Cartwright v. State
778 P.2d 479
Okla. Crim. App.
1989
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*1 State, sentencing. majority The dis 763 new trial on Thomason v. damental error. State, 626 tinguishes Nipps v. P.2d (Okl.Cr.1988). After re- P.2d holding (Okla.Crim.App.1981),by it allows remarks, find prosecutor’s viewing the only when a statute is held and com- inferences all were reasonable position con Such a is unconstitutional. evidence, consequently ments trary prior to where law error. no fundamental find constitutionality although was ordered error, assignment of In his third See, e.g., issue. of a statute was not at imposition of Appellant alleges that (Okla. State, 736 P.2d Moore v. disciplinary penalties administrative State, 732 Crim.App.1987); Delfrate possession marijuana coupled with (Okla.Crim.App.1987); P.2d John district court punishment assessed (Okla.Crim. State, 673 ston v. P.2d from double right his to be free violated State, App.1983); P.2d Castor Fifth jeopardy under the Amendment of (Okla.Crim.App.1972). and Article the United States Constitution guilty by found appellant “The has been Appel Constitution. II of the Oklahoma finding guilt has been previous this has lant concedes that Court upheld. Court and There reviewed this ly im punishment held that administrative repeat no to the entire trial.” need in posed by prison officials addition Nipps, at 1350-51. The Okla- possession punishment for a conviction of if Appeals “may, homa Court of Criminal (mari dangerous of a controlled substance proper, a new necessary or order trial.” prohi juana) does not constitutional violate A “new trial” includes a against jeopardy. double See Gri bitions stage. guilt-innocence and der authority grant an Since we have us to reconsider our Appellant has asked trial, authority entire we have the new However, previous rulings on issue. sentencing only in grant trial on a new unpersuaded by Appellant’s we are because public’s right expedi- furtherance of not on this arguments, we will reverse as ency orderly administration of crimi- signment of error. justice. interpretation of Sec- nal Such Appel- foregoing For the reasons cited tion is consistent with above original of Possession of a lant’s conviction cases, have not been overruled (Marijua- Dangerous Controlled Substance opinion. I would affirm majority na) sentence of in a Penal Institution and jury during resen- verdict reached (5) is AF- years Five tencing. judgment of Possession of FIRMED. The Judge BUS- I am to state authorized (Mari- Dangerous a Controlled Substance opinion. in this SEY concurs juana) in Institution After Former a Penal Felonies and or More Conviction Two (20) imprison- Twenty years

sentence The case is remanded to is vacated.

ment Muskogee County District judg- an amended to enter

with directions with this consistent

ment and sentence William Thomas opinion. Petitioner, CARTWRIGHT, BUSSEY, J., PARKS, P.J., and part. part and dissent concur Oklahoma, Respondent. STATE J., LANE, Y.P.J., BRETT, No. H-88-820. concur. of Oklahoma. Court of Criminal Judge, concurring Presiding July dissenting in part part: appellant’s affirms convic- sentence, finding tion, his but modifies judge grant improper for the trial

was *2 Welch,

Mandy Deputy Appellate Public Defender, Norman, petitioner. for Gen., Henry, Atty. Robert H. Susan Dickerson, Gen., Stewart Atty. Asst. Okla- City, respondent. homa OPINION BUSSÉY, Judge: 4, 1988, On October filed an application for a writ of Corpus Habeas and Modification of Invalid Death Sentence Imprisonment to Life Muskogee County District Court Case No. CRF-82-192. On November argument oral on the matter was held before this Court. I.

PROCEDURAL BACKGROUND Petitioner by jury was tried and convict Degree ed of First Murder and sentenced to death on October 1982. Petitioner’s first murder conviction and sen tence of death ap was affirmed on direct State, Cartwright v. peal. 695 P.2d 548 denied, (Okl.Cr.1985), cert. 473 U.S. (1985). 87 L.Ed.2d 661 Peti appeal tioner’s post- from denial of state conviction relief was denied. Cartwright State, (Okl.Cr.1985), cert. denied, petition

