Reply Brief — Hicks v. Oklahoma

POR ARGTIMENT

Ss 44

MAR

14 Court, U.S.

’ ED

1% 1980

AK, JR, cuene|

Supreme Court ‘of tl the Gnited States

OCTOBER TERM, 1979

No. 78-6885

FLYNN NOYE HICKS,

Petitioner,

Vv.

THE STATE OF OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

REPLY BRIEF OF PETITIONER

DAVID M. EBEL

2600 Colorado National Building

950 Seventeenth Street

Denver, Colorado 80202

Telephone: (303) 892-9400

Court-appointed Counsel

for Petitioner

Of Counsel:

RICHARD A. SONNTAG

2600 Colorado National Building

950 Seventeenth Street

Denver. Colorado 80202

Washington, 0.C. ¢ CLB PUBLISHERS’ « LAW PRINTING CO. « (202) 393-0625

(i)

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE .......ccccsccccsscscees |

Pan yack kh cote nea eee ead Ke canner ceeseas 2

I. PETITIONER WAS DENIED PROCE-

DURAL DUE PROCESS WHEN THE

OKLAHOMA COURT OF CRIMINAL

APPEALS SENTENCED HIM TO 40

YEARS IMPRISONMENT UNDER THE

OKLAHOMA HABITUAL CRIMINAL

STATUTE 21 O.S. Supp. 1977, §51(A) ......... 3

A. The Court of Criminal Appeals Violated

Due Process When It Failed to Follow

Oklahoma Law Which Entitled Petitioner

to be Sentenced by a Jury...........cccceeeee 3

B. The Court of Criminal Appeals Violated

Due Process When It Imposed a New 40-

Year Discretionary Sentence Against Peti-

tioner Without Giving Him Notice, a

Hearing, or an Opportunity to Present

, BOUIN oo ov bicncbsteedecesevcees 6

C. The Court of Criminal Appeals Violated

Due Proces When It Sentenced Petitioner

to 40 Years Imprisonment Under a Statute

that Allowed Wide Sentencing Discretion

But Provided No Meaningful Standards to

COUMD TUE TOPPOOIIII 6 cdc ce cic ccccecscccess 9

D. The Court of Criminal Appeals Violated

Due Process When It Failed to Offer Any

Rationale or Basis For the Sentence That

It Imposed Against Petitioner ................. 9

E. The Court of Criminal Appeals Violated

Due Process When It Affirmed and

Resentenced Petitioner Under a Different

(ii)

Statute Than the One Relied Upon At

SR hk odsdinendenpeadssdeeee eee 10

II. IT WAS CRUEL AND UNUSUAL PUN-

ISHMENT IN VIOLATION OF THE

EIGHTH AMENDMENT TO _ SEN-

TENCE PETITIONER TO 40 YEARS

IMP®TSONMENT UNDER 21 O.S. Supp.

Bvt, SUNN ++i ex nunsvencnndonaemeiaeiiein es 11

A. Punishment Under 21 O.S. Supp. 1977,

§51(A) Is Cruel and Unusual Because It

Makes No Measurable Contribution to

Acceptable Goals of Punishment, But

Rather Constitutes Only the Needless

Imposition of Pain and Suffering............... 11

B. Petitioner’s Sentence Is Cruel and Un-

usual Because It Was Inflicted in an

Arbitrary and Capricious Manner.............. 12

III. PETITIONER WAS DENIED EQUAL

PROTECTION OF THE LAW WHEN HE

WAS CLASSIFIED UNDER AN AD-

MITTEDLY UNCONSTITUTIONAL

STATUTE AND THEN, BASED UPON

THAT CLASSIFICATION, HE WAS

DISCRIMINATED AGAINST BY BEING

DENIED STATE AND FEDERALLY

GUARANTEED RIGHTS ..........ccccccccsees 13

CONCLUSION ....... Pivihdveeeckeetvnnkspenenaeek 14

(iii)

TABLE OF AUTHORITIES

Page

Cases:

