State v. Hunter

1990 OK CR 13, 787 P.2d 864, 1990 Okla. Crim. App. LEXIS 11, 1990 WL 17035

Opinions

OPINION

LUMPKIN, Judge:

On December 1, 1987, in Tulsa County District Court, Case No. CRF-87-3490, and in Washington County District Court, Case No. CRF-87-334, the Honorable Clifford Hopper, District Judge, and the Honorable Janice P. Dreiling, Associate District Judge, respectively declared the Delayed Sentencing Prograna for Young Adults, 22 O.S.Supp.1987, §§ 996-996.3, unconstitutional. The State appeals both rulings pursuant to the automatic appeal provisions of 22 O.S.1981, § 1053.1. The two separate appeals are consolidated herein for review. We declare the Delayed Sentencing Program for Young Adults constitutional and reverse and remand the cases for further proceedings.

On June 17, 1986, it was held in Swart v. State, 720 P.2d 1265, 1270-72 (Okl.Cr. 1986), that the Nonviolent Intermediate Offender Act [hereinafter cited as the NIOA or the Act], 22 O.S.Supp.1984, §§ 995-995.9 (repealed 1987), violated the separation of powers provision of article IV, section 1 of the Oklahoma Constitution. Specifically, Swart found two provisions of the NIOA violated the constitutional doctrine of separation of powers. First, 22 O.S.Supp.1984, § 995.8 improperly placed discretionary authority to discharge an offender from a lawful sentence in the hands of the judiciary contrary to article VI, section 10 of the Oklahoma Constitution which places such power exclusively with the Governor, upon recommendation from the Pardon and Parole Board. Swart, 720 P.2d at 1270-1271. Second, 22 O.S.Supp.1984, § 995.3(B) improperly delegated the power to establish the rules and conditions of probation to the Department of Corrections [hereinafter cited as DOC]. Id. at 1271-72. Following Swart, the Oklahoma Legislature repealed the NIOA and enacted the Delayed Sentencing Program for Young Adults [hereinafter cited as the DSPYA or the Program], 22 O.S.Supp.1989, §§ 996-996.3, effective November 1, 1987. Unlike the NIOA, see Swart, 720 P.2d at 1272, the DSPYA contained a severability clause. 1987 Okl. Sess.Laws 504.

In Tulsa County District Court, Case No. CRF-87-3490, District Judge Hopper, relying on the separation of powers rationale enunciated in Swart and the provisions of sections 996.1 and 996.3(A), declared the DSPYA unconstitutional. In Washington County District Court, Case No. CRF-87-334, Associate District Judge Dreiling held the DSPYA unconstitutional on equal protection grounds. We find the DSPYA is neither vague nor a denial of equal protection.

Every presumption must be indulged in favor of the constitutionality of an act of the Legislature, and it is the duty of the courts, whenever possible, to harmonize acts of the Legislature with the Constitution. Ex Parte Hunnicutt, 7 Okla.Crim. 213, 123 P. 179, 183 (1912). Where a statute is subject to two constructions, one conforming to and the other contravening the Constitution, that construction which conforms to the Constitution must be adopted. Id. See also State v. Koo, 647 P.2d 889 (Okl.Cr.1982), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602; Black ¶. Ball Janitorial Services, Inc., 730 P.2d 510 (Okl.1986).

We first analyze the DSPYA to determine if its provisions violate the separation of powers provision found in Okla. Const, art. IV, § 1. A review of the statutory provisions reveals that the Legislature applied the principles set forth in Swart and ensured that the power to sentence would remain with the trial court and that “the discretionary power to discharge an offender who is otherwise under a lawful sentence”, Swart at 1270, is not delegated to another branch of government. The provisions of Section 996.3 retain the discretionary powers of the court to sentence pursuant to the sentencing options allowed by statute. The only procedural restriction is that the court must delay the sentencing “up to one hundred twenty (120) days” (emphasis added) and order the offender to the DSPYA to allow the DOC to “prepare and file with the court clerk a specialized offender accountability plan for said offender”. This plan is in lieu of the presen-tence investigation which is required pursuant to 22 O.S.Supp.1982, § 982. In fact, the requirements of each of these provisions are substantially the same. To find one unconstitutional would ipso facto declare the other void. The statute requires the DOC to act pursuant to the directions of the court. Therefore, the DSPYA does not violate the doctrine of separation of powers.

