This may be your client’s first time going to the courthouse. There can be many quick deadlines and hearings, all of which require countless pleadings or motions. The court date may only be a few minutes long but still have extensive amounts of information given. The criminal justice system can be overwhelming for both clients and attorneys who are either new to practice or just new to criminal law. This article will address the most common issues for attorneys representing clients in criminal cases.

ARRAIGNMENT

In Oklahoma, the first appearance in front of the judge is an arraignment.[1] Many courts and attorneys will call this court appearance the initial appearance or will use the two terms interchangeably. An easier way to differentiate the two terms is to think of the act of being in court as the initial appearance and the legal steps that occur as the arraignment. For this article, the term initial appearance will be used unless specifically talking about the steps for the arraignment. On either a misdemeanor or a felony, the purpose of an initial appearance is for the defendant to be made aware of the charges, confirm the identifying information is correct[2] and enter a plea if it’s a misdemeanor.[3] When your case is called, you will announce why you are in court (for the initial appearance on [identify the case number] or the initial appearance on a motion to revoke suspended sentence or an application to accelerate sentence). You will then tell the court whether the identifiers are correct and announce any changes, such as an updated address. Next, you will tell the court that the defendant understands the charges and waives the reading[4] or, in rare circumstances, read the charges aloud to your client. You will also need to tell the court how your client wants to plead to the pending matter.[5] All pleas must be oral and recorded in the court minutes.[6]

While misdemeanor charges allow counsel to appear without a client’s personal appearance, defendants must be present when charged with a felony.[7] Failure to appear could result in the issuance of a bench warrant. In the event that you have been hired by a family member or otherwise do not get to see your client before court, be aware that some courts conduct video arraignments[8] for incarcerated clients, which would prevent client consultation. You will want to check with the court to determine if you need to make alternative arrangements to speak with your client before their appearance.

Oklahoma’s criminal code requires the prosecutor to file all criminal misdemeanors and felonies by information.[9] While law enforcement can make recommendations for specific charges, ultimately, the final decision on charges lies with the district attorney’s office. The district attorney’s office should give you a copy of the charging information. If your client is in custody, the court may have given them a copy prior to court. The information must contain the title of the action, the name of the court to which the information is presented and the name of the party.[10] The information must also contain a statement outlining the charged offense, written in a way that “a person of common understanding” will know what they are charged with.[11] Endorsement of witnesses is required at the time of filing the information. If the state wants to redact endorsements for witness safety, the district attorney’s office is required to ask the court prior to redaction.[12]

If your client’s case contains a charge involving rape, sodomy, sex crimes, sexual images, lewd or indecent conduct, pornography, child abuse or neglect, domestic abuse, kidnapping, extortion of a vulnerable victim, human trafficking or a similar offense, some documents may not be available for viewing on the Oklahoma State Courts Network website.[13] You will be able to get document copies from either the district attorney or the court clerk.

BOND

If bond was not set prior to the initial appearance, you may be able to address the issue of bond. If bond was set prior, many courts will allow you to request bond reductions.[14] However, some courts will require a written request and the bond reduction hearing to be set for a later date. Most counties follow a predetermined bond schedule,[15] but several charges require the court to review the individual charges prior to setting bond.[16] The district attorney’s office may present additional information about the circumstances relating to the charges as well as the defendant’s criminal history to the court for the setting of bond. Charges relating to violations of protective orders and domestic violence are not eligible for personal recognizance bonds. There are also some crimes for which a judge can order no bond.[17] If bond is denied, the court must do a written finding of fact outlining the reasons for the detention and why no conditions of release can reasonably assure the safety of the community or any person and that proof or presumption of guilt is great. There is a possibility the bail amount could increase if your client bonded out of jail and the charge severity increased after bonding or if any additional charges were added.[18]

SPECIFIC ISSUES OR DEADLINES TO BE PREPARED FOR

An initial appearance serves a second, equally important purpose, as it can be the date used to start other critical deadlines. While not an exhaustive list, these are some specific situations that could arise at or immediately after an initial appearance for which you should be prepared.

