STATE OF OKLAHOMA

2nd Session of the 54th Legislature (2014)

HOUSE BILL 2412	By:	Roberts (Dustin)

AS INTRODUCED

An Act relating to children and juvenile code; amending 10A O.S. 2011, Sections 2-5-205 and 2-5-206, which relate to the Youthful Offender Act; deleting youthful offender eligibility for juveniles charged with murder; deleting youthful offender certification procedures; deleting certain offense from youthful offender eligibility list; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     AMENDATORY     10A O.S. 2011, Section 2-5-205, is amended to read as follows:
Section 2-5-205.  A.  Any person thirteen (13) or fourteen (14) years of age who is charged with murder in the first degree shall be held accountable for the act as if the person were an adult; provided, the person may be certified as a youthful offender or a juvenile as provided by this section, unless the person is subject to the provisions of subsection G of Section 2-5-204 of this title.
B.  Any person thirteen (13), fourteen (14), fifteen (15), sixteen (16) or seventeen (17) years of age who is charged with murder in the first or second degree at that time shall be held accountable for his or her act as if the person was an adult and shall not be subject to the provisions of the Youthful Offender Act or the provisions of the Juvenile Code for certification as a juvenile.  The person shall have all the statutory rights and protections of an adult accused of a crime.  All proceedings shall be as for a criminal action and the provisions of Title 22 of the Oklahoma Statutes shall apply.  A person having been convicted as an adult pursuant to this paragraph shall be tried as an adult for every subsequent offense.
C. B.  1.  Upon the filing of an adult criminal information against such accused person, a warrant shall be issued which shall set forth the rights of the accused person, and the rights of the parents, guardian or next friend of the accused person to be present at the preliminary hearing, and to have an attorney present and to make application for certification of such accused person as a youthful offender to the district court for the purpose of prosecution as a youthful offender.
2.  The warrant shall be personally served together with a certified copy of the information on the accused person and on a custodial parent, guardian or next friend of the accused person.  The court may inquire of the accused as to the whereabouts of his or her parents, guardian, or next friend in order to avoid unnecessary delay in the proceedings.
3.  When personal service of a custodial parent, guardian or next friend of the accused person cannot be effected, service may be made by certified mail to such person's last-known address, requesting a return receipt from the addressee only.  If delivery is refused, notice may be given by mailing the warrant and a copy of the information on the accused person by regular first-class mail to the address where the person to be notified refused delivery of the notice sent by certified mail.  Where the address of a custodial parent, guardian or next friend is not known, or if the mailed warrant and copy of the information on the accused person is returned for any reason other than refusal of the addressee to accept delivery, after a thorough search of all reasonably available sources to ascertain the whereabouts of a custodial parent, guardian or next friend has been conducted, the court may order that notice of the hearing be given by publication one time in a newspaper of general circulation in the county.  In addition, the court may order other means of service of notice that the court deems advisable or in the interests of justice.
4.  Before service by publication is ordered, the court shall conduct an inquiry to determine whether a thorough search has been made of all reasonably available sources to ascertain the whereabouts of any party for whom notice by publication is sought.
D.  1.  The accused person shall file any motions for certification as a youthful offender or a juvenile before the start of the criminal preliminary hearing.  If both a motion for certification as a youthful offender and a motion for certification as a juvenile are filed, they shall both be heard at the same time.  No motion for certification as a youthful offender or certification as a juvenile may be filed after the time specified in this subsection.  Upon the filing of such motion, the complete juvenile record of the accused shall be made available to the district attorney and the accused person.
2. C.  The court shall commence a preliminary hearing within ninety (90) days of the filing of the information, pursuant to Section 258 of Title 22 of the Oklahoma Statutes, to determine whether the crime was committed and whether there is probable cause to believe the accused person committed a crime.  If the preliminary hearing is not commenced within ninety (90) days of the date the accused person is charged, the district court shall hold a hearing to determine the reasons for delay utilizing the procedure set out in Section 812.2 of Title 22 of the Oklahoma Statutes, to ensure the preliminary hearing is expedited.  If the whereabouts of the accused are unknown at the time of the filing of the information or if the accused is a fugitive, the State of Oklahoma shall make reasonable efforts to locate the accused in order to commence the proceedings.  An accused who flees the jurisdiction of the court or purposely avoids apprehension for the charges, waives the right to have the preliminary hearing commenced within ninety (90) days of the filing of the information.  An accused who fails to cooperate with providing information in locating the parents of the accused, guardian, or next friend for purpose of notice waives the right to have the preliminary hearing commence within ninety (90) days of the filing of the information.
