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Oklahoma House Bill HB2387

Oklahoma 2024 Regular Session

Oklahoma House Bill HB2387 Compare Versions

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2828 STATE OF OKLAHOMA
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3030 1st Session of the 59th Legislature (2023)
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3232 HOUSE BILL 2387 By: Kannady
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3838 AS INTRODUCED
3939
4040 An Act relating to criminal procedure; amending 22
4141 O.S. Sections 1175.1 , 1175.3, 1175.4 and 1175.6b,
4242 which relate to the determination of competency;
4343 providing an exception to certain defined term;
4444 directing notice be sent to Office of Public
4545 Guardian; authorizing the Office of Public Guardia n
4646 to have standing to participate in certain
4747 proceedings; limiting the court to diagnoses,
4848 opinions and recommendations in certain intellectual
4949 disability cases; and providing an effective date .
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5656 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
5757 SECTION 1. AMENDATORY 22 O.S. 2021, Section 1175.1, is
5858 amended to read as follows:
5959 Section 1175.1 As used in Sections 1175.1 through 1176 of this
6060 title:
6161 1. "Competent" or "competency" means the present ability of a
6262 person arrested for or charge d with a crime to understand the nature
6363 of the charges and proceedings brought against him or her and to
6464 effectively and rationally assist in his or her defense;
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9191 2. "Incompetent" or "incompetency" means the present inability
9292 of a person arrested for or ch arged with a crime to understand the
9393 nature of the charges and proceed ings brought against him or her and
9494 to effectively and rationally assist in his or her defense;
9595 3. "Dangerous" means a person who is a person requiring
9696 treatment as defined in Section 1 -103 of Title 43A of the Oklahoma
9797 Statutes;
9898 4. "Criminal proceeding" means every stage of a criminal
9999 prosecution after arrest and before judgment, including, but not
100100 limited to, interrogation, lineup, preliminary hearing, motion
101101 dockets, discovery, pretri al hearings and trial;
102102 5. "Qualified forensic examiner " means any:
103103 a. psychiatrist with forensic training and experience,
104104 b. psychologist with forensic training and experience, or
105105 c. a licensed mental health professional whose forensic
106106 training and experience enable him or her to form
107107 expert opinions regarding mental illnes s, competency
108108 and dangerousness and who has been approved to render
109109 such opinions by the court ; except that, a licensed
110110 mental health professional shall not be qualified to
111111 issue expert opinions as to competency or
112112 dangerousness in cases wherein the person is alleged
113113 to be incompetent due to intellec tual disability;
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140140 6. "Reasonable period of time " means a period not to exceed the
141141 lesser of:
142142 a. the maximum sentence specified for the most s erious
143143 offense with which the defendant is charg ed, or
144144 b. a maximum period of two (2) years; and
145145 7. "Public guardian" means the Office of Public Guardian as
146146 established under the Oklahoma Public Guardianship Act in Section 6 -
147147 101 et seq. of Title 30 of the Oklahoma Statutes.
148148 SECTION 2. AMENDATORY 22 O.S. 2021, Section 1175.3, is
149149 amended to read as follows:
150150 Section 1175.3 A. Upon filing of an application for
151151 determination of competency, the court shall set a hearing date,
152152 which shall be as soon as practicable, but at leas t one (1) day
153153 after service of notice as provided by Section 1175.2 of this title.
154154 B. The court shall hold a hearing on the date provided. At the
155155 hearing, the court shall examine the application for determination
156156 of competency to determine if it alleges facts sufficient to raise a
157157 doubt as to the competency of the person. Any additional evidence
158158 tending to create a doubt as to the competency of the person may be
159159 presented at this hearing.
160160 C. If the court finds th ere is no doubt as to the competency of
161161 the person, it shall order th e criminal proceedings to resume.
162162 D. 1. a. If the court finds there is a doubt as to the
163163 competency of the person, it shall order the person to
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190190 be examined by the Department of Mental Hea lth and
191191 Substance Abuse Services or by a qualified forensic
192192 examiner designated by the Department to perform
193193 competency examinations.
