Opposition Brief — Oklahoma, Petitioner v. Jesse Allen Johnson

No. 19-250

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

THE STATE OF OKLAHOMA, |

Petitioner,

vs.

JESSE ALLEN JOHNSON,

Respondent.

RESPONDENT’S APPENDIX TO THE

BRIEF IN OPPOSITION TO |

PETITION FOR WRIT OF CERTIORARI

ANDREA DIGILIO MILLER, OBA No. 17019*

ATTORNEY AT LAW

800 N. Harvey, Suite 317

Oklahoma City, Oklahoma 73102

(405) 208-6161

*Counsel of Record

By Special Appointment of the

Oklahoma County Public Defender

ROBERT ALAN RAVITZ, OBA No. 7428

OKLAHOMA COUNTY PUBLIC DEFENDER

320 Robert S. Kerr Avenue, Suite 400

Oklahoma City, Oklahoma 73102

(405) 713-1550

COUNSEL FOR RESPONDENT

November 18, 2019

4 BY Resp. App.001

SN LED IN DISTRICT COURT

J eroener esr IN THE DISTRICT COURT OF OKLAHOMA COUNTY OKLAHOMA COUNTY

| STATE OF OKLAHOMA AUG 27 2018

| RICK WARREN

| STATE OF OKLAHOMA, 15 COURT CLERK

PLAINTIFF, )

) CF-05-5714

| Vs. )

| )

JESSE ALLEN JOHNSON, )

DEFENDANT

DEFENDANT'S REQUEST FOR JURY TRIAL PURSUANT TO 22 0.S.2011§929 AND BRIEF

IN SUPPORT OF JURY TRIAL

COMES NOW, the Defendant, JESSE ALLEN JOHNSON, by and though his attorneys

of record, Melissa A. French and Madison Melon, Assistant Public Defenders, and requests a

Jury Trial pursuant to 22 O.S.2011 §929. In support of his request, the Defendant states the

following:

On December 21, 2005, a preliminary hearing for Jesse Johnson was held before Judge

Ryan. On March 3, 2006, a youthful offender hearing was held where the Court determined that

the Defendant should be treated as an adult because of his age at the time of the hearing. The

Court found that the Defendant was unable to complete Youthful Offender program in the time

required by Statute. The denial of Youthful Offender status was appealed to the Oklahoma

Court of Criminal Appeals and on June 23, 2006, the Oklahoma Court of Criminal Appeals

denied Youthful Offender status based upon the Defendant's inability to complete youthful

offender program under age requirements prescribed by law. Based upon the advice of his

appointed attorney, George Miskovsky Ill, the Defendant entered a guilty plea on November 29,

2006. Blind plea sentencing was set for January 3, 2007 and a PSI was ordered by the Court.

Resp. App.002

On that date, Judge Elliott formally sentenced the Defendant to life without the possibility of

parole on count one and ten years to do on court two. A Motion to Withdraw Guilty Plea was

filed by the Defendant in a timely manner and a hearing was held on January 18, 2007. The

Defendant raised ineffective assistance of counsel based on the fact that Mr. Johnson was not

told he could present mitigation at the time of the blind plea sentencing. The Defendant also

stated that a mitigation case was not presented that included all the mitigation that Mr. Johnson

could produce. The issue was taken up on appeal and the sentence was affirmed. An

Application for Post-Conviction Relief was filed March 13, 2017 and was subsequently denied

by the Court on June 26, 2017. The Court of Criminal Appeals took the issue up on appeal and

a mandate was issued where the Court of Criminal Appeals vacated and remanded Mr.

Johnson’s case for a resentencing before a jury.

Jesse Johnson was sentenced to life without the possibility of parole on January 3,

2007. Since that time, the United States Supreme Court and the Oklahoma Court of Criminal

Appeals have ruled juvenile life without parole sentences violate the 8" Amendment unless

certain finding and sentencing requirements are met. The line of cases began with Graham v.

Florida, 560 US 48, 130 S.Ct. 2011, 176 L.Ed.2d. 825 (2010) in 2010. In Graham, the United

States Supreme Court ruled that life without the possibility of parole sentences are in violate the

8" Amendment as being cruel and unusual for juveniles convicted of non-homicide offenses.

The rationale for this decision is that juvenile offenders have lessened moral culpability when

compared to adult offenders and are less deserving of the most severe punishment. Graham v.

Florida, 560 U.S. @ 68. In 2012, the Supreme Court extended the Graham holding to homicide

offenses in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d. 407 (2012). The

Court in Miller ruled that life without the possibility of parole can never be mandatory for

juveniles convicted of homicide under the 8" Amendment. “None of what Graham said about

children -- about their distinct (and transitory) mental traits and environmental vulnerabilities -- is

Resp. App.003

crime-specific’. Miller v. Alabama, 567 U.S.460, 473. “Miller placed no categorical prohibition

against the imposition of life without the parole sentenced on juvenile homicide offenders, so

long as the sentencing judge was vested with, and appropriately exercised, the discretion to

consider factors such as the defendant’s youth in imposing that sentence’. Luna v. State 2016

OK CR 27 7 9, 387 P.3d 956 Four years later, the Court ruled that Miller and Graham apply

retroactively to those defendants who were sentenced to life without the possibility of parole

prior to the ruing in Miller in 2012. Montgomery v. Louisiana, 577 U.S.,136 S.Ct. 718, 193

L.Ed.2d 599 (2016). The Court explicitly noted that it would be the “rare” juvenile offender who

received a life without parole sentence. Montgomery 577 U.S.718 @73.

While Miller, Graham, and Montgomery did not specifically call for a jury trial, “The Sixth

Amendment demands that the trial necessary to impose life without parole on a juvenile

homicide offender must be a trial by jury, unless a jury is affirmatively waived.” Stevens v. State,

2018 OK CR 11 citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63,

147 L.Ed.2d 435 (2000). Apprendi held that any sentence that was considered aggravated and

the sentence was based on certain factors; those factors had to be found beyond a reasonable

doubt by a jury under the Sixth Amendment. Apprendi v. New Jersey, 530 U.S. @__,

Therefore, the protected class of juveniles described in Miller, with a judge or jury fully aware of

the constitutional line between children whose crimes reflect transient immaturity and those rare

children whose crimes reflect irreparable corruption, requires a sentencing trial procedure

conducted before the imposition of the sentence. Luna v. State, 389 OK CR 956, J 11, 387

P.3d. 956, _, citing Montgomery v. Alabama @ __, 134 S. Cr. @ 734 (quoting Penry v.

Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 2953, 106 L.Ed. 256, 285 (1989))

In Oklahoma, the jury is vested with the authority to render punishment. 22 O.S. 2011

§926.1. The Judge must impose the sentence that is rendered by the jury unless the jury

cannot agree on a sentence. Luker v. State 173 OK CR 135, 4112, 552 P.2d 715, 719, Redell v.

