IN RE REVISION OF PORTION OF RULES OF COURT OF CRIMINAL APPEALS

IN RE REVISION OF PORTION OF RULES OF COURT OF CRIMINAL APPEALS
2013 OK CR 9
Case Number: CCAD-2013-1
Decided: 07/23/2013
IN RE REVISION OF PORTION OF RULES OF COURT OF CRIMINAL APPEALS

IN RE: REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS

ORDER ADOPTING REVISION IN AND REPUBLISHING PORTION
OF THE RULES OF THE COURT OF CRIMINAL APPEALS

¶1 We find that revision of the Mandatory Forms to be Utilized in Criminal Cases in the State of Oklahoma is necessary to ensure that the district courts of the State address the mandatory period of post-imprisonment supervision required by 22 O.S.Supp.2012, § 991a-21 as well as 22 O.S.2011, § 991a(A)(1)(f), and to ensure that criminal defendants in the state have knowledge of their mandatory compliance with the Oklahoma Methamphetamine Registry Act as set forth in 63 O.S.Supp.2012, § 2-701. Pursuant to the provisions of Section 1051(b) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate and republish portions of the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp. 2013, Ch. 18, App. (2013), set forth as follows and as set out in the attachment to this order:

SECTION XIII. FORMS; FORM 13.8 UNIFORM JUDGMENT AND SENTENCE; FORM 13.10 UNIFORM PLEA OF GUILTY - - SUMMARY OF FACTS

¶2 These revisions shall become effective on the date of this order.

¶3 IT IS SO ORDERED.

¶4 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 23rd day of July, 2013.

/S/DAVID B. LEWIS, Presiding Judge

/S/CLANCY SMITH, Vice Presiding Judge

/S/GARY L. LUMPKIN, Judge

/S/CHARLES A. JOHNSON, Judge

/S/ARLENE JOHNSON, Judge

ATTEST:

/s/Michael S. Richie
Clerk

Form 13.8 Uniform Judgment and Sentence

IN THE DISTRICT COURT OF ­ COUNTY

THE STATE OF OKLAHOMA

STATE OF OKLAHOMA,

Plaintiff,

vs.

­,

Defendant.

)

)

)

) No.: ­

)

)

)

)

DOB: ­

SS#: ­

JUDGMENT AND SENTENCE

Now, on this ­ day of ­, 20 ­, this matter comes on before the undersigned Judge, for sentencing and the Defendant, ­, appears personally and by Attorney ­, the State of Oklahoma represented by ­, and the Defendant, having previously:

( ) Entered a plea of guilty

( ) Entered a plea of Nolo Contendere

( ) Been found guilty by jury

( ) Been found guilty by Judge after waiver of jury trial

( ) Other ­

To/of the crime(s) of: Statutory Reference

Count ­: ­ O.S. ­

Count ­: ­ O.S. ­

Count ­: ­ O.S. ­

(Attach additional sheet for additional counts or if computerized, add to body of Judgment and Sentence at each appropriate place.)

( )

The defendant has previously been convicted of ­ (insert number) felony crimes and the sentence has been enhanced in accordance with the provisions set forth in ­ O.S. ­; and,

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by the Court that the Defendant, ­, is guilty of the above described offenses and is sentenced as follows:

TERM OF IMPRISONMENT

COUNT SENTENCED TO A TERM OF

­ ­

­ ­­

­ ­­

Under the custody and control of:

( ) Oklahoma Department of Corrections;

( ) the ­ County Sheriff; or

( ) other: ­

These terms to be served as follows (consecutive/concurrent):

­

­

Upon release from such confinement, the Defendant shall serve a term of post-imprisonment supervision, under conditions prescribed by the Department of Corrections, for a period of:

­

TERM OF IMPRISONMENT WITH EXECUTION OF SENTENCE

SUSPENDED IN PART

(Attach additional sheet(s) to clarify, if necessary)

COUNT SENTENCED TO A TERM OF

­ ­

­ ­­

­ ­­

With all except the first suspended under the custody and control of:

( ) Oklahoma Department of Corrections; or

( ) the County Sheriff,

pursuant to the rules and conditions of probation entered by the court.

