Petition for Writ of Certiorari — William Thomas Cartwright v. Oklahoma

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.) ORIGINAL

: 89-5934

if -” ORIGIN iy

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

WILLIAM THOMAS CARTWRIGHT

Pet'tioner,

THE STATE OF OKLAHOMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE OKLAHOMA COURT OF CRIMINAL APPEALS

MANDY WELCH*

Deputy Appellate Public Defender

MARK BARRETT

Assistant Appellate Public Defender

1660 Cross Center Drive

Norman, Oklahoma 73019

(405) 325-3331

ATTORNEYS FOR PETITIONER

Counsel of Record* |

October, 1989

QUESTIONS PRESENTED

Whether a retroactive application of a new resentencing statute violates the ex post

facto clause when the new law changes the maximum punishment from life to

death?

Whether a judicial change in the construction of capital resentencing laws can

abolish an antecedent right to a life sentence without violating due process.

Whether due process and equal protection of the laws permit a court to

retroactively apply an increase in possible punishment on resentencing from life to

death in petitioner's case when it has not so applied the increase in other similarly

Situated cases.

TABLE OF CONTENTS

| PPPPTET LIT ETE TET i

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FURRIBIOCTOONAL STATEGENT 2c ccc c ccc rccccerccccccssscees 1

CONSTITUTIONAL PROVISIONS INVOLVED ...... 2.0... 666 cece eeee 2

Pe Eo ce erbecesb see esoncsecescccccescesens gece 2

DUARTE COW COU CAM 2 ww ccc cece ccccrceeccesccccesessceeee 2

i TR GED orc cw sci vcreccocccserascscccevaseece' 2

REASONS FOR GRANTING CERTIORARI ..... 2... 5.55666 eee 7

A. This case raises important and unsettled constitutional questions about

retroactive application of onerous changes in punishment standards. . 7

B. The decision below conflicts with this Court’s decisions. .......... 8

Cc. Confusion exists regarding the difference between changes in "mere

modes of procedure" and changes affecting substantial personal

TS vc wcrc deccecdceeseecescecctenenevetecseeceves 12

D. A judicial change in the construction of a statute which abolishes an

antecedent right to an automatic life sentence on resentencing raises

substantial constitutional questions about fundamental fairness and

GU I GET, cc cece cece cee wee neeevesvovessnovess 19

E. Subjecting Mr. Cartwright to a possible death sentence under the

Court of Criminal Appeals decision in his case raises equal protection

GT, nc ccc ccc e cc eccenescepeeeccsesveceseseeses 23

a COP P TT UPC ET TURE UT ECE TTT ITICLiree Clie 25

CASES CITED

Adamson v. Ricketts,

POE concccveéscdrvucvtoanweehebesestéuseeee 21

Beazell v. Ohio,

ccc cn vteek ri ceandansancesseseccedeeseveuenn 9, 12, 16

Bouie v. City of Columbia,

EB 6C Cis bonnes sees os6essecegesoeeeeessetcenneenes 15

Boutwell v. State,

SE ED 5 cd ee ccccwcicesevekicceureséoesisecceden 4,5

Breest v. Helgemoe,

OE SE a6 oe 56.66.6060 C CORE NMOS SEES TEOO SE CUS K COS « 21

Brennan v. State,

Se ET ES GAA BREED 6 cnc coosece 6eseeeeeeteeedbenseneseentes 6

Brogie v. State,

ee SG SED ws o 0 00 060 0000600060605,.506605000060 60008 6

Bromley v. State,

ee Fe Gk PED hoc ccc cccee heb nda unsunseeesseh0eeu sends 6

Burrows v. State,

Se ee ee es GE SUED 0 oso 0% 0006000 eer Kee be ce eee Es Chea dee ee 4

Cartwright v. Maynard,

822 F.2d 1477 (10th Cir. 1988)

affirmed Maynard v. Cartwright,

Pe SED oo 6S RoC E econ encccenesctucweneRiudewen6eseeeus 4, 5

Cartwright v. Oklahoma,

Se Ee He ED 0 0-66 45 coco kb 5 66SC ac REK CNA wE OO ERNE es ebeeeee 3

Cartwright v. State,

See ee PD Gs WEED ov cee even erkenaseecéenteeeeeteseuerers 3

Cartwright v. State,

FOP UES 6 e666 och ee ecb ceetenieccetestbevasscrnkéseerweeean 1, 6

Chaney v. Brown,

Gee ee Se CUED 6 veh ce vec cetccnececdccenedseseeeceesees 3,4

Coleman v. McCormick,

Ge ey GS GUE fb ka's oc eikc e+ 000006680505000 000505 4Rn ERS 21

Coleman v. Saffe, .