Resp. App.004

State 175 OK CR 229, 31, 543 P.2d at 581-82 Therefore, when a defendant invokes his right

to a jury trial, the jury is the sentencing body. Stevens held that the defendant's trial shall be

bifurcated and the issue of the defendant’s guilt shall be separately determined from the

enhancement of his or her sentence. Stevens v. State, 2018 OK CR 11 citing Mitchell v. State

2011 OK CF 26, 119, 270 P.3d 160, 186 (contrasting sentencing procedure where State seeks

to enhance sentence); 22 O.S. 2011, 860.1 (statutory procedure for sentencing).

Oklahoma has taken up the issue of juvenile life without parole in three pivotal cases

McGee v. State, Luna v. State and Stevens v. State. The Court of Criminal Appeals first

addressed this issue in McGee v. State, F-2015-393 (OkI.CR. 2016) (unpublished opinion) on

December 2, 2016. In that case, the Court specifically stated that the defendant was to be

resentenced by a jury and included a sample jury instruction to be used by the Court. The Court

held that:

We find that Miller requires a sentencing trial procedure conducted before the imposition

of the sentence, with a judge or jury fully aware of the constitutional “line between

children whose crimes reflect transient immaturity and the rare children whose crimes

reflect irreparable corruption”

McGee v. State, F-2015-393, pg 42-43 (Okl. CR 2016)

During formal sentencing, the Court in McGee heard argument of counsel, which

included evidence presented during the jury trial. The Court found that argument made to the

Judge during formal sentencing and the evidence presented during the trial did not meet the

standard set forth in Montgomery. Therefore, McGee was entitled to a new jury trial sentencing.

The State of Oklahoma filed a Petition for Rehearing on December 22, 2016, requesting that the

Court rehear argument regarding the issue of a jury trial resentencing. The Court denied the

Petition for Rehearing.

The Court also decided Luna v. State 2016 OK CR 27 (2016), 387 P.3d 956 on

December 2, 2017. The Court published an opinion that is substantially similar to McGee v.

Resp. App.005S

State. The Court took notice of the same issues, including the right to a jury sentencing in

Oklahoma and the standard as set forth in Montgomery. The Court determined that while Miller

and Montgomery do not specifically state that the defendant is entitled to a jury resentencing,

the State of Oklahoma is required to resentence Luna and all other like situated defendants by a

jury trial due to the Oklahoma Statute that vests sentencing with the Jury. Stevens v. State,

2018 OK CR 11, J] 31, 422 P. 3d. 741, __.

While Luna and McGee were on direct appeal, there were several other similarly

situated defendants across the State. Approximately 43 defendants have been sentenced to life

without the possibility of parole, some by jury trial and many through a plea of guilty. The Court

addressed the remedy for those defendants in Stevens v. State, 2018 OK CR 11, 422 P.3d 741.

The Court followed the opinions of McGee and Luna and ordered that Stevens, and all other like

situated defendants, be remanded for a jury trial sentencing. Stevens v. State, 2018 OK CR 11,

131, 422 P3d. 741, __

The Court gave explicit instructions regarding the procedure that must be used to

impose a sentence of Life without parole.

In all future trials where the State intends to seek a sentence of life without the possibility of

parole for an offender who committed his or her offense under the age of eighteen (18) years

of age the State shall give notice of this fact by stating at the bottom of the Information in

bold type: "The State is seeking the punishment of life without the possibility of parole

for the offense of Murder in the First Degree, as Defendant (state last name here) is

irreparably corrupt and permanently incorrigible." See Parker v. State, 1996 OK CR 19,

{ 24, 917 P.2d 980, 986 (adopting notice pleading). Both parties shall be afforded full

discovery on this issue in accordance with established discovery law. 22 0.S.2011, § 2001 et

seq. The assigned trial judge has the authority under our Discovery Code to issue any orders

necessary to accomplish this task.

The Sixth Amendment demands that the trial necessary to impose life without parole on a

juvenile homicide offender must be a trial by jury, unless a jury is affirmatively waived.

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435

(2000). The defendant's trial shall be bifurcated and the issue of the defendant's guilt shall be

separately determined from the enhancement of his or her sentence. Cf. Mitchell v. State,

Resp. App.006

2011 OK CR 26, J 119, 270 P.3d 160, 186 (contrasting sentencing procedure where State

seeks to enhance sentence); 22 0.5.2011, § 860.1 (statutory procedure for sentencing). The

prohibition against the introduction of evidence in either aggravation or mitigation set forth in

Malone v. State, 2002 OK CR 34, 58 P.3d 208, shall not be applicable to the sentencing

proceeding in this type of case. Therefore, each party shall be afforded the opportunity to

present evidence in support of its position as to punishment in the second stage of the trial.

The trial court shall submit a special issue to the jury as to whether the defendant is

irreparably corrupt and permanently incorrigible. Cf. 21 O.S.2011, § 701.10b(F). Pending

Legislative action the District Courts of the State are directed, in addition to the instruction

set out in Luna, to use the instruction and verdict form attached as "Appendix A" at the

conclusion of this Opinion.

It is the State’s burden to prove, beyond a reasonable doubt, that the defendant is irreparably

corrupt and permanently incorrigible. Luna, 2016 OK CR 27, § 21 n. 11, 387 P.3d at 963 n.

11; see also Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding

facts increasing punishment beyond the maximum authorized by a guilty verdict must be

proven beyond a reasonable doubt). The State shall have the opportunity to present any

evidence tending to establish this fact subject to the limitations of 12 O.S.2011, § 2403.

Generally, this will include, but not be limited to, evidence concerning the defendant's: (1)

sophistication and maturity; (2) capability of distinguishing right from wrong; (3) family and

home environments; (4) emotional attitude; (5) pattern of living; (6) record and past history,

including previous contacts with law enforcement agencies and juvenile or criminal courts,

prior periods of probation and commitments to juvenile institutions; and (7) the likelinood of

the defendant's rehabilitation during adulthood. See Luna, 2016 OK CR 27, § 20, 387 P.3d at

962; Cf 10A 0.S.2011, § 2-5-205(E).

Similarly, the defendant must be permitted to introduce relevant evidence concerning the

defendant's youth and its attendant characteristics. Miller, 567 U.S. at 489, 132 S.Ct. at 2475

("[A] judge or jury must have the opportunity to consider mitigating circumstances before

imposing the harshest possible penalty for a juveniles."). Generally, this will include, but not

be limited to, evidence concerning the defendant's: "(1) chronological age and its hallmark

features--among them, immaturity, impetuosity, and failure to appreciate risks and

consequences; (2) the incompetencies associated with youth--for example, his inability to

deal with police officers or prosecutors (including on a plea agreement) or his incapacity to

assist his own attorneys; and (3) whether the circumstances suggest possibility of

rehabilitation.” Luna, 2016 OK CR 27, { 20, 387 P.3d at 962 (quotations and citation

omitted).

Stevens v. State, 2018 CR 11, 33-35, 422 P.3d. 741, __.