L.Ed.2d 808 His for a writ corpus in the United States Dis- habeas Stouffer, District Okla- sentence. Id. Prior to this Court for the Eastern trict had, finding during The Tenth Circuit Court error homa was denied. when the sen- denial of habeas stage trial, affirmed the tencing automatically mod- Maynard, corpus Cartwright relief in imprisonment. the sentence to life ified Cir.1986). Following (10th F.2d Castro however, rehearing banc, petitioner’s en (Okl.Cr.1987) (Opinion Rehearing), *3 Tenth the sentence vacated death was post aspects Court discussed the ex facto aggra- holding that Oklahoma’s Circuit’s principles of We that the stated Stouffer. es- vating that a murder was circumstance deprive forth in did not set [defen- Stouffer atrocious, or heinous, cruel was pecially previously of a was defense which dants] unconstitutionally being applied in an available, legal change or the definition of Cartwright manner. vague and overbroad offense, punishment or meted the the to be (10th Cir.1987). 822 F.2d 1477 Maynard, v. out, quality affect the act or criminal of the the court Circuit directed district The Tenth charged, questions or change the which judgment that the habeas enter writ of “to jury in may be considered establish- justice as law is denied but and corpus guilt Castro, or ing innocence. at 1151. petitioner death sentence of require, the Florida, Finally, quoting 432 Dobbert Eighth and under the Fourteenth invalid 2298, 282, 293-94, 97 S.Ct. 53 U.S. to Amendments the United States Constitu- (1977), that L.Ed.2d 344 this Court asserted stated The Tenth Circuit further tion.” procedural changes statutory capital in a to judgment prejudice was without that the simply sentencing rede- proceedings by the State for scheme which alter further employed of on the convic- determining termination the sentence whether methods Finally, the Tenth Cir- imposed Id. at 1492. penalty tion. to be is not the death was concerning the expressed opinion “no cuit though it to may even work post ex facto constitutionality application retroactive of a disadvantage at of a defendant. Id. [resentencing] procedure.” Oklahoma’s at 1492 n. 8. The State of Oklahoma Id. Dixon, 757 P.2d In Dutton Supreme to States appealed the United (Okl.Cr.1988), this majority a Court held opinion which a unanimous delivered 701.13(E)(2), that of the upholding Tenth Circuit. death allows Court to set aside a 356, 108 486 U.S. Maynard Cartwright, during found sentence when error is (1988). The S.Ct. L.Ed.2d sentencing stage and of trial remand judg- that its Supreme Court also declared court, resentencing by for the trial pro- to prejudice ment was without further applied retroactively. prior The cannot be ceedings in the courts for redetermi- state automatically modified the sentence statute Id. at appropriate of the sentence. nation imprisonment if error found to life was -, at 486 U.S. sentencing stage. See L.Ed.2d at 383. 701.13(E)(2). stated The Dutton court the 1985 application that “the retroactive II. resentencing 701.- of Section amendment 563- Stouffer 13(E)(2) a ... constitute would violation (Okl.Cr.1987) Rehearing), on (Opinion Constitutions the Federal Oklahoma this Court reconsidered post application of law which an ex facto 701.13(F), it author- and held that had the greater law punishment than the inflicts reweigh independently aggravating ity to it was to the at time annexed crime [the] when, ap- mitigating circumstances situation of committed or alters [an] [the] review, aggravating circum- pellate disadvantage.” to his Id. at accused found was determined stance concluded, the 1985 “[w]hile a review invalid. We stated such be may appear amendment obligation implicit this Court’s was form, in its seemingly procedural take a factual verdict make a substantiation practical operation deprives validity of the it determination of right, of a substantial prohibition ... is there- post of ex applied As facto. post fore ex Id. at 381. petitioner, the crime for which he facto." charged, punishment prescribed was find post analysis ap- We the ex facto therefor, quantity and the or plied highly Castro be inconsistent proof necessary guilt, to establish all re- post analysis with the ex applied in facto main unaffected the amended statute. Dutton. Castro held that the retroactive Florida, 423, 433-34, See Miller v. application judicial interpretation of a of a 96 L.Ed.2d statute, denying defendants automatic remand, petitioner Even on faces modification to imprisonment, life does not possible punishment the same as before: post violate the prohibition, ex while facto life or death. We therefore held applica- Dutton the retroactive find the new amendment to be a tion of providing a statute law, procedural change in pro- and not post violates principles ex because it facto *4 post prohibition. hibited the ex facto deprives right, defendants of a substantial i.e., automatic imprison- modification to life also argument We find the in ment. Dutton, “right” that defendants had a to a

