Opposition — Hicks v. Oklahoma

No. 78-6885

| RT. U.S,

— 5

IN THE SUPREME C OF THE UNITED STATES

OCTOBER TERM, 1979

FLYNN NOYE HICKS

Petitioner,

THE STATE OF OKLAHOMA

a aug

7

SING PETITION FOR WRIT OF CERTIORARI

JAN ERIC CARTWRIGHT

ATTORNEY GENERAL OF OKLAHOMA

RESPONSE

JANET L. COX

ASSISTANT ATTORNEY GENERAL

CHIEF, FEDERAL DIVISION

112 State Capitol Building

Oklahoma City, Oklahoma 73105

(405) 521-3921

ATTORNEYS FOR RESPONDENTS

September, 1979

TABLE 0+ CONTENTS

JURISDICTION .« «© ee ee eee ee ee ee @ ©

ISSUES PRESENTED ..+ ++ e+ e+ © © © © © © © #

STATEMENT OF THE CASE .. + + © © © © #-# # # *

STATEMENT OF THE FACTS .. +++ © © + © © # *

AFFIDAVIT OF SERVICE follows Brief.

TABLE OF AUTHORITIES

Cases

Barrett v. State, Okl.Cr., 573 P.2d

1221 (1978) >. . . . . . > > >. . . >. .* . .* . .

Bordenkircher v. Hayes, 434 U.S. 357,

54 L.Ed.2d 604, 98 S.Ct. 663, reh. den.

435 .S. 918, 55 L.Ed.2d 511, 98 S.Ct. 1477

(1978) . . . . . . . . . . . . . . . . . . .

Carbray v. State, Okl.Cr., 435 P.2d 188

(1967), cert. den. 392 U.S. 916 (1968) .. -

Coker v. Georgia, 433 U.S. 584, 592,

97 S.Ct. 2861, 53 L.Ed.2d 982 (1976) .. «+ «

Corbitt v. New Jersey, U.S. _,

58 L.Ed.2d 466, 99 S.Ct. 492

(December ll, 1978) . . . . . . . . . . . . .

Davis v. Davis, 585 F.2d 1266

(October 30, 1978) . . . . . . . . . . . . .

Drennan v. State of Oklahoma, Ok1.Cr.,

581 P.2d 901 (1978), cert. den. No. 79-5242

(December 4, 1978) . . >. . . . . . . . . > .

Gardner v. Florida, 430 U.S. 349,

51 L.Ed.2d 393, 97 S.Ct. 1197 (1977) .«.+ +

Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859,

96 Beebe 2909 (1976) > . . > . * . . . . > .

Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973),

cert. den. 415 U.S. 938, #4 S.Ct. 1454,

39 L.Ed.2d 495 (1974) . . . . . . . . . . . .

Hayes v. United States, 283 F.2d 318,

322, cert. den. 353 U.S. 983, 77 S.Ct. 1280,

1 L.Ed.2d 1142 . . . . . . > . . . . . . . .

Hicks v. State, Okl.Cr., Unpub.

Op. No. 77-751 wan 6-67.00". @ 6 @ 6.8 0 & @

Ingraham v. Wright, 430 U.S. 651, 667,

97 S.Ct. 1401, 1410, 51 L.Ed.2d 711

(1977) . . . . . . . . - . . . . . . . . . .

Kitchens v. State, Okl.Cr., 576 P.2d

7175 (1978) . . . . > . . > . . . . . . . . .

Lee v. State, Okl.Cr., 572 P.2d

260 (1977) . . . . . . . . . . . . . . . . .

Page

12

10

14

10

10

12,15

14

15

A ce lt la hh ent

a

People v. Beavers, 393 Mich. 554,

227 N.W.2d 511 (1974) . «. «© «© © © © © © wo oo

People v. Keller, 54 Cal. Rptr. 154 (1966) ..

People v. Tuckey, 234 N.E.2d 26

(Ill. 1967) . . . . . . . . . . . . . . . . .

People v. Venable, 361 N.Y.S.2d 398 (1974) ..

Presnell v. Georgia, U.S. » 58 L.Ed.2d 207,

99 S.Ct. 235 (November 6, 1978) ......-s

Rodriguez v. State, 509 S.W.2d 625

(Tex. 1974) . . . . . . . . . . . . . . . . .

Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978),

cert. granted, May 1979 . ...++« «ee © »

Screws v. United States of America,

325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed.

1503 (1945) . . . . . . . . . > . . . . . . .

Segura v. State of Texas, 427 S.W.2d

675 (Tex. 1972) . . . . . . . . . . . . . . .

Smith v. United States, 273 F.2d 462

(10th Cir. 1259) . . . . . . . . . . . >. . .