Like Mr. Johnson, the defendant in Stevens entered a guilty plea and was sentenced by

the Court. The Court of Criminal Appeals ruled that a sentencing hearing at that time and that

the youthful offender hearing held did not constitute sufficient procedure to comply with the

Resp. App.007

Eighth Amendment. Stevens v. State 2018 CR 11, 930, 422 P.3d 741, ___ citing Miller v.

Alabama 567 U.S. at 489, 132 S. Ct. at 2475. The Court in Stevens explicitly ruled that the

defendant's prior waiver of jury trial did not constitute a waiver of a resentencing before a jury

because a defendant could not waive rights he did not previously know he was entitled to.

Petitioner could not have been aware that he had the right an individualized sentencing hearing

because this right was not recognized until the Supreme Court held it in Miller. Stevens v. State,

2018 CR @ 923, 422 P.3d. 741, _.

WHEREFORE, Defendant prays that this Court grant this request for jury trial.

Respectfully submitted,

MELISSA A. FRENCH (OBA #18376)

ASSISTANT PUBLIC DEFENDER

ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing instrument

was hand-delivered to the District Attorney's office, 5th floor, County Office Building,

Oklahoma City, Oklahoma, 73102, on the date of filing.

MELISSA A. FRENCH

Resp. App.008

NENA LED IN DISTRICT COURT

* 4 0 4 “7 Y

IN THE DISTRICT COURT OF OKLAHOMA COUNPTHLAHOMA COUNTY

STATE OF OKLAHOMA

SEP 11 2018

K WARN

STATE OF OKLAHOMA, ) RICK CLERK

) 09

Plaintiff, )

)

y. ) CF-2005-5714

)

JESSE ALLEN JOHNSON, )

)

Defendant. )

STATE’S RESPONSE & OBJECTION TO DEFENDANT’S REQUEST FOR JURY

TRIAL PURSUANT TO 22 OS. § 929

The State of Oklahoma respectfully requests that this Court deny the Defendant’s demand

for jury re-sentencing and set this matter for re-sentencing by the Court consistent with Miller v.

Alabama, 567 U.S. 460, 465, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012) and Montgomery v.

Louisiana, 577 U.S. ___, __, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016).

STATEMENT OF THE CASE

On November 29, 2006, the Defendant, represented by counsel, waived his right to a jury

trial and entered a blind plea of guilty to Murder in the First Degree (Count 1) and Conspiracy to

Commit a Felony (Count 2). This Court accepted the plea and set off sentencing for completion of

a pre-sentence investigation (PSI) by the Oklahoma Department of Corrections.

On January 3, 2007, the Court, after considering evidence and argument presented by both

the State and Defendant, as well as the PSI, sentenced Defendant to life without parole (LWOP)

for Count 1 and ten (10) years imprisonment for Count 2 and ordered those sentences to be served

concurrently.! Defendant timely moved to withdraw his guilty plea. That request was denied, and

! Defendant has since discharged his sentence in Count 2.

Resp. App.009

the Oklahoma Court of Criminal Appeals (OCCA) denied his petition for certiorari. Johnson v.

State, C-2007-83 (Ok1. Cr. Oct. 3, 2007) (not for pub.).

On May 22, 2018, the OCCA granted Defendant’s subsequent aprlication for postconviction relief, vacated his LWOP sentence in Count 1, and remanded the matter to this Court

for re-sentencing in accordance with Stevens v. State, 2018 OK CR 11. Johnson v. State, PC-2017-

755 (OkI. Cr. May 22, 2018). An initial status conference was held before this Court on June 25,

2018. At that time, counsel for both the Defendant and the State advised the Court that Defendant

was entitled to a jury re-sentencing, unless waived, in light of the Court of Criminal Appeals’

opinion in Stevens.

On August 27, 2018, Defendant, through his attorneys, filed the instant request for jury resentencing. After undertaking additional research, the State has changed its position on the issue

and, for the reasons discussed below, submits Defendant has no Sixth Amendment right to resentencing by a jury.

ARGUMENT & AUTHORITY

Whether the Defendant—after pleading guilty, waiving his right to a jury trial, and

requesting to be sentenced by the Court rather than a jury—is now (eleven years later) entitled to

a jury trial on sentencing turns on whether the Sixth Amendment demands that a jury determine

whether his sentence violates the Eight Amendment. It does not.

I. Eighth Amendment Limits on LWOP for Juvenile Homicide Offenders

Before turning to a Sixth Amendment discussion, it is instructive to review the Eighth

Amendment line of cases that brought Defendant back before this Court for re-sentencing.

In 2012, the United States Supreme Court concluded that the Eighth Amendment prohibits

a sentencing scheme that mandates an LWOP sentence for individuals who commit murder before

Resp. App.010

their eighteenth birthday. Miller v. Alabama, 567 U.S. 460, 465, 132 S.Ct. 2455, 2460, 183 L.Ed.2d

407 (2012). Instead, Miller requires an individualized sentencing proceeding at which “a judge or

a jury must have the opportunity to consider mitigating circumstances before imposing the

harshest possible penalty for juveniles.” Jd., 567 U.S. at 489, 132 S.Ct. at 2475 (emphasis added).

Four years later, the Supreme Court held that Miller announced a new, substantive rule of

constitutional law with retroactive effect. Montgomery, 136 S.Ct. at 734. The Montgomery Court

explained Miller’s holding by concluding “it rendered life without parole an unconstitutional

penalty for ‘a class of defendants because of their status’ — that is, juvenile offenders whose

crimes reflect the transient immaturity of youth.” Jd., 136 S.Ct. at 734 (citing Penry v. Lynaugh,

492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). In light of Montgomery, the OCCA

has determined those federal constitutional principles apply to Oklahoma’s discretionary LWOP

sentencing scheme for Murder in the First Degree. Luna v. State, 2016 OK CR 27, { 14, 387 P.3d

956, 961.

II. The Sixth Amendment Right to Jury Trial

The issue of whether the Defendant has a right to be resentenced by a jury arises from the

intersection of the Eighth Amendment principals discussed above and the Sixth Amendment right

to jury trial. This Section first discusses Stevens v, State, 2018 OK CR 11, wherein the OCCA for

the first time briefly addressed the issue, and then turns to the United States Supreme Court cases

dealing with the Sixth Amendment jury trial right in regards to sentencing considerations. It then

applies those federal constitutional rules to Oklahoma’s sentencing scheme.

a. Stevens v. State

Earlier this year, the OCCA granted post-conviction relief to a defendant who was

sentenced pursuant to plea agreement to LWOP for a murder he committed when he was seventeen

Resp. App.0O11

years old. Stevens, 2018 OK CR 11. The trial court had summarily denied the defendant’s

application for post-conviction relief upon incorrectly finding Miller and Montgomery did not

apply to him. /d. at { 11. The only issues before the Stevens Court were (1) whether the defendant’s

claim was viable for post-conviction review, and (2) whether the holdings of Miller and

Montgomery applied to him under the circumstances, i.e. where he pleaded guilty and his LWOP

sentence was imposed pursuant to a negotiated plea agreement. /d. at { 19. After resolving those

two questions that were properly before the Court, however, the OCCA hastily continued to

establish procedures it believed would best provide “guidance” for trial courts and practitioners in

both future criminal trials and post-conviction proceedings until the Legislature could address the

matter. Id. at {J 32-40.