er Cee See Ge Gs END owe ceticieed 6 0600e8 5450 0eeEReeeRes 15, 17

Devine v. New Mexico Dept. of Corrections,

SP Pe SU UN GE PD ob cdc cnceececéccconeenbeunkhabeaseas 17, 21

Dobbert v. Florida,

Re re ree ee ee re et 9, 12, 18, 19

Driskell v. State,

Gam Cae wee Gees GR: GRD oc ccccccsccuccccedvuvsccesssceecepeneesn 4

Dutton v. Dixon,

Oe ee SP EE Ge GED oo bv cnet ieenCeceeecaneeduneas 4-6, 9, 13, 19, 20

Eddings v. State,

Ga ee ee EE ND oon nn 8 86.466666 6660008 RSE RUReEE eEeeenee 4

Evans v. Commonwealth,

ee FF re ee me 19

Evans v. Thompson,

Ge Cue See - Geum Gat TD oe cccccecccéivceccsntsnken sabes eaneeuseeen 18

ill

Green v. State,

713 P.2d 1032 (Okla. Cr. 1985),

cert. denied, 479 U.S. 871, 107 S.Ct. 241 (1985)

Hicks v. Oklahoma,

447 US, 343 (1980) ...... Pek ae

Johnson v State

665 P.2d 815 (Okla. Cr. 1982) ....

Jones » State.

660 P.2d 634 (Okla. Cr. 1983) |.

Lindsey v. Washington.

301 US. 397 (1937) .........

Maynard v. Cartwright.

486 U.S. 356, 108 S.Ci. 1853 (1988)

Miller v. Florida,

482 US. 423 (1987) .........

Munn v. State.

658 P.2d 482 (Okla. Cr. 1983) .........

283 S.B. 2d 212 (Va. 1981) ..........

Rubino + Lynaugh

845 F.2d 1266 (Sth Cir. 1988)... ..

765 F.2d 944 (10th Cir, 1985)

Lnited States » Fernandez. Toledo

749 F.2d 703 (11th Cir. 1985)...

» w

.. &10, 12, 16,

. nw,

14, 15, 17, 21,

Warren v. United States Parole Commission.

6S9 F.2d 183, 187 (D.C. Cir. 1981) ........... sca ices titadistadagiatadiadac ntettte ey

Wilson v. State,

Youngblood + Lynaugh.

I, CIID «0:0: 0:00:0:0:005:0 000000 000ReSSSbEESEESeS 1, 4

iii)

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

The petitioner, William Thomas Cartwright, respectfully prays that a writ of

certioran issue to review the judgment and opimon of the Oklahoma Court of Cnmuinal

Appeals entered on July 31, 1989.

The opimon of the Oklahoma Court of Criminal Appeals retroactively applying an

amendment to the capital sentencing statutes to petinoner’s case and remanding the case

to the Distnct Court of Muskogee County, Oklahoma, for a resentencing hearing is

reported at 778 P.2d 479 (Okla. Cr. 1989). A copy of the opinion is reproduced in the

append at la.

petitioner's case to the tnal court for a resentencing proceeding at which he can be

resentenced to death based on a retroactive apphcation of an amendment to Oklahoma's

capital sentencing statutes. Cartwright v. State, 778 Pd at 843. Appendix at 4a. On

September 19, 1989, Justice White extended the ume for petinoning for a writ of

certioran to and including October 27, 1989.

