WITHEROW v. STATE, 2017 OK CR 17

Background

Appellant Bruce Witherow was convicted by jury of: Count 1 trafficking in methamphetamine (with two or more prior felony drug convictions), Count 2 use of surveillance equipment to avoid detection (with prior felonies), and Count 3 possession of drug paraphernalia.
Officers executing a search warrant found ~82 grams of methamphetamine in three packages; Witherow had four prior methamphetamine felonies.
At the time of the offense (May 22, 2015), statute mandated life without parole for trafficking after two or more felony drug convictions.
The Oklahoma Legislature enacted H.B. 1574 (signed May 6, 2015; effective Nov. 1, 2015) which modified sentencing to allow "not less than twenty years to life or life without parole" for some recidivists, but retained mandatory LWOP for prior trafficking convictions.
Trial occurred in February 2016 (after H.B. 1574 took effect); the trial court instructed the jury only on mandatory life without parole. Witherow argued on appeal that the jury should have been instructed on the new sentencing alternatives under H.B. 1574.

Issues

Issue	Appellant's Argument	State's Argument	Held
Whether the trial court erred by instructing only on mandatory life without parole when H.B. 1574 created lesser sentencing alternatives before trial	Witherow: H.B. 1574 was effective before trial and provided alternative sentences; jury should have been instructed on those alternatives	State: The amendment did not apply to crimes committed before its effective date; prior law controls	Court: No error — the penalty in effect at the time of the offense governs; H.B. 1574 did not retroactively alter Witherow's accrued penalty
Whether failure to object below forfeited review of instruction error	Witherow: (implicit) instruction was fundamentally or plainly erroneous and reviewable despite no timely objection	State: Appellant waived all but plain error by failing to object; appellant must show plain/obvious error affecting outcome	Court: Appellant must show plain error; no such basis because the instruction stated the correct penalty as of the offense date
Whether the harshness of LWOP justifies departure from non-retroactivity principles	Witherow: Severity of LWOP warrants applying the new, more lenient statute at trial	State: Harshness does not override constitutional/textual rule that amendments do not affect accrued penalties	Court: Harshness insufficient to depart from established rule; only exceptional circumstances justify departure and none present here
Whether H.B. 1574 contained retroactive language or indication of applicability to pre-effective-date crimes	Witherow: (implicit) H.B. 1574 should be applied to trials occurring after its effective date	State: H.B. 1574 contains no retroactive language; section 2 indicates changes apply beginning Nov. 1, 2015	Court: H.B. 1574 did not expressly apply retroactively; amendment applies prospectively and does not alter penalties incurred at offense time

Key Cases Cited

Penn v. State, 164 P. 992 (1917) (establishes that penalties in effect at time of offense govern and later amendments do not relieve accrued penalties)
Bilbrey v. State, 135 P.2d 999 (1943) (amendment to penal statute operates prospectively; prior offenses remain subject to original penalty)
Hain v. State, 852 P.2d 744 (1993) (recognized narrow exception in capital cases where trial occurred after amendment adding life-without-parole option)
Salazar v. State, 852 P.2d 729 (1993) (related capital-case decision concerning post-offense sentencing-option changes)
Simpson v. State, 876 P.2d 690 (1994) (failure to object at trial limits appellate review to plain error)
Hogan v. State, 139 P.3d 907 (2006) (plain-error standard requires showing of obvious error affecting outcome)
Randolph v. State, 231 P.3d 672 (2010) (recognizes constitutionality of mandatory LWOP under prior statute)
Nestell v. State, 954 P.2d 143 (1998) (statutory changes apply prospectively absent express retroactivity)
State v. Watkins, 837 P.2d 477 (1992) (same: intervening statutory changes ordinarily prospective)
Flowers v. State, 387 P.3d 947 (2016) (presumption that legislature is aware of non-retroactivity principles when amending statutes)
State v. Iven, 335 P.3d 264 (2014) (same presumption concerning legislative awareness of applicable law)