestic incident report, or
order of protection.
Other evidence may include, but shall not be limited to, local
jail records or records of the Department of Corrections,
documentation prepared at or near the time of the commission of the
offense or the prosecution thereof tending to support the claims of
the person, or verification of consu ltation with a licensed medic al
care provider or mental health care provider, employee of a court
acting within the scope of his or her employment, member of the
clergy, attorney, social worker, or rape crisis counselor , or other
advocate acting on behalf of an agency that assists vic tims of
domestic abuse. Expert testimony from a psychiatrist, psycholog ist,
or mental health professional showing that the defendant has been
diagnosed with posttraumatic stress disorder may also be submitted
to the court as evidence.
C. If the court finds by a preponderance of the e vidence that
the defendant is a survivor of domestic abuse within one (1) year
prior to or on the date of the offense by the person the defendant
defended his or herself ag ainst, then the sentencing range for the
defendant shall be as follows:
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1. If the offense carries up to five (5) years, not more than
three (3) years;
2. If the offense carries up to ten (10) years, not more than
five (5) years; or
3. If the offense carries up to twenty (20) years, not more
than seven (7) years.
No matter the range for the offense, a defendant provi ding
mitigation evidence und er this section shall not receive a sentence
longer than ten (10) years.
D. Prior to sentencing a person pursuant to the provisions of
this act, a psychological or psychiatric evaluation routinely used
by the Department of Mental Health and Substance Abuse Se rvices
shall be administered to the defendant. The evaluation shall be
trauma-informed and take into consideration possible common
diagnoses for abuse victims such as acute stress disorder and
posttraumatic stress disorder. The results of the evalu ation shall
be forwarded to the defendant and submitted to the court as
evidence. The Department shall conduct the evaluation at no cost.
Should the defendant choose to defer the evaluation by the
Department in favor of an evaluation conducted by a private
practitioner, the evaluation by the Department shall be considered
waived. It shall be the responsibility of the defendant to bear the
cost of any evaluation conducted by a private practitioner .
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SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.3 of Title 22, unless there
is created a duplication in numbering, reads as fo llows:
A. Any person who has been convicted or received a sentence for
a crime against his or her intimate partner where self-defense could
have been raised as an affirmative defense and the abuse was
perpetrated by the person the defendant was defending his or herself
against and who claims:
1. That he or she was a victim of domestic abuse, as defined in
Section 2 of this act, at the time of the criminal offense or within
one (1) year leading up to the criminal offense perpetrated by the
person the defendant defend ed his or herself against;
2. That the aforementioned domestic abuse was substantially
related to the commission of the offense; or
3. That the sentence previously imposed does not serve the
means of justice when considering the mitigating evidence of
physical, sexual, or psychological abuse,
may make an application to the court in which the judgment and
sentence of the person was imposed. Upon receiving the application,
the court shall institute a proceeding to secure the appropriate
sentencing relief. The Court of Criminal Appeals shall be
authorized to develop and disseminate a standard form for an
application in conformity with the provisions of this section.
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SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.4 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. No period of limitation shall apply to the filing of any
application seeking sentencing relief, whether an original
application or a subsequent application.
B. For those seeking to submit an application after revocation
of a suspended sentence, acceleration of a deferred sentence, or
revocation of probation, the person may submit the application once
the person has been processed into the custody of the Department of
Corrections only if the person did not invoke the mitigati on
procedures outlined in Section 3 of this act during or after the
revocation hearing.
C. For those seeking to submit an application after revocation
of parole or conditional release, the person may submit the
application once the person has been processed into the Department
of Corrections only if the person did not invoke the mitigation
procedures outlined in Section 3 of this act during or after the
revocation hearing.
D. The provisions of this section s hall apply to any
application filed on or after the effective date of this act .
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.5 of Title 22, unless there
is created a duplication in numbering, reads as follows:
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A. A proceeding is commenced by filing a n application for
sentencing review with the clerk of the court imposing judgment if
an appeal is not pending. When such a proceeding arises from the
revocation of parole or conditional release, t he proceeding shall be
commenced by filing a n application with the clerk of the court in
the county in which the parole or conditional release was revoked.
Facts within the personal knowledge of the applicant and the
authenticity of all documents and exhi bits included in or attached
to the application shall be sworn to be true and correct. The clerk
of the court shall docket the application upon its receipt , promptly
notify the court, and deliver a copy to the district attorne y.