These term(s) to be served as follows (consecutive/concurrent):

­

­

TERMS OF IMPRISONMENT WITH EXECUTION OF SENTENCE SUSPENDED

(Attach additional sheet(s) to clarify, if necessary)

COUNT SENTENCED TO A TERM OF

­ ­

­ ­­

­ ­­ ­

Under the custody and control of:

( ) Oklahoma Department of Corrections; or

( ) the ­ County Sheriff,

All of said term(s) of imprisonment suspended pursuant to the rules and conditions of probation entered by the court.

These term(s) to be served as follows (consecutive/concurrent):

­

­

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that in addition to the preceding terms, the Defendant is also sentenced to:

FINE

( ) The defendant shall pay a fine of $ ­

( ) immediately; or

( ) on or before ­, 20 ­ at the rate of $ ­ per ­, or within ­ days of release from the Department of Corrections.

( ) payment of $ ­ is suspended pursuant to Rules and Conditions of probation.

COSTS, VCA, RESTITUTION

( )

The defendant shall pay costs, fees, and restitution in accordance with the schedule attached as Exhibit ­.

RULES AND CONDITIONS OF PROBATION

The rules and conditions of probation as ordered by the court and signed by the defendant, acknowledging his/her understanding of the rules and conditions, are incorporated as Exhibit ­.

ATTORNEY FEES

( )

The defendant shall pay court-appointed attorney fee in the amount of $ ­ on or before ­, 20 ­, to ­ ­.

HEARING ON ABILITY TO PAY AFTER INCARCERATION

( )

The defendant shall report to the District Court of ­ County within ­ days of release for a hearing on the defendant's ability to pay fines and costs pursuant to Section VIII of the Rules of the Court of Criminal Appeals, 22 O.S., Ch. 18, App.

IT IS FURTHER ORDERED that judgment is hereby entered against the Defendant as to the fines, costs and assessments set forth above.

The Court further advised the Defendant of his/her rights and procedure to appeal to the Court of Criminal Appeals of the State of Oklahoma, and that if he/she desired to appeal and was unable to afford counsel and a transcript of the proceedings, that the same would be furnished by the State subject to reimbursement of the cost of representation in accordance with Sec. 1355.14 of Title 22. The Court further advised the Defendant that, in the event the above sentence is for a crime involving domestic violence where the Defendant is or was a spouse, intimate partner, parent, or guardian of the victim or is or was involved in another similar relationship with the victim it may be unlawful for him or her to possess, purchase, receive, transport or ship a firearm including a rifle, pistol or revolver or ammunition pursuant to federal law under 18 U.S.C. Section 992(g)(8) or (9), or state law, or both.

In the event the above sentence is for incarceration in the Department of Corrections, the Sheriff of ­ County, Oklahoma, is ordered and directed to deliver the Defendant to the Lexington Assessment and Reception Center at Lexington, Oklahoma, and leave therewith a copy of this Judgment and Sentence to serve as warrant and authority for the imprisonment of the Defendant as provided herein. A second copy of this Judgment and Sentence to be warrant and authority of the Sheriff for the transportation and imprisonment of the Defendant as herein before provided. The Sheriff to make due return to the Clerk of this Court, with his proceedings endorsed thereon.

Witness my hand the day and year first above mentioned.

(SEAL)

­

JUDGE OF THE DISTRICT COURT

­

(Name of Judge Typed)

ATTEST:

­

Court Clerk

­

Deputy Clerk

CLERK'S CERTIFICATION OF COPIES

I, ­, Clerk of the District Court of ­ County, State of Oklahoma, do hereby certify the foregoing to be true, correct, full and complete copy of the original Judgment and Sentence in the case of the State of Oklahoma vs. ­ as the same appears of record in my office.

