ORDER DENYING WRIT OF HABEAS CORPUS
Petitioners have individually filed with this Court Pro Se Petitions for A Writ of Habeas Corpus or in the alternative a Petition for a Writ of Mandamus or in the alternative a Petition for Post-Conviction Relief. Petitioners, co-defendants in Case No. CRF-74-3025 from the District Court of Oklahoma County, contend that they are entitled to have their sentences of life imprisonment modified to the minimum sentence of five (5) years pursuant to Carbray v. Champion, No. 89-5152, (10th Cir. Feb. 28, 1990). As they have fully served five years imprisonment, Petitioners further argue that they are entitled to immediate release. For purposes of this appeal, we have consolidated the Petitioners’ requests for relief.
A brief review of the procedural history of the Petitioners’ case reveals that a direct appeal of their convictions for Robbery with Firearms was perfected to this Court. The convictions were affirmed in
Bennett and Livingston v. State,
Petitioners now allege that they are identically situated to the appellant in
Carbray v. Champion
and thus are entitled to similar relief. However, since the filing of Petitioners' request for relief,
Clemons v. Mississippi,
— U.S. -,
In the
Carbray
case the defendant was sentenced by the state trial judge, upon recommendation by the jury, to serve a prison term of one hundred ninety-nine (199) years. On direct appeal, this Court modified that sentence to seventy-five (75) years because of prosecutorial misconduct
*1057
in the second stage. Appealing the denial of a writ of Habeas Corpus to the Tenth Circuit, Appellant Carbray argued that he was deprived of a liberty interest without due process by this Court’s arbitrary decision to resentence him. In its original opinion, the Tenth Circuit determined that the question was controlled by
Hicks v. Oklahoma,
Further, in the opinion on rehearing, the Tenth Circuit recognized that this Court has ruled as a matter of state law, .it has the authority to modify a defendant’s sentence on appeal. The Court acknowledged that our review of the appropriateness of the sentence in Carbray’s direct appeal, in light of the prejudicial misconduct, and the resentencing, in the interests of justice, was the same procedure held permissible in Clemons v. Mississippi.
Although the Tenth Circuit acknowledged this Court’s interpretation of state law, their decision rested on constitutional grounds; that the modification of a sentence by this Court did not deprive appellant Carbray of any liberty interest in violation of the Due Process Clause of the United States Constitution. In so doing, the Court ignored the fact that our decision to modify the sentence in Carbray’s direct appeal was based upon our interpretation of state law. As we did not undertake an analysis of federal law but rested our conclusion on independent state grounds, this Court’s findings were entitled to a presumption of correctness by the federal court.
It is the general rule that when a state court decision rests upon adequate and independent state grounds, the federal courts will not undertake to review the decision because they are without authority to review State determinations of purely State laws.
International Longshoremen’s Association, AFL-CIO v. Davis,
Further, state court proceedings are accorded a presumption of correctness under 28 U.S.C., § 2254(d), when the appellant petitions the federal courts for habeas corpus relief (as did Carbray).
Sumner v. Mata,
The re-issued opinion of the Tenth Circuit indicates that this Court has been less than clear in setting forth our procedures, and supporting authority, to be used when it becomes necessary to modify a defendant’s sentence. This Court’s appellate review of a sentence imposed by a trial court is governed by two state statutes. Title
*1058 In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided, (emphasis added)
Title 22 O.S.1981, § 1066, 2 provides in pertinent part:
The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial.
It is a genera] rule of statutory construction that when two statutes address the same subject matter both provisions are to be given effect, if such effect would not defeat the intent of the Legislature.
State v. Smith,
Section 1066 confers upon this Court the power to review the entire record to determine the appropriateness of the judgment and the sentence. In reviewing the sentence imposed, this Court will exercise its authority to modify a sentence only when, after a review of the entire record, the sentence is so excessive as to shock the conscience of the Court and it is apparent that injustice has been done.