B. A valid application fo r consideration will show by a
preponderance of the evidence, including but not limited to
documentary evidence, corroborating that the applicant:
1. Was, at the time of the offense, or within one (1) year
leading up to the commission of the offense, a victim of domestic
abuse, as such term is defined in Section 2 of this act, perpetrated
by the person the defendant defended his or herself against; and
2. At least one piece of documentary evidence shall be a court
record, presentence report, social services record, hospital record,
sworn statement from a witness to the domesti c violence who is not
the defendant, law enforcement record, domestic incident report, or
order of protection. Other evidence may include, but shall not be
limited to, local jail records or records of the Department of
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Corrections, documentation prepared at or near the time of the
commission of the offense or the prosecution thereof tending to
support the claims of the person, or verification of consultation
with a licensed medical care provider or mental health care
provider, employee of a court acting within the scope of his or her
employment, member of the clergy, attorney, social worker, or rape
crisis counselor, or other advocate acting on behalf of an agency
that assists victims of domestic abuse. Expert testimony from a
psychiatrist, psychologist, or mental healt h professional showing
that the defendant has been diagnosed with posttraumatic stress
disorder may also be submitted to the court as evidence.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Secti on 1090.6 of Title 22, unless there
is created a duplication in numbering, reads as follows:
If the applicant is unable to pay co urt costs and expenses of
representation, the applicant shall include a n affidavit to that
effect with the application, which s hall then be filed without
costs. Counsel necessary in representation shall be made available
to the applicant upon filing the ap plication and a finding by the
court that such assistance is necessary t o provide a fair
determination of sentencing relief. If an attorney is appointed to
represent such an applicant then the fees and expenses of such
attorney shall be paid from the court fund. The attorney, if
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appointed, shall be employed by the respective county 's indigent
defense agency.
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.7 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. Within thirty (30) days after the docketing of the
application, the state may file an objection if the state has
evidence that directly controverts the evidence of abuse submitted
by the applicant or evidence that provides additi onal context to the
battering relationship . In considering the application, the court
shall take account of the substance of the application, regardless
of any defects of form. The court may also allow affidavits for
good cause shown. Depositions may be employed only when there is no
other means of obtaining testimony.
B. When a court is satis fied, on the basis of the application,
the answer or motion of respondent, and the record, that the
applicant is not entitled to sentencing review and no purpose would
be served by any fur ther proceedings, the court shall order the
application dismissed or grant leave to file an amended application.
Where such evidence exis ts in the record, an e videntiary hearing
shall be ordered. The judge assigned to the case sho uld not dispose
of it on the basis of information within his or her personal
knowledge not made a part of the record.
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C. The court may grant a motion by the state for summary
disposition of the application when it appears from the response and
pleadings that there is no genuine basis for seeking a sentencing
review. An order disposing of an app lication without a hearing
shall state the findings and conclusions of the court regarding the
issues presented.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.8 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. If the applicant meets the evidentiary burden in the
pleadings, the court shall conduct a sentencing review h earing at
which time a record shall be made and preserved. The court may
receive proof by affidavits, depositions, oral testimony, or other
evidence and may orde r the applicant to be brought before the court
for the hearing. Any live testimony shall be subject to direct and
cross examination. The state may present evidence only if i t
directly controverts the evidence of abuse offered by the applicant,
or evidence that provides additional context to the battering
relationship. A judge should not preside at such a hearing if his
or her testimony is material. The court shall make spec ific
findings of fact regarding whether or not the applicant was a
survivor of domestic abuse at the time of the criminal offense or
within one (1) year prior to the offense and that the abuse was
perpetrated by the person the defendant defended his or herself
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against. If the court finds by a preponderance of the evidence that
the applicant is a survivor of domestic abuse, then the new
sentencing range for the defendant shall be:
1. If the offense carries up to five (5) years, not more than
three (3) years;
2. If the offense carries up to ten (10) years, not more than
five (5) years; or
3. If the offense carries up to twenty (20) years, not more
than seven (7) years.
No matter the range for the offense , an applicant that meets the
evidentiary burden by a preponderance of the evidence under this
section shall not receive a sentence longer than ten (10) years.