WITNESS my hand and official seal this ­ day of ­, 20 ­.

(SEAL)

By:

­

Court Clerk

­

Deputy Court Clerk

SHERIFF'S RETURN

I received this Judgment and Sentence the ­ day of ­, 20 ­, and executed it by delivering the Defendant to the Warden of the Lexington Assessment and Reception Center at Lexington, Oklahoma, on the ­ day of ­, 20 ­. I also certify the above prisoner has served ­ days in the County Jail on the present charge or charges.

­

Sheriff

­

Deputy Sheriff

Form 13.10 Uniform Plea of Guilty - Summary of Facts

IN THE DISTRICT COURT OF COUNTY

THE STATE OF OKLAHOMA

STATE OF OKLAHOMA,

Plaintiff,

v.

_

Defendant

SS# D.O.B. _

_

_

(Home Address)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No. _

[NOTE: The trial judge shall ensure the defendant is sworn either prior to completing the Summary of Facts or prior to inquiry by the Court on the Plea. If the defendant is entering a nolo contendere, or other type guilty plea, correct by pen change where term "guilty" used.]

PLEA OF GUILTY

SUMMARY OF FACTS

Part A: Findings of Fact, Acceptance of Plea

CIRCLE

1.

Is the name just read to you your true name?

If no, what is your correct name? _

I have also been known by the name(s): _

_

Yes No

2.

My lawyer’s name is: _

3.

(a) Do you wish to have a record made of these proceedings by a Court Reporter?

(b) Do you wish to waive this right?

Yes No

Yes No

4.

Age: Grade completed in school: _

5.

Can you read and understand this form? (If the answer above is no, Addendum A is to be completed and attached.)

Yes No

6.

Are you currently taking any medications or substances which affect your ability to understand these proceedings?

Yes No

7.

Have you been prescribed any medication that you should be taking, but you are not taking?

If so, what kind and for what purpose? _

_

Yes No

8.

Have you ever been treated by a doctor or health professional for mental illness or confined in a hospital for mental illness?

If yes, list the doctor or health professional, place, and when occurred:

_

_

Yes No

9.

Do you understand the nature and consequences of this proceeding?

Yes No

10.

Have you received a copy of the Information and read its allegations?

Yes No

11.

Does the State move to dismiss or amend any case(s) or count(s) in the information or on page 2 of the information? If so, set forth the cases/counts dismissed or amended.

Yes No

12.

A. Do you understand you are charged with:

Crime Statutory Reference

(1)

O.S. _

Yes No

(2)

O.S. _

Yes No

(3)

O.S. _

Yes No

(4)

O.S. _

Yes No

For additional charges: List any additional charges on a separate sheet and label as PLEA OF GUILTY ADDENDUM B.

B. Are you charged after former conviction of a felony?

Yes No

If yes, list the felony(ies) charged: _

_

_

13.

Have you previously been convicted of a felony? If so, when, where and for what felony/felonies? _

_

_

14.

____ (Check if applicable) Do you understand you are subject to the Delayed Sentencing Program for Young Adults and what that sentencing program involves?

(Check if applicable) Do you understand that upon a conviction on a plea of guilty to the offense(s) of you will be required to serve a minimum sentence of:

85% of the sentence of imprisonment imposed before being eligible for parole consideration and are not eligible for earned or other type of credits which will have the effect of reducing the length of sentence to less than 85% of the sentence imposed?

% of the sentence of imprisonment imposed or received prior to becoming eligible for state correctional earned credits toward completion of your sentence or eligibility for parole?

(Check if applicable) Do you understand that a conviction on a plea of guilty to the offense(s) of will subject you to mandatory compliance with the Oklahoma Sex Offender Registration Act?