Contrary to Defendant’s assertion, the Court in Stevens did not “explicitly rule[ ] that the

defendant’s prior waiver of jury trial did not constitute a waiver of a resentencing before a jury . .

..” What the OCCA actually concluded was the defendant’s guilty plea did not waive his “right

to an individualized sentencing hearing because this right was not recognized until the Supreme

Court announced it in Miller.” Id. at [ 23 (emphasis added). The Stevens Court also found “[the

defendant] could not have known what evidence to put on to fall within the protection of Miller

and Montgomery. Further, the sentencing judge could not have determined that [the defendant]

was irreparably corrupt and permanently incorrigible since he did not know that he was required

to make such a finding.” Jd. at {30 (emphasis added).

Defendant’s claim to a jury re-sentencing arises from a single sentence in the advisory

portion of the Stevens opinion discussing the procedure to be followed “[i]n all future trials” where

the State seeks an LWOP sentence for a juvenile offender:

The Sixth Amendment demands that the trial necessary to impose life without

parole on a juvenile homicide offender must be a trial by jury, unless a jury is

Resp. App.012

affirmatively waived. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348,

2362-63, 147 L.Ed.2d 435 (2000).

Stevens, 2018 OK CR 11, J 34.

With nothing more than the lone citation to Apprendi, the court offers no explanation for

why a Sixth Amendment jury trial right attaches to LWOP sentencing or how Apprendi applies to

these situations at all. The issue was not briefed or argued by either party. To be sure, none of the

appellate briefs filed in that case made any reference to the Sixth Amendment or Apprendi. Simply

put, that statement is pure dicta. See Brown v. State, 2018 OK CR 3, J 47, 422 P.3d 155, 167

(“Dicta, or more precisely obiter dictum, are words of an opinion which are entirely unnecessary

for the decision of the case, and, therefore, not precedential. In other words dicta is an expression

in a court's opinion which goes beyond the facts before the court and therefore is an individual

view of the author and is not binding in subsequent cases.”) (Citations and quotation marks

omitted). And, unfortunately, it also misses the constitutional mark.

Nothing in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),

or related Sixth Amendment cases mandates that sentencing a juvenile murderer to LWOP under

Oklahoma law after Miller and Montgomery must be by a jury.

b. Apprendi and Its Progeny

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the

defendant pleaded guilty to second-degree possession of a firearm for an unlawful purpose (among

other charges), which under state law was punishable by 5 to 10 years imprisonment. Apprendi,

530 USS. at 470, 120 S.Ct. at 2352. However, that range of punishment could be enhanced under

New Jersey’s hate crime statute to 10 to 20 years imprisonment if the offense was committed for

an improperly biased purpose. Jd. The State sought enhancement in that case alleging the defendant

Resp. App.013

had fired his gun into the home of an African American family for the purpose of intimidation,

motivated by racial bias.

After an evidentiary hearing on the issue of “rurpose,” the sentencing court found by a

preponderance of the evidence that the defendant’s actions fell within the hate crime statute and

sentenced him to 12 years imprisonment. /d., 530 U.S. at 471, 120 S.Ct. at 2352. The United States

Supreme Court found this sentencing scheme violated the defendant’s Sixth Amendment jury trial

right on the facts necessary to enhance the maximum sentence. The Court held, “Other than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

Statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Jd. 530

U.S. at 490, 120 S.Ct. at 2362-63 (emphasis added).

Two years later, the Supreme Court invalidated on the same grounds Arizona’s capital

sentencing procedure, which allowed a judge sitting alone to determine the presence or absence of

aggravating factors required by state statute for imposition of the death penalty. Ring v. Arizona,

536 U.S. 584, 609, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002). The Court concluded “[cJapital

defendants, no less than noncapital defendants . . . are entitled to a jury determination of any fact

on which the legislature conditions an increase in their maximum punishment.” Jd., 536 U.S. at

589, 120 S.Ct. at 2432 (emphasis added).”

2 See also Hurst v. Florida, __ U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) (Florida’s capital sentencing scheme

allowing judge to independently evaluate aggravating circumstances and impose death penalty after recommendation

from an advisory jury violated Sixth Amendment right to jury trial where maximum sentence without finding

aggravating circumstance(s) was life imprisonment under Florida law); Cunningham v. California, 549 U.S. 270, 127

S.Ct. 856, 166 L.Ed.2d 856 (2007) (California’s determinate sentencing law allowing judge to find facts exposing

defendant to an elevated “upper term” sentence not supported by the guilty plea alone violated Sixth Amendment right

to jury trial on those facts); Blakeley v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)

(Washington’s sentencing scheme allowing judge to impose an “exceptional sentence” greater than the “standard

range” if substantial and compelling reasons other than those used to compute the standard range were found violated

Sixth Amendment right to jury trial on those facts); United States v. Booker, 543 U.S. 220, 125 S.Ct. 783, 160 L.Ed.2d

621 (2005) (invalidating on Sixth Amendment grounds provisions of Sentencing Reform Act that made federal

sentencing guidelines mandatory and required judge to impose sentence greater than statutory “base” sentence upon

finding additional facts by a preponderance of the evidence).

6

Resp. App.014

In the context of sentencing considerations, the Supreme Court has only found the Sixth

Amendment right to jury trial to apply to factual findings necessary to either impose a punishment

that exceeds the statutory maximum or raise the statutory minimum prescribed by the legislature.’

See Alleyne v. United States, 570 U.S. 99, 116, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 314 (2013).

The Court has explained “the ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 2537 (emphasis by

the Court).

c. Oklahoma’s Statutory Maximum for Murder I

Unlike the sentencing schemes at issue in the Sixth Amendment cases above, a sentence of

LWOP in this state is within the statutory range of punishment for First Degree Murder. The

Oklahoma Statutes require no additional factual findings beyond those encompassed by a verdict

or plea of guilty to First Degree Murder for imposition of an LWOP sentence. As applicable to

this Defendant:

A person who is convicted of or pleads guilty or nolo contendere to murder in the

first degree shall be punished by death, by imprisonment for life without parole or

by imprisonment for life. A person who is convicted of or pleads guilty or nolo

contendere to murder in the first degree, as described in subsection E of Section

701.7 of this title, shall not be entitled to or afforded the benefit of deferment of the

sentence.

21 0.S.2001, § 701.9(A). In capital murder cases, the death penalty may not be imposed unless at

least one statutory aggravating circumstance is found and is not outweighed by one or more

mitigating circumstances. 21 O.S.2001, § 701.11. But Oklahoma law places no preconditions

3 Or sentencing guideline set by sentencing commission, as in Booker. 543 U.S. 220, 125 S.Ct. 783.

Resp. App.0O15

whatsoever on imposition of an LWOP sentence for First Degree Murder simpliciter, LWOP is

the statutory maximum.