Probation Violation Cases

If the matter is a motion to revoke or an application to accelerate, both the state and the defendant are entitled to a hearing on the merits within 20 days of the initial appearance.[19] You will need to announce whether the defendant will waive the 20 days or if your client wants the hearing set. Something to keep in mind, though, is that the state may request a hearing within 20 days as well and may not waive, depending on the factual circumstances involved in the allegations.

Second Page

In felony cases, the punishment range can change dramatically if your client has prior felony convictions. Depending on the current charge, you could end up with enhanced punishment ranges that include large mandatory minimums[20] or prohibitions against probation.[21] If your client’s prior convictions are out of county or out of state, there is a possibility the prosecutor may delay filing the supplemental information page, also called a “second page or page two,” if the priors are more difficult to ascertain. Usually, the state will file an amended information with the “second page” attached to the back. You could be handed the enhancement page at the initial appearance or even later. Keep in mind that for domestics,[22] protective orders or driving under the influence, the case used for enhancement purposes can be a misdemeanor from any court of record, including municipal courts.

Pleas

Some courts will let you plead cases at the initial appearance. This will allow your client to save time and money. Often, small charges like traffic issues, trespassing or public intoxication can be resolved at the initial appearance. However, you will want to make sure the district attorney’s office has correctly identified the punishment range for the charge listed, as some of these charges can have multiple statutes covering similar or the same offense but with different punishment ranges.

Demurrer

There are several reasons in statute allowing a defendant to request the information be set aside and the case be dismissed, such as: the facts as alleged do not constitute a crime, the information contains a legal justification for the offense or simple conformity flaws in the format of the information.[23] If the defendant is not ready to respond to the information, you can ask for additional time.[24] However, if you are able, you can file a motion requesting the court set aside the information or demur to the information.[25] The demurrer must be put in open court, either at the time of the initial appearance on arraignment or at a later date if the court allows for it to be set at a later date.[26] You need to make sure to ask for a reservation of time if you think you may want to demur, as statute requires it to be done at the time of arraignment unless you are making a jurisdictional argument.[27]

Speedy Trial Issues

The United States and Oklahoma constitutions guarantee an “accused” the right to a speedy trial. A person becomes “accused” either when charges are filed (whether by information or indictment) or when an arrest[28] for the offense has occurred, whichever happens first.[29] Defendants are also entitled to speedy preliminary hearings.[30] The court has applied the same speedy trial logic to applications and motions.[31] The Oklahoma Court of Criminal Appeals has held that delays in prosecution in excess of just one year are sufficient to trigger speedy trial analysis under Barker v. Wingo, 407 U.S. 514 (1972).[32] The factors set out are: length of delay, reason for delay, defendant’s assertion of their right and prejudice to the defendant. When looking at the delay, the court considers “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.”[33] Although negligence is a more neutral reason for delay than deliberate bad faith, it is still considered because “the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”[34]

If your client is appearing on an application to accelerate or a motion to revoke suspended sentence, you will want to look at the date of the application/motion filing as well as the procedural history of the case. If there is a significant delay between the filing and your client’s arrest, you may be able to allege that the state failed to prosecute. As the court does look at whether the delay was “acquiesced to by the defendant,” you will want to get your request for dismissal on file and set for hearing as quickly as possible, so as not to waive the speedy trial argument.

Competency

If you arrive at the initial appearance and have questions about whether your client understands the nature of the charges or whether they can assist in the preparation of their defense due to either intellectual disabilities[35] or mental illness,[36] you can ask the court to stay the criminal proceedings and set off initial appearance pending a competency evaluation. The question of competency can be raised by any party in the case, including the judge.[37] Requests should be in writing unless the court is the party requesting the evaluation.[38] You will want to include any concerns about your client’s competency. It can also include any prior mental health history. The court sends your application to the evaluator to assist them in asking questions during the later evaluation or to assist the evaluator in finding treatment records they can reference in the evaluation. Once the application is filed, all criminal proceedings are stayed.[39] Depending on your county, the court may require a hearing on your application, while some counties may order the competency evaluation based solely on the application.[40]