Snowden v. Hughes, 321 U.S. 1, 8, 9,

88 L.Ed. 497, 502, 503, 64 S.Ct. 397 ....

Snyder v. Massachusetts, 291 U.S. 97, 105,

78 L.Ed. 674, 54 S.Ct. 330, 90 A.L.R. 575. .

State v. Abercrombie, 318 N.E.2d 179

(Ohio 1973) >. . . . . . . . . . . . .* . . . >.

State v. Espinosa, 101 Ariz. 474,

421 P.2d 322 (1966) . . «© »© ee ee © © @ ©

State v. Harms, 507 S.W.2d (La. 1974) ...+6. «

Thigpen v. State, Okl.Cr., 571 P.2d

467 (1977) . . . . . . . . . . . . . . . . .

Twining v. New Jersey, 211 U.S. 78, 101,

§3 L.Ed. 97, 107, 29 S.Ct. 14 . . «© «© ew we ow

United States v. Jackson, 390 U.S. 570,

20 L.Ed.2d 138, 88 S.Ct. 1209 (1968) ... -»

United States v. Wooten, 503 F.2d 65,

67 (4th Cir. 1974) * . . > . . . * . . . . .

Wi’liams v. Illinois, 399 U.S. 235,

26 L.Ed.2d 586, 90 S.Ct. 2018 (1970) ....

Statutes

21 0.S. Supp. 1976, § 5I1(A) . «© «© © we ww ow

21 0.S. Supp. 1976, § 51(B) . . «+ «© «© © we @

63 0.S. Supp. 1976, § 2-401 . . «© «© ee we wo

$2 0.8. 1071, 6 986... «eee ecereeeveve se

22 0.8. 1971, § 1066 . 2. 1» we we we we we ww wwe

Page

14

14

14

14

10

14

10

14

6,8,11

2,5,6,12,13

2,13

10

10

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

FLYNN NOYE HICKS,

Petitioner,

Ve No. 78-6885

THE STATE OF OKLAHOMA,

ee et ee ee ee ee ee ee

Respondents.

BRIEF OPPOSING CERTIORARI

COMES NOW Jan Eric Cartwright, Attorney General for the

State of Oklahoma, by and through Janet L. Cox, Assistant Attor-

ney General, and on behalf of the State of Oklahoma and for

answer to the Petition for Writ of Certiorari submits to this

Honorable Court the following brief in opposition thereto.

I.

JURISDICTION

Petitioner Hicks seeks review pro se by way of Petition

for Writ of Certiorari from the Oklahoma Court of Criminal Appeals.

On the 3rd day of March, 1979, the aforesaid court entered its

Order affirming the Judgment and Sentence rendered in the Dis-

trict Court of Oklahoma County, State of Oklahoma, on the 14th

day of April, 1977.

Ii.

ISSUES PRESENTED

1. Whether the Oklahoma Court of Criminal Appeals’ fail-

ure to modify the Judgment and Sentence imposed by the trial

court under the unconstitutional provisions of 21 0.8. Supp.

1977, § 51(B) constitutes a violation of the equal protection

clause of the Fourteenth Amendment to the United States Consti-

tution.

2. Whether the trial court's instruction to the jury as

to the imposition of punishment based upon an unconstitutiona!

provision of the Oklahoma Habitual Criminal Act, 21 0.5. Supp.

1976, § 51(B), constituted a violation of the Due Process Clause

of the Fourteenth Amendment.

a

—s

hn ln lla a a

3. Whether the imposition of a forty (40) year prison term

for the offense of Unlawful Distribution of a Controlled Dan-

gerous Substance, After Former Conviction of a Felony, in viola-

tion of 63 0.8. Supp. 1976, § 2-401, is excessive and constitutes

cruel and unusual punishment within the purview of the Eighth

Amendment to the United States Constitution.

Iil.

STATEMENT OF THE CASE

Petitioner, Flynn Noye Hicks, hereinafter referred to as

"Mr. Hicks,” was charged conjointly by information with Diane

Elizabeth Jones in the District Court, Oklahoma County, State

of Oklahoma, Case No. CRF76-4597, for Unlawful Distribution of

a Controlled Dangerous Substance, in violation of 63 0.S. Supp.

1976, § 2-401, After Former Conviction of two (2) Felonies, to-

wit: Burglary in the Second Degree and Assault and Battery with

a Dangerous Weapon with Intent to do Bodily Harm (O.R. 1). Mr.

Hicks was tried by jury on April 12, 13 and 14, 1977, and repre-

sented by counsel. The jury thereafter returned a verdict of

guilty for the offense of Unlawful Distribution of a Controlled

Dangerous Substance and assessed punishment during the bifurcated

sentencing proceeding in accordance with the enhancement provi-

sions of 21 0.S. Supp. 1976, § 51(B) at forty (40) years imprison-

ment under the custody and control of the Oklahoma Department

of Corrections.

Mr. Hicks subsequently perfected his appeal from the afore-

said Judgment and Sentence to the Oklahoma Court of Criminal

Appeals, Case No. F-77-751. Thereafter, on the 3rd day of

March, 1979, the aforesaid court denied Mr. Hicks' request for

reversal or modification of the punishment and affirmed the ver-

dict and decision of the trial court in an unpublished opinion.

