Blind Pleas and Presentence Investigations in Oklahoma

What Is a Blind Plea in Oklahoma?

A blind plea is a plea of guilty or no contest without a binding agreement with the district attorney concerning punishment. The defendant admits guilt or enters a no contest plea, but the sentencing decision is left to the judge. In a typical negotiated plea agreement, the defendant knows what punishment has been agreed upon before entering the plea. For example, the prosecutor might offer a five year suspended sentence, meaning the defendant receives a felony conviction but does not have to serve the five years in prison as long as the conditions of the suspended sentence are followed.

If the defendant rejects that offer and enters a blind plea, there is no agreement requiring the judge to impose the five year suspended sentence. The judge could impose a lesser punishment, impose a harsher punishment, or grant a different lawful disposition. The entire range of punishment from deferred sentence (if the charge and the defendant are eligible for deferred sentencing) to the maximum amount of prison time allowed by law are available to the judge. The judge must still follow Oklahoma sentencing law. A blind plea gives the judge discretion to determine punishment, but it does not authorize an illegal sentence.

Why Would Someone Enter a Blind Plea Instead of Accepting a Plea Agreement?

There are cases where the prosecution refuses to offer a sentence that the defendant believes is reasonable. The prosecutor might insist on prison time when the defendant is seeking probation, or the parties might disagree about whether some or all of a prison sentence should be suspended. In that situation, the defendant has a decision to make. The case can proceed toward trial, the defendant can accept the offer, or the defendant can consider entering a blind plea and asking the judge to impose a different sentence.

The important question is whether there is a legitimate reason to believe the judge might impose a more favorable sentence after hearing the evidence and considering the defendant's circumstances. For example, suppose the prosecutor offers a defendant ten years in prison, but the defendant has no significant prior criminal history, has maintained steady employment, has substantial family responsibilities, and has completed treatment for a substance abuse problem. The defendant might believe those circumstances justify a suspended sentence or a shorter prison term.

A blind plea allows the defendant to present that information directly to the judge and request a sentence different from what the prosecution offered. However, the prosecutor remains free to argue for ten years in prison or another lawful sentence, and the judge is not required to agree with the defendant.

A blind plea is not automatically a better option simply because the prosecutor's offer seems harsh. The decision requires a realistic assessment of the possible punishment, the evidence that will be presented at sentencing, and the particular judge who is presiding over the case.

The Prosecutor Can Still Argue for Prison

One misunderstanding about blind pleas is that the prosecutor no longer has any influence over sentencing once the defendant decides to plead directly to the judge. That is not correct. The district attorney will appear at the sentencing hearing, argue for a prison sentence, present evidence concerning the offense, and explain why the State believes probation or a suspended sentence is inappropriate.

The defendant can also present evidence and request a particular punishment. The judge considers the information properly presented by both sides before deciding the sentence.

The judge is not required to split the difference between the prosecutor's recommendation and the defendant's request. If the State requests fifteen years in prison and the defendant requests probation, there is no rule requiring the judge to impose a sentence somewhere between those positions.

A Blind Plea Does Not Eliminate Mandatory Sentencing Requirements

Before entering a blind plea, the defendant needs to understand the actual punishment range for the offense. This includes any mandatory minimum sentence, prior felony enhancements, required minimum service provisions, and restrictions on probation or suspended sentences.

Oklahoma's felony classification system and other sentencing statutes determine what punishment is legally available. The fact that a defendant entered a blind plea does not allow the judge to disregard those requirements.

For example, if the law requires a minimum prison sentence for a particular offense, the judge cannot simply ignore that requirement because the defendant has a favorable background or because the presentence investigation recommends probation.

The same is true when prior felony convictions increase the punishment range. The judge must sentence the defendant according to the law that applies to the offense and the defendant's criminal history.

A defendant should know the minimum and maximum punishment, along with any restrictions on the judge's sentencing authority, before deciding whether to enter a blind plea.

What Happens After Someone Enters a Blind Plea?

Once the judge accepts the plea, the court must determine the punishment. In almost all cases, the judge will schedule a sentencing hearing for a later date and order the Oklahoma Department of Corrections to conduct a presentence investigation, commonly called a PSI.

