Tahlequah Attorney BlogState Question 805: Enhancement Of Criminal Charges

The District Attorney Or The Assistant District Attorney Is Usually Who Prosecutes Cases.

Video Transcribed: Do you still have questions about State Question 805? Well, you’re not alone because even after my last video, I still got friends and family messaging me asking me what I meant. My name is Ryan Cannonie, I am the Tahlequah criminal attorney for Wirth Law Office in Tahlequah. And I’m going to explain to you what enhancement means. And I’ve got some visual aids here for a criminal sentence.

Now the District Attorney or the Assistant District Attorney is usually who prosecutes cases, can actually do what we call enhancement. That means they use prior felony convictions to make a new felony conviction have more of a sentence, more punishment on it.

Now based on how many priors and what the new offense is, this can increase it. There’s a little kind of formula you use to go up to maybe 10 years, instead of being a one to five or a two to seven. Now it’s a 10-year felony, or it can go all the way up to life if the new crime is a violent crime, that happens pretty quickly.

So when I was a prosecutor, I filed former convictions on people. And I’ve got an example. I’ve already scrubbed all the identifying information so you can’t figure out who this is. But this is a public record document and I’ve just removed everything so you would know who it was. So in 2015, this gentleman got a charge. This is his charging sheet.

This is what we give people who are charged with a crime to show what they’re charged with. It’s probably backward, but it actually says trafficking in illegal drugs. This was a couple of pounds of meth case. This guy, unfortunate for him, had just pled to probation earlier that year for possession of methamphetamine case.

Now the way things work and even actually during the course of this case, the way things work is if it’s a possession offense, A that’s a misdemeanor anyway. But if it’s a prior possession that was a felony at the time, you can’t use it on a second page.

You can’t use it to enhance as a former conviction. At that time you could, now you can’t. That was one reason this guy’s plea offer eventually got knocked down to a regular drug trafficking amount. But for all that happened, we filed one of these.

This is called a second page. It’s former convictions. Now you see there are three paragraphs there, each of them lists a little bit about the information there. What type of a case it was, what the charge was, when it happened, the County. It was in all that information you put on there.

Now because there were three, that means this guy, this would be his… You get one, then you get two formers. And then after that, it doesn’t really matter. It just keeps adding… It doesn’t keep adding punishment, it stops adding at the third.

The reason you put more on there is this thing I explained in my other video called bootstrapping. So this guy had his 2015 felony. Well by going back further then, we can throw on two other felonies he had in his history.

So, I understand when you’re talking about drug trafficking, there’s not a lot of sympathies here for people who are getting enhanced sentences. But drug trafficking is of a nonviolent felony.

According to state statutes, it’s not the only one. One nonviolent felony people don’t really think about is embezzlement from rent to own places. So if you use a rent to own, or if you are aware of them, they’re big stores.

They do washers, dryers, a lot of them. Some are new, some are used, they charge a fee. If you don’t bring back that property, I want to say it’s within 10 days of the rental agreement, meaning you missed a payment.

Most of them have, if you miss a payment, the property is supposed to be returned within 10 days. If you don’t return it or establish a new contract with them, then you can be charged with a felony offense.

Other felonies include taking of trees. If you cut down a tree on someone else’s property, you can be charged with a felony. I don’t know him, but I know of a person when I was a prosecutor in Nowata, came back for his review. He was in prison, he came back.

I didn’t handle his case until he came back. And when he came back, he said he was in prison for cutting down trees. And I thought he was joking. It turned out, no he wasn’t. That is a felony offense in Oklahoma in certain situations.

So there are several types of felonies, unauthorized use of a vehicle is a felony. There are other ones that don’t really rise to the level of drug trafficking when you’re thinking non-violent. Now each of these felonies, because they’re charged as a felony, you can use prior felonies to enhance the sentence on them.

So that embezzlement of rental property from the rent to own place can go from its normal punishment, which I’d have to look it up. I forgot to look it up for this video. Up to maybe even a 10, 20-lifetime sentence on something like that.

And how does that work? Well, let me explain. So it’s 2020. Let’s say someone gets on these rent own kind of things. They don’t bring it back within 10 days, or whatever the contract term is there. Most of them I think are around 10 days. It gets sent to the DA’s office, DA files it as a felony. Well, prior to that, let’s go back to their history.

When they were much younger, in college, fresh out of high school, somewhere in there, they got a misdemeanor DUI in 2004. Well, they still had an alcohol problem so, in 2005, they got another DUI. Unfortunately for the second DUI in Oklahoma, second after you’ve been convicted or put on probation for a first one, your second one’s a felony. So they got a felony in 2005. They pled on that in 2006.

So if you’re following, they got a misdemeanor DUI in ’04, a felony DUI in ’05. They pled to the felony in ’06. Pled to five years. So from ’06, five years is 2011. Well, it’s 2020. So right now, normally you would think, well that was 15 years ago, they got charged with a felony DUI. Well, the way the enhancement statute works, it’s not just when you were charged.

It’s also when you completed your sentence. So because they completed their sentence in 2011, that embezzlement of rental property they just got, can be enhanced with a former felony conviction of the DUI. Which will up the punishment on it and allow the prosecutor to seek more time in prison. Now you can kind of see where I’m going with this, that you can go over 10 years if you wanted to, without a felony offense.

But if you were still on a long enough probation sentence, then it doesn’t matter. You can string together all the way back. The furthest, I think I’ve ever seen is 1967, I think. In 2018… 2016. 2016 all the way back to 1967 offenses for felonies.

Now, why would a prosecutor want to do that? Once you hit three there’s no increase in punishment. Well, because when it goes to a jury trial if the jury finds the person guilty, then they go into sentencing. Which is when you have former convictions as a separate process.

It’s not like a regular trial where the jury says guilty, and we recommend 10 years. A former conviction jury only decides guilt or innocence. And then there’s another stage where the prosecutor puts forward information.

Usually, it’s just these certified copies of a judgment and sentence. It’s the document that shows what they were sentenced to. The jury goes back and decides punishment. Well, if a prosecutor’s got 20 of those, then a jury is going to want to put more time on someone than if they have one.

And that’s kind of how the sausage is made of how that works. And so even though for this guy, three was enough to put him at life if that’s the way it was going to go. It didn’t, he got much less time. But if he had gone to a jury trial, then the jury would see he’s, what the statutes refer to as a habitual criminal.

So if you have questions about this, feel free to give us a call. This is kind of a weird issue. And like I’ve said before, I’m not weighing in on whether State Question 805 is good or bad. I’m just explaining how it works. If you have former convictions, if you are charged with a new crime and they’ve put a former conviction page on your case, and you have questions about it, give us a call. We do free consultations.

You can go to tahlequahattorney.com send us a web form. We can talk to you about your case and see how we can help you with it. And maybe, even with everything going on here, maybe we can help you with your case.

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