(Check if applicable) Do you understand that any person sentenced to imprisonment for two (2) years or more for the offense(s) of _______________________________________ , involving sexual abuse, sexual exploitation, or illegal sexual conduct, shall be required to serve a term of post-imprisonment supervision for at least three (3) years under conditions determined by the Department of Corrections in addition to the actual term of imprisonment. There will be no post-imprisonment supervision for a sentence of life or life without the possibility of parole for offenses involving sexual abuse, sexual exploitation, or illegal sexual conduct.

(Check if applicable) Do you understand that a conviction on a plea of guilty to the offense(s) of will subject you to mandatory compliance with the Oklahoma Methamphetamine Offender Registry Act?

(Check if applicable) Do you understand that the Court is required to include in the sentence of any person convicted of a felony and sentenced to a term of imprisonment after November 1, 2012, a term of post-imprisonment supervision. The post-imprisonment supervision shall be for a period of not less than nine (9) months nor more than one (1) year following confinement of the person and shall be served under conditions prescribed by the Department of Corrections. There will be no post-imprisonment supervision for a sentence of life without the possibility of parole.

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

15.

What is/are the charge(s) to which the defendant is/are entering a plea today?

_

_

_

16.

Do you understand the range of punishment for the crime(s) is/are: (List in same order as in No. 15 above)?

(1)

Minimum of to a maximum of and/or a fine of $ _

Yes No

(2)

Minimum of to a maximum of and/or a fine of $ _

Yes No

(3)

Minimum of to a maximum of and/or a fine of $ _

Yes No

(4)

Minimum of to a maximum of and/or a fine of $ _

Yes No

17.

Read the following statements: You have the right to a speedy trial before a jury for the determination of whether you are guilty or not guilty and if you request, to determine sentence. (If pleading to capital murder, advise of procedure in 21 O.S. ' 701.10(B)). At the trial:

(1) You have the right to have a lawyer represent you, either one you hire yourself or if you are indigent a court appointed attorney.

(2) You are presumed to be innocent of the charges.

(3) You may remain silent or, if you choose, you may testify on your own behalf.

(4) You have the right to see and hear all witnesses called to testify against you and the right to cross-examine them.

(5) You may have your witnesses ordered to appear in court to testify and present evidence of any defense you have to these charges.

(6) The state is required to prove your guilt beyond a reasonable doubt.

(7) The verdict of guilty or not guilty decided by a jury must be unanimous. However, you can waive a jury trial and, if all parties agree, the case could be tried by a Judge alone who would decide if you were guilty or not guilty and if guilty, the appropriate punishment.

Do you understand each of these rights?

Yes No

18.

Do you understand by entering a plea of guilty you give up these rights?

Yes No

19.

Do you understand that a conviction on a plea of guilty could increase punishment in any future case committed after this plea?

Yes No

20.

Have you talked over the charge(s) with your lawyer, advised him/her regarding any defense you may have to the charges and had his/her advice?

Yes No

21.

Do you believe your lawyer has effectively assisted you in this case and are you satisfied with his/her advice?

Yes No

22.

Do you wish to change your plea of not guilty to guilty and give up your right to a jury trial and all other previously explained constitutional rights?

Yes No

23.

Is there a plea agreement?

What is your understanding of the plea agreement? _

_

_

Yes No

24.

Do you understand the Court is not bound by any agreement or recommendation and if the Court does not accept the plea agreement, you have the right to withdraw your plea of guilty?

Yes No

25.

Do you understand that if there is no plea agreement the Court can sentence you within the range of punishment stated in question 16?

Yes No

26.

Do you understand your plea of guilty to the charge(s) is/are after: (check one)

( ) no prior felony convictions

( ) one (1) prior felony conviction

( ) two (2) or more prior felony convictions

List prior felony convictions to which pleading: _

_

_

Yes No

27.

What (is) (are) your plea(s) to the charge(s) (and to each one of them)?

_

_

_

28.

Did you commit the acts as charged in the Information?