The jurisdiction of this Court to review the judgment of the Oklahoma Court of

Criminal Appeals is invoked under 28 U.S.C. §1257(a)

Arucle 1, Section 10, of the United States Constitution provides:

No state shall .. pass any .. ex post facto Law.

The Exghth Amendment to the United States Constitunon provides:

Excessive bail shall not be required, nor excessive fines imposed, nor crue!

The Fourteenth Amendment to the United States Constitution provides:

due process of law ...

STATUTES INVOLVED

Section 701.13(E) of Title 21, Oklahoma Statutes (1981) provides in pertinent parts:

&. [T}he court, with regard to review of death sentences, shall be authorized to:

1. Affirm the sentence of death, or

of the sentence to imprisonment for life.

Section 701.1 E) of Tithe 21, Oklahoma Statutes (as amended in 1985) provides in

pertinent parts:

E. [T]he court, with regard to rewew of death sentence, shall be authonzed to:

1. Affirm the sentence of death, or

by the trial court.

A. Statement of Facts

Under the 1976 Oklahoma death penalty statutes, a person immally sentenced to

death tor first degree murder whose death sentence was determined to be invalid because

of error im the sentencing proceeding was automatically entitled to be resentenced to life

nent and could not be resutyected to a possible death sentence. Okla. Stat. tit.

.2) (West 1981) (when death sentence is invalid the court must “remand

tor modification to life impnsonment). See Appendix at 2ha listing of cases in which death

sentences were modified to life under the 1976 version of § 701.13(E)(2). This provision

lumiting resentencing to life impmsonment was applicable regardless of whether the death

sentence was invalidated by a state or federal court. See Chaney v. Brown, 699 P.2d 159

(Okla. Cr. 1985).'

Mr. Cartwnght was tned and convicted of murder in the first degree and sentenced

in September, 1982. The offense for which he was convicted occurred in Apni, 1982.

Judgment and sentence of death was entered on October 25, 1982.

On direct appeal to the Court of Criminal Appeals, petiuoner challenged the

constitubonality of his death sentence on the hasis of a vague and overbroad construction

and application of Oklahoma's “especially heinous, atrocious, or crue!” aggravating

circumstance. The Oklahoma Court of Crmnai Appeals affirmed the conmiction and

sentence on January 7, 1985, reyectng Mr Cartwnght's constitunonal chailenge to the

“especially hemous” aggravating circumstance. Cartwright v. State, 695 P_2d 549 (Okla. Cr.

1985). A petition for a writ of certiorari was denied on July 1, 1985. Cartwright v.

Oklahoma, 473 U.S. 911 (1985) At all times from the time of the offense through tal

and direct appeal, a defendant whose death sentence was invalid because of error dunng

the sentencing proceeding was entitled to a life sentence. Under Oklahoma law as

interpreted by Oklahoma Court of Criminal Appeals, if the Court of Cnminal Appeals had

invahdated Mr Cartwnght’s death sentence on direct appeal, he could aot have becn

subyected to another death sentence, and he would have received a life sentence. During

‘Judge Parks, specially concurring in Chaney, stated:

| write separately only to emphasize that it is our State statute, not the

appellant. As Judge Brett has expiaimed in the course of his opimon, 2] OS.

198}, § 701.13(E) allows this Court one remedy only if error has tainted the

vahdity of the sentencing stage of tnal, and that is to modify the sentence to

699 Pld at 162.

the same penod of time, (1982-1985), the Oklahoma court modified exght death sentences

to life imprisonment on the basis of the 1976 version of Section 701.13(E)\(2).’

As of July 16, 1985, Section 701.13(E)(2) was amended to provide for reimposition

of the death sentence. Okla. Stat. ut. 21, § 701.13(E\(2) (Supp. 1988). Shortly thereafter

in Green v. State, 713 P.2d 1032, 1041 (Okla. Cr. 1985), cert. denied, 479 U.S. 871, 107

S.C. 241 (1985), the Oklahoma Court of Criminal Appeals held that retroactive

non of the new resentencing provision would deprive the appellant of a substantial

might to which he was entitled under the law applicable at the time of his offense -— the

rght to a life sentence — and thus would violate the ex post facto clause of Artcie |,