Petitioner Hicks now comes to this Court requesting the

following relief: (1) grant a Writ of Certiorari to review the

final Judgment No. F-77-751 of the Oklahoma Court of Criminal

Appeals, (2) appoint an attorney to represent petitioner in this

Court, (3) hold Oral Arguments, and (4) vacate final Judgment

No. F-77-751 of the State Court with instructions [to) vacate

the Petitioner's forty (40) years and thereafter to allow the

petitioner an opportunity to be heard at a new penalty trial

prior to the imposition of any new sentence.

In addition, on or about August 20, 1979, Petitioner Hicks

filed with this court an Application to consolidate this case,

pursuant to Rule 43(5), with Rummel v. Estelle, 587 F.2d 651

(5th Cir. 1978), cert. granted, May, 1979, now pending for con-

sideration on the merits before this Court.

IV.

STATEMENT OF THE FACTS

The relevant facts pertaining to the issues presented in

the case at bar indicate that this matter came on for jury trial

on the 12th day of April, 1977. The State called three (3)

witnesses whose testimony established that on October 5, 1976,

Mr. Hicks consummated a sale involving a balloon of heroin with

Agents of the Oklahoma Bureau of Narcotics and Dangerous Drugs

for a purchase price of $25.

The defense catled one witness, the Court Reporter, con-

cerning the whereabouts of the transcript of the Preliminary

Hearing.

Whereupon, after instructions and closing arguments, the

jury retired and returned a verdict of guilty against Mr. Hicks

for the offense of Unlawful Distribution of a Controlled Danger-

ous Substance,

In the second phase of the trial, conducted for the purpose

of assessing punishment, the State called two (2) witnesses.

The first witness, W. L. Curlee, identified Mr. Hicks as one in

the same person named in the Judgment and Sentence (State's

Exhibit number 5) in "State of Oklahoma versus Flynn N, Hicks,"

case number CRF-70-1250, Burglary in the Second Degree, wherein

Mr. Hicks entered a voluntary plea of guilty and was represented

by counsel (Tr. 166).

The State then called Eddie Hockletubbe as its second wit-

ness, The witness identified State's Exhibit #6 as the Judgment

and Sentence Suspended on Plea of Guilty, Case No. CRF-75-2198,

styled The State of Oklahoma versus Flynn N. Hicks, for the

_

offense of Assault with a Dangerous Weapon with Intent to do

Bodily Harm, The witness identified Mr. Hicks as one and the

same person named as the defendant in State's Exhibit #6 (Tr,

168).

The Court then instructed the Jury as follows (O.R. 16):

"You are instructed that as to the defen-

dant Flynn Noye Hicks the law provides that

every person who, having been twice con-

victed of felony offenses, commits a third,

or thereafter, felony offenses within ten

(10) years of the date following the com-

pletion of the execution of the sentence,

shall be punished by imprisonment in the

State Penitentiary for a term of twenty

(20) years plus the longest imprisonment

for which the said third or subsequent con-

viction was punishable, had it been a first

offense,

"Under the facts of this case this means

that should you find that this defendant

has been twice convicted of felony offenses

and that he committed the present offense

within ten years of the completion of both

of the previous offenses, then you shall

assess his punishment at forty (40) years

imprisonment in the State Penitentiary.

"Should you find that this defendant had

previously been convicted of only one fel-

ony offense at the time he committed the

present offense, then you shall assess his

punishment at imprisonnent in the State

Penitentiary for a term not less than ten

(10) years,

"Should you find that this defendant has

not been previously convicted of any felony

offenses, then you shall assess his punish-

ment at imprisonment for not less than five

(5) years nor more than twenty (20) years

and a fine of not more than Twenty Thousand

Dollars ($20,000,00)."

The prosecutor then submitted his argument and the following

excerpts from the transcript reflect comments of the State's

attorney (Mr. Geb) concerning the "mandatory" forty (40) years:

"It's mandatory the Legislature said, as

Your Honor read to you in the Instructions,

Ana the Judge sets the law out, I don't and

the other attorneys don't,

"It is mandatory that they get forty years

if you find that he has been convicted of

two felonies before. And you've heard the

evidence that he had been," (Tr. 172,

lires 14-19)

"and the State would be interested in hop-

ing that you take a strong stand on the

pusher and find them guilty. And take a

to deliberate the punishment of Mr. Hicks.

From these facts,

strong stand and return a verdict of fif-

teen years as punishment for her, and a

term of forty years as set out in the stat-

utes as mandatory by the State Legisla-

ture." (Tr. 173, lines 14-19)

Defense counsel (Mr. Pearson) then responded as

"When the District Attorney says mandatory

forty years, that is not quite true. If

you should find from your -- by your ver-

dict certain things, then the law says that

you've got to do it.