Huntley v. State,
This interpretation is consistent with Hicks. The substantial and legitimate expectation held by a defendant that he will be deprived of his liberty only to the extent determined by the jury, which was recognized in Hicks, has not been infringed. To the contrary, under this Court’s appellate review of the appropriateness of a sentence a defendant may receive a benefit. Any modification of a sentence by this Court is a reduction in the term set by the jury, not an increase. It is not a violation of either a statutory right or a constitutional right for this Court to lessen the punishment fixed by the jury.
In its original opinion, the Tenth Circuit singled out
Clopton v. State,
In Clopton the jury was instructed to impose sentence under the Habitual Offender Act rather than the provisions of the Uniform Controlled Substance Act. The defendant was sentenced to the minimum twenty (20) years. On direct appeal, *1059 this Court determined the jury to have been improperly instructed and that the Appellant should have been sentenced under the Uniform Controlled Substance Act. The sentence was modified to the statutory minimum, four (4) years, provided by the Controlled Substances Act. This Court found the jury’s recommendation of punishment as the statutory minimum sentence to be an indication of the jury’s intention to give the minimum punishment; thus when modification became necessary, we modified the sentence to the minimum in accordance with the jury’s decision. Contrary to the Tenth Circuit’s interpretation, this Court has not interpreted Clopton as setting forth a general rule that when prejudicial error occurs in the sentencing stage, this Court will only modify to the statutory minimum.
This is not to say that this Court has not in the past, nor will it refrain from in the future, modified the sentences in particular cases to the statutory minimum. However, a review of our prior decisions shows that in none of these cases, including
Clopton,
was it held mandatory to modify to the statutory minimum.
See e.g. Moore v. State,
The reduction in sentence necessary to cure trial error is determined by the particular circumstances of each case, and the belief that the interests of justice would be best served by modification to a particular term of years. It is not the type of error which determines whether it is necessary to modify the sentence or to what level it will be modified. It is the effect of that error, determined by our appellate review of all the facts and circumstances of the case, on the fundamental fairness of the trial and the appropriateness of the punishment.
The Tenth Circuit’s recognition of this Court’s authority in its re-issued
Carbray
opinion is consistent with its previous decision in
Shaw v. Johnson,
On appeal to the Tenth Circuit, Shaw relied on Hicks and argued that this Court could not resentence and the case should have been sent back to the trial court for resentencing by a jury. The Tenth Circuit determined that Hicks did not apply stating that the jury in Hicks was only instructed as to a mandatory forty (40) year sentence. If they had not been so instructed, they might have come in with a lesser sentence. In Shaw, the jury was instructed that the range of punishment was twenty (20) years to life. In selecting life, the jury chose the upper limit. The court said it would be pure speculation to suppose that the jury would have imposed something less than life in prison had it been properly instructed on the possible minimum sentence. The court further rejected the argument that this Court’s modification of the sentence interfered with appellant’s right to have a jury fix his sentence. Recognizing our statutory provision for jury sentencing, the court found that provision was met when a jury did initially set the sentence, a sentence which was set at the maximum allowed by statute. Acknowledging our statutory provision authorizing appellate review, the Tenth Circuit held that this Court’s reduction of the sentence, pursuant to its discretionary statutory authority, *1060 was permissible under Oklahoma law and not offensive to the federal constitution.
Applying the above principles to the present case, we find that Petitioners’ authority does not support their claim for immediate release. The modification of their sentences from two hundred and fifty (250) years to life imprisonment was a proper exercise of our statutory authority to review the appropriateness of the sentence imposed. The reduction in sentence to a term greater than the minimum which could have been imposed by the jury was not violative of the Petitioners’ statutory right to have a jury initially set his sentence, if timely requested. We do not need to address the issue of whether a request was made prior to trial to have the jury assess a sentence in this case. Accordingly, Petitioners’ request for relief is DENIED.
IT IS SO ORDERED.