Il. Sixth Amendment Inapplicability to Eighth Amendment Rights

Miller and Montgomery present a fundamentally different issue than factual findings

necessary to exceed a statutory maximum — they create an Eighth Amendment protection from

an otherwise legislatively authorized sentence. See Apprendi, 530 U.S. at 519, 120 S.Ct. at 2378

(Thomas, J., concurring) (“[E]stablishing what punishment is available by law and setting a

specific punishment within the bounds that the law has prescribed are two different things.”). Any

prerequisite finding of “permanent incorrigibility” for juvenile offenders sentenced to LWOP* is

a product not of Oklahoma’s statutory punishment range or procedural sentencing scheme, but of

a protection afforded exclusively to juvenile offenders by the Eight Amendment as announced by

Miller and Montgomery, supra. While that distinction may at first seem insignificant, it is critical

to the Sixth Amendment analysis.

a. Interplay of Sixth and Eighth Amendment Rights in the Capital Sentencing Context

Although this issue has yet to be squarely addressed by the Supreme Court or OCCA in the

context of juvenile homicide offenders sentenced to LWOP, the courts have consistently rejected

arguments that the Sixth Amendment right to jury trial applies to Eighth Amendment restrictions

on imposition of the death penalty. It should be noted that before Graham v. Florida, 560 U.S. 48,

130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding Eighth Amendment prohibits LWOP sentence

for juvenile non-homicide offenders), which laid the foundation for Miller, the Supreme Court had

not applied categorical Eighth Amendment restrictions to non-capital sentences. Graham, 560 U.S.

+ As will be discussed infra, States are split on whether such a finding of “permanent incorrigibility” is even required

as Montgomery expressly stated that it is not. See Montgomery, 136 S.Ct. at 735.

8

Resp. App.016

at 60-61, 120 S.Ct. at 2022. Therefore, the only comparable cases to that presented here are those

relating to Eighth Amendment restrictions on capital sentences. Analogizing to capital cases is

also appropriate in light of the Supreme Court’s “likening life-without-parole sentences imposed

on juveniles to the death penalty itself.” Miller, 567 U.S. at 474, 132 S.Ct. 2466 (citing Graham,

560 U.S. at 69, 130 S.Ct. at 2027).

In the context of capital sentencing, the Sixth Amendment has not been found to require

jury fact finding for protections afforded by the Eight Amendment. For example, in Enmund v.

Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the Supreme Court held the death

penalty is disproportionate for a defendant convicted of felony murder if “‘he did not kill, attempt

to kill, and he did not intend to kill.” The Supreme Court later rejected a felony-murderer’s

argument that the Sixth Amendment requires the factual finds necessary under Enmund be made

by a jury. Cabana v. Bullock, 474 U.S. 376, 386, 106 S.Ct. 689, 697, 88 L.Ed.2d 704 (1986) (death

sentence may stand provided “requisite findings are made in an adequate proceeding before some

appropriate tribunal-be it an appellate court, a trial judge, or a jury’).°

Similarly, after the Supreme Court declared the death penalty disproportionate for those

who are mentally retarded,° the OCCA rejected a capital defendant’s contention that Apprendi and

Ring require the State to prove, and the jury to find, the absence of mental retardation beyond a

reasonable doubt. Howell v. State, 2006 OK CR 28, {| 37-38, 138 P.3d 549, 561-62. Citing to

other states that had reached the same conclusion, the OCCA reasoned:

The Oklahoma legislature has not conditioned an increase in a defendant’s

maximum punishment on the fact that he is not mentally retarded; the fact a

5 See also Hopkins v. Reeves, 524 U.S. 88, 100, 118 S.Ct. 1895, 1902-03, 141 L.Ed. 2d 76 (1998) (“Tison [v. Arizona,

481 U.S. 137 (1987)] and Enmund do not affect the showing that a State must make at a defendant's trial for felony

murder, so long as their requirement is satisfied at some point thereafter.”); Brown v. State, 2003 OK CR 7, { 12, 67

P.3d 917, 920 (“If the Enmumd/Tison test is not met, the death penalty is not appropriate. The determination is a

limiting factor, not an enhancing factor. Thus, once a defendant is found to be eligible for the death penalty, any

tribunal may make the requisite Enmund/Tison findings.”) (Emphasis added);

6 See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

9

Resp. App.017

defendant is not mentally retarded is not an aggravating circumstance which the

State must prove beyond a reasonable doubt. 21 O.S.2001, § 701.12. Eligibility for

the death penalty is a different issue than proof of an aggravating circumstance.

Id. at [ 37, 138 P.3d at 561; see also Howell v. Trammel, 728 F.3d 1202, 1225 (10" Cir. 2013)

(rejecting same argument and citing to numerous other jurisdictions reaching the same conclusion).

“The procedure Miller prescribes is no different.” Montgomery, 136 S.Ct. at 735. The

determination of whether a juvenile offender’s homicide offense reflects “only transient

immaturity” or “permanent incorrigibility” under Miller is procedurally indistinguishable from the

Eighth Amendment limitations announced in Enmund and Atkins. As such, jury findings beyond

a reasonable doubt are unnecessary for an Eighth Amendment proportionality analysis of an

LWOP sentence.

b. Inapplicability to Mitigation Considerations

Furthermore, far from imputing to the State the burden of proving a juvenile defendant is

“irreparably corrupt and permanently incorrigible” through evidence of some sort of judiciallycreated aggravating circumstance, Miller and Montgomery discuss only the “mitigating qualities

of youth” and how the differences in children contrasted with adults “counsel against irrevocably

sentencing them to a lifetime in prison.” Miller, 567 U.S. at 476, 480, 132 S.Ct. at 2468, 2469;

Montgomery, 136 S.Ct. at 733. The Court identified such sentencing considerations to include:

[the defendant’s] chronological age and its hallmark features—among them,

immaturity, impetuosity, and failure to appreciate risks and consequences. . . . the

family and home environment that surrounds him—-and from which he cannot

usually extricate himself—no matter how brutal or dysfunctional. . . . the

circumstances of the homicide offense, including the extent of his participation in

the conduct and the way familial and peer pressures may have affected him. .. . his

inability to deal with police officers or prosecutors (including on a plea agreement)

or his incapacity to assist his own attorneys.

Miller, 567 U.S. at 477-78, 132 S. Ct. at 2468. Conspicuously absent from Miller or Montgomery

is any discussion or examples of evidence the State would be required to present to support an

10

Resp. App.018

LWOP sentence. See Cook v. State, 242 So.3d 865 (Miss. Ct. App. 2017) (“We also note that the

United States Supreme Court has never defined ‘irreparable corruption,’ a term that sounds more

like a theological concept than a rule of law to be applied by an earthly judge.”). The Supreme

Court’s silence in that regard makes sense where these opinions establish only a juvenile offender’s

right to present mitigating evidence at an individualized sentencing hearing to demonstrate he is

within the class of defendants for whom LWOP is a disproportionate sentence. Apprendi’ s bright-

line rule does not apply to mitigating circumstances that may reduce punishment.