"But you don't have to find those things.

You are the judges of the facts." (Tr.

174, 175)

Geb again commented as follows:

"And Mr. Pearson, I thought heard the

Court's Instructions. The Court's Instruc-

tions were that under number four, You may

like to read this,

"Under the facts of this case this means

that should you find that this defendant

has been twice convicted of felony offenses

and that he “committed the present offense

within ten years of the completion of both

of the previous offenses, then you shall

assess his punishment at forty (40) years

imprisonment in the State Penitentiary.'

"Forty years. I don't see how he can tell

you to ignore the two previous felony con-

victions. You have heard the testimony.

He even stipulated." (Tr. 179, 180)

ment at forty (40) years.

for this Court's determination.

ARGUMENT AND AUTHORITY

PROPOSITION I

PETITIONER WAS NOT DENIED EQUAL PROTECTION

OF THE LAW IN VIOLATION OF THE FOURTEENTH

AMENDMENT BY REASON OF THE OKLAHOMA COURT

OF CRIMINAL APPEALS' FAILURE TO MODIFY THE

TERM OF PUNISHMENT.

follows:

In his final closing appeal to the Jury for the State, Mr.

Upon the conclusion of Mr. Geb's comments, the Jury retired

They assessed punish-

Petitioner raises constitutional errors

Okl.Cr., 571 P.2d 467 (Oct, 14, 1977). 21 0.8. Supp. 1977,

§ 51(B) provided as follows:

"Every person who, having been twice con-

victed of felony offenses, commits a third,

or thereafter, felony offenses within ten

(10) years of the date following the com-

pletion of the execution of the sentence,

shall be punished by imprisonment in the

State Penitentiary for a term of twenty

(20) years plus the longest imprisonment

for which the said third or subsequent con-

viction was punishable, had it been a first

offense; provided, that felony offenses

relied upon shall not have arisen out of

the same transaction or occurrence or se-

ries of events closely related in time or

location; provided, further, that nothing

in this section shall abrogate or affect

punishment by death in all crimes now or

hereafter made punishable by death."

Under this provision, Mr. Hicks in the instant case was sentenced

to twenty (20) years, plus the maximum sentence provided by 63

O.S. Supp. 1976, § 2-401, for a total of forty (40) years.

The ambiguity inherent in the practical application of

$§ 51(B) resulted in a defendant with two or more prior offenses

being limited to a term of twenty (20) years plus the maximum

assessable punishment for conviction under the new charge. How-

‘ever, an offender with one offense was subject to an indefinite

period of confinement not less than ten (10) years. As the Okla-

homa court determined in its opinion, § 51(B) defeated the

obvious intent of the Legislature to authorize progressively

greater punishment for habitual criminals.

In declaring § 51(B) unconstitutional, the Court was faced

with the problem of what punishment should be assessed in those

cases where the trial court had instructed under § 51(B).

Inasmuch as 21 O.S. Supp. 1976, °§ 51 contained a severa-

bility clause, the remaining provisions, specifically § 51(A),

were not impaired. Title 21 0.S. § 51(A), left intact by the

Oklahoma Court in Thigpen, reads:

In essence, Mr. Hicks contends that he was denied equal

protection of the law as a result of being sentenced at the trial

court level pursuant to 21 0.S. Supp. § 51(B). The aforesaid

statutory provision was declared unconstitutional by the Oklahoma

Court of Criminal Appeals in the decision of Thigpen v. State,

"Every person who, having been convicted of

any offense punishable by imprisonment in

the penitentiary, comnits any crime after

such conviction is punishable therefor as

fol lows:

—_

=

"1, If the offense of which such person is

subsequently convicted is such that upon a which apparently forms the basis of Petitioner's claim of a

first conviction an offender would be pun- ine

ishable by imprisonment in the penitentiary enial of equal protection under the Fourteenth Amendment.

for any term exceeding five (5) years, such

person is punishable by imprisonment in the The inherent power of the Court of Criminel Appeals to

penitentiary for a term of not less than maaet

ten (10) years. odify sentences on appeal is clearly authorized under the statu-

"2, If such subsequent offense is such tory provisions of the laws of the State of Oklahoma. Title 22

that upon a first conviction the offender | 0.8. 1

would be punishable by imprisonment in the -S. 1971, § 1066 states:

penitentiary for five (5) years, or any .

less term, then the person convicted of The appellate court may reverse, affirw or

such subsequent offense is punishable by | re ype the judgment appealed from, and may,

imprisonment in the penitentiary for a term | : necessary or proper, order a new trial.

not exceeding ten (10) years. n either case, the cause must be remanded

to the court below, with proper instruc-

"3, If such subsequent conviction is for tions, and the opinion of the Court within

petit larceny, or for any attempt to commi t the time, and in the manner to be pre-

an offense which, if committed, would be scribed by rule of the Court."

unishable by imprisonment in the peniten-

Tiere, then the person convicted of pen The Oklahoma Court has consistently exercised its right to

subsequent offense is punishable by impris~

onment in the penitentiary for a term not correct or modify sentences on appeal for a myriad of reasons.

exceeding five (5) years."