Brown v. State,

I , BUDO D. cc cicsecccsntccsvcacess 3

Epperson v. State,

CE EME, BUETD. pssccevccceccsscevucees 5

Fulton v. State,

OED ccc ccncccasccacessvccbessesiacs 5

Gagnon v. Scarpelli, . |

TD, cnc cccusccacsccccetsoesssecse 10

Goldberg v. Kelly,

ci eeu d neu bs 00 eee cee’ 10

Karns v. State,

EE, BOOP sec ccccccceccscccsnscveses 3

Ex Parte Lange,

ne APU, TR CRIS). oc ccc cccccccsecce 3

Mathews v. Eldridge,

NT | -,Veneeaareeven 14

Morrissey v. Brewer,

i eo cb ecbentdececosbesbesee-e 10

Rose v. Hodges,

423 U.S. 19 (1975), reh. den. 423 U.S. 1092 ........ 5

Shanahan v. State,

| |) 5

Wolff v. McDonnell,

se ccc ccocnsececesecvesecese 10

Constitutions, Statutes:

a 1]

TW, oc cece sascedeccccicaeen passim

ET eACED 608.066066 6404s 68 wx ceveneussvees 12

(iv)

rot ee Se | passim

Oe Sie BET; BRED vnc vcccnckswccsveecee passim

Se Ss ck vad LOSERS CAEL Ree dhe adeoaket esas 4

Mt Ls ba Aes bores O46 s Kad v bd <kadawaaraees 4,5

BE WE PN SRE 1s PROM vo nee vk dccevcedecsrvendessec 8

RRR ened ca ee De 3,4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 78-6885

FLYNN NOYE HICKS,

Petitioner,

THE STATE OF OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

REPLY BRIEF OF PETITIONER

STATEMENT OF THE CASE

In its Statement of the Case, the State of Oklahoma

disputes petitioner’s assertion that he was not given an

opportunity to present evidence to the jury in mitigation of

punishment. The State asserts “to the contrary” that

petitioner elected to “stand mute” during the bifurcated

stage of the sentencing proceeding at the trial court level.

What the State fails to point out is that any evidence or

argument in mitigation of punishment would have been

2

futile and, indeed, irrelevant where the jury was allowed no

discretion to exercise leniency in sentencing. The Okla-

homa mandatory sentencing statute, 21 O.S. Supp. 1977,

§51(B), required that petitioner be given a 40-year term

upon a jury finding that he had been convicted of two prior

felonies.

Petitioner also takes issue with the State’s account of his

prior convictions. First, there were only two such prior

convictions rather than three as alleged at page 7 of the

Respondent’s Brief. Second, while the State of Oklahoma

notes correctly that petitioner was previously convicted of

Second-degree Burglary, his second conviction was only for

Assault and Battery with a dangerous weapon with intent to

do bodily harm, rather than the more serious offense alleged

at page 33 of the Respondent’s Brief.

ARGUMENT

The State of Oklahoma, in its Brief, failed to raise any

substantial new issues. Therefore, an extended reply brief is

not necessary. Detailed responses to respondent’s argu-

ments, where essential, will be presented on oral argument.

However, insofar as respondent’s characterization of

several key issues is potentially misleading, and in order to

avoid confusion at oral argument, several brief points ought

to be made at this time.

3

I.

PETITIONER WAS DENIED PROCE-

DURAL DUE PROCESS WHEN THE

OKLAHOMA COURT OF CRIMINAL AP-

PEALS SENTENCED HIM TO 40 YEARS

IMPRISONMENT UNDER THE OKLA-

HOMA HABITUAL CRIMINAL STATUTE

21 O.S. Supp. 1977, §51(A).

A. The Court of Criminal Appeals Violated Due

Process When It Failed to Follow Oklahoma

Law Which Entitled Petitioner to be Sen-

tenced by a Jury.

The State of Oklahoma argues that because 22 O.S.

§ 1066 grants the Oklahoma Court of Criminal Appeals the

power to modify sentences, this Court should uphold the

action of the Court of Criminal Appeals in resentencing

petitioner as a simple act of sentence “modification.”’