Once a determination is made that a competency evaluation is needed, the court will send an order to the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) for evaluation.[41] ODMHSAS will either conduct the evaluation or refer it to a qualified forensic examiner contracted by ODMHSAS. This order will give specific determinations the evaluator must make based on statute[42] (i.e., whether the defendant can understand the charges, whether the defendant can consult with their attorney and whether the defendant is dangerous[43]). Once ODMHSAS completes the evaluation, it will notify the court.[44] Parties can stipulate to the report instead of having a hearing. However, if the parties do not agree to the results of the evaluation, a hearing on the report must be held within 30 days.[45] This hearing can be in the form of a bench or jury trial. A jury trial must be held within 72 hours of the request for one.[46] At a competency trial, the party seeking to show incompetence must do so by a preponderance of the evidence.[47]

Mental Illness Defense

Defendants must raise mental illness defenses with the court within 30 days of an initial appearance for misdemeanors or a formal district court arraignment for felonies. There are several steps involved in requesting that the court pay for the services of a qualified mental health professional if your client cannot afford to pay for those services. Statute does make it clear that a defendant is not required to have an Oklahoma Indigent Defense System attorney to request that the court provide access to a qualified mental health professional to assist in the evaluation and possible presentation of a mental illness defense. This request must be filed at the same time as the notice of intent to use a mental illness defense.[48]

CONCLUSION

While an initial appearance is typically a quick, couple-sentence announcement by counsel with the intent to continue the case to a new date, it can be an effective and important appearance for your client, depending on the circumstances in their case. While this summary barely touches on the wide array of complications that could crop up at an initial appearance, many future issues can be avoided or the groundwork for defenses can be immediately laid if you are prepared. Not only will it help you with your case, but it can help alleviate the stress and anxiety a client may have when presenting themselves to a judge for the first time.

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ABOUT THE AUTHOR

Amanda Lilley is a defense attorney with the Oklahoma Indigent Defense System in the Enid satellite office. She previously served as an assistant district attorney for District 4. Ms. Lilley received her J.D. from the OCU School of Law in 2014 and is currently licensed to practice law in Oklahoma and Texas.

 

 

 

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ENDNOTES

[1] In felony cases, you will have a second court appearance similar to an initial appearance once your client is bound over to district court called a formal district court arraignment. This appearance must be held within 30 days of the bind-over. However, the court can go beyond the 30-day requirement for good cause. See 22 OS 470.

[2] 22 OS 466.

[3] 22 OS 251, 22 OS 257, 22 OS 465.

[4] The statute involved was adopted from Comp. Laws Dak. 1887, §7277, and first appears as Stat. 1890, §5539. It is long established that a defendant can waive reading of the information. See Shivers v. Territory, 13 Okl. 466, 74 P. 899.

[5] 22 OS 465.

[6] 22 OS 514.

[7] 22 OS 452.

[8] 20 OS 130, 22 OS 451-452, codifying court rules created during the COVID-19 pandemic to expand access to the courts, allowing for videoconferencing “in all stages of civil or criminal proceedings.” See also District Court Rule 34.

[9] 22 OS 301.

[10] 22 OS 402.

[11] 22 OS 401.

[12] 22 OS 303. Also, the district attorney’s office can add endorsed witnesses to the information without notice up until the preliminary hearing. See 22 OS 524.

[13] 12 OS 39.

[14] In Brill v. Gurich, 1998 OK CR 49, 965 P.2d 404 (Okla. Cr. 1998), the Oklahoma Court of Criminal Appeals reminds us, “The right to freedom before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. The judges of this State have a duty and responsibility to apply the law and, further, in these matters they must ensure bail is not used as a tool of punishment.” They then cite to Petition of Humphrey, which outlines the factors to use to determine the amount of bail.

[15] For a discussion on the legality of bond schedules, review the opinion and order in Feltz v. Regalado et al., No. 4:2018cv00298 – Document 256 (N.D. Okla. 2021). The appellate court indicates the trial court should go into an individual’s ability to pay their bond at the initial appearance if it was set by bond schedule and the defendant did not post bond by the initial appearance.

[16] 22 OS 1105.

