787 P.2d 864 (Okla.Crim.App. 1990), S-87-995, State v. Hunter

Docket NºS-87-995, S-88-457.
Citation787 P.2d 864
Party NameThe STATE of Oklahoma, Appellant, v. Tenisha HUNTER and Alan Darnell Walker, Appellee.
Case DateFebruary 26, 1990
CourtCourt of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 864

787 P.2d 864 (Okla.Crim.App. 1990)

The STATE of Oklahoma, Appellant,

v.

Tenisha HUNTER and Alan Darnell Walker, Appellee.

Nos. S-87-995, S-88-457.

Court of Criminal Appeals of Oklahoma.

February 26, 1990.

Appeals from the District Courts of Tulsa and Washington County; Clifford Hopper, District Judge and Janice Dreiling, Associate District Judge.

The State of Oklahoma, Appellant, pursuant to the automatic appeal provisions of 22 O.S.1981, § 1053.1, appeals two district court rulings in Tulsa County District Court, Case No. CRF-87-3490, and Washington County District Court, Case No. CRF-87-334, declaring the Delayed Sentencing Program for Young Adults, 22 O.S.Supp.1987, §§ 996-996.3, unconstitutional. REVERSED AND REMANDED.

Thomas C. Gillert, Asst. Dist. Atty., Tulsa, Perry W. Newman, Asst. Dist. Atty., Bartlesville, for appellant.

Johnie O'Neal, Public Defender, Tulsa, for appellee Hunter.

OPINION

LUMPKIN, Judge:

On December 1, 1987, in Tulsa County District Court, Case No. CRF-87-3490, and in Washington County District Court, Case

Page 865

No. CRF-87-334, the Honorable Clifford Hopper, District Judge, and the Honorable Janice P. Dreiling, Associate District Judge, respectively declared the Delayed Sentencing Program 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the Nonviolent Intermediate Offender Act [hereinafter cited as the NIOA or the Act], 22 O.S.Supp.1984, §§ 995-995.9 (repealed 1987), violated the separation of powers provision of article IV, section 1 of the Oklahoma Constitution.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 v. 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 presentence 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

Page 866

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...

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12 practice notes
  • 467 P.3d 659 (Okla. 2020), 116,978, Payne v. Kerns
    • United States
    • Oklahoma Supreme Court of Oklahoma
    • May 12, 2020
    ...Const. art. 4, § 1. [9] State v. A.C. Ford, 539 N.W.2d 214, 230 (Minn. 1995). [10] See State v. Hunter, 1990 OK CR 13, 787 P.2d 864, State v. A.C. Ford, see note 9, supra; Poitier v. State, 844 So.2d 707 (Fla. Dist. Ct.App. 2003); Oakman v. Dep't of Corr., 903......
  • 58 P.3d 208 (Okla.Crim.App. 2002), F-2000-1585, Malone v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • October 14, 2002
    ...suspended sentence had been revoked provided the sentencing jury with valuable information). [12] State v. Hunter, 1990 OK CR 13, 787 P.2d 864, 867; see 22 O.S.2001, § 996.3 (Oklahoma Youthful Offender Act). [13] 1995 OK CR 49, 904 P.2d 130, 137. [14] Burns v. U.S., 501 U.S. 129, 136, 111 S......
  • 870 P.2d 169 (Okla.Crim.App. 1994), S-92-164, State v. Claborn
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • February 8, 1994
    ...§ 1053.1. 1 The State initially raises the presumption of constitutionality to which all statutes are entitled. See State v. Hunter, 787 P.2d 864, 865 (Okl.Cr.1990). Because of the presumption of constitutionality, the burden of proving unconstitutionality is on the one challenging the stat......
  • 868 P.2d 738 (Okla.Crim.App. 1994), S-91-769, State v. Ballard
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • February 8, 1994
    ...denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602; Black v. Ball Janitorial Services, Inc., 730 P.2d 510 (Okl.1986). State v. Hunter, 787 P.2d 864, 865 (Okl.Cr.1990). With that presumption in mind, we turn to Appellee's arguments at trial, beginning with the equal protection argument tha......
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12 cases
  • 467 P.3d 659 (Okla. 2020), 116,978, Payne v. Kerns
    • United States
    • Oklahoma Supreme Court of Oklahoma
    • May 12, 2020
    ...Const. art. 4, § 1. [9] State v. A.C. Ford, 539 N.W.2d 214, 230 (Minn. 1995). [10] See State v. Hunter, 1990 OK CR 13, 787 P.2d 864, State v. A.C. Ford, see note 9, supra; Poitier v. State, 844 So.2d 707 (Fla. Dist. Ct.App. 2003); Oakman v. Dep't of Corr., 903......
  • 58 P.3d 208 (Okla.Crim.App. 2002), F-2000-1585, Malone v. State
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • October 14, 2002
    ...suspended sentence had been revoked provided the sentencing jury with valuable information). [12] State v. Hunter, 1990 OK CR 13, 787 P.2d 864, 867; see 22 O.S.2001, § 996.3 (Oklahoma Youthful Offender Act). [13] 1995 OK CR 49, 904 P.2d 130, 137. [14] Burns v. U.S., 501 U.S. 129, 136, 111 S......
  • 870 P.2d 169 (Okla.Crim.App. 1994), S-92-164, State v. Claborn
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • February 8, 1994
    ...§ 1053.1. 1 The State initially raises the presumption of constitutionality to which all statutes are entitled. See State v. Hunter, 787 P.2d 864, 865 (Okl.Cr.1990). Because of the presumption of constitutionality, the burden of proving unconstitutionality is on the one challenging the stat......
  • 868 P.2d 738 (Okla.Crim.App. 1994), S-91-769, State v. Ballard
    • United States
    • Oklahoma Court of Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • February 8, 1994
    ...denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602; Black v. Ball Janitorial Services, Inc., 730 P.2d 510 (Okl.1986). State v. Hunter, 787 P.2d 864, 865 (Okl.Cr.1990). With that presumption in mind, we turn to Appellee's arguments at trial, beginning with the equal protection argument tha......
  • Free signup to view additional results