3.  At the conclusion of the state's case at the criminal preliminary hearing, the state and the accused person may offer evidence to support or oppose the motions for certification as a youthful offender or an alleged juvenile delinquent.
E.  The court shall rule on any motions for certification as a youthful offender or an alleged juvenile delinquent before ruling on whether to bind the accused over for trial.  When ruling on a motion for certification as a youthful offender or juvenile, the court shall give consideration to the following guidelines with greatest weight to be given to paragraphs 1, 2 and 3:
1.  Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
2.  Whether the offense was against persons, and, if personal injury resulted, the degree of personal injury;
3.  The record and past history of the accused person, including previous contacts with law enforcement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions;
4.  The sophistication and maturity of the accused person and the capability of distinguishing right from wrong as determined by consideration of the person's psychological evaluation, home, environmental situation, emotional attitude and pattern of living;
5.  The prospects for adequate protection of the public if the accused person is processed through the youthful offender system or the juvenile system;
6.  The reasonable likelihood of rehabilitation of the accused person if such person is found to have committed the alleged offense, by the use of procedures and facilities currently available to the juvenile court; and
7.  Whether the offense occurred while the accused person was escaping or on escape status from an institution for youthful offenders or delinquent children.
The court, in its decision on a motion for certification as a youthful offender or juvenile, shall detail findings of fact and conclusions of law to each of the above considerations, and shall state that the court has considered each of the guidelines in reaching its decision.
F.  The order certifying a person as a youthful offender or an alleged juvenile delinquent or denying the request for certification as either a youthful offender or an alleged juvenile delinquent shall be a final order, appealable to the Court of Criminal Appeals when entered.
G.  An order certifying the accused person as a youthful offender or an alleged juvenile delinquent shall not be reviewable by the trial court.
H. D.  If the accused person is prosecuted as an adult and is subsequently convicted of the alleged offense or against whom the imposition of judgment and sentencing has been deferred, the person may be incarcerated with the adult population and shall be prosecuted as an adult in all subsequent criminal proceedings.
SECTION 2.     AMENDATORY     10A O.S. 2011, Section 2-5-206, is amended to read as follows:
Section 2-5-206.  A.  Any person fifteen (15), sixteen (16) or seventeen (17) years of age who is charged with:
1.  Murder in the second degree;
2.  Kidnapping;
3. 2.  Manslaughter in the first degree;
4. 3.  Robbery with a dangerous weapon or a firearm or attempt thereof;
5. 4.  Robbery in the first degree or attempt thereof;
6. 5.  Rape in the first degree or attempt thereof;
7. 6.  Rape by instrumentation or attempt thereof;
8. 7.  Forcible sodomy;
9. 8.  Lewd molestation;
10. 9.  Arson in the first degree or attempt thereof; or
11. 10.  Any offense in violation of Section 652 of Title 21 of the Oklahoma Statutes,
shall be held accountable for such acts as a youthful offender.
B.  Any person sixteen (16) or seventeen (17) years of age who is charged with:
1.  Burglary in the first degree or attempted burglary in the first degree;
2.  Battery or assault and battery on a state employee or contractor while in the custody or supervision of the Office of Juvenile Affairs;
3.  Aggravated assault and battery of a police officer;
4.  Intimidating a witness;
5.  Trafficking in or manufacturing illegal drugs;
6.  Assault or assault and battery with a deadly weapon;
7.  Maiming;
8.  Residential burglary in the second degree after two or more adjudications that are separated in time for delinquency for committing burglary in the first degree or residential burglary in the second degree;
9.  Rape in the second degree; or
10.  Use of a firearm while in commission of a felony,
shall be held accountable for such acts as a youthful offender.
C.  The district attorney may file a petition alleging the person to be a delinquent or may file an information against the accused person charging the person as a youthful offender.  The district attorney shall notify the Office of Juvenile Affairs upon the filing of youthful offender charges.
D.  1.  Upon the filing of the information against such alleged youthful offender, a warrant shall be issued which shall set forth the rights of the accused person, and the rights of the parents, guardian or next friend of the accused person to be present at the preliminary hearing, and to have an attorney present.
2.  The warrant shall be personally served together with a certified copy of the information on the alleged youthful offender and on a custodial parent, guardian or next friend of the accused person.