[17] Oklahoma Constitution, Article 2, Section 8.

[18] 22 OS 462.

[19] 22 OS 991b.

[20] 21 OS 51.1.

[21] 22 OS 991a (C). However, the prosecutor may waive this prohibition in writing.

[22] 21 OS 644 (I). Deferred sentences on domestic charges qualify as enhancements, as it is still a finding of guilt. See 21 OS 644 (N). Further, the prior conviction does not have to be charged as a domestic for it to qualify as a prior for the purpose of enhancement to a felony. If the parties had a qualifying domestic relationship and a record to support the charge, a simple assault and battery can qualify as an enhancement. See State v. Rutledge, OK CR 8 | 509 P.3d 625 (2022).

[23] 22 OS 504.

[24] 22 OS 491.

[25] 22 OS 492.

[26] 22 OS 503.

[27] 22 OS 512.

[28] 22 OS 812.1 and 22 OS 812.2.

[29] See also, United States v. Marion, 404 U.S. 307, 320, 325, 92 S. Ct. 455, 463 (1971); State v. Powers, 952 P.2d 997, 999-1000 (Okla. Cr. 1997).

[30] 22 OS 258 requires a show cause be held if a preliminary hearing has not been commenced within nine months of the initial appearance. 22 OK Stat §524 requires defendants to request a preliminary hearing within 10 days of grand jury indictment if the defendant wants one, as a preliminary hearing is not required after indictment. However, the shortened time under 22 OS 812.1 essentially invalidates the speedy preliminary hearing statute.

[31] The court held a five-year delay between the filing of the motion to revoke and the defendant’s arrest, making it “apparent the State had abandoned their application,” especially when “the delay was apparently neither caused by nor acquiesced in by appellant.” Cheadle v. State, 1988 OK CR 226, 762 P.2d 995 (1988).

[32] See also, United States v. Gomez, 67 F.3d 1515, 1521 (10th Cir. 1995), while not a “bright line beyond which pretrial delay will trigger a Barker analysis,” they are mindful of the one year “presumptively prejudicial” delay recognized in Doggett.

[33] Doggett v. United States, 505 U.S. 647652 (citing Barker 407 U.S. at 533-34). In Doggett, the reason for the delay was the government’s negligence in not pursuing Doggett. 505 U.S. at 652-654, 112 S. Ct. at 2691.

[34] Barker v. Wingo, 407 U.S. at 531, 92 S. Ct. at 2192.

[35] As defined by 10 OS 1408. If the underlying issue is intellectual disability, the court can order a second evaluation through the Department of Human Services.

[36] As defined by 43A OS 1-103.

[37] 22 OS 1175.2 (A).

[38] Id.

[39] 22 OS 1175.2 (C). If your client is declared incompetent after evaluation, the state is allowed a “reasonable period of time” for restoration of competency. See 22 O.S. §1175.1(6); “Reasonable period of time” is defined as to not exceed the lesser of: “a) the maximum sentence specified for the most serious offense with which the defendant is charged,” or “b) a maximum period of two (2) years.” If your client cannot be restored, multiple options may be considered, including transitioning to a public guardianship under 22 OK Stat §1175.6b.

[40] 22 OS 1175.2 gives procedures and notice requirements.

[41] 22 OS 1175.3(D)(1). See also: The Court of Criminal Appeals in State of Oklahoma, ex. Rel. Michael J. Fields, District Attorney v. The Honorable Tom Newby, District Judge, MA 2023-651, affirmed the court’s determination that the court did not have discretion to order a second evaluation from ODMHSAS, which was requested because the state did not agree with the evaluator’s determination of incompetency. Additional briefs on this issue are found in Garfield County case CF-2022-138.

[42] 22 OS 1175.3 (E).

[43] As defined by 43A OS 1175.1.

[44] 22 OS 1175.3 (F).

[45] 22 OS 1175.4 (B).

[46] 22 OS 1175.4 (B).

[47] 22 OS 1175.4 (B), Allen v. State, 956 P.2d 918, 919 (Okl.Cr.1998).

[48] 22 OK Stat §1176 (2023).