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STATE OF OKLAHOMA
2nd Session of the 59th Legislature (2024)
HOUSE BILL 3640 By: Hasenbeck
AS INTRODUCED
An Act relating to sentencing; creating the Oklahoma
Domestic Abuse Survivorship Act; defining terms;
directing courts to consider certain mitigating
factors during sentencing and pleas; requiring
defendants to provide documentary evidence; providing
the court the discretion to depart from applica ble
sentences; allowing certain persons to make
application for sentencing relief; authorizi ng the
Court of Criminal Appeals to develop and disseminate
standard application form; stating absence of a
limitation period when applying for relief; providi ng
guidelines for when persons may apply for relief;
providing procedures for filing applications ; stating
types of documentary evidence necessary for
consideration; providing for the filing of
applications without costs under certain
circumstances; allowi ng the state to obje ct upon
showing of certain evidence; prov iding for the
dismissal of applicati ons; authorizing courts to
grant leave to file amendment applications;
authorizing courts to grant certain motion; providing
for sentencing review hearings; st ating procedures
for hearings; providing sentencing ranges up on
finding by the court; providing p rocedures for
amending judgment and sentences; establishing
restrictions on subsequent applications; allowing
amended judgment and sentences to be appealed;
stating requirement fo r appeals; requiring certain
attorneys to complete annual education and train ing;
amending 22 O.S. 2021, Section 982, which r elates to
presentence investigations; expanding scope of
circumstances; providing for codification; and
providing an effective date.
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BE IT ENACTED BY THE PEOPL E 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 4 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 Statutes as Section 1090.1 of Title 22, unless there
is created a duplication in numbering, reads as follo ws:
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 Statu tes;
3. "Domestic abuse" means any act of physical harm or the
threat of imminent physical harm which is committed by an adult,
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 pa rtner or family or
household member;
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4. "Economic-financial control" means any behavior that has a
substantial and adverse effect on the abil ity of an individual to:
a. acquire, use, or maintain money or other pro perty,
b. obtain goods including, but not limited to, food and
clothing, or
c. obtain services including, but not limited to,
utilities.
Economic-financial control also includes fraudu lently opening
financial accounts an d borrowing money from his or her intimate
partner or family or household member;
5. "Physical abuse" means any real or threatened physical
injury or damage to the body that is not accidental;
6. "Posttraumatic stress disorder" means the same as such term
is defined in the Diagnostic and Statistica l Manual of Mental
Disorders, Fifth Edition (DSM-5, 2013), and occurred as a result of
the victimization of a survivor of domestic abuse;
7. "Psychological abuse" means a pattern of real or threatened
mental intimidation, threats, coercive control, economic-financial
control, and humiliation that is intended to provoke fear of harm ;
and
8. "Sentencing hearing" means a type of postconviction hearing
in which the defendant is brought before the court for imposition of
the sentence.
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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 foll ows:
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 a ffirmative defense, the
court shall consider as a mitigati ng factor that the person has been
abused physically, sexually, or psychologically by the person the
defendant defended himself or herself against, along with any other
mitigating or aggravating factors.
B. The defendant shall provid e to the court 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 himself 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 domestic violence who is not
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the defendant, law enforcement record, domestic incident report, or
order of protection.
Other evidence may include, but sha ll 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 defendant, or verification of consultation with a licensed
medical care provider or mental health care pro vider, employee of a
court acting within the scope of his or her employment, member of
the clergy, attorney, social worker, or rape crisis counse lor, or
other advocate acting on be half of an agency that assists victims 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 as a result of domestic
violence 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 himself or herself against, then the court shall have the
discretion to depart f rom the applicable sentence. Such findings of
fact shall be on the record after giving due regard to the evidence
submitted to the court by the defendant .
