Oklahoma State Question 805 Concerns Sentence Enhancement
Video Transcribed: What is a sentence enhancement? My name is Ryan Cannonie, I am the Tahlequah family attorney for Wirth Law Office in Cherokee County, and there’s a lot going on right now with the Oklahoma State Question 805, and I did another video about what is a violent crime, and I’ll say the same thing in this video, I’m not getting into the debate of for or against 805. But I think that there’s a good chance a lot of people need more information about it.
So 805 concerns sentence enhancement, and now what that means is as when I was a prosecutor, we did this all the time, if you are charged with a crime and within the past 10 years, you’ve committed… Let me phrase that again. If you’re charged with a felony in the past 10 years, you were convicted of another felony, then the prosecutors can add that felony conviction to what we call second page.
So you have your first page, which is your information with all your charges. Then you have a second page that lists all your prior felonies within the past 10 years. Those felonies when you add up can enhance your sense.
So if your original crime, let’s say it was burglary, two to seven years, but in the past 10 years, you’ve had another felony, then that can increase the range of punishment from two to seven up higher. I’ve actually got it pulled up here because even after doing this for so many years, there are certain times I have to look at it and remember to do the math on it. You see that a lot in offices.
Well, if it’s let’s say it’s a nonviolent crime, so we’re talking about not one of the violent ones I mentioned in my other video, it’s just a regular crime, and let’s say it’s a two to seven. Let’s go with that punishment scale.
So according to statute, your second conviction, so your second time getting charged with this and going for a conviction, your sentence can be, it’s going to be twice the minimum up to life. So the minimum amount is two so that makes it four to life now is what you’re looking at. Your punishment then is going to be in that four to life.
Now, if it didn’t have a minimum, let’s say this was… The punishment statute just said not to exceed seven years. So there’s no minimum, but there is a maximum then that second conviction, if you’re looking at it for a nonviolent offense would end up being two to life would be what the ranges there.
Now let’s say you get another conviction for another nonviolent felony. At that point, you’re doing a minimum of three times times the minimum up to life, or it’d be four to life. So in this case, it would be six to life, and those are the minimum sentencing guidelines.
Now, the way that changes as the prosecutor can drop previous convictions off the second page, say we’re not trying to enhance this, we’re wanting to lower the range back down, but that’s up to the prosecutor. The judge can’t do that. The defense attorney can’t do that. That happens in plea bargains. Sometimes you will agree to take five years. Well, the minimum might be six.
So we drop one of those former convictions off and now we’re in two to life, and so it works out that way. Now, the reason this has come up is because this question is wanting to change it so that if you are a nonviolent criminal offense, then these prosecutors wouldn’t be able to enhance your punishment and add all these years, and that’s kind of where the state question comes in.
Now, when it comes to violent offenses, violent offenses are treated more severely. So on your first time with one, let me get this right here. If you’ve had a conviction and they are charged with a violent crime and that violent crime carries over five years of a sentence.
So let’s say it’s the same two to seven, so that’s over five years and it’s on the violent crime list, then you can be looking at up to life on a second conviction.
Now, violent crimes, as I said in my other video, there’s a very long list, including you have things like assault and battery with a dangerous weapon, you have things like rape two on there. You have a lot of different statutes and charges that can be classified as a violent crime. Violent crimes, when you start enhancing really make everything go up really fast. You’re hitting life a lot quicker on a violent crime for your range of punishment.
Now, this is all about looking at what happened in the past 10 years, right? So we’re looking at convictions in the past 10 years. Well, not really, because there’s this thing called bootstrapping and what that is there’s a court cases out on it, this is completely legal. In that 10 years, if you were not… You have a ten-year period there and you take all the convictions during that 10 years.
If during that 10 years you have a conviction, let’s say six years ago, I was convicted of a felony, any felony, it doesn’t matter. 10 years ago, I was convicted of a felony. I can go back 10 more years from that to look for more felony convictions.
So by doing this, you can keep hopping back if someone has felony convictions and back when drugs were still a felony, it wasn’t uncommon to see someone with over 10 felony prior convictions, all for drugs over the past 15, 20 years.
You still see that a little bit today, but with drugs being a misdemeanor, it has removed a lot of felonies from the system, and so you don’t see as many bootstrap back into like the ’80s you used to. But you will see it on unauthorized use of vehicle, that’s a felony. If you’re at a certain point, a certain amount of money for a property, concealing stolen property as a felony.
Burglary, which is really just breaking and entering into a house with intent to commit a crime is going to be one of the ones that you could be hit with as a prior. DUIs, DUIs are kind of like drugs and that they are still a felony on your second offense. So DUIs, a lot of times if someone has two, they’re going to have more if you start looking back, and so DUIs will stack up against someone pretty quick.
So the whole thing about enhancement is looking at how that impacts nonviolent crime and how it impacts violent crime, and you can find that statute, if you want to look it up yourself, it’s entitled 21 section 51.1, and like I said, it’s kind of weird the way they word it. But if you said it or read it a couple of times, it makes sense.
But it goes through each of the ways your charge can be enhanced at sentencing. Now, one thing in trials on this, because I’ve done several trials where we had a second page information, the way the trials on this are different as well. So the person will go to trial on the offense like the first, whatever the charge is, the jury will either render guilty or not guilty.
If they render a guilty verdict, then there is another kind of like a mini trial where evidence is put in that the person has prior felony convictions. Then the jury goes back out and decides sentencing based on that information. So that’s kind of how the trial process works when you’re talking about second pages, enhancement crimes.
People use different terminology, but enhancement, second page, prior conviction, conviction after former conviction, these are all the same thing. If you have questions about this, if you’re charged with a crime and have a second page, if you’re wondering what the new state question if it’s passed, how it apply to you and how it could apply to your charges, then give us a call. Go on Tahlequahattorney.com with the web form there, send a message to a Tahlequah attorney.
