Tulsa Attorney BlogHow is Sentencing for a Criminal Offense Decided?

The Judge Decides Wherein the Range of Punishment the Defendant Will Be Sentenced

Video Transcribed: How is a sentence for a criminal defense decided in Oklahoma? I’m an attorney in Tulsa, James Wirth, and that’s the question that we have before we are how is a criminal sentence in Oklahoma determined? So first off in Oklahoma, you can be charged in a lot of different courts.

You could be in municipal court, you could be in tribal court, you could be in county court, you could be in federal court. Most of the time, when we talk about criminal defenses, we’re dealing with the state court, which is the county court, where they apply state law and where the district attorney for that county is the one prosecuting. So I’m going to be talking specifically about that because that’s the great majority of cases.

So how is the sentence determined there? Well, first off it depends on how you’re charged. You look at that crime and you can look in the statute and it’s defined by statute what the range of punishment is. And that could be anywhere from zero to life imprisonment, but it’s going to be by the range of punishment in the statute.

For example, DUI first offense misdemeanor has a range of punishment from 10 days to one year. However, that 10 days to one year doesn’t have to necessarily be in time. You could sometimes do a suspended sentence, which means you’re on probation, but you’re convicted, or a deferred sentence, which means you’re on probation, but you haven’t been convicted.

But who makes those determinations? Well, most of the time it’s done through a plea deal and negotiations through the prosecutor and the attorney for the defendant. They work out a deal by weighing essentially the crime, the evidence, mitigating factors, defenses, the likelihood of conviction. All of those things go into play. What leverage do we have?

attorney in OklahomaAnd then that can be negotiated if the defendant agrees to that, the state agrees to it, it goes before the judge and the judge has to decide whether they’re going to accept that plea or not. If they accept it, then that’s going to be the sentence of the court. If they deny it, then the plea is withdrawn. You can continue negotiations or it can go forward to trial

So most cases are done by a plea deal, which would be agreed upon by the defendant and the state. However, if it does not go by plea deal, then it can be done through a blind plea to the judge, or through a trial, either bench trial or a jury trial.

If it is a blind plea, that means that there’s no plea deal in place, but the defendant is essentially confessing and saying that the defendant is indeed guilty or potentially could be done through a no contest, although that’s rare. Or through an offered plea where you’re asserting that you are innocent, but you’re pleading guilty anyway, which is really rare, but possible in some cases.

In any instance, if it’s a blind plea, there’s no plea deal in effect, so the judge has to make the determination on the sentence. A lot of times, if it’s a more serious offense, the judge may request a pre-sentence investigation report. That’s an investigation that can be done by DOC, and then has recommendations on a sentence.

But they only recommend they don’t decide the sentence. The report goes to the judge and the judge decides wherein the range of punishment the defendant will be sentenced, and how that sentence is going to be served. That’s a blind plea.

Another option is it goes to trial and the defendant has a right to a jury trial. The defendant waives that right, it could go to be tried before the judge, in which case the judge makes the determination on the sentence, just like as if it were a blind plea if the defendant is found guilty at trial.

And then the last option, of course, is a jury trial. If you demand your right to a jury trial, then you’re going to present that case to a jury. The jury will decide your guilt. And then the jury will, if you request them to, recommend a sentence.

So they will announce that sentence in open court after they announce a finding of guilt if that’s what they find. But that is not the actual sentencing. That is a recommendation that goes to the judge. The judge will then note the finding of guilt and will set it off at a later date for sentencing. Just like in the case of a blind plea, the judge may order a pre-sentence investigation report to help with determinations on sentencing.

Additionally, sometimes there are multiple stages at a trial, because some information may be relevant to the sentence, but not relevant and, in fact, prejudicial to a determination of guilt. For instance, if a defendant has prior convictions that are admissible, prior felony convictions within the last 10 years.

Having those go into the record during the first phase of a trial would be prejudicial and may cause a jury or judge to decide guilt based on that rather than the actual facts of the underlying cause. So that is not allowed. So you end up having a two-stage trial.

So first we have a finding of guilt, the first stage, and then it goes to a second stage where information that’s relevant only to sentencing goes before the court. And then the jury can hear that and that can help them determine what to recommend as far as the sentence goes.

Now, when it goes to the jury and the jury makes recommendations, the judge almost always goes along with the recommendation of the jury. However, the jury does not have the option of saying, I want that sentence suspended or deferred. All they get to decide is how much time, to put a number down or to put life down for the sentence.

So the judge could still technically do a sentence different than what’s recommended by a jury. And it could fact suspend that or even defer that sentence. But that virtually never happens. The judge almost always goes along with the jury.

The thing the judge does decide in those circumstances, if there are multiple counts, the judge will decide whether they are served concurrently or consecutively. Meaning do you have to serve all the time on count one before you start serving the time on count two?

Or can you serve those counts one, and two, three, however many, concurrent, you’re serving them at the same time. That can have a substantial impact on how much time is somebody is serving. And the jury does not make recommendations on that. And the judge will frequently decide whether concurrent or consecutive, it’s not unusual either way for that.

So hopefully that answers your question regarding how a sentence is determined. If you’ve got more questions specific to your circumstances, then you’re going to want to talk to an attorney confidentially in detail about that. To get that scheduled with somebody at my office you can go online to MakeLawEasy.com.

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