WITHEROW v. STATE
400 P.3d 902
| Okla. Crim. App. | 2017Background
- Appellant Bruce Witherow was convicted by jury of: Count 1 trafficking in illegal drugs (after two or more prior felony drug convictions), Count 2 use of surveillance equipment to avoid detection (after prior felonies), and Count 3 possession of drug paraphernalia. Sentences included life without parole and fines; sentences ordered concurrent.
- Police executed a search warrant at Witherow’s home (May 22, 2015), recovered ~82 grams of methamphetamine in three ~27 gram packages (exceeding the 20g trafficking threshold), and found Witherow hiding in a crawlspace.
- Witherow had four prior felony methamphetamine convictions, triggering statutory enhanced penalties in effect at the time of the offense.
- Legislature passed H.B. 1574 in April/May 2015, which amended the enhanced penalty scheme to allow a sentencing range (“not less than twenty years to life or life without parole”) for some defendants; the bill’s effective date was November 1, 2016.
- Witherow’s trial occurred February 2016 (after the bill’s passage but before the bill’s effective date); he argued the trial court committed fundamental/plain error by instructing the jury only on mandatory life without parole rather than the alternatives in H.B. 1574.
Issues
| Issue | Witherow's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court plainly erred by instructing only the pre‑amendment mandatory LWOP penalty | Jury should have been instructed on H.B. 1574 alternatives (range of 20 years to life or LWOP) | Pre‑amendment law applied because offense occurred before the amendment’s effective date; instruction was correct | No plain error; instruction correct—affirm conviction and sentence |
| Whether H.B. 1574’s amendments apply retroactively to crimes committed before its effective date | Amendments should govern sentencing despite effective date | Amendments do not apply retroactively absent clear legislative intent; Article V, § 54 bars altering penalties already incurred | Amendments apply prospectively; defendant incurred penalty in effect when crime was committed |
| Whether the harshness of LWOP warrants judicial application of post‑crime statutory changes | Harshness of LWOP justifies applying new mitigation options | Harshness alone does not override established retroactivity rules; remedial relief is legislative/executive | Court declines to depart from precedent; relief (if any) must be legislative/executive |
| Preservation and standard of review for sentencing instruction error | Instructional error warrants reversal even if not objected to at trial | Failure to timely object limits review to plain error standard | Appellant waived all but plain error and did not meet plain error standard |
Key Cases Cited
- Penn v. State, 13 Okl.Cr. 367, 164 P. 992 (1917) (statute changes do not relieve defendant of penalty incurred when offense was committed)
- Bilbrey v. State, 76 Okl.Cr. 249, 135 P.2d 999 (1943) (amendments or repeals operate prospectively and do not affect penalties for prior offenses)
- Hain v. State, 852 P.2d 744 (Okla. Cr. 1993) (court made exception in capital cases by allowing resentencing when amendment creating LWOP option existed at trial)
- Salazar v. State, 852 P.2d 729 (Okla. Cr. 1993) (companion to Hain; addressed retroactivity of sentencing options in capital cases)
- Simpson v. State, 876 P.2d 690 (Okla. Cr. 1994) (failure to object at trial limits appellate review to plain error)
- Randolph v. State, 231 P.3d 672 (Okla. Cr. 2010) (recognizing constitutionality and severity of mandatory LWOP for certain recidivist drug offenders)