Cc. Decisions of Other State and Federal Courts

Aside from the OCCA’s previously quoted one line of dicta in Stevens citing Apprendi,

every other State that has considered the issue has uniformly concluded that no Sixth Amendment

right to a jury trial exists for a Miller/Montgomery sentencing proceeding.

1. Michigan

In response to Miller and Montgomery, the Michigan Legislature passed a statute, MCL

769.25, which mandated that a judge, rather than a jury, make the decision whether to impose a

sentence of LWOP. /d. at *4. Different panels of the Michigan Court of Appeals, Michigan’s

intermediate appellate court, were split on whether there exists a Sixth Amendment right to have

the Miller factors considered by a jury. See People v. Skinner, 877 N.W.2d 482, 504 (Mich.Ct.App.

2015), (declaring MCL 769.25 unconstitutional to the extent it mandated judicial sentencing);

People v. Hyatt, 885 N.W.2d 900, 924-25 (Mich.Ct.App. 2016) (concluding no Sixth Amendment

right to a jury exists for sentencing pursuant to Miller and declaring a conflict with the Skinner

panel). A seven-judge conflict panel of the Court of Appeals was consequently convened. The

conflict panel disagreed with the Skinner panel and held that a judge may decide whether to impose

11

Resp. App.019

a non-parolable life sentence on a juvenile. People v. Hyatt, 891 N.W.2d 549, 572 (Mich.Ct.App.

2016).

Ultimately, the Michigan Supreme Court retained appeals on the issue in both cases and

consolidated them for appellate purposes. People v. Skinner, et al., = N.W.2d ___, 2018 WL

3059768, *4 (Mich. June 20, 2018). After conducting a thorough analysis of United States

Supreme Court precedence in Miller, Montgomery, Apprendi, Cunningham, and Ring, the

Michigan Supreme Court concluded that:

The Sixth Amendment does not prohibit trial courts from considering mitigating

circumstances in choosing an appropriate sentence because the consideration of

mitigating circumstances does not expose a defendant to a sentence that exceeds

the sentence that is authorized by the jury’s verdict. In other words, the Sixth

Amendment only prohibits fact-finding that increases a defendant’s sentence; it

does not prohibit fact-finding that reduces a defendant’s sentence. Therefore, the

requirement in MCL 769.25(6) that the court consider the Miller factors does not

violate the Sixth Amendment.

Skinner at *12 (citations omitted) (emphasis by the court).

The Michigan Supreme Court was also persuaded by appellate courts in its sister states

finding that, “This conclusion is further supported by the fact that all the courts that have

considered this issue have likewise concluded that the Sixth Amendment is not violated by

allowing the trial court to decide whether to impose life without parole.” Skinner at *16 citing

State v. Lovette, 233 N.C. App. 706; State v. Fletcher, 149 So.3d 934 (La.App., 2014);

Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017); People v. Blackwell, 3 Cal.App.5" 166 (2016);

and State v. Ramos, 387 P.3d 650 (Wash. 2017).’

7 The Michigan Supreme Court did not reference the dicta from OCCA’s Stevens opinion which had been decided one

month earlier.

12

Resp. App.020

2. California

Much like the Michigan Supreme Court in Skinner, supra, the California Court of Appeals

also conducted a thorough analysis of whether the Sixth Amendment requires the Miller factors

be considered by a jury and reached the same result. People v. Blackwell, 3 Cal.App.5" 166

(Cal.App. 2016) as modified on denial of reh'g (Sept. 29, 2016), cert. denied, 138 S. Ct. 60, 199

L. Ed. 2d 44 (2017). In Blackwell, the California Court of Appeals found the defendant’s

arguments that a judge-imposed sentence of LWOP for a juvenile offender, even after

consideration of the Miller factors, violated the Sixth Amendment were “without merit as they are

premised on fundamental misconceptions about the application of Miller, Graham ... as well as

Apprendi and its progeny.” Id. at 183.

The California court conducted an extensive review of the text of both the Sixth and Eighth

Amendments, as well as the United States Supreme Court opinions interpreting those amendments,

and concluded, “The trial court’s consideration of the Miller/Gutierrez® factors relating to the

offense and the offender in exercising its discretion to impose sentence within a prescribed range

did not violate Apprendi.” Id. at 460 (citing Alleyne, 570 U.S. at ___, 133 S.Ct. at 2163;

Cunningham, 549 U.S. at 294, 127 S.Ct. 856, and Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-

63).

Subsequently, a different division of the California Court of Appeals, while disagreeing

with Blackwell on whether a factual finding of “permanent incorrigibility” is required at all before

LWOP may be imposed, took no issue with consideration of the Miller factors and the sentencing

determination being made by a judge as opposed to a jury. People v. Padilla, 4 Cal.App.5™ 656

8 People v. Gutierrez, 324 P.3d 245 (Calif. 2014) was a California Supreme Court case that held, in light of Miller,

there could be no presumption in favor of LWOP for juvenile offenders.

13

Resp. App.021

(Cal.App. 2016). In fact, the Padilla court remanded that case for resentencing before a judge to

consider the Miller factors in light of Montgomery. Id. at 221.°

3. North Carolina

Like Michigan, the North Carolina General Assembly enacted a statute directing trial

courts to consider the Miller factors and granting them the discretion to impose a sentence of

LWOP, both prospectively and in re-sentencing proceedings. N.C. Gen.Stat. § 15A-1340.19A, et

seq. In State v. James, 786 S.E.2d 73 (N.C.App. 2016), that provision came under attack by a

defendant who claimed it violated his right to a trial by jury. The North Carolina Court of Appeals,

the state’s intermediate appellate court, rejected his challenge to the statute given the absence of

any provision requiring the State to prove beyond a reasonable doubt the existence of any

aggravating factors as a prerequisite for the imposition of an LWOP sentence. The court

determined, “The sentencing guidelines only require the sentencing court to consider the

mitigating circumstances of defendant's youth to determine whether a lesser punishment of life

without parole is appropriate. Thus, no jury determination was required and defendant's argument

is without merit.” Jd. at 82.

The North Carolina Supreme Court modified and remanded the case on other grounds but

upheld the intermediate court’s finding that their statute, which provides for judicial sentencing, is

constitutional. State v. James, 813 S.E.2d 195 (N.C. May 11, 2018).

Although defendant has not questioned the correctness of the Court of Appeals’

rejection of his challenge to the relevant statutory provisions as violative of his

Sixth Amendment right to a jury trial, he did argue before this Court that the failure

of N.C.G.S. § 15A-1340.19B and N.C.G:S. § 15A-1340.19C to require a narrowing

finding violates the principles enunciated in Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S 296,

124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by failing to require that a jury find the

° These issue later became moot in California with the enactment of Senate Bill No. 394, which retroactively abolished

LWOP sentences for all juvenile offenders. See People v. Padilla, 419 P.3d 535 (Calif. June 13, 2018).

14

Resp. App.022

aggravating circumstances that he believes to be necessary in order to avoid a

finding of arbitrariness. However, we need not address this argument given our

conclusion that a valid statutory scheme for the sentencing of juveniles convicted

of first-degree murder does not require the sentencing authority to find the existence

of aggravating circumstances before imposing a sentence of life imprisonment

without the possibility of parole.