3.  When personal service of a custodial parent, guardian or next friend of the alleged youthful offender cannot be effected, service may be made by certified mail to the last-known address of the person, requesting a return receipt from the addressee only.  If delivery is refused, notice may be given by mailing the warrant and a copy of the information on the accused person by regular first-class mail to the address where the person to be notified refused delivery of the notice sent by certified mail.  Where the address of a custodial parent, guardian or next friend is not known, or if the mailed warrant and copy of the information on the accused person is returned for any reason other than refusal of the addressee to accept delivery, after a distinct and meaningful search of all reasonably available sources to ascertain the whereabouts of a custodial parent, guardian or next friend has been conducted, the court may order that notice of the hearing be given by publication one time in a newspaper of general circulation in the county.  In addition, the court may order other means of service of notice that the court deems advisable or in the interests of justice.
4.  Before service by publication is ordered, the court shall conduct an inquiry to determine whether a thorough search has been made of all reasonably available sources to ascertain the whereabouts of any party for whom notice by publication is sought.
E.  The court shall commence a preliminary hearing within ninety (90) days of the filing of the information pursuant to Section 258 of Title 22 of the Oklahoma Statutes, to determine whether the crime was committed and whether there is probable cause to believe the accused person committed the crime.  If the preliminary hearing is not commenced within ninety (90) days, the state shall be prohibited from seeking an adult sentence unless the ninety-day requirement is waived by the defendant.  If the whereabouts of the accused are unknown at the time of the filing of the information or if the accused is a fugitive, the State of Oklahoma shall make reasonable efforts to locate the accused in order to commence the proceedings.  An accused who flees the jurisdiction of the court or purposely avoids apprehension for the charges, waives the right to have the preliminary hearing commenced within ninety (90) days of the filing of the information.  An accused who fails to cooperate with providing information in locating the accused parent, guardian, or next friend for purpose of notice waives the right to have the preliminary hearing commence within ninety (90) days of the filing of the information.
F.  1.  The accused person may file a motion for certification to the juvenile justice system before the start of the criminal preliminary hearing:
a.	upon the filing of such motion, the complete juvenile record of the accused shall be made available to the district attorney and the accused person,
b.	at the conclusion of the state's case at the criminal preliminary hearing, the accused person may offer evidence to support the motion for certification as a child.
2.  If no motion to certify the accused person to the juvenile justice system has been filed, at the conclusion of the criminal preliminary hearing the court may on its own motion hold a hearing on the matter of the certification of the accused youthful offender to the juvenile system.
3.  The court shall rule on the certification motion before ruling on whether to bind the accused over for trial.  When ruling on the certification motion, the court shall give consideration to the following guidelines with the greatest weight given to subparagraphs a, b and c:
a.	whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner,
b.	whether the offense was against persons, and if personal injury resulted, the degree of personal injury,
c.	the record and past history of the accused person, including previous contacts with law enforcement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions,
d.	the sophistication and maturity of the accused person and the accused person's capability of distinguishing right from wrong as determined by consideration of the accused person's psychological evaluation, home, environmental situation, emotional attitude and pattern of living,
e.	the prospects for adequate protection of the public if the accused person is processed through the youthful offender system or the juvenile system,
f.	the reasonable likelihood of rehabilitation of the accused person if the accused is found to have committed the alleged offense, by the use of procedures and facilities currently available to the juvenile court, and
g.	whether the offense occurred while the accused person was escaping or in an escape status from an institution for youthful offenders or juvenile delinquents.
4.  In its decision on the motion for certification as an alleged juvenile delinquent, the court shall detail findings of fact and conclusions of law to each of the above considerations and shall state that the court has considered each of the guidelines in reaching its decision.
5.  An order certifying a person or denying such certification to the juvenile justice system shall be a final order, appealable when entered.
G.  Upon conviction, sentence may be imposed as a sentence for a youthful offender as provided by Section 2-5-209 of this title.  If the youthful offender sentence is imposed as an adult sentence as provided by Section 2-5-208 of this title, the convicted person may be incarcerated with the adult population.
SECTION 3.  This act shall become effective November 1, 2014.

54-2-8159	GRS	01/09/14