Plainly, what the Court of Criminal Appeals has worked

in this case is not a “modification” but a resentencing.

Oklahoma law is clear that a sentence imposed under an

unconstitutional statute (as §51(B) has already been

declared to be) is void and of no effect. Brown v. State, 24

P.2d 1013 (Okl.Cr. 1933); Karns v. State, 224 P. 373

(Okl.Cr. 1924); see also Ex Parte Lange, 18 Wall. 163, 85

U.S. 872, 879. Further, the sentence imposed by the Court

of Criminal Appeals was not a mere modification of

sentence length under the same statute upon which the

petitioner was originally sentenced. Instead, it was the

institution of a sentence under a different statute which

presented different sentencing criteria. There has been no

initial exercise of sentencing discretion by the jury for the

4

appellate court to “modify.” Instead, the first and only

exercise of sentencing discretion was by the Court of

Criminal Appeals. This is an act de novo, not an act of

modification. Petitioner was thus denied his right to jury

sentencing guaranteed by Oklahoma law in 22 O.S. §926,

which reads:

In all cases of a verdict of conviction for any offense

against any of the laws of the State of Oklahoma, the

jury may, and shall upon the request of the defendant,

assess and declare the punishment in their verdict

within the limitations fixed by law, and the court shall

render a judgment according to such verdict, except as

hereinafter provided.

There is a touch of inconsistency in Oklahoma’s Brief. It

acknowledges first that its Court of Criminal Appeals has

the power to modify a sentence under § 1066 only “where it

is apparent that an injustice has been done” (Br. of Resp. at

17), and the sentence is ‘so excessive as to shock the

conscience of the court” (Br. of Resp. at 7, 38). If the

former sentence is subject to modification only if it is

conceded to be fundamentally unjust and shockingly

excessive, how then can the State of Oklahoma justify the

second sentence which was identical to the first and which

accorded the petitioner even less procedural safeguards

than did the first sentencing procedure?!

The State of Oklahoma then asserts that a criminal

defendant’s right to jury sentencing in Oklahoma is not

absolute, citing 22 O.S. §927, which provides:

Where the jury find a verdict of guilty, and fail to

agree on the punishment to be inflicted, or do not

declare such punishment by their verdict, the court

"At least the petitioner was physically present during the first

sentencing procedure.

5

shall assess and declare the punishment and render the

judgment accordingly.

It is clear from the cases, however, that this auxiliary

sentencing power of the court is not to be exercised except

in cases where a jury is hopelessly deadlocked. Shanahan

v. State, 354 P.2d 780 (Okl.Cr. 1960). Furthermore, in

Epperson v. State, 181 P.2d 292 (Okl.Cr. 1947) (overruled

on other grounds, Fulton v. State, 491 P.2d 789 (1971)),

the Court of Criminal Appeals held that the defendant had

to be resentenced by the jury where the initial sentence was

found to have been under the wrong section of the habitual

offender statute. :

If anything is clear from the record, it is that the only jury

to ever consider petitioner’s sentence did not fail to agree on

a sentence nor was there any deadlock. Indeed, there was

nothing for the jury to disagree about as it was instructed

that 21 O.S. Supp. 1977, §51(B), expressly required that

the jury return a mandatory sentence of 40 years

imprisonment. The triggering event for §927 never

occurred, nor did the Court of Criminal Appeals below

even seek to justify its authority to impose a new sentence

under this statute.”

The State of Oklahoma cites Rose v. Hodges, 423 U.S. 19, for the

proposition that a defendant does not have a United States Con-

stitutional right to be resentenced by jury following reversal of his first

sentence. This misses the point of petitioner’s argument entirely.

Petitioner is not arguing that the United States Constitution establishes a

right to be sentenced by a jury—either initially or upon any resentencing

that may occur. What petitioner is asserting is that the United States

Constitution requires a state to follow its own criminal procedures in

convicting and sentencing its defendants and, if a deviation from such

procedures results in a potentially grievous injury to any defendant’s

protected liberty interests, then due process have been denied such

defendant. Oklahoma has chosen to give all its defendants a right to be

(continued)

6

The State of Oklahoma stands convicted by the clear

language of its own statutes, by its own judicial precedent,

and by straightforward logic. It simply took a shortcut in

resentencing petitioner and that deviation deprived peti-

tioner of an admittedly sacred right to be sentenced by jury.