A presentence investigation provides the judge with additional information about the offense and the defendant before a sentence is imposed. The Department of Corrections investigates the defendant's background, personal circumstances, criminal history, and other information relevant to sentencing. The judge will then review that report along with the evidence presented at the sentencing hearing.

A Blind Plea Does Not Automatically Mean You Will Get a Presentence Investigation?

Entering a blind plea does not automatically require the judge to order a presentence investigation, but judges customarily order the presentence investigation if the particular offense is eligible. Oklahoma law, specifically 22 O.S. § 982, authorizes presentence investigations in certain circumstances. Those circumstances include specified violent felony convictions and certain nonviolent felony cases involving defendants with prior felony convictions who enter pleas without a sentencing agreement with the district attorney.

The judge's authority to order a PSI depends on the applicable law and circumstances of the case. Some defendants enter blind pleas and are sentenced without a PSI ever being prepared. That is something the defendant and attorney should understand before the plea is entered, rather than assuming a presentence investigation will automatically provide another opportunity to influence the sentence.

What Is a Presentence Investigation?

A presentence investigation is conducted by the Oklahoma Department of Corrections before the judge imposes punishment. Its purpose is to provide the court with information that goes beyond the name of the offense and the defendant's criminal record.

The Department of Corrections prepares a written report describing the information gathered during the investigation. The report also includes DOC's recommendation concerning punishment, including whether probation or a suspended sentence is appropriate. The report is important, but the Department of Corrections does not determine the sentence. The judge makes that decision.

What Information Can Be Included in an Oklahoma PSI?

The presentence investigation can be extensive. The Department of Corrections may examine the defendant's criminal and juvenile history, education, employment, income, financial obligations, family relationships, living arrangements, and other personal circumstances. The investigation can also address substance abuse, treatment history, violence related concerns, job skills, and evidence concerning whether the defendant has accepted responsibility for the offense.

Information from the victim may also be included. This can involve the victim's description of the physical, emotional, or financial consequences of the crime and how the offense affected the victim's immediate family. The purpose is to give the judge more information about the defendant and the circumstances surrounding the offense before imposing punishment.

A person who has worked steadily for twenty years, supported a family, and has no prior criminal history presents a very different background from someone who has repeatedly violated probation or committed additional crimes while awaiting sentencing. The PSI allows those circumstances to be brought to the judge's attention.

The Presentence Investigation Interview

As part of preparing the PSI, a Department of Corrections officer will interview the defendant. The officer may ask questions about employment, education, finances, family relationships, substance abuse, prior criminal conduct, and the offense itself. The defendant needs to understand that this is not a confidential conversation with his or her attorney. The information given to the DOC officer will appear in the report that is submitted to the judge.

For example, a defendant who denies having a substance abuse problem despite an extensive history of drug related convictions or treatment may cause the DOC officer to question whether the defendant is being truthful or accepting responsibility.

Likewise, statements concerning the offense or other conduct can influence the officer's assessment of the defendant and the punishment recommended to the court. The defendant should not attempt to manipulate the interview by giving answers that he or she assumes the officer wants to hear. Inaccurate statements concerning employment, criminal history, treatment, or personal circumstances can create additional problems when the Department of Corrections verifies that information.

The PSI interview deserves careful preparation because the resulting report can have a significant influence on the sentencing hearing.

What Does the Department of Corrections Recommend?

After completing the investigation, the Department of Corrections prepares its report and recommends what it believes is an appropriate punishment. Oklahoma law also requires the PSI to contain a specific recommendation concerning probation or a suspended sentence. The officer may believe the defendant is a suitable candidate for probation, or the officer may recommend incarceration.

The recommendation is not binding. A judge can impose probation even when DOC recommends prison, or impose a prison sentence when DOC recommends probation, provided the sentence is authorized by law.

Nevertheless, the recommendation can be influential because the judge receives it before sentencing. The defendant should not assume that a favorable recommendation guarantees probation or that an unfavorable recommendation makes a prison sentence inevitable.

What Happens if the PSI Contains Incorrect Information?

A presentence investigation report is not automatically accurate simply because it was prepared by the Department of Corrections. There can be mistakes concerning a defendant's criminal history, prior convictions, employment, treatment, personal circumstances, or even the events underlying the criminal charge. Those mistakes can affect how the defendant is portrayed to the judge.