194194 b. In addition, the Developmental Disabilities Services
195195 Division and the Office of Public Guardian of the
196196 Department of Human Services shall receive written
197197 notice from the district attorney who filed the
198198 criminal petition, and be authorized by order of the
199199 court to have a psychologist or other appropriate
200200 clinician participate with professionals assigned by
201201 any other public or private agency in any competency
202202 evaluation wherein developmental or intellectual
203203 disability may be involved. The psychologist or
204204 clinician employed, by contract or otherwise, by the
205205 Department of Human Services may issue a separate
206206 opinion and recommendation to the court. In cases
207207 wherein intellectual disability may b e involved, the
208208 Office of Public Guardian shall have standing to
209209 participate in any stage of the proceedings it chooses
210210 or deems necessary.
211211 2. The person shall be examined by a qualified forensic
212212 examiner on an outpatient basis prior to referral for any n ecessary
213213 inpatient evaluation, as ordered by the court. The outpatient
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240240 examination may be conducted in the community, the jail or detention
241241 facility where the person is held.
242242 3. If the court determines that the person whose competency is
243243 in question may be dangerous as defined in Section 1175.1 of this
244244 title, it shall order the person retained in a secure facility until
245245 the completion of the competency hearing provided in Section 1175.4
246246 of this title. If the court determines the person may be dangerous
247247 as defined in Section 1175.1 of this title because the individual is
248248 a person requiring treatment as defined in Section 1 -103 of Title
249249 43A of the Oklahoma Statutes, it may commit the perso n to the
250250 custody of the Department of Mental Health and Substance Abu se
251251 Services or any other state agency or private facility for the
252252 examination required by this subsection. The person shall be
253253 required to undergo examination for a period of time suffic ient for
254254 the qualified forensic examiner(s) to reach a conclusion as to
255255 competency, and the court shall impose a reasonable time limitation
256256 for such period of examination.
257257 E. The qualified forensic examiner(s) shall receive
258258 instructions that they shall ex amine the patient to determine:
259259 1. If the person is able to apprecia te the nature of the
260260 charges made against such person;
261261 2. If the person is able to consult with the lawyer and
262262 rationally assist in the preparation of the defense of such person;
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289289 3. If the person is unable to appreciate the nature of the
290290 charges or to consult and rationally assist in the preparation of
291291 the defense, whether the person can attain competency within a
292292 reasonable period of time as defined in Section 1175.1 of this title
293293 if provided with a course of treatment, therapy or training;
294294 4. If the person is a person requiring treatment as defined by
295295 Section 1-103 of Title 43A of the Oklahoma Statutes;
296296 5. If the person is incompetent because the person is
297297 intellectually disabled as d efined in Section 1408 of Title 10 of
298298 the Oklahoma Statutes;
299299 6. If the answers to questions 4 and 5 are no, why the
300300 defendant is incompetent; and
301301 7. If the person were released, whether such person would
302302 presently be dangerous as defined in Section 1175. 1 of this title.
303303 F. Upon completion of the competency evaluation, th e Department
304304 of Mental Health and Substance Abuse Services or qualified forensic
305305 examiner designated by the Department to perform competency
306306 examinations shall notify the court of its fin dings. If the person
307307 is in the custody of the Department of Mental H ealth and Substance
308308 Abuse Services, the person shall be returned to the court in the
309309 customary manner within five (5) business days. If the person is
310310 not returned within that time, the c ounty in which the proceedings
311311 are to be held shall pay the costs of maintaining the person at the
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338338 institution or facility for the period of time the person remains at
339339 the institution or facility in excess of the five -day period.
340340 SECTION 3. AMENDATORY 22 O.S. 2021, Section 1175.4, is
341341 amended to read as follows:
342342 Section 1175.4 A. A hearing to determine the competency of the
343343 person whose competency is in question shall be held within thirty
344344 (30) days after the qualified forensic e xaminer(s) have made the
345345 determination required in Section 1175.3 of t his title.