When this deviation potentially inflicted a grievous loss

upon petitioner’s constitutionally protected liberty interests

(acknowledged to be such at page 18 of Respondent’s

Brief), it constituted a violation of the Due Process Clause.

B. The Court of Criminal Appeals Violated Due

Process When It Imposed a New 40-Year

Discretionary Sentence Against Petitioner

Without Giving Him Notice, a Hearing, or an

Opportunity to Present Mitigating Evidence.

The State of Oklahoma concedes the main point asserted

in this section of Petitioner’s Brief that due process requires a

sentencing procedure that affords the defendant notice, a

hearing and an opportunity to present mitigating evidence

(Br. of Resp. at 20-22).

The State advances only two defenses. First, it asserts

that, while these “basic due process requirements [are]. . .

applicable [at] . . . the trial court level,” they are inap-

plicable when the sentence is imposed by the appellate court

(Br. of Resp. at 21). It should not be surprising that the State

(footnote continued from preceding page)

sentenced by jury. The State acknowledges this at page 24 of its Brief.

Having given this right, it cannot be withheld from Hicks without

violating the Due Process Clause of the U.S. Constitution. Otherwise,

the Rose case is quite inapposite as the only question decided there was

whether, under Tennessee law, a governor has the executive power to

commute a sentence after the court has set it aside. No such issue is

presented in our case.

eg OY

7

of Oklahoma is unable to advance even one authority for this

proposition that an appellate court may ignore with impunity

the basic due process requirements that bind the trial court.

Petitioner’s 40 years in prison will seem as long to him

regardless of whether that sentence was unconstitutionally

imposed upon him without notice or hearing by the trial court

or the appellate court.

The only other argument advanced by the State of

Oklahoma is that petitioner was afforded an opportunity to

present mitigating factors before the jury and that he had

three opportunities to plead for leniency: before the jury;

before the trial court at the time the sentence was entered;

and before the appellate court. The State then asks, “How

many opportunities must the State afford to a particular

offender to persuade the trier of punishment to impose

leniency... ?”

Let us look briefly at these three opportunities. Before the

jury, petitioner was being tried under 21 O.S. Supp. 1977,

§51(B), which authorized no jury discretion for leniency at

all. The jury was instructed that,

[S]hould you find that this defendant has been twice

convicted of felony offenses . . . then you shall assess

his punishment at forty (40) years. . . . (A. 9)

The prosecutor jumped on this theme by arguing,

It is mandatory that they get forty years if you find

that he has been convicted of two felonies before.

(A. 20)

And I—the State doesn’t feel that there is really any

alternative on it. . . . (A. 25)

Evidence of mitigation was irrelevant and would un-

doubtedly have been excluded. Argument for leniency would

have been a useless act because even the State admits that

the jury had no choice. Clearly there was no hearing

8

opportunity here to present evidence of mitigating factors

upon which a proper exercise of sentencing discretion could

be based.

Let us turn to the “opportunity” that petitioner had to

present mitigating evidence or to plead for leniency before

the trial judge at the time he entered the 40-year sentence

found by the jury. 22 O.S. §926 required the trial judge to

enter judgment in accordance with the jury-determined

sentence, and 22 O.S. Supp. 1977, §991a, forbids a trial

judge from suspending any part of a sentence when the

defendant being sentenced has had two or more prior felony

convictions. The trial judge well understood his powerless-

ness to exercise sentencing discretion or to consider miti-

gating evidence or a plea for leniency when he didn’t even

bother to order a presentencing report on petitioner. The trial

court mechanistically entered judgment on the jury verdict of

forty years (A. 42-44),

On appeal to the Court of Criminal Appeals, petitioner’s

“opportunity” to argue leniency under 21 O.S. Supp. 1977,

§51(A), was even more illusory. He didn’t even know he

was to be sentenced under §51(A) until after his appeal was

ruled upon. He has no hearing before the Court of Criminal

Appeals and absolutely no warning that the court would

sentence him under the discretionary standards of §51(A)

until it was a fait accompli.