Such action has repeatedly been upheld. See Carbray v. State,

Thus, in reviewing cases subsequent to Thigpen, supra, the Okla-

4 q shigpen Ok1.Cr., 435 P,2d 188 (1967), cert. den., 392 U.S. 916 (1968).

homa Court of Criminal Appeals has taken one of two approaches

_

In the case at bar, the Court of Criminal Appeals reviewed

in reviewing the assessed punishment. The first approach, as

re all the testimony and found no errors requiring reversal or modi-

alluded to by Mr. Hicks, resulted in a modification of the sen- Siduktin at ths. enateose.

eae ee a

They further determined that the

tence in the "interest of justice." Lee v. State, Ok1.Cr., 572

forty (40) years assessed by the Jury was well within the purview

of § 51(A).

4

¥

a

P.2d 260 (Nov. 9, 1977). It is interesting to note from a

Hicks v. State, Okl.Cr., Unpub. Op. No. 77-751.

reading of the Lee case, supra, that the court was concerned

6 —, : ' It is further well established that federal appellate courts

about certain prejudicial remarks made by the prosecuting attor-

ore! are without power to control or modify a sentence which is within

ney during the course of the trial. On the basis of the improper

. the limits fixed by a valid statute unless clearly excessive.

remarks, as opposed to a sentence imposed under § 51(B), the

In Hayes v. United States, 238 F.2d 318, 322, cert. den., 353

punishment was modified.

U.S. 983, 77 S, Ct. 1280, 1 L. Ed, 2d 1142, this court stated:

The second approach is reflected in the decisions of

Kitchens v. State, Okl.Cr., 576 P.2d 775 (March 27, 1978) and mene Sizing of penalties for crimes is a

v. S \ Congressional function, and what consti-

Barrett v. State, Okl.Cr., 573 P.2d 1221 (January 25, 1978). : tutes adequate punishment is ordinarily

v. | left to the discretion of the trial judge.

In these cases, no modification of sentence was made since the If the sentence is within the statutory

limit, appellate courts will not interfere

sentence imposed was clearly permissable and within the provision unless clearly cruel and unusual." (Em-

phasis added)

of 21 0.S. Supp. 1976, § 51(A), which would have been the proper

This Court has previously adopted language found in the

statute for sentencing the twice previously convicted defendant.

| Tenth Circuit case of Smith v. United States, 273 F.2d 462 (10th

Further, the Court found no prejudicial! errors in these cases

P Cir. 1959), which, in discussing the aspects of modifying a sen-

as in the Lee case, supra, which required modification of the

wai tence of fifty-two (52) years for a first-time offender and

sentence,

which they considered "greater than should have been imposed,"

" " k th

However, it is this alleged "ad hoc" approach taken by the stated at page 468:

Oklahoma Court of Criminal Appeals subsequent to Thigpen, supra,

-7-

"In effect, we are asked to enter the do-

main of penology, and more particularly

that tantalizing aspect of it, the proper

apportionment of punishment. Whatever

views may be entertained regarding severity

of punishment, whether one believes in its

efficacy or its futility, see Radzinowicz,

A History of English Criminal Law: The

Movement for Reform, 1750-1833, passim,

these are peculiarly questions of legisla-

tive policy. Equally so are the much

mooted problems relating to the power of

the judiciary to review sentences. First

the English and then the Scottish Courts of

Criminal Appeal were given power to revise

sentences, the power to increase as well as

the power to reduce them. See 7 Edw. VII,

e. 283, 8 4€€8)3; 16 @ 17 Geo. V., Ge. 15,

§ 2(4). This Court has no such power,"

Respondents submit that the Constitution of the United States

permits qualitative differences in meting out punishment and

there is no requirement that two persons convicted of the same

offense receive identical sentences. See Williams v. Illinois,

399 U.S. 235, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970).

Petitioner falls within those class of cases where punish-

ment was imposed under a section of the Habitual Criminal Act

subsequently determined invalid, but which did not impair the

remaining provisions of the Act. Within those class of cases,

the Oklahoma Court of Criminal Appeals has exercised its inherent

power, on a case by case basis, to correct the sentence through

modification, or alternatively, to affirm the ultimate findings

of the jury or trial court.

In summation, it is clear that Petitioner has failed to

prove a "purposeful discriminatory" action. Snowden v. Hughes,

321 U.S. 1, 8, 9, 88 L. Ed. 497, 502, 503, 64 S. Ct. 397. There-

fore, Respondents submit that there has been no Constitutional

violation of the Equal Protection Clause of the Fourteenth Amend-

ment and Petitioner's claim of constitutional infringement must

fail.