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SECTION 4. NEW LAW A ne w 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 hi mself 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 himself or herself against;
2. That the aforementioned domestic abuse was substantially
related to the commission of th e 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 a s 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 sente nce, 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 dat e 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, includin g 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 himself or herself against; and
2. At least one piece of documentary evidence shall be a court
record, presentence report, social services record, ho spital 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 recor ds of the Department of
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Corrections, documentation pr epared 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 o r mental health care
provider, employee of a court ac ting 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 a buse. Expert testimony from a
psychiatrist, psycholo gist, or mental health professio nal 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 secti on of law to be codified
in the Oklahoma Statutes as Section 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 an affidavit to that
effect with the application, wh ich shall 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 necessa ry to provide a fair
determination of sentencing reli ef. 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 respec tive county's indigent
defense agency.
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes 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 controvert s 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 satisfied, on the basis of the application,
the answer or motion of respondent, and t he 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 lea ve to file an amended application.
Where such evidence exis ts in the record, an evidentiary 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 senten cing
review. An order disposing of an applicatio n 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 preserv ed. The court may
receive proof by affidavits, depositions, oral testimony, or other
evidence and may order 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 it
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 speci fic
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 def endant defended himself 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 S ection 1090.9 of Title 22, unless there
is created a duplication in numbering, reads as fo llows:
If the court finds in the affirmative tha t 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 hi mself 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 to
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 duplication 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, voluntarily 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 follows:
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) days of entering the amended judgme nt 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 dispos ition 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 numb ering, reads as follows:
A. 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, private defense attorneys, or attorney employed by or
under contract with 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 s ection. The
education and training requirements may be accomplished through a
collaborative effort between the judiciary and others with dome stic
violence responsibilities.
B. 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
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routinely include domestic violen ce responsibilities. The chief
judge of each judici al district, or any designee judge with domestic
violence case responsibilities, shall 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 convict ed of a violent
felony offense whether the c onviction is for a single offense or
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 presente nce investigation be made
of the offender by the Department of Corrections. The court shal l
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 pres entence investigation. In hardship
cases, the court may reduce the amount of the fee and e stablish a
payment schedule.
B. Whenever a person has a prior felony conviction and enters a
plea of guilty or nolo contendere to a felony offense other than a
violent felony offense, without an agreement by the district
attorney regarding the sentence to be imposed, the court may order a
presentence investigation be made by the Department of Corre ctions.
The fee provided in subsection A of this section shall apply to
persons subject to this subsection.
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C. Whenever a person has entered a plea of not guil ty to a
nonviolent felony offense and is found guilty by a court following a
non-jury trial, the court may require a presentence investigati on be
made by the Department of Corrections. The fee provided in
subsection A of this section shall apply to person s subject to this
subsection.
D. When conducting a presentence investigation, the Department
shall inquire into the circumstances of the of fense and the
characteristics of the offender. The information obtai ned from the
investigation shall include, but n ot be limited to, a voluntary
statement from each victim of the offense concerning the nature o f
the offense and the impact of the offense o n the victim and the
immediate family of the victim, the amount of th e loss suffered or
incurred by the victim as a result of the criminal conduct of the
offender, and the age, marital status, living arrangement s,
financial obligations, income, family hist ory and education, prior
juvenile and criminal records, prior abusive relationships, prior
sexual assaults, prior ex perience as a victim of human trafficking,
associations with other persons convicted of a felony offense,
social history, indications of a p redisposition 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 report of information from such
investigation to the court, includin g a recommendation detail ing the
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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 judg e within a reasonable tim e, 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 investigation shall include a physical and mental
examination or eithe r a physical or mental ex amination 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 complete d before
the terms of the plea agreement are finalized. The court shall not
approve the terms of any plea agreement without reviewing th e
presentence investigati on report to determine whether or not the
terms of the sentence are appropriate for both the o ffender and the
offense. The fee provided in subsection A of this section 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
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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 eit her 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
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 the 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 an d 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 masked or disguised;
7. Burglary in the first degree or burglary wi th explosives;
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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 fi rst or second degrees;
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 dangerous weapon; or
16. Any attempt, solicitation or conspiracy to commit any of
the above enumerated offenses.
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SECTION 15. This act shall become effective November 1, 2024.
59-2-8662 GRS 01/16/24