For example, suppose the PSI states that a defendant failed to complete substance abuse treatment when the defendant actually completed the program and received a certificate of completion. That is a factual error that should be brought to the court's attention.

Oklahoma law requires the defendant, defense attorney, and district attorney to be advised of the factual contents and conclusions of the PSI before sentencing. The defendant must be given a fair opportunity to dispute those findings and conclusions.

If a party requests a hearing concerning disputed information, the court can receive evidence to determine whether the challenged findings are correct. This is one reason the PSI needs to be reviewed carefully before the sentencing hearing. A defendant should not have to be sentenced based on inaccurate information that could have been identified and challenged.

Presenting Evidence at the Sentencing Hearing

When someone enters a blind plea, the sentencing hearing can become one of the most important proceedings in the case. The prosecutor may present evidence about the offense, the harm caused, the defendant's prior criminal history, or other circumstances supporting a harsher sentence. The defendant may present evidence explaining why probation, a suspended sentence, or a lesser prison sentence is appropriate. This evidence is commonly referred to as aggravating and mitigating evidence.

Evidence Supporting a Lesser Sentence

Mitigation involves presenting information that helps the judge understand the defendant's circumstances and why a particular punishment is appropriate.

Depending on the case, this can include employment history, family obligations, military service, substance abuse treatment, mental health treatment, education, community involvement, and efforts the defendant has made to address the problems that contributed to the criminal conduct.

However, simply collecting favorable information is not the same as presenting a persuasive sentencing argument. For example, if a person was arrested for a drug related offense and subsequently entered treatment, the judge may want to know why treatment was necessary, whether the person has remained sober, what progress has been made, and whether that progress is likely to continue.

A certificate showing that someone attended a treatment program does not necessarily answer those questions. The circumstances surrounding the treatment and the person's actual progress provide the context. The same applies to employment, family responsibilities, and other favorable personal information. The question is how that information relates to the punishment the judge is being asked to impose.

Can the Judge Sentence Someone to Prison After a Blind Plea?

Yes. A defendant who enters a blind plea hoping to receive probation can receive a prison sentence instead. The judge does not have to impose a sentence that is more favorable than the district attorney's offer. There is also no guarantee that a favorable PSI recommendation or substantial mitigation evidence will persuade the judge to grant probation.

Consider a defendant who rejects a plea agreement calling for five years in prison and enters a blind plea hoping for a suspended sentence. If the lawful punishment range authorizes a substantially longer prison term, the defendant risks receiving that longer sentence.

The judge is not limited to the five years the prosecutor previously offered unless a legally binding sentencing restriction applies. This is the risk that must be understood before the plea is entered. A blind plea is not an opportunity to plead guilty and then negotiate punishment after discovering that the judge intends to impose a harsher sentence.

Blind Pleas and Oklahoma Judicial Review

One consideration in evaluating a blind plea is whether the defendant may later qualify for judicial review of the sentence. Under 22 O.S. § 982a, a defendant who entered a blind plea to the court and was sentenced by the judge may qualify for judicial review during the first twelve months without obtaining the district attorney's consent.

That is different from a sentence imposed under a negotiated plea agreement or following a jury verdict. Those sentences require the district attorney's consent for judicial review under the applicable provisions of Oklahoma law.

Judicial review gives the court an opportunity to reconsider a qualifying sentence, but it is not an automatic reduction of punishment. The judge is not required to modify the sentence merely because the defendant requests review.

The availability of judicial review is something to consider when evaluating a blind plea. It should never be treated as a guarantee that an unfavorable sentence can be corrected later. Additional information about the procedure and eligibility requirements is available in our Judicial Review and Sentence Modification resource.

Can Someone Withdraw a Blind Plea if the Sentence Is Too Harsh?

Entering a blind plea means the defendant is giving up the right to a trial and allowing the judge to decide punishment. The defendant cannot simply change his or her mind because the sentence turns out to be worse than expected. A defendant may have grounds to seek withdrawal of a guilty or no contest plea, but Oklahoma has specific procedures and very short deadlines for doing so.