—_"

A 0 2e tee

}

/

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i)

PROPOSITION II

PETITIONER WAS NOT DENIED DUE PROCESS OF LAW IN

VIOLATION OF THE FOURTEENTH AMENDMENT BY VIRTUE

OF THE OKLAHOMA COURT OF CRIMINAL APPEALS FAILURE

TO REMAND THIS CONVICTION FOR RESENTENCING IN THE

DISTRICT COURT.

Petitioner urges that he has an absolute right to have a

new sentencing trial or a new penalty stage and cites decisions

of this Court as authority for his position as follows: United

States v. Jackson, 390 U.S. 580, 20 L. Ed. 2d. 138, 88 S. Ct.

1209 (1968); Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed.

2d. 64, 98 S. Ct. 663, reh. den., 435 U.S. 918, 55 L. Ed. 2d.

511, 98 S. Ct. 1477 (1978); Corbitt v. New Jersey, U.S.

» 58 L. Ed. 2d. 466, 99 S. Ct. 492 (December 11, 1978);

Gardner v. Florida, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct.

1197 (1977); Presnell v. Georgia, U.S. » 58 L. Ed. 2d.

207, 99 S. Ct. 235 (November 6, 1978). As Mr. Hicks noted in

his Petition for Certiorari at Page Nine (9), "each case is

distinguishable from the facts here." Respondents would agree

that the above cited cases fail to shed any light on the issue

of due process under the facts of the instant case.

In Oklahoma pursuant to 22 0.S. 1971, § 926, a defendant

has a right to request a jury to set his punishment, but if for

some reason the jury fails to do so, then it is encumbent on

the trial curt to pronounce the sentence. See 22 0.S. 1971,

§ 927. These provisions read in conjunction with 22 0.S. 1971,

§ 1066 allowing the appellate court to modify sentences from

the basis of Oklahoma's standards rgarding sentencing. While

in some jurisdictions the petitioner's case might have had to

be remanded for a new second stage trial, in Oklahoma it is not

necessary and is not a violation of due process. See Drennan

v. State of Oklahoma, Okl.Cr., 581 P.2d 901 (1978), cert. den.

No. 70-1250 (December 4, 1978).

It is fundamental that the Due Process Due Clause of the

Fourteenth Amendment affords an accused certain procedural safe-

guards within the confines of criminal justice to insure the

preservation of life, liberty and the pursuit of neppinese against

the arbitrary action of the body politic. In Screws v. U ited

» 2@ «

States of America, 325 U.S. 91, 89 L. Ed. 1503, 65 S. Ct. 1931

(1945), this court stated in the body of its opinion, quoting

from Twining v. New Jersey, 211 U.S. 78, 101, 53 L. Ed. 97,

107, 29 S. Ct. 14:

nm" . ,. that due process requires that ‘no

change in ancient procedure can be made

which disregards those fundamental princi-

ples, to be ascertained from time to time

by judicial action, which have relation to

process of law and protect the citizen in

hi private right, and guard him against the

arbitrary action of government."

In Snyder v. Massachusetts, 291 U.S. 97, 105, 78 L. Ed. 674,

677, 54 S. Ct. 330, 90 A.L.R. 575, it was said that due process

prevents state action which "offends some principle of justice

so rooted in the traditions and conscience of our people as to

be ranked as fundamental.”

. the case at bar, Mr. Hicks received a fair and impartial

trial; was represented by counsel; was given the opportunity to

cross-examine his accusers; and exercise his right against self-

incrimination and correctly sentenced under the existing law.

In essence, he was accorded the basic fundamental procedural

aspects of due process as envisioned by the Fourteenth Amendment,

: If Petitioner was deprived of "liberty," Respondents submit

that it was not by reason of a denial of due porcess, but rather

through the imposition of an excessive sentence in violation of

the Eighth Amendment prohibition against cruel and unusual punish-

ment.

In conclusion, Respondents submit that there exists no

vehicle in the State of Oklahoma whereby Mr. Hicks may be resen-

tenced at a "new penalty stage" in the District Court. The jury

assessed punishment after hearing testimony reflecting the facts

of the case. A "new penalty stage" in effect would require a

new criminal trial in its entirety.

It is further clear that should punishment be reimposed in

accordance with 21 0.S. Supp. 1976, § 51(A), a term of imprison-

ment could be assessed against Mr. Hicks from ten (10) years to

life, resulting in a concededly greater punishment than the forty

(40) years he received.

e ji «

;

