WITHEROW v. STATE
2017 OK CR 17
Okla. Crim. App.2017Background
- Appellant Bruce Witherow was convicted by jury of: trafficking in illegal drugs after two or more prior felony drug convictions (Count 1), use of surveillance equipment to avoid detection after two or more prior felonies (Count 2), and possession of drug paraphernalia (Count 3).
- Officers executed a search warrant at Witherow’s home (May 22, 2015); they found ~82 grams of methamphetamine in three packages and four prior methamphetamine felony convictions on Witherow’s record.
- At the time of the offense, Oklahoma law prescribed a mandatory sentence of life without parole (LWOP) for trafficking after two or more prior felony drug convictions.
- The Legislature passed H.B. 1574 (signed May 6, 2015) amending the enhanced penalty for certain recidivist trafficking to a range of 20 years to life or LWOP; that bill’s effective date was November 1, 2015—after the offense but before Witherow’s February 2016 trial.
- Witherow did not timely object to the jury instruction at trial; on appeal he argued fundamental/plain error because the court instructed only on mandatory LWOP rather than the post–H.B. 1574 alternatives.
Issues
| Issue | Witherow's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by instructing only on mandatory LWOP when H.B. 1574 (effective Nov. 1, 2015) provided sentencing alternatives | Trial court should have instructed on the new sentencing range from H.B. 1574 because the statute was in effect at trial | The penalty applicable is the law in effect when the crime was committed; H.B. 1574 is not retroactive to crimes committed before its effective date | No error: the court applied settled rule that amendments do not affect penalties incurred when the crime was committed; LWOP was correct penalty |
| Whether appellate review is available despite failure to object at trial (plain/error review) | Claims fundamental error warranting review despite waiver | Appellant waived objections and must show plain and prejudicial error; no such error shown | Waiver applies; plain-error standard not met; no reversal |
| Whether the Court should extend Hain/Salazar (post-offense statutory change allowed at resentencing in capital cases) to non-capital recidivist trafficking | Impliedly urges relief by reference to cases allowing post-offense changes in capital context | Hain/Salazar were unique to death penalty context and don’t justify departing from Article V §54 principles here | Court distinguishes Hain/Salazar and declines to extend that exception; legislative remedy, not judicial, is appropriate |
Key Cases Cited
- Penn v. State, 164 P. 992 (1917) (statute changes do not relieve defendant of penalties incurred when offense committed)
- Bilbrey v. State, 135 P.2d 999 (1943) (amendments to penalty provisions operate prospectively; prior offenses remain subject to original penalty)
- Simpson v. State, 876 P.2d 690 (1994) (preservation of error and plain-error standard)
- Hain v. State, 852 P.2d 744 (1993) (recognized limited exception in capital cases to permit application of statutory change available at trial)
- Randolph v. State, 231 P.3d 672 (2010) (affirmed constitutionality of LWOP enhancement for recidivist drug trafficking)