mandatory sentence of life if error was found in the sentencing stage of III. trial, to be inaccurate. may Defendants In Saffle, Coleman v. 869 F.2d 1377 expectations have had that their sentences (10th Cir.1989), the Court stated that would automatically be modified to im life changes in by judicial the law construction prisonment, post but the ex clause facto implicate the Due Process Clause while the prevent does not depriving the State from prohibition against post ex laws con- facto criminal defendant of an expectation as to legislative cerns However, enactments. procedure yet that has not accrued to his applied the Court post principles ex facto Norton, benefit. See State v. 675 P.2d 577 deciding process the due issues of Stouffer (Utah 1983). petitioner We hold that can because an judicial unforseeable enlarge- be resentenced under the amended statute ment of a criminal operates precise- statute violating without process due post or the ex ly post like an ex law. Id. at 1385. facto prohibition of either the Oklahoma or facto The Court stressed that the in- relevant Federal Constitutions. quiry in post analysis ex is whether facto change impairs the personal “substantial IV. rights,” merely changes pro- or “modes regard With to statutory construc cedure which do not effect matters of sub- O.S.1981, tion and retroactivity, 22 pro 3§ stance.” part vides: “No of this code is retroactive Coleman, the Court stated that an expressly Dutton, unless so declared.” In offender post does not win an ex facto held that since the amendment argument by proving disadvantage alone. express language contained no indicating Florida, See also Dobbert v. 432 U.S. effect, its only pro retroactive it can apply 2290, 2298, 53 L.Ed.2d 344 spectively. Dutton, However, at 381. (1977). The Court declared that the true adopt find that statutory we should (1) post analysis focus of ex is on facto exception general to the rule of nonretroac- offense, (2) elements the conditions tivity, Supreme enunciated the Utah quantum (3) punishment, Norton, supra, State v. quantity proof necessary procedural allows ap remedial statutes to guilt. establish See also United States v. ply pending purposes actions. For (10th Affleck, Cir.1985); 765 F.2d exception, pending a case is from the Ohio, Beazell v. time of its commencement until its final 68, 68-69, 70 L.Ed. 216 upon appeal. Norton, determination at We find determined, amended statute 585. As already we have allowing resentencing does procedural, not violate is amendment pro- petitioner’s code of the of Oklahoma.” effect on State it has substantive no Statutes, may or visions Title Oklahoma may not crime. The amendment interpreted post under the ex re- must be affect outcome when is facto prohibition of either the Oklahoma or sentenced, upon the Fed- depending sentencer’s O.S.1981, eral Constitutions. Title properly weighing the § determination after applicable penal code of is not mitigating aggravating circumstances. contained Title pro- 3 does State of Oklahoma Accordingly, 22 not § amended Oklahoma Statutes. application of the hibit To the extent statute on remand. Dutton Dixon, (Okl.Cr.1988) in- Judge, dissenting. is Presiding opinion, hereby consistent with this is in my I dissent for the reasons stated

expressly overruled. Dixon, Dutton that 21 Finally, (Okla.Crim.App.1988). emphasize we are aware I would require capital O.S.1981, 3, appears 701.10 that under resentenc- ing provision defendants be sentenced same codified at However, 701.13(E)(2), statutes applied that convicted them. not retroac- to be are to construed so as effectuate tively expressly be “unless so declared.” Be- P.2d purpose. “expressly their retroactivity Owens cause was not so Moreover, more Legislature, declared” the Oklahoma enactment, 701.13(E)(2)con- recent Section should not amendment be Dutton, trols 701.10. See P.2d applied retroactively. over Section at Delfrate *5 900, 902 Thus, 701.13(E)(2) find that Section au- capital to remand a case

thorizes this Court new before a or be- judge, applica-

fore whichever is the trial

ble.

V. hold that Case No. CRF- We therefore WALTERS, Ray Appellant, Billy Muskogee 82-192 must be REMANDED for RESENTENC- County District Court Oklahoma, Appellee. The STATE of to 21 pursuant ING 701.13(E)(2). § No. C-87-323. of Criminal of Oklahoma. BRETT, J.,

LANE, Y.P.J., and concur. Aug.

LUMPKIN, J., specially concurs. P.J., dissents.

LUMPKIN, specially Judge,

concurring.

I on this concur the Court’s with appli- further address the and write to O.S.1981, 3.

cation Title O.S. § chapter provides: “This shall be procedure criminal

known the code of Title

the State of Oklahoma.” applies proce- to the code criminal 1, provides:

dure. Title penal known as chapter

“This shall be