B. The court shall amend the judgment and sentence of the
applicant to the new sentence. The order issued by the court shall
be a final judgment.
SECTION 10. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.9 of Title 22, unless there
is created a duplication in numbering, reads as fo llows:
If the court finds in the affirmative that the applicant was a
survivor of domestic abuse at the time of the criminal offense or
within one year prior to the offense and that the abuse was
perpetrated by the person the defendant defended hi s or herself
against, the court shall amend the judgment and sentence to reflect
a new sentence consistent with that provided in Section 9 of this
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act. If the amended sentence reflects less time than the applicant
has already served in the custody of the Department of Corrections,
then the court shall als o issue an order of discharge for the
applicant. The court shall enter any supplementary orders as t o
time served, custody, bail, discharge, or other matters that may b e
necessary and proper.
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.10 of Title 22, unless
there is created a dup lication in numbering, read s as follows:
All grounds for sentencing relief available to an applicant
under the provisions of this act , shall be raised in his or her
original or amended application. Any ground previously adjudicated
or not raised or knowingly, voluntar ily and intelligently waived in
the proceeding that resulted in the conviction or sentence , or in
any other proceeding the applicant has taken to secure relief, may
not be the basis for a subsequent application.
SECTION 12. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.11 of Title 22, unless
there is created a duplication in numbering, reads as follo ws:
A. A denied application or an amended judgment and sentence
entered under the provisions of this act may be appealed to the
Court of Criminal Appeals by the applicant or the state within
thirty (30) days from the entry of the amended judgment and
sentence.
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B. Upon motion of either party on filing a notice of intent to
appeal, within ten (10) d ays of entering the amended judgment and
sentence, the district cou rt may stay the execution of the amended
judgment and sentence pending disposition on appeal; provided,
however, the Court of Criminal Appeals may direct the vacation of
the order staying the execution prior to final disposition of the
appeal.
SECTION 13. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1090.12 of Title 22, unless
there is created a duplication in numbering, reads as follows:
A. 1. The Supreme Court is required to establish by rule,
education and training requirements for judges, associate judges,
special judges, and referees who preside over cases dealing with
domestic violence. Rules shall include, but not be limited to,
education and trainin g relating to domestic abuse, coercive control,
trauma, posttraumatic stress disorder, battered woman syndrome,
survivor use of force, mental health treatment, and other similar
topics.
2. All judges who preside over cases dealing with domestic
violence shall attend at least three (3) hours of training in such
courses each calendar year relating to the topics described in
paragraph 1 of this subsection.
3. The Administrative Director of the Courts shall be
responsible for developing and administering p rocedures and rules
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for such courses for judicial personnel, including monitoring the
attendance of judicial personnel at such training.
B. 1. Any district attorney, assistant district attorney,
public defender, assistant public defender, attorney employ ed by or
under contract with the Oklahoma Indigent Defense System, court -
appointed attorney, or attorney employed by or under contract wi th a
district court whose duties include domestic violence responsibility
shall complete at least three (3) hours of education and training
annually in courses relating to the topics described in paragraph 1
of subsection A of this section. The education and training
requirements may be accomplished through a collaborative effort
between the judiciary and others with dome stic violence
responsibilities.
2. Each judicial district shall be responsible for developing
and administering procedures and rules for such courses for
attorneys identified in paragraph 1 of this subsection whose duties
routinely include domestic violen ce responsibilities. The chief
judge of each judicial district, or any designee judge with domestic
violence case responsibilities, shal l carry out this mandate within
one (1) year of the effective date of this act.
SECTION 14. AMENDATORY 22 O.S . 2021, Section 982, is
amended to read as follows:
Section 982. A. Whenever a person is convicted of a violent
felony offense whether the conviction is for a single offense or
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part of any combination of offenses, except when the death sentence
is available as punishment for the of fense, the court may, before
imposing the sentence, require a presentence investigation be mad e
of the offender by the Department of Corrections. The court shall
order the defendant to pay a fee to the Department of Corrections of
not less than Fifty Doll ars ($50.00) nor more than Five Hundred
Dollars ($500.00) for the presentence investigation. In hardship
cases, the court may reduce the amount of the fee and establish a
payment schedule.