‘ton 10 of the United States Constitution. See also Dutton v. Dixon, 757 P.2d 376, 378

(Okla. Cr. 1988) (quoting Green at 1041 n. 4.) Under Green and the court's later

decrsion in Dutton v. Dixon, the statutory immation on the punishment that could be

imposed on resentencing remained im effect with respect to offenses occurring before July

court's decision in this case which is the subject of this

penton for a wrt of cernoran. Appendix at la.

tor a writ of habeas corpus in the United States District Court for the Easter? District of

Oklahoma. On appeal, the Tenth Circuit Court of Appeals affirmed his conviction, but

on rehearmg em banc, it inwaldated his death sentence. Cartwright v. Maynard, 822 F 2

1477 (10th Cir. 1988) affirmed Maynard v. Cartwright, 486 S.Ct. 356 (1988). The court's

decision that Mr. Cartwrght’s death sentence was “invalid under the Eighth and

Fourteenth Amendments of the United States Constitunon” was based on its determination

* See Johnson v. State, 665 P_2d 815 (Okla. Cr. 1982) (on rehearing); Burnues v.

State, 640 Pld 535 (Okla. Cr. 1982); Bouwtwell v. State, 659 Pld 322 (Okla. Cr. 1983);

Glidwell v. State, 663 P_2d 738 (Okla. Cr. 1983); Driskell v. State, 699 Pld 343 (Okla. Cr.

1983), Jones v. State, 660 Pld 634 (Okla. Cr. 1983); Munn v. State, 658 Pld 482 (Otla.

Cr. 1983); Eddings v. State, 688 P2d 342 (Okla. Cr. 1983) (on rehearing); and Chaney ¥.

Brown, 699 Pld 159 (Okla. Cr. 1985).

. > In Green, the death sentence of a co-defendant (Parker) was modified to life

because one of the aggravating circumstances rehed on by the jury was not supported by

the evidence. 713 Pld at 1043.

that Oklahoma's “especially heinous” circumstance as applied in his case was

unconstitunonalty vague 822 F 2d at 1492 In the State’s bnet on reheanng. respondent

specifically acknowledged that, under Oklahoma law, if the “especially heinous”

curcumstance was determined to be constitubonally invald, Mr Cartwnght couk! be

resentenced only to life umpnsonment

While Mr. Cartwright's case was pending in this Court on a writ of certioram to the

Tenth Circuit, Maynard v. Cartwright, 486 U.S 356 (1988) (affirming 10th Circuit

decision), the Oklahoma Corr of Crmuinal Appeals again considered the retroactivity of

the 1985 resentencing statute. Dutton v. Dixon, 7S7 P.2d 376 (Okla Cr 1988). In Dutton,

the petinoner's death sentence had been invaldated by the Tenth Circuit, and the state

was whether Dutton could be resentenced to death under the 1985S resentencing provision

or was entitled to a life sentence under the pre- 1985S resentencing statute The Oklahoma

court held that the I985 resentencing provision was not retroactive as a matter of

Oklahoma law and thus could not be apphed to offenses which were committed pror to

its adoption. 8d. at 381. In so holding, the court expressly relied on Section 3 of Title 22

which prowdes: "[njo part of this code is retroactive unless expressty so declared ~ 757

P.2d at 381. Dutton also specifically reaffirmed the Oklahoma Court's prewious holding in

* In its brief on rehearing the state advised the court:

Under Oklahoma jaw, if one or more aggravating circumstances is found

to be invalid by the Cour of Crminal Appeals, the sentence & to be

modified to life. Johasen (Kenneth Ray) v. State, 665 Pld 815, 826 (Okla

Crim. App. 1983); Boutwell v. State, 659 Pld 322, 329 (Okla. Crum. App.

1983). While the legssiature amended the law in 1985 to allow resentencing

in such a case, see Okla. Stat. Ann. tit. 2] § 701.13 (West Supp. 1987), the

Court of Criminal Appeals has held that this statute is not to be apphed

retroactively, and therefore, « would not apply to the present case Green v.

State, 713 Pld 1052, 1041, 2.4 (Okla. Crim. App. 1985).