Under any fair reading of the facts in this case, the State of

Oklahoma has practically conceded error on this point.

9

C. The Court of Criminal Appeals Violated Due

Process When It Sentenced Petitioner to 40

Years Imprisonment Under a Statute that

Allowed Wide Sentencing Discretion But Pro-

vided No Meaningful Standards to Guide That

Discretion.

The State of Oklahoma advances no new arguments in this

section of its Brief, so no reply is necessary.

D. The Court of Criminal Appeals Violated Due

Process When It Failed to Offer Any Rationale

or Basis For the Sentence That It Imposed

Against Petitioner.

Once again the State of Oklahoma does not really take

issue with the constitutional standard that a discretionary

sentence must be supported by an adequate rationale

explaining the particular sentence imposed (Br. of Resp. at

30). However, the State argues that the Court of Criminal

Appeals advanced an adequate rationale in its Opinion and

in the record before it.

We start with the record itself. There was no presentence

report and no evidence in the record of the petitioner’s

background or any mitigating circumstances. There is

nothing in the record explaining or shedding any light on the

prior felony convictions beyond the mere recitation of the

statutory sections violated. The appellate court never even

laid eyes on petitioner before it exercised its sentencing

discretion against him. At no time did petitioner or his court-

appointed counsel ever have a hearing or opportunity to

argue for leniency under §51(A). The record is totally

inadequate to enable any sentencing authority to exercise its

10

discretion in any balanced and informed manner.

We turn next to the Opinion itself of the Court of Criminal

Appeals. Here the only rationale advanced by the Court of

Criminal Appeals is that 40 years is “within the range of

punishment authorized by the provisions of 21 O.S. Supp.

1977, §51(A)” (A. 58). But this authorized range is from 10

years to life! This tells us nothing of the basis upon which the

discretion was exercised to give Hicks 40 years rather than

10 years or life. In a great many cases, this Court has found

an abuse of discretion in sentencing even though the sentence

was within the range permitted by the statute. (See cases

cited at pp. 57-58 of Petitioner’s Brief.)

It seems elemental that before the exercise of discretion

can be tested for abuse, the bases for the exercise of such

discretion must be set forth by the discretion-exercising body

so that it can be reviewed on appeal. This much is required

when parole is revoked, Morrissey v. Brewer, 408 U.S. 471,

489; when probation is revoked, Gagnon v. Scarpelli, 411

U.S. 778, 786; when good time credits are revoked, Wolff v.

McDonnell, 418 U.S. 539, 563; or when welfare benefits are

revoked, Goldberg v. Kelly, 397 U.S. 254, 271. Can the

imposition of a 40-year sentence require any less?

E. The Court of Criminal Appeals Violated Due

Process When It Affirmed and Resentenced

Petitioner Under a Different Statute Than the

One Relied Upon At Trial.

The State of Oklahoma has omitted entirely this section

from its Brief and it offers no response to the arguments

advanced. Therefore, no reply is needed.

Il.

IT WAS CRUEL AND UNUSUAL PUNISH-

MENT IN VIOLATION OF THE EIGHTH

AMENDMENT TO SENTENCE PETI-

TIONER TO 40 YEARS IMPRISONMENT

UNDER 21 O.S. Supp. 1977, §51(A).

A. Punishment Under 21 O.S. Supp. 1977,

§51(A) Is Cruel and Unusual Because It

Makes No Measurable Contribution to Ac-

ceptable Goals of Punishment, But Rather

Constitutes Only the Needless Imposition of

Pain and Suffering.

The State of Oklahoma misses the point of this argument

that the Eighth Amendment requires proportionality: some

reasonable relationship between the penalty and the offense.

Section 51(A) requires no such relationship and there is not

any guidance to the sentencing authority suggesting or

requiring such a nexus.