It is, therefore, respectfully submitted that Mr. Hicks"

allegations of a denial of due process falls exceedingly short

of raising a fundamental constitutional issue upon which relief

may be granted by this Honorable Court,

PROPOSITION III

THE IMPOSITION OF A FORTY (40) YEAR PRISON TERM

FOR THE OFFENSE OF UNLAWFUL DISTRIBUTION OF A

CONTROLLED DANGEROUS SUBSTANCE, AFTER FORMER

CONVICTION OF A FELONY, IS NOT EXCESSIVE AND DOES

NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN

VIOLATION OF THE EIGHTH AMENDMENT,

Under the facts adduced below during the second phase of

the sentencing trial, the evidence and testimony established

that Mr. Hicks had previously been convicted of two prior

felonies. On June 4, 1970, Mr. Hicks entered a voluntary plea

of guilty to the charge of Burglary in the Second Degree, Case

No. 70-1250, Thereafter, on October 21, 1975, Mr. Hicks again

entered a voluntary plea of guilty to the charge of Assault

with a Dangerous Weapon with iatent to do Bodily Harm, Case No,

75-2198, Mr. Hicks received suspended jail terms in both cases,

Under the then existing Oklahoma law, 21 0.8. Supp. 1976,

§ 51(B), the trial court instructed the jury that a mandatory

sentence of forty (40) years should be imposed in the event the

jury found the Petitioner to have committed two (2) prior

felonies,

As discussed in Propositions I and II, § 51(B) was de-

clared unconstitutonal by the Oklahoma Court of Criminal Appeals

subsequent to the imposition of punishment in the case at bar.

It is the position of Mr. Hicks that a forty (40) year

prison term is excessive and constitutes cruel and unusual punish-

ment in violation of the Eighth and Fourteenth Amendments to

the United States Constitution.

The present test enunciated by this court in reviewing sen-

tences as "excessive" and violative of the Cruel and Unusual

Clause of the Eighth Amendment is reflected in the case of Coker

vs Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d

982 (1976). Although this Honorable Court has never held punish-

ment unconstitutional because of length alone, the "proportion-

ality concept" is equally applicable under the facts herein

presented. In Coker supra, this court, citing from Gregg v.

Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909

(1976), stated:

"a punishment is ‘excessive’ and unconsti-

tutional if it (1) makes no measurable con-

tribution to the accepted goals of punish-

ment and hence is nothing more than the

purposeless and needless imposition of pain

and suffering; or (2) is grossly out of

proportion to the severity of the crime.

Under the first criteria, Oklahoma's Habitual Criminal Act

was intended by the Legislature to authorize progressively greater

punishment for habitual criminals. That intent was not destroyed

by the invalidation of 21 0.S. Supp. 1976, § 51(B), but prevails

in the remaining provisions of the Act,

Thus, it is clear that a rational basis exists to justify

enhancement of the length of a prison term for criminal offenders

habitually found ignoring the rights of innocent victims,

Secondly, under 63 0.S. Supp. 1976, § 2-401 Petitioner

received the maximum term of twenty (20) years. A myriad of

State Court decisions have rejected the theory of excessive

punishment in similar cases involving Distrbution of a Control-

led Dangerous Substance wherein the sentence reflects a term of

twenty (20) years or more. See People v. Keller, 54 Cal, Rptr.

154 (1966), People v. Tuckey, 234 N.E.2d 26 (I11. 1967); People

v. Venable, 361 N.Y.S.2d 398 (1974); Seguro v. State of Texas,

427 S.W.2d 865 (Tex. 1968); Williams v. State of Texas, 476

S.W.2d 675 (Tex. 1972); State v. Coutchen, 424 P.2d 865 (Kan.

1967); State v. Abercrombie, 318 N.E.2d 179 (Ohio 1973);

Rodriguez v. State, 509 S.W.2d 625 (Tex. 1974); People v. Beavers,

393 Mich, 554, 227 N.W.2d 511 (1974); State v. Espinosa, 101

Ariz, 474, 421 P.2d 322 (1966); State v. Harms, 507 S.W.2d 29

(La.1974).

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Further, a limited review of the laws from other states

reveals a similar intent to authorize enhanced prison terms for

habitual criminal offenders, :

These Recidivist statutes have been upheld many times against

a variety of challenges, s

In a recent Fourth Circuit case, Davis v. Davis, 585 F.2d

1226 (4th Cir, 1978), the court overturned a district court

decision which found two twenty year consecutive terms for dis-

tribution and possession of marijuana as excessive in viclation

of the cruel and unusual prohibition of the Eighth Amendment.

The defendant in the Davis case, supra, relied primarily on

Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. den., 415

U.S. 938, 94S. Ct. 1454, 39 L. Ed, 2d. 495 (1974). The district

court borrowed from Hart the guidelines which were used in that

decision to determine the constitutionality of the sentence

imposed. At page 1231 of the Davis decision, the Fourt Circuit

noted those guidelines,

"The guidelines included the nature of the

offense committed, the legislative purpose

behind the punishment, the punishment im-

posed in other jurisdictions for the same

offense, and the punishment imposed in the

same jurisdiction for other offenses,

The Court determined that the scope of their inquiry as to

excessiveness of the punishment need not be as broad as the

inquiry in Hart where a life sentence was imposed. The Court

went on to say:

1 Kansas, KSA 21-4504; Arizona, ARS § 36-1002.02; Michigan,

MCLA $$ 335.152, .341; Texas, UTCA Penal Code § ia

Missouri, RS. Mo. VAMS § 195.200; Wisconsin, WSA, § 161,28;

Nebraska, R.R.S. § 29-2221 (Hab. Crin. Stat.); Minnesota, 26

591(a) New York Narcotic Drug Impact § 2, 21 UlS.C.A.