346346 B. The court, at the hearing, shall determine by a
347347 preponderance of the evidence if the person is incompetent. Such
348348 determination shall include consideration of all reports prepared by
349349 the qualified forensic examiner (s); except that, the court shall be
350350 limited to the diagnoses , opinions, and recommendations of examiners
351351 identified and set forth in subparagraph b of paragraph 1 of
352352 subsection D of Section 1175.3 of this title i n any case wherein
353353 intellectual disability may be involved . The person shall be
354354 presumed to be competent for the purp oses of the allocation of the
355355 burden of proof and burden of going forward with the evidence. If
356356 the court deems it necessary, or if the p erson alleged to be a
357357 person requiring treatment, or any relative, fri end, or any person
358358 with whom he may reside, or a t whose house the person may be, shall
359359 so demand, the court shall schedule the hearing on the application
360360 as a jury trial to be held withi n seventy-two (72) hours of the
361361 request, excluding weekends and legal holidays, or within as much
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388388 additional time as i s requested by the attorney of the person whose
389389 competency is in question, upon good cause shown. The jury sha ll be
390390 composed of six (6) p ersons having the qualifications required of
391391 jurors in courts of recor d, summoned to determine the questions of
392392 the person's competency and need for treatment. Whenever a jury is
393393 required, the court shall proceed to the selectio n of such jury in
394394 the manner as provided by law and such jury shall determine the
395395 questions of the competency and need for treatment of the perso n
396396 whose competency is in question. The jurors shall receive fees for
397397 attendance and mileage as are allowed by law.
398398 C. The person whose c ompetency is in question shall have the
399399 right to be present at the hea ring on the petition unless it is made
400400 to appear to the court that the presence of the person makes it
401401 impossible to conduct the hearing in a reasonable manner . The court
402402 may not decide in advance of the hearing, solely on the basis of the
403403 certificate of the examining doctor or doctors, that the person
404404 whose competency is in question should not be allowed to appear. It
405405 shall be made to appear to the court base d on clear and convincing
406406 evidence that alternatives to exclusion were attempted before the
407407 court renders the person's removal for that purpose o r the person's
408408 appearance at such hearing improper and unsafe.
409409 D. All witnesses shall be subject to cross -examination in the
410410 same manner as is provided by law. If so stipulated by counsel for
411411 a person whose competency is in question, the district attorne y and
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438438 the court, testimony may be given by telephone or other electronic
439439 transmitting device approved by the co urt. No statement, admissi on
440440 or confession made by the person whose competency is in question
441441 obtained during the examination for competency may be used for any
442442 purpose except for proceedings under this act. No such statement,
443443 admission or confession may be used against such perso n in any
444444 criminal action whether pending at the time the hearing is he ld or
445445 filed against such person at any later tim e, directly, indirectly or
446446 in any manner or form.
447447 E. If the question of competency is submitted to a jury, the
448448 court shall instruct the j ury as to the law regarding competency,
449449 and the findings they are to m ake. If the trial of the question is
450450 to the court, the court shall make the required findings.
451451 F. In any case wherein intellectual disability may be in volved,
452452 the Office of Public Guardian shall have standing to participate in
453453 any hearing held pursuant to this section that it chooses or deems
454454 necessary.
455455 SECTION 4. AMENDATORY 22 O.S. 2021, Section 1175.6b, is
456456 amended to read as follows:
457457 Section 1175.6b A. If the person is found to be incompetent
458458 primarily because the person is i ntellectually disabled as defined
459459 in Section 1408 of Title 10 of the Oklahoma Statutes, and is also
460460 found by the court to be dangerous as defined by Section 1175.1 of
461461 this title, the court shall suspend the criminal proceedings, and
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488488 shall place the person into the custody of the Office of Public
489489 Guardian. The Office of Public Guardian shall act with all powers
490490 set forth in the Oklahoma Public Guardianship Act, and:
491491 1. The Office of Pub lic Guardian shall place any person placed
492492 in its custody under this ti tle in a facility or residential
493493 setting, private or public, willing to accept the individual and
494494 that has a level of supervision and security that is appropriate to
495495 the needs of the person;
496496 2. Such placements shall be within the sole discretion of the
497497 Office of Public Guardian;
498498 3. All such placement s made by the Office of Public Guardian
499499 shall be made within six (6) months of the date of the order
500500 awarding custody to the Office of Pub lic Guardian;
501501 4. The Office of Public Guardian shall report to the cou rt at
502502 least every six (6) months as to the stat us of the person including,
503503 but not limited to, the type of placement, services provided, level
504504 of supervision, the medical and psychologi cal health of the person,
505505 whether the person would be dangerous if cond itionally released into
506506 a nonsecure environment , the assistance and services that would be
507507 required for such conditional release and whether the person has
508508 achieved competency;
509509 5. If the person is determined by the Office of Public Guardian
510510 to have regained competency or that conditional release to a private
511511 guardian or other caretaker is appropriate, a hearing shall be
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538538 scheduled within twenty (20) days. If found competent by the court
539539 or a jury after such rehearing, criminal proceedings shall be
540540 resumed. If the court finds conditional release to be appropriate,
541541 the court shall make an appropriate order for conditional release;
542542 and
543543 6. The provisions of subsections C, H and I of Sectio n 6-101 of
544544 Title 30 of the Oklahoma Statutes shall not apply to custody orders
545545 arising under this title.