State the factual basis for your plea(s) (attach additional page as needed, labeled as ADDENDUM C):

Yes No

29.

Have you been forced, abused, mistreated, or promised anything by anyone to have you enter your plea(s)?

Yes No

30.

Do you plead guilty of your own free will and without any coercion or compulsion of any kind?

Yes No

31.

If you are entering a plea to a felony offense, you have a right to a Pre-Sentence Investigation and Report which would contain the circumstances of the offense, any criminal record, social history and other background information about you. Do you want to have the Report?

Yes No

32.

(a) Do you have any additional statements to make to the Court?

(b) Is there any legal reason you should not be sentenced now?

Yes No

Yes No

HAVING BEEN SWORN, I, the Defendant whose signature appears below, make the following statements under oath:

(1)

CHECK ONE:

(a) I have read, understood and completed this form.

(b) My attorney completed this form and we have gone over the form and I understand its contents and agree with the answers. See Addendum "A"

.

(c) The Court completed this form for me and inserted my answers to the questions.

(2)

The answers are true and correct.

(3)

I understand that I may be prosecuted for perjury if I have made false statements to this Court.

_

DEFENDANT

I Acknowledge this day of , 20 .

_

Notary Public/Deputy Court Clerk/Judge

33.

I, the undersigned attorney for the Defendant, believe the Defendant understands the nature, purpose and consequence of this proceeding. (S)He is able to assist me in formulating any defense to the charge(s). I am satisfied that the Defendant's waivers and plea(s) of guilty are voluntarily given and he/she has been informed of all legal and constitutional rights.

_

ATTORNEY FOR DEFENDANT

34.

The sentence recommendation in question 23 is correctly stated. I believe the recommendation is fair to the State of Oklahoma.

35.

Offer of Proof (Nolo contendere plea) _

_

_

ASSISTANT DISTRICT ATTORNEY

THE COURT FINDS AS FOLLOWS:

36.

A. The Defendant was sworn and responded to questions under oath.

B. The Defendant understands the nature, purpose and consequences of this proceeding.

C. The Defendant's plea(s) of is/are knowingly and voluntarily entered and accepted by the Court.

D. The Defendant is competent for the purpose of this hearing.

E. A factual basis exists for the plea(s) (and former conviction(s), if applicable).

F. The Defendant is guilty as charged: (check as appropriate)

( ) after no prior felony convictions.

( ) after one (1) prior felony conviction.

( ) after two (2) or more prior felony convictions.

G. Sentencing or order deferring sentence shall be: imposed instanter ( ); or continued until the day of , 20 , at .m.

If the Pre-Sentence Investigation and Report is requested, it shall be provided to the Court by the day of , 20 .

H. Defendant is committed to:

The RID Program

The FORT Program

The Delayed Sentencing Program for Youthful Offenders

DONE IN OPEN COURT this day of , 20 .

Court Reporter Present JUDGE OF THE DISTRICT COURT

Deputy Court Clerk NAME OF JUDGE TYPED OR PRINTED

Part B: Sentence on Plea

Case No. _

State v. _

Date: _

[NOTE ON USE: Part B to be used with the Summary of Facts if contemporaneous with the entry of plea or may be formatted as a separate sentencing form if sentencing continued to future date.]

THE COURT SENTENCES THE DEFENDANT AS FOLLOWS:

TIME TO SERVE

1. You are sentenced to confinement under the supervision of the Department of Corrections for a term of years as follows: (list in same order as in question No. 15 in Part A)

_

_

_

_

Upon release from such confinement, you shall serve a term of post-imprisonment supervision under conditions prescribed by the Department of Corrections for a period of:

_

_

2. The sentence(s) to run:

(concurrently/consecutively)

(OR)

NOT APPLICABLE

3. Defendant shall receive:

Credit for time served

No credit for time served

DEFERRED SENTENCE

1. The sentencing date is deferred until , 20 at .m.

2. You (will/will not) be supervised. The terms set forth in the Rules and Conditions of Probation found in Addendum D shall be the rules you must follow during the period of deferment.