The Ten Day Deadline

To begin the process of appealing an Oklahoma conviction resulting from a guilty or no contest plea, the defendant must file an application to withdraw the plea within ten days after judgment and sentence is pronounced.

The application must identify the grounds for withdrawal and request the appropriate hearing. If the trial court denies the request, further review proceeds under the rules governing certiorari appeals to the Oklahoma Court of Criminal Appeals. The ten day deadline is separate from the twelve month judicial review period.

A defendant cannot wait several months to see whether judicial review will be successful and then attempt to use that process to extend the deadline for challenging the original plea. Missing the ten day deadline will seriously affect the defendant's ability to challenge the plea through the ordinary certiorari appeal procedure.

Is a Blind Plea Better Than Accepting the Prosecutor's Offer?

There is no single answer to that question. It depends on what the district attorney has offered, the lawful punishment range, the defendant's circumstances, and the evidence that can be presented to the judge.

A negotiated plea agreement provides greater certainty because the sentencing terms have been agreed upon before the plea is entered. The defendant knows the agreed punishment rather than leaving that decision entirely to the judge.

A blind plea eliminates that certainty. It gives the defendant an opportunity to ask the judge for a more favorable sentence, but it also creates the risk of receiving substantially more punishment.

For example, a defendant who has been offered a lengthy prison sentence but has substantial mitigation evidence may have a reason to consider a blind plea. Another defendant facing serious felony charges with an extensive criminal history and very little favorable sentencing evidence may find that rejecting a negotiated sentence creates an unacceptable risk.

Neither defendant should make that decision based solely on the belief that a judge will be more sympathetic than the prosecutor. The decision should be made after carefully examining the actual sentencing exposure, the prosecution's evidence, any information that can be presented in mitigation, and the possible consequences of allowing the judge to determine the sentence without an agreement.

Frequently Asked Questions About Blind Pleas and Presentence Investigations

Is a blind plea the same as pleading guilty or no contest?

Yes. A blind plea is a guilty or no contest plea without a binding agreement concerning punishment. The defendant gives up the right to trial, and the judge decides the sentence. The distinction is not whether the defendant is pleading guilty, but whether the punishment has been agreed upon before the plea is entered.

Can the prosecutor still ask for prison in a blind plea?

Yes. The district attorney can recommend a prison sentence and present evidence supporting the State's position. The judge is not required to follow that recommendation, but the prosecutor remains involved in the sentencing proceedings.

Does every blind plea result in a presentence investigation?

No. Oklahoma law authorizes presentence investigations in specified circumstances, but a PSI is not automatically required whenever a defendant enters a blind plea. Some defendants are sentenced without a PSI. Whether one will be ordered depends on the applicable law and the court's decision.

What does DOC look at in a PSI?

The Department of Corrections examines information about the offense and the defendant's background. This can include criminal history, employment, education, finances, family circumstances, substance abuse, treatment, and other matters relevant to sentencing. DOC also prepares a recommendation concerning punishment, including whether probation or a suspended sentence is appropriate.

Does the judge have to follow the PSI recommendation?

No. The Department of Corrections recommends punishment, but the judge imposes the sentence. A favorable recommendation can help the defendant, but it does not guarantee probation. The judge can also disagree with a recommendation for imprisonment.

Can I dispute incorrect information in a PSI?

Yes. Oklahoma law gives the defendant an opportunity to dispute the factual findings and conclusions contained in the PSI before sentencing. The court can hold a hearing and receive evidence concerning disputed information when requested. The defendant should not be sentenced based on an important factual error without having an opportunity to challenge it.

Can someone get a judicial review after entering a blind plea?

A defendant who enters a qualifying blind plea and is sentenced by the judge may request judicial review within the first twelve months without the district attorney's consent. Judicial review is discretionary, and the judge is not required to reduce or modify the sentence.

Can I withdraw a blind plea if I do not like the sentence?

An unfavorable sentence does not automatically entitle someone to withdraw a blind plea. There must be a legally sufficient basis for challenging the plea. Oklahoma requires an application to withdraw the plea within ten days after judgment and sentence is pronounced to begin the ordinary certiorari appeal process. That deadline is entirely separate from the judicial review period.