Id. at 209, n.7.

4. Pennsylvania

In Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017), the Pennsylvania Supreme Court

considered and rejected a defendant’s contention that he had a Sixth Amendment right to have a

jury make a determination of “permanent incorrigibility” before he could be sentenced to LWOP.

In so holding, the Court explained:

We further disagree with Batts that a jury must make the finding regarding a

juvenile’s eligibility to be sentenced to life without parole ... [T]he central principle

of Alleyne and the decision upon which it was based, Apprendi v. New Jersey, is

that a factual finding that increases an individual’s punishment is an element of a

different, aggravated offense other than the charged crime. “The touchstone for

determining whether a fact must be found by a jury beyond a reasonable doubt is

whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense.” ...

A finding of ‘permanent incorrigibility’ cannot be said to be an element of the crime

committed; it is instead an immutable characteristic of the juvenile offender. To

render these characteristics crime-specific would contradict the entire premise of

the Supreme Court’s decisions, which prohibit a sentencer from finding that a

juvenile offender is unable to be rehabilitated based upon the crime itself.

Id. at 478-479 (citations omitted).

The Pennsylvania Supreme Court also noted that the United States Supreme Court in

Montgomery “stated directly that the decision of whether to sentence a juvenile to life without

parole could be made by a judge. Thus, the High Court itself did not recognize life imprisonment

cases to be governed by Alleyne.” Id. at 456-57 (internal citations omitted).

15

Resp. App.023

5. Louisiana

In State v. Fletcher, 149 So.3d 934 (La.App. 2014), the Louisiana Court of Appeals

rejected the juvenile defendant’s contention that the federal and Louisiana constitutions “require

that the determination of whether his sentence should be served without the possibility of parole

must be made by a jury.” Id. at 942. The appellate court agreed with the state’s argument that “the

maximum sentence is life without parole and the minimum sentence is life with parole, so there is

no additional element required in order to impose a life sentence without parole. Therefore,

Apprendi and its progeny do not apply.” Id. at 943. The court went on to state, “We have reviewed

the Apprendi, Ring, and Blakely cases, and find them inapplicable to the instant situation.” Id.

Montgomery v. Louisiana, supra, was also, of course, a case arising out of Louisiana. On

remand from the United States Supreme Court the Louisiana Supreme Court remanded

Montgomery’s case to the district court for judicial resentencing and consideration of the Miller

factors rather than a jury trial on resentencing. State v. Montgomery, 194 So.3d 606, 609 (La.

2016).

6. Mississippi

The Supreme Court of Mississippi places the burden on the offender to persuade the

sentencing judge he is entitled to parole eligibility under Miller. Jones v. State, 122 So.3d 698, 702

(Miss. 2013). With this backdrop, the Appellate Court of Mississippi rejected a defendant’s

contention that he was entitled to a jury determination of the issue under Apprendi. Cook v. State,

242 So.3d 865, 876 (Miss. Ct. App. 2017), petition for cert. denied, 237 So.3d. 1269 (Miss. 2018),

petition for cert. docketed, No. 18-98 (U.S. May 31, 2018).!° The appellate court noted that Miller

10 The defendant has petitioned the United States Supreme Court for certiorari review of the following two issues: “1.

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently

16

Resp. App.024

held “a judge or a jury must have the opportunity to consider mitigating circumstances” before

imposing LWOP on a juvenile offender and that Montgomery specifically stated that Miller did

not impose any formal factfinding regarding an offender’s incorrigibility. Jd. at 876 (citing Miller,

567 U.S. at 489, 132 S.Ct. at 2475 (emphasis added by Mississippi Court of Appeals), and

Montgomery, 136 S.Ct. at 2475. As the court aptly opined:

It may be that “irreparable corruption” is not considered an objective, provable

“fact” for purposes of Apprendi. Or it may be that Apprendi does not apply because

“irreparable corruption” is something that a defendant must disprove in order to

mitigate his punishment, rather than something the State must prove in order to

increase the penalty. Whatever the reason, unless the United States Supreme Court's

opinions in Miller and Montgomery do not mean what they specifically say—that

a judge may sentence the offender to LWOP— [the defendant] does not have a

constitutional right to be resentenced by a jury.

Id. at 876.

7. Other State Courts

Other states have delegated re-sentencing and consideration of the Miller factors to judges

rather than to juries without challenge. See Chandler v. State, 242 So.3d 65 (Miss. 2018), petition

for cert. docketed, No. 18-203 (U.S. Aug 15, 2018)!! (affirming a ruling by the trial judge

sentencing juvenile defendant to life after consideration of Miller factors); State v. Ramos, 387

P.3d 650 (Wash. 2017) (Supreme Court of Washington affirmed a judge’s aggregate sentences of

eighty-five years for a juvenile offender); Davis v. State, 415 P.3d 666 (Wyo. 2018) (Supreme

Court of Wyoming remanded for resentencing by the trial judge, rather than a jury, after juvenile

incorrigible in order to impose a sentence of life in prison without the possibility of parole. 2. Whether the Eighth

Amendment prohibits a life without parole sentence for a crime committed by a juvenile.”

11 The defendant has petitioned the United States Supreme Court for certiorari review on the following two issues:

“1, Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently

incorrigible before imposing a sentence of life without parole. 2. Whether Joey Chandler’s life without parole sentence

violates the Eighth Amendment because the sentencing judge failed to consider substantial, unrebutted evidence of

his rehabilitation.”.

17

Resp. App.025

offender had previously received a “de facto life without parole” sentence). The State has been

unable to find a single state court appellate opinion, other than the dicta in Stevens, that finds the

Sixth Amendment right to a jury trial applicable to a Miller hearing.

8. Federal Courts

The United States Supreme Court, in both Miller and Montgomery, refers to the

determination of LWOP for juvenile offenders being made by a judge. Miller, 567 U.S. at 489,

132 S.Ct. at 2475 (“a judge or jury must have the opportunity to consider mitigating circumstances

before imposing the harshest possible penalty for juveniles”) (emphasis added); Montgomery, 136

S.Ct. at 733 (“Miller requires that before sentencing a juvenile to life without parole, the sentencing

judge take into account ‘how children are different, and how those differences counsel against

299

irrevocably sentencing them to a lifetime in prison.’”) (Emphasis added and citations omitted).

One federal district court even went so far as to suggest that the Miller hearing and

determination must be done by a judge rather than a jury.

[T]he jury's decision to convict Petitioner for death-penalty-eligible offenses

provides no evidence that the jury made any finding regarding ‘future danger' or

‘vileness.' Moreover, even if there were indicia that the jury had made a finding

about either of these two aggravating factors, this Court is not convinced that such

a finding would satisfy the requirements of Miller and Montgomery. Indeed, Miller

and Montgomery require the sentencing judge to consider certain factors before

sentencing a juvenile to life imprisonment without parole. Any findings made by

the jury, notwithstanding their possible impact on the jury's penalty

recommendation, cannot supplant the judge's duty to consider the factors expressed

in Miller and Montgomery.