The strongest defense that the State can muster for

§51(A) under the Eighth Amendment is the following,

In summation, the only acceptable formula which can

be promulgated in comparing punishment with the

Seriousness of the offense, must remain flexible; and

although the jury may arguably be saddled with un-

bridled discretion, it cannot be said that in the majority

of cases the decision of the jury to impose a sentence

within the limits of the statute has been contra to the

rudimentary demands of justice and fair play.

(Emphasis added.) (Br. of Resp. at 36)

We have come to a sad point in history if it is constitu-

tionally sufficient to say that at least a majority of the

12

sentences meet the rudimentary demands of justice and fair

play. This standard will! be of little comfort to the minority

who may suffer unfair or excessive sentences based on

hidden notions of passion, prejudice, or Capriciousness

because of inadequate legislative guidance and controls

requiring proportional sentencing.

The State at page 33 of its Brief asserts that petitioner’s

argument would allow an offender to commit two murders

before the sentence of death could be imposed for a third

murder. Not at all. If the Legislature were to decide that a

single offense of murder warranted the death penalty, it

would do so under current law. At least it would have

established a specific relationship between the offense and

the punishment. It would not take repeated murders in such a

situation to invoke the death penalty. The problem, however,

with §51(A) is that there is no legislative effort to relate the

punishment to the offense.

B. Petitioner’s Sentence Is Cruel and Unusual

Because It was Inflicted in an Arbitrary and

Capricious Manner.

The only new argument raised by the State here is the

reference to the Oklahoma harmless error statute, 20 O.S.

§ 3001. First, of course, is the fact admitted by the State that

this statute was not even in force at the time the Oklahoma

Court of Criminal Appeals switched statutes on petitioner.

More fundamental, it strains credibility to argue that the loss

of jury sentencing, the loss of a bona fide and meaningful

hearing on sentencing, the loss of a chance to present

mitigating evidence, being sentenced under a statute without

any proportionality or effective standards, and the loss of a

———

13

chance to obtain a minimum 5 or 10 year sentence rather

than a 40-year sentence are mere harmless errors.

Il.

PETITIONER WAS DENIED EQUAL PRO-

TECTION OF THE LAW WHEN HE WAS

CLASSIFIED UNDER AN ADMITTEDLY

UNCONSTITUTIONAL STATUTE AND

THEN, BASED UPON THAT CLASSIFICA-

TION, HE WAS _ DISCRIMINATED

AGAINST BY BEING DENIED STATE

AND FEDERALLY GUARANTEED

RIGHTS.

The State of Oklahoma throughout its argument slips into

the mistaken assumption that the classification of which

petitioner complains is the classification between habitual

offender and first time offenders. So that there is no mistake,

petitioner would again state this is not the classification of

which he is complaining.

The classification which forms the basis of the equal

protection argument is the classification between alleged

habitual criminals who were initially prosecuted under the

unconstitutional statute §51(B) (and later resentenced

under §51(A)) and those alleged habitual criminals who

were initially prosecuted under §51(A). On the basis of this

admittedly unconstitutional classification, petitioner was

deprived of the many fundamental rights pertaining to

sentencing procedures discussed in Petitioner’s Brief.

Finally, it is worth noting that the State acknowledges that

if it were required to resentence those defendants like

petitioner who were initially erroneously sentenced under

14

§51(B), “the fiscal burden which might be incurred. . .

would be minimal.” Thus, under the balancing test of

Mathews v. Eldridge, 424 U.S. 319, the interests advanced

by petitioner for a new sentencing procedure should prevail.

CONCLUSION

Petitioner’s sentence should be reversed and this matter

should be remanded to the Oklahoma Court of Criminal

Appeals for a new sentencing procedure that complies with

due process, equal protection and the Eighth Amendment.

Respectfully submitted,

/s/ David M. Ebel

DAVID M. EBEL

2600 Colorado National

Building

950 Seventeenth Street

Denver, Colorado 80202

Telephone: (303) 892-9400

Court-appointed Counsel

for Petitioner

Of Counsel:

RICHARD A. SONNTAG

2600 Colorado National

Building

950 Seventeenth Street

Denver, Colorado 80202