546546 B. If the person is found to be incompetent for reasons other
547547 than the person is a person requiring treatment as defined by
548548 Section 1-103 of Title 43A of the Oklahoma Statutes and is found to
549549 be not dangerous as defined b y Section 1175.1 of this title, the
550550 court shall suspend the criminal proceedings and either refer the
551551 person to the Department of Human Services for consideration of
552552 voluntary assistance or conditionally release the person as set
553553 forth in this section.
554554 1. For any person recommended for conditional rel ease, a
555555 written plan for services shall be prepared by the Department of
556556 Human Services and filed with the court. In its order of
557557 conditional release, the court shall specify the conditions of
558558 release and shall direct the appropriate agencies or persons t o
559559 submit annual reports regarding the person 's compliance with the
560560 conditions of release and progress:
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587587 a. to be eligible for conditional r elease, the person
588588 shall agree, in writing, that during the period the
589589 person is granted conditional release and is su bject
590590 to the provisions thereof, there shall be free
591591 transmission of all pertinent information, including
592592 clinical information regarding t he person, among the
593593 person's treatment providers, the appropriate dist rict
594594 attorneys, law enforcement and court perso nnel. To
595595 effect this agreement, the person shall execute any
596596 releases required by law to allow for the
597597 dissemination of this information,
598598 b. the court's order placing the person on conditional
599599 release shall include notice that the person 's
600600 conditional release may be revoked upon good cause,
601601 c. the district attorney, as well as any agency or
602602 individual involved in providing services with reg ard
603603 to the person's conditional release, may prepare and
604604 file an affidavit under oath if the district attorney,
605605 agency, or individual believes that the person has
606606 failed to comply with the conditions of release. The
607607 court shall then conduct a hearing to d etermine if the
608608 person has violated the conditions of release. Notice
609609 of the hearing shall be issued, at least twenty -four
610610 (24) hours before the hearing, to the Department of
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637637 Human Services, the person, trial counsel for the
638638 person, and the client advocat e general of the
639639 Department of Human Services. After reviewing the
640640 evidence concerning any alleged violation of the
641641 conditions of the release, the person 's progress,
642642 treatment alternatives, and the need for public
643643 safety, the court may order no change to the
644644 conditions for the person 's release or modify the
645645 conditions of release, and
646646 d. the person placed on conditional r elease shall remain
647647 in a conditional release status until the reviewing
648648 court issues a full release from all conditions.
649649 2. If the person is determined by the Department of Human
650650 Services to have regained com petency, a hearing shall be scheduled
651651 within twenty (20) days:
652652 a. if found competent by the court or a jury after such
653653 rehearing, criminal proceedings shall be resumed, or
654654 b. if the person is found to continue to be incompetent,
655655 the person shall be returne d to either conditional
656656 release or referred to the Department of Human
657657 Services for consideration of voluntary assistance.
658658 C. The Office of Public Guardian shall h ave standing to
659659 participate in any proceedings held pursuant to subsection s A and B
660660 of this section that it chooses or deems necessary.
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687687 SECTION 5. This act shall become effective November 1, 2023.
688688
689689 59-1-5709 GRS 01/18/23