We now analyze the statutory language to determine if it is unconstitutionally vague under article II, section 7 of the Oklahoma Constitution. The concept of vagueness focuses on uncertainty or ambiguity of the terms of the legislation. The word “offender” is clearly defined in Section 996.1. The statute identifies the target group along with the criteria for selection. Section 996.3(C) succinctly states that the purpose for commitment to the DSPYA is for assessment. Section 996.2 assigns the administrative responsibility and Section 996.3(B) summarizes the purpose and expectations of the program. Section 996.3(B) states in pertinent part:

The plan shall include information, evaluation, and data directed by the sentencing court,-and may include but not be limited to, the investigation report of probation officers, and assessment of security risks and offender needs and a recommended specific course of action, including, where applicable, psychological counseling, psychiatric treatment, medical treatment, education or vocational training, work, and such other programs, which will offer the best opportunity for rehabilitation of said offender.

In addition, we must distinguish between substantive due process and procedural due process in our analysis of the issues presented. Substantive “[d]ue process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, ...” Buckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct. 612, 662, 46 L.Ed.2d 659, 721 (1976). However, the DSPYA statute neither defines crimes nor fixes punishment for failure to adhere to some requirement. It provides a procedure, which is invoked after guilt is established, to assess the offender and provide the Court with data upon which the sentence will be based. Prior to sentencing, selected offenders who have either plead guilty, nolo contendere or received a guilty verdict, are eligible for this program, which is in lieu of the presen-tence investigation. The sentencing court determines whether the offender will be confined in the custody of the Department of Corrections or be released on probation during the assessment period. The assessment period can vary for each offender, depending upon his needs. The offender is also given an opportunity to object to the recommendations of the plan before sentencing. This procedure follows the procedure established in 22 O.S.Supp.1982, § 982, wherein the DOC is also ordered to conduct a presentence investigation prior to sentencing any felon to incarceration. In Section 982 the investigation is followed by a report and recommendation to the sentencing court within a reasonable time. However, the DSPYA specialized offender accountability plan must be filed within 120 days unless the time period is extended by execution of a waiver by the offender and approved by the court. 22 O.S.Supp.1987, § 996.3(D). We do not find that this program arbitrarily or unreasonably curtails or interferes with an individual’s life, liberty or property. The statute provides the offender with procedural due process at each stage of the proceedings. Nothing in the DSPYA prohibits an agreement by the parties to waive the provisions of the Program and proceed with the sentencing. Therefore, the DSPYA does not violate either substantive or procedural due process. Further, due process is not offended when the basis for enhanced confinement or dissimilar treatment is rehabilitation, and not punishment. Swart, 720 P.2d at 1269; Accord Rogers v. United States, 326 F.2d 56 (10th Cir.1963). This procedure allows the court flexibility in dealing with the youthful offender through programs such as “shock probation” or special conditions of probation to meet individual needs which might be identified by DOC in the specialized offender accountability plan filed with the court.

Finally, we address the issue of whether the DSPYA denies an “offender” equal protection of law, as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution. The process for ana lyzing the constitutionality of a statute under the equal protection clause has previously been set out in Swart. 720 P.2d at 1268-1270. We adopt that analysis and apply it here. The DSPYA, like the NIOA, has a goal of rehabilitation of the offender. “That rehabilitation of youthful offenders is an important and legitimate state interest cannot be denied.” Swart, 720 P.2d at 1269-1270. After applying the two tiered test defined in Swart we hold the DSPYA bears a rational relation to a legitimate state interest and is therefore constitutional in the application of the guarantees of the equal protection of law.

The DSPYA acknowledges and codifies the inherent power of the court to deal with individual offenders based on the particular needs of the person. It recognizes that it would be impossible for the Legislature to timely update a statutory listing of available programs for the courts to utilize in dealing with offenders, or even create a complete statutory listing of such programs which can be utilized as conditions of probation in sentencing. The DSPYA also provides the opportunity for the court to utilize “shock probation” by placing an offender in confinement custody with the DOC prior to sentencing, thus, allowing the court to individually tailor the sentence to the needs of the offender.

Therefore, the District Court rulings declaring 22 O.S.Supp.1989, §§ 996-996.3 unconstitutional are REVERSED AND REMANDED to the District Court for further proceedings consistent with this opinion.

LANE, V.P.J., and JOHNSON, J., concur. PARKS, P.J., and BRETT, J., dissent.