Supplemental Bref of Appzilees-Respondents at 12 Cartwright » Maynard. on rehearing

en banc). When the Tenth Circuit vacated Mr. Cartwrnght’s death sentence: expressiy

declined to address the constitutionality of @ retroactive application of the 1985

resentencing statute. S22 F.2d at 1492 n&

S Buttes held that "this code” as used in Section 3 of Tithe 22 applies to Title 2!

(penal code) and Title 22 (code of crummal procedure) and thus apphes to the [98S

resentencing statute

Green that the pre-1985 statute bestowed “a substantial right" upon capital defendants

whose initial death sentences were invalid. It held that retroactive application of a

legislative enactment abolishing that nght violated ex post facto prohibitions of the United

States and Oklahoma Constitutions.*. Thus, under Dutton and all preceding decisions of

the Oklahoma Court of Criminal Appeals, when a conviction for a capital murder

committed pnor to July 16, 1985, was affirmed and the death sentence invalidated, that

defendant had a right to a life sentence and could not be resentenced to death. See

Dutton, and Green. Bromley v. State, 757 P.2d 382 (Okla. Cr. 1988); Wilson v. State, 756

P.2d 1240 (Okla. Cr. 1988); and Brennan v. State, 766 P.2d 1385 (Okla. Cr. 1988).

After the entry of a final judgment of the United States District Court of the

Eastern District of Oklahoma invalidating his death sentence, (Appendix at 24a), Mr.

Cartwright petitioned the Court of Criminal Appeals for an order requiring that his invalid

death sentence he modified to life imprisonment. Mr. Cartwright relied on Oklahoma law

as it existed at that time. Instead of ordering modification, the Court of Criminal Appeals

created an exception to the previously articulated principle of nonretroactivity, applied

that exception to the 1985 resentencing statute, reversed the ex post facto ruling in Dutton,

and held that Mr. Cartwright could be resentenced under the 1985 resentencing statute.

The Oklahoma Court thereby abolished Mr. Cartwright’s right to a life sentence that

existed under the law in effect both at the time his crime was committed and when his

death sentence was later invalidated. Cartwright v. State, 778 P.2d 479 (Okl. Cr. 1989);

Append |-4a. With respect to the ex pest facto holding in Dutton, the Oklahoma court

declared that the resentencing statute was "procedural", Dutton and prior decisions to the

contrary notwithstanding. 778 P.2d at 482.

Challenging the court's decision as a denial of due process and equal protection of

the laws, and a violation of ex post facto prohibitions, Mr. Cartwright petitioned the court

* The court characterized the 1985 resentencing provision as "a law which ‘inflicts

4 greater punishment than the law annexed to the crime at [the] time it was committed

or alters [the] situation of [an) accused to his disadvantage.’... While the 19° resentencing

amendment may appear to take ‘a seemingly procedural form’ Weaver v. Graham ... in its

practical operation it deprives the petitioner of a substantial right and, under Miller ... it

is therefore ex post facto”. Dutton, 757 P.2d at 381.

to reconsider its decision and to limit his resentencing to life imprisonment under the pre-

1985 resentencing statute. Appendix at Sa. On September 5, 1989, the court denied the

petition. Appendix at 23a.

REASONS FOR GRANTING CERTIORARI

A. This case raises important and unsettled constitutional questions about retroactive

application of onerous changes in punishment standards.

This case raises important constitutional questions about a retroactive application

of a substantial and detrimental change in the standard of punishment that can be

imposed on a particular category of defendants. It raises a straight forward ex post facto

question regarding a retroactive application of an increase in the maximum sentence

available for a specific class of persons convicted of first degree murder.’ The case

presents due process questions about the potential for arbitrary and vindictive actions if

a court is permitted to retroactively apply a change in its construction of state law and

deprive an individual of an existing right to an automatic life sentence and expose him to

a death sentence. It raises due process questions about the application of a standard of

punishment in petitioner’s case that is substantially more onerous than the standard of

punishment permitted under the law in effect when the state court erroneously affirmed

his death sentence on direct appeal and when the federal court later invalidated his death

sentence. Petitioner's case is the first and only case in which the Oklahoma court has

held that a 1985 resentencing statute can be applied to a case in which the offense

occurred prior to July 16, 1985 (the effective date of the act). Under the holding in this

case, all defendants whose death sentences are invalidated in the future by a state or

federal court, regardless of date of the offense or the stage of the proceeding (direct

appeal, state post-conviction, or federal habeas), and all defendants whose death sentences

have been invalidated but who have not yet been resentenced wil! be subjected to a new