Malvo v. Mathena, 254 F.Supp.3d 820 (E.D.Va. 2017), aff'd 893 F.3d 265 (4" Cir. 2018), petition

for cert. docketed No. 18-217 (U.S. Aug 20, 2018).!*

12 The Warden has petitioned the United States Supreme Court for certiorari review on the following issue: “Did the

Fourth Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of

this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller)

18

Resp. App.026

CONCLUSION

As one state high court has observed, Miller and Montgomery “are not models of clarity[.]”

People v. Skinner, __ N.W.2d __, 2018 WL 3059768, *10 (Mich. 2018). But what can be

understood from those opinions is that LWOP is now deemed to be disproportionate under the

Eighth Amendment for a juvenile offender “whose crime reflects transient immaturity.” Miller,

567 U.S. at 479-80, 132 S.Ct. at 2469; Montgomery, 136 S.Ct. at 735.

“[T]he decision of whether a sentence is so disproportionate as to violate the Eighth

Amendment in any particular case, like other questions bearing on whether a criminal defendant’s

constitutional rights have been violated, has long been viewed as one that a trial judge or an

appellate court is fully competent to make.” Bullock, 474 U.S. at 386, 106 S.Ct. at 697. Indeed, the

Supreme Court has expressly recognized “Miller did not impose a formal factfinding requirement”

regarding a child’s incorrigibility. Montgomery, 136 S.Ct. at 735.°

The Supreme Court has “long recognized that broad sentencing discretion, informed by

judicial factfinding, does not violate the Sixth Amendment.” Alleyne v. United States, 570 U.S. 99,

116, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 314 (2013); see also Booker, 543 U.S. at 233, 125 S.Ct.

at 750 (‘We have never doubted the authority of a judge to exercise broad discretion in imposing

a sentence within a statutory range.”); Cunningham, 549 U.S. at 294, 127 S.Ct. at 871 (noting that

in the wake of Apprendi and Blakely some “States have chosen to permit judges genuinely to

applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the

very rule whose retroactivity was in question?”

3 See also Luna, 2016 OK CR 27, { 2, 387 P.3d at 963-64 (Lumpkin, V.P.J., concurring in part dissenting in part)

(recognizing Miller “did not impose a formal factfinding requirement” as to whether the offender’s “crimes reflect

transient immaturity” or “irreparable corruption.”); Id. at | 3, 387 P.3d at 965 (Hudson, J., concurring in part/dissenting

in part) (“[T]he majority opinion wrongly expands the requirements of Miller and Montgomery by mandating that the

jury on remand find beyond a reasonable doubt that Appellant is irreparably corrupt and permanently incorrigible.

The Supreme Court has not adopted a formal fact-finding requirement nor mandated any formal framework for

sentencing.”).

19

Resp. App.027

exercise broad discretion ... within a statutory range, which, everyone agrees, encounters no Sixth

Amendment shoal.” (Internal quotation marks and footnote omitted)). Even in Apprendi itself, the

Court recognized “nothing in this history [of the Sixth Amendment jury trial right] suggests that it

is impermissible for judges to exercise discretion—taking into consideration various factors

relating both to the offense and the offender—in imposing a judgment within the range prescribed

by statute.” 530 U.S. at 481, 120 S.Ct. at 2348 (emphasis in original). Because Miller and

Montgomery do nothing more than impose Eighth Amendment limitations on what sentence may

be imposed within Oklahoma’s statutory range of punishment, the Defendant does not have a Sixth

Amendment right to jury re-sentencing.

In this matter, the Defendant affirmatively waived his statutory right to jury sentencing

when he entered a blind plea of guilty to this Court. He understood at that time he could be

sentenced to either life or life without parole. Under Miller and Montgomery, life without parole

is a disproportionate sentence for him if his crimes reflect only transient immaturity. But as

discussed above, there is no Sixth Amendment right to a jury determination of that Eighth

Amendment consideration. In other words, this is not a case where the Defendant waived a jury

trial right he did not know he had because he does not actually have that right at all. Miller and

Montgomery afford him nothing more than an individualized sentencing hearing at which this

Court must consider his “youth and attendant characteristics before determining that life without

parole is a proportionate sentence." Montgomery, 136 S.Ct. at 735.

WHEREFORE, the State of Oklahoma respectfully prays that this Honorable Court will

deny Defendant’s Request for Jury Trial Pursuant to 22 O.S. § 929 in all respects and set this

matter for a judicial re-sentencing hearing.

Respectfully Submitted,

20

Resp. App.028

DAVID W. PRATER

DISTRICT ATTOR:

= C7

JENNIFER M. HINSPERGER, OBA

STANT DISTRICT ATTORNEY

320 Robert S. Kerr, Suite 505

Oklahoma City, OK 73102

Phone: (405) 713-1600

Fax: (405) 235-1567

dajenhin @oklahomacounty.org

BY;

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing response was hand-delivered

on the date of filing to Melissa French, Counsel for Defendant, by leaving a file-stamped copy at

the front window of the Oklahoma County Public Defender’s Office. /

VA

Jennifer M. Hinsperger, ADA

21

a

RO , Resp. App.029

ORIGIN’, =e

IN COURT OF CRIMINAL APPEALS |

IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHQ¥IAOF OKLAHOMA

NOV 29 2018

JOHN D. HADDEN

CLERK

Court of Criminal Appeals

JESSE ALLEN JOHNSON, )

)

)

)

) Case No. PR-2018-

)

)

)

)

)

Petitioner,

vs.

THE HONORABLE RAY C. ELLIOTT ,

Judge of the District Court,

THE STATE OF OKLAHOMA,

Oklahoma County Case No.

peered 18 { 20 Z

evn enim ape a . fn =

APPLICATION FOR COURT TO ASSUME ORIGINAL

JURISDICTION AND PETITION FOR WRIT OF PROHIBITION

AND/OR MANDAMUS TO PROHIBIT RESPONDENT FROM

SENTENCING THE PETITIONER WITHOUT ENPANELING A

JURY PURSUANT TO 22 O.S. 2011 §929 AND STEVENS V.

STATE

Respondent.

COME NOW, Jesse Allen Johnson, Petitioner, by and through the Office of

the Oklahoma County Public Defender, and submit this Petition for Writ of

Prohibition and/or Writ of Mandamus, along with the accompanying brief in

support, asking the Court to prohibit Respondent from RE-sentencing the

Petitioner without empaneling a jury pursuant to 22 O.S. 2011 §929. This action

is brought pursuant to Rule 10.1 of the Rules of the Oklahoma Court of Criminal

Appeals, Okla. Stat. Tit. 22, Ch. 18, App. (Supp.1996). Petitioner respectfully

submits that for the reasons stated the district court cannot legally sentence the

Petitioner, without first empaneling a jury pursuant to the Mandate issued in

Jesse Allen Johnson v. State of Oklahoma, PC-2017-755.

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