SUSPENDED SENTENCE or SUSPENDED AS TO PART

1. You are sentenced to confinement under the supervision of the Department of Corrections for a term of years as follows:

_

_

_

_

To be suspended as follows:

(a) ALL SUSPENDED YES NO _

(b) suspended except as to the first (months)(years) of the term(s) during which time you are to be held in the custody of the Department of Corrections, the remainder of the sentence(s) to be suspended under the terms set forth in the Rules and Conditions of Probation found in Addendum D.

Said period of incarceration shall be in the custody of the Department of Corrections, to be served in the County Jail, in lieu of the Department of Corrections, pursuant to the Community Service Sentencing Program, 22 O.S. Section 991a – 4.1.

Defendant’s term of incarceration shall be calculated as:

Calendar days with credit for good behavior only (57 O.S Section 65)

As calculated by the Sheriff with all implemented and allowable credits allowed by law

2. The sentence(s) to run:

(concurrently/consecutively)

(OR)

NOT APPLICABLE

3. Defendant shall receive:

Credit for time served

No credit for time served

FINES AND COSTS

You are to pay a fine(s), costs, fees and/or restitution to the County District Court Clerk as set out in Addendum E which is attached and made a part of this Order.

[NOTE ON USE: District Courts may develop and utilize schedules for payment of fines and costs as appropriate for each district and attach as Addendum E.]

"NOTICE OF RIGHT TO APPEAL"

Sentence to Incarceration, Suspended or Deferred:

To appeal from this conviction, or order deferring sentence, on your plea of guilty, you must file in the District Court Clerk's Office a written Application to Withdraw your Plea of Guilty within ten (10) days from today's date. You must set forth in detail why you are requesting to withdraw your plea. The trial court must hold a hearing and rule upon your Application within thirty (30) days from the date it is filed. If the trial court denies your Application, you have the right to ask the Court of Criminal Appeals to review the District Court's denial by filing a Petition for Writ of Certiorari within ninety (90) days from the date of the denial. Within ten (10) days from the date the application to withdraw plea of guilty is denied, notice of intent to appeal and designation of record must be filed pursuant to Oklahoma Court of Criminal Appeals Rule 4.2(D). If you are indigent, you have the right to be represented on appeal by a court appointed attorney.

Do you understand each of these rights to appeal?

Yes No

Do you want to remain in the county jail ten (10) days before being taken to the place of confinement?

Yes No

Have you fully understood the questions that have been asked?

Yes No

Have your answers been freely and voluntarily given?

Yes No

I ACKNOWLEDGE UNDERSTANDING OF RIGHTS AND SENTENCE IMPOSED.

_

DEFENDANT

I, the undersigned attorney, have advised the Defendant of his appellate rights.

_

ATTORNEY FOR DEFENDANT

Done in open court, with all parties present, this day of 20 .

Court Reporter Present JUDGE OF THE DISTRICT COURT

Deputy Court Clerk NAME OF JUDGE TYPED OR PRINTED

ADDENDUM "A"

CERTIFICATE OF DEFENSE COUNSEL

As the attorney for the defendant, , I certify that:

1. The Defendant has stated to me that he/she is (able/unable) to read and understand the attached form, and I have: (check appropriate option)

Determined the Defendant is able to understand the English language.

Determined the Defendant is unable to understand the English language and obtained to interpret.

2. I have read and fully explained to the Defendant the allegations contained in the Information in this case.

3. I have read and fully explained to the Defendant all of the questions in the Plea of Guilty/Summary of Facts and the answers to the questions set out in the Summary of Facts are the Defendant's answers.

4. To the best of my knowledge and belief the statements and declaration made by the Defendant are accurate and true and have been freely and voluntarily made.

Dated this day of , 20 .

_

ATTORNEY FOR DEFENDANT