” Persons whose original death sentence was invalidated because of error during

the sentencing proceeding and whose offenses occurred before July 16, 1989, are no long

entitled to the benefit of the law in effect at the time of their offense which provided for

an automatic life sentence, but now may be resentenced to death under a retroactive

application of a new resentencing law.

sentencing trial in which death may be imposed. Under the law that existed before this

decision, any such individual whose offense occurred before July 16, 1985, had a right to

a sentence of life imprisonment and could not be sentenced to death. This category

potentially includes the thirty - one individuals whose death sentences were affirmed by the

state court when “redetermination of the sentence on the conviction" was limited to

imposition of a life sentence and who are now challenging the validity of their death

sentences in state or federal collateral proceedings.

B. The decision below conflicts with this Court’s decisions.

In Kring v. Missouri, 107 U.S. 221 (1883) this Court considered the constitutionality

of a retroactive application of a state constitutional provision which was adopted after the

commission of the homicide for which Kring was indicted. Kring was indicted for first

degree murder and tried four times before a jury. During the next to last trial, he entered

a plea of guilty to second degree murder and was sentenced to twenty-five years in the

penitentiary. Kring appealed on the grounds that the plea was entered with the

understanding that his sentence would not exceed ten years in prison. The judgment was

reversed. On remand to the trial court for further proceedings, Kring refused to withdraw

his plea to second degree murder. The trial court set the plea aside and directed the

entry of a plea of not guilty to first degree murder. On this plea Kring was tried,

convicted, and sentenced to death. At the time of Kring’s alleged offense, Missouri law

treated a conviction and sentence on second degree murder as an acquittal of first degree

murder even if the second degree murder conviction was subsequently set aside. This law

was changed by a constitutional amendment that became effective after the date of Kring’s

offense. Kring challenged the application of the constitutional amendment to his case as

an ex post facto law. The Missouri court upheld the first degree murder conviction and

death sentence on the basis of its conclusion that the change was "a change not in crimes,

but in criminal procedure, and such changes are not ex post facto." Kring v. Missouri,

107 U.S. 221, 224 (1883),

———

Commenting on the state court’s decision, this Court stated:

Whatever may be the essential nature of the change, it is one which, to the

defendant, involves the difference between life and death, and the retroactive

character of the change cannot be denied.

Ibid. In response to the Missouri court’s treatment of the "radical change in the law of

Missouri to (Kring’s] disadvantage" as a change in procedure, the Court addressed the

meaning and significance of the term "procedure" in relation to the ex post facto

prohibition. Asking itself the question: "...can any substantial right which the law gave the

defendant at the time to which his guilt relates be taken away from him by ex post facto

legislation, because, in the use of a modern phrase, it is called a law of procedure?", the

Court answered: “We think it cannot.” Kring, at 232. In conclusion, the court held that

“any law passed after the commission of an offense which ... ‘in relation to that offense,

or its consequences, alters the situation of a party to his disadvantage,’ is an ex post facto

law; and ... ‘[nJo one can be criminally punished in this country, except according to a law

prescribed for his government by the sovereign authority before the imputed offence was

committed, and which existed as a law at the time.” Id. at 235.

Later decisions of the Court excluded from the ex post facto prohibitions changes

"in the mode of trial or the rules of evidence, which do not deprive the accused oi a

defense and which operate only in a limited and unsubstantial manner to his disadvantage.”

Beazell v. Ohio, 269 U.S. 167, 170 (1925). The same cases, however, reaffirmed the Kring

principle that laws which deprive an accused of a "substantial right which the law gave him

when the offense was committed" cannot avoid the proscription of the ex post facto clause

by their characterization as "modes of procedure.”