§6 173, 174,

. Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d.

446 (1961); Gryger v. Burke, 334 U.S. 728, 732, 68S. Ct.

1256, 92 L. Ed. 1683 (1948); Graham v. West Virginia, 224 U-S. 616,

623 (1912); McDonald v. Massachusetts, 180 U.S. Sit, $12, 21 8. Ct.

389, 45 L. Ed. 542 (1901); Moore v. Missouri, 159 U.S. 673,

677, 16 S. Ct. 179, 40 L. Ed. 301 (1895); Wilson v. Slayton.

470 F.2d 986 (4 Cir, 1972); Wessling v. Bennett, r

(8 Cir. 1969); Price v. Allgood, 369 F.2d 376 (5, Cir, 1966)

cert. denied, 386 U.S. 998-878, Ct. 1321, 18 L. Ed. 2d. 349

); see generally, Katkin, Habitual Offender Laws:

A Reconsideration, 21 fuffalo L. Rev. 99 (1971),

5

P—- ©

"In an attack for excessiveness on a sen-

tence for a number of years, any authorized

inquiry of the court should extend only to

the consideration of the seriousness of the

offense committed and the application of

the sanction imposed for that offense. We

can give no relief unless the sentence im-

posed is "grossly disproportionate to the

severit of the crime." Ingraham v.

Wri ht, 430 U.S. 651, 667, 97 5S. Ct. 1401,

T4710, 51 L. Ed. 24 711 (1977). And in

those cases where the challenged sentence

is fixed by a jury within the limits im-

posed by statute, we afford special defer-

ence to the legislative and jury determina-

tion of the seriousness of the offense, and

whether the punishment is cruel and unusual,

See Gre v. Georgia, 428 U.S. 153, 174-

184, — s“ct- 3908, 49 L. Ed. 2d 859

(1976). Thus, the sentence will not be

considered grossly disproportionate to the

severity of the offense unless tere are

"extraordinary and special circumstances"

which make a otherwise valid sentence

cruel and unusual, United States v.

Wooten, 503 F.2d 65, 67 (4th Cir. 1974).

The Court thereupon concluded that there was no extraordinary

and special circumstances, and was of the opinion that the sen-

tences were not so excessive as to shock human sensibilities.

In the case at bar, it is clear that the prior crimes com-

mitted by Mr. Hicks involved the potentiality of violence and

danger to life as well as property. Such crimes cannot be con-

sidered "trivial" under the arguments presented in Rummel v.

Estelle, now pending before this court.

In light of the similarity of sentences imposed in other

jurisdictions; the nature of the present offense and the severity

of prior offenses, Respondents submit that the forty (40) year

sentence in this case is not "grossly disproportionate” to the

accepted measure of punishment,

It is further Respondents position that the instructions

complained of by Mr. Hicks did not hamper the jury's initial

decision of guilt. Concededly, the jury imposed the "mandatory"

sentence, but upon a review of the case by the Oklahoma Court

of Criminal Appeals, it is clear that the punishment was well

within the remaining provisions of the Habitual Criminal Act.

Therefore, Respondents urge this court to affirm the judg-

ment and sentence and determine that the sentence resides out-

- 15 -

A Ne) tate lta hea

:

‘

side the boundary of those cases which create a violation of

the cruel and unueual punishment provision of the Eighth Amend-

ment,

CONCLUS ION

Ok1

ahoma contends that there was no "purpose ful discrimin-

"

atory" action imposed by the Court of Crimina] Appeals in refusing

to modify the term of punishment which resulted in a denial of

equal protection. Nor was there a denial of due process by reason

of the Court of Criminal Appeals failure to remand the case for

further proceedings in light of its prior holding in

supra,

Thigpen,

3 Even though the sentence imposed was under a section of

the Oklahoma Habitual Criminal Act declared unconstitutional,

the remaining provisions of the Act were not impaired and the

sentence was clearly within the boundaries of the intact portion

of the Act,

Finally, the forty (40) year term is clearly within the

accepted sphere of punishment followed in other jurisdictions

for offenses of this nature,

Mr.

That it was enhanced by virtue of

Hicks prior criminal acts clearly follows the Legislative

intent to authorize progressively greater sentences for habitual

offenders,

Respectfully submitted,

ERIC CARTWRIGHT

TORNEY GENERAL OF O

T L. x

ISTANT ATTORNEY GENERAL

112 State Capitol Building

Ok] ahoma City, Oklahoma 731

(405) 521-3921 xy

ATTORNEYS FOR RESPONDENT

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