Oklahoma § 22-1090.5 - Request to apply for resentencing — Hearing — Evidence

§ 22-1090.5. Request to apply for resentencing — Hearing — Evidence

A. Any person who is:

Oklahoma Statutes - Title 22. Criminal Procedure

1. Confined in an institution under the custody and control of

the Department of Corrections;

2. Serving a sentence for an offense committed prior to the

effective date of this act; and

3. Eligible for an alternative sentence pursuant to the

provisions of Section 3 of this act,

may, on or after the effective date of this act, submit to the judge

who imposed the original sentence a request to apply for

resentencing in accordance with the provisions of Section 3 of this

act. The person shall include in the request documentation showing

that he or she is confined in an institution under the custody and

control of the Department of Corrections and is serving a sentence

for an offense committed prior to the effective date of this act.

The person shall also declare that he or she is eligible for an

alternative sentence under the provisions of Section 3 of this act.

B. If the original sentencing judge is not serving on the court

in which the original sentence was imposed at the time of the

request to apply for resentencing, the request shall be randomly

assigned to a judge of the original sentencing court.

C. 1. If the court finds that the person has met the

requirements to apply for resentencing as provided in subsection A

of this section, the court shall provide notice to the person that

he or she may submit an application for resentencing. Upon such

notification, the person may request the court appoint an attorney

to assist the person in the preparation of and proceedings on the

application for resentencing.

2. If the court finds that such person has not met the

requirements to apply for resentencing as provided for in subsection

A of this section, the court shall notify the person and deny his or

her request without prejudice.

D. Upon the receipt of an application for resentencing, the

court clerk shall promptly notify the appropriate district attorney

and provide such district attorney with a copy of the application.

E. If the judge that receives the application is not the judge

who originally sentenced the applicant, the application may be

referred to the original sentencing judge if he or she is serving as

a judge of a court of competent jurisdiction and the applicant and

the district attorney agree that the application should be referred.

F. An application for resentencing pursuant to this section

shall include evidence corroborating the claim of the applicant that

he or she was a victim of domestic violence or subjected to

physical, sexual, or psychological abuse inflicted by a sexual

partner, a family member or member of the household, the trafficker

of the applicant, or any person who used the applicant for financial

gain. At least one piece of 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 the

Oklahoma Statutes - Title 22. Criminal Procedure

applicant, law enforcement record, domestic incident report, or

protective order. Other evidence may include but not be limited to

local jail records or records of the Department of Corrections,

documentation prepared at or near the time of the commission or

prosecution of the offense tending to support the claims of the

applicant, or verification of consultation with a licensed medical

care provider or mental health care provider, employee of a court

acting within the scope of his or her employment, member of the

clergy, attorney, social worker, rape crisis counselor, or other

advocate acting on behalf of an agency that assists victims of

domestic violence or abuse. Expert testimony from a psychiatrist,

psychologist, or mental health professional showing that the

applicant has been diagnosed with post-traumatic stress disorder may

also be submitted to the court.

G. 1. If the court finds that the applicant has not complied

with the provisions of subsection F of this section, the court shall

deny the application without prejudice.

2. If the court finds that the applicant has complied with the

provisions of subsection F of this section, the court shall conduct

a sentencing hearing to aid in making its determination of whether

the applicant should be resentenced in accordance with Section 3 of

this act. At the hearing, the court shall determine any

controverted issues of fact relevant to the issue of sentencing.

The court may consider any facts or circumstances relevant to the

imposition of a new sentence submitted by the applicant or the

district attorney and may consider the institutional record of

confinement of such person; provided, however, the institutional

record shall not be solely dispositive as to whether an applicant

receives a reduced sentence. The court shall not order a new

presentence investigation and report or entertain any matter

challenging the underlying basis of the subject conviction.

Consideration of the institutional record of confinement of an

applicant by the court shall include, but not be limited to, the

participation of the applicant in programming such as domestic

violence, parenting, and substance abuse treatment while

incarcerated and the disciplinary history of the applicant. The

inability of the applicant to participate in treatment or other

programming while incarcerated despite the willingness of the

applicant to do so shall not be considered a negative factor when

the court is making its determination.

H. If the court determines that the applicant should not be

resentenced in accordance with Section 3 of this act, the court

shall inform such applicant of its decision and shall enter an order

to that effect. Any order issued by a court pursuant to this

subsection shall include written findings of fact and the reasons

for such order. If the applicant is denied on the merits of the

application, the court shall deny the application with prejudice.

Oklahoma Statutes - Title 22. Criminal Procedure

I. If the court determines that the applicant should be

resentenced in accordance with Section 3 of this act, the court

shall notify the applicant that, unless he or she withdraws the

application for resentencing or appeals the order of the court, the

court shall enter an order vacating the sentence originally imposed

and shall impose a new sentence as set forth in Section 3 of this

act. Any order issued by a court pursuant to this subsection shall

include written findings of fact and the reasons for such order.

Sentences modified pursuant to the provisions of this section shall

be reduced as set forth in subsection C of Section 3 of this act.

J. An appeal to the Court of Criminal Appeals may be taken as

of right in accordance with the applicable provisions provided for

in Title 22 of the Oklahoma Statutes from:

1. An order denying resentencing; or

2. A new sentence imposed under the provisions of this section.

The applicant may request that the Court of Criminal Appeals assign

an attorney to the applicant for the preparation of and proceedings

for any appeal regarding the application for resentencing.

K. When calculating the new sentence to be served by the

applicant pursuant to Section 3 of this act, the applicant shall be

credited for any time served in the county jail and any period of

incarceration served under the custody and control of the Department

of Corrections toward the sentence originally imposed.

Added by Laws 2024, c. 331, § 5.