B. Whenever a person has a prior felo ny conviction and enters a
plea of guilty or nolo contendere to a felony offense other than a
violent felony offense, with out an agreement by the district
attorney regarding the sentence to be imposed, the court may order a
presentence investigation be mad e by the Department of Corre ctions.
The fee provided in subsection A of this section shall apply to
persons subject to th is subsection.
C. Whenever a person has entered a plea of not guilty to a
nonviolent felony offense and is found guilty by a court fo llowing a
non-jury trial, the court may require a presentence investigation be
made by the Department of Corrections. The fee provided in
subsection A of this section shall apply to persons subject to this
subsection.
D. When conducting a presentence inv estigation, the Department
shall inquire into the circumstances of the offense and the
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characteristics of the offender. T he information obtained from the
investigation shall include, but not be limited to, a voluntary
statement from each victim of the off ense concerning the nature o f
the offense and the impact of the offense on the victim and the
immediate family of the vict im, the amount of the loss suffered or
incurred by the victim as a result of the criminal conduct of the
offender, and the age, marita l status, living arrangement s,
financial obligations, income, family history and education, prior
juvenile and criminal re cords, prior abusive relationships, prior
sexual assaults, prior experiences being human trafficked ,
associations with other persons c onvicted of a felony offense,
social history, indications of a predisposition to violence or
substance abuse, remorse or g uilt about the offense or the harm to
the victim, job skills and employment history of the offender. The
Department shall make a repo rt of information from such
investigation to the court, including a recommendation detailing the
punishment which is deeme d appropriate for both the offense and the
offender, and specifically a recommendation for or against probation
or suspended sentence. The report of the investigation shall be
presented to the judge within a reasonable time, and upon failure to
present the report, the judge may proceed with sentencing.
Whenever, in the opinion of the court or the Department, it is
desirable, the invest igation shall include a physical and mental
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examination or either a physical or mental examination of the
offender.
E. The district attorney may have a presentence investigation
made by the Department on each person charged with a violent felony
offense and entering a plea of guilty or a plea of nolo contendere
as part of or in exchange for a plea agreement for a violent fel ony
offense. The presentence investigation shall be completed before
the terms of the plea agreement are finalized. The court shall not
approve the terms of any plea agreement without reviewing the
presentence investigation report to determine whether or not the
terms of the sentence are appropriate for both the offender and the
offense. The fee provided in subsection A of this sectio n shall
apply to persons subject to this subsection and shall be a condition
of the plea agreement and sentence.
F. The presentence investigation reports specified in this
section shall not be referred to, or be considered, in any appeal
proceedings. Before imposing a sentence, the court shall advise the
defendant, counsel for the defendant, and the district attorney of
the factual contents and conclusions of the presentence
investigation report. The court shall afford the offender a fair
opportunity to controvert the findings and conclusions of the
reports at the time of sentencing. If either the defendant or the
district attorney desires, a hearing shall be set by the court to
allow both parties an opportunity to offer evidence proving or
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disproving any finding contained in a report, which shall be a
hearing in mitigation or aggravation of punishment.
G. The required pre sentence investigation and report may be
waived upon written waiver by the district attorney and the
defendant and upon approval by th e Court.
H. As used in this section, "violent felony offense " means:
1. Arson in the first degree;
2. Assault with a da ngerous weapon, battery with a dangerous
weapon or assault and battery with a dangerous weapon;
3. Aggravated assault and battery on a police officer, sheriff,
highway patrol officer, or any other officer of the law;
4. Assault with intent to kill, or sh ooting with intent to
kill;
5. Assault with intent to commit a felony, or use of a firearm
to commit a felony;
6. Assault while mask ed or disguised;
7. Burglary in the first degree or burglary with explosives;
8. Child beating or maiming;
9. Forcible sodomy;
10. Kidnapping, or kidnapping for extortion;
11. Lewd or indecent proposition or lewd or indecent acts with
a child;
12. Manslaughter in the first or second degrees;
13. Murder in the first or second degrees;
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14. Rape in the first or second de grees, or rape by
instrumentation;
15. Robbery in the first or second degrees, or robbery by two
or more persons, or robbery with a d angerous weapon; or
16. Any attempt, solicitation or conspiracy to commit any of
the above enumerated offenses.
SECTION 15. This act shall become effective November 1, 2023.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY - CRIMINAL, dated
03/01/2023 - DO PASS, As Amended.