As the Court of Criminal Appeals acknowledged in Dutton v. Dixon, the "new law’

in this case, when applied to Mr. Cartwright, clearly removes an absolute bar to

8 See Hopt v. Utah, 110 U.S. 574 (1884) (removal of restrictions on the

competency of convicted felons as witnesses did not increase punishment or affect other

substantial rights); Beazell v. Ohio, 269 U.S. 167, 170 (1925) (law that made the right to

separate trials discretionary with the judge did not abolish a defense that existed under the

old law; it did not change the "definition of the offense or the punishment to be meted

out", or otherwise affect substantial personal rights) and Dobbert v. Florida, 432 U.S. 282

(1977) (change in capital sentencing statute affected only the manner of procedure and as

a whole was not disadvantageous to the defendant).

reimposition of the death sentence which existed at the time of the commission of his

offense. Under the old law, Mr. Cartwright would now be sentenced to life, as are

Dutton and all other individuals whose crimes were committed before July 16, 1985 and

whose original death sentences were invalidated because of error in the capital sentencing

proceeding. See Appendix at 26a. Under the new law, Mr. Cartwright can be sentenced

to death, and under the old law he could not. Subjecting Mr. Cartwright to a possible

death sentence when he would otherwise be entitled to a life sentence is certainly as

onerous or detrimental as was the elimination of the bar to a possible death sentence that

existed at the time of Kring’s offense. In both cases the new law substantially increased

the quantum of punishment which could be imposed on retrial under the old law (life

imprisonment) to the possibility of a death sentence under the new law.

In Lindsey v. Washington, 301 U.S. 397 (1937), the Court considered retroactive

application of a law which required the court to fix punishment at the maximum term and

provided for possible earlier release through parole. The repealed law authorized

imposition of a sentence within the maximum and minimum. The Washington Court

rejected an ex post facto challenge declaring that "(t]he amending act does not change or

inflict a greater punishment -han the law in force when the alleged crime was committed

The Court rejected this analysis, stating:

This Court, in applying the ex post facto prohibition of the Federal

Constitution to state laws, accepts the meaning ascribed to them by the

highest court of the state. But when their meaning is thus established,

whether the standards of punishment set up before and after the commission

of an offense differ, and whether the later standard is more onerous than the

earlier within the meaning of the constitutional prohibition , are federal

questions which this Court will determine for itself." Cummings v. Missouri,

4 Wall. 277, 320, 18 L.Ed. 356 ... Kring v. Missouri ... To answer them we

compare practical operation of the two statutes as applied to petitioner’s

offense. [Emphasis supplied].

301 U.S. at 400. The Court concluded that when the standard of punishment imposed by

the new law is more onerous or more severe than that of the old law and is "plainly to the

substantial disadvantage" of the defendant, the new law is ex post facto if applied to

persons whose offenses occurred before the adoption of the new law. Id. at 401-402. The

fact that the petitioners in Lindsey were deprived of the possibility of a less severe

punishment than was available under the old, law imposed a standard that clearly operated

to their detriment. In Mr. Cartwright’s case, the new law depriving him of the mandatory

life sentence to which he was entitled under the old law and increasing to death the

punishment to which he could be subjected after his original death sentence was vacated

is clearly more onerous than the old law and operates to his substantial detriment.

More recently, this Court held that changes in good time and gain time credits and

changes in sentencing guidelines, when applied to cases in which the offense occurred prior

to the changes, violated the ex post facto clause. Weaver v. Graham, 450 U.S. 24 (1981);

Miller v. Florida, 482 U.S. 423 (1987). Weaver and Miller stressed the fact that the

critical concerns of the ex post facto clause are “lack of fair notice and government

restraint when the legislature increases punishment beyond what was prescribed when the

crime was consummated.” Weaver, 450 U.S. at 30 (emphasis added). See Miller, 107 S.Ct.

at 2451. Also, both cases agreed that a statute which “alters penal provisions accorded

by the grace of the legislature ... violates the [ex post facto] Clause if it is both

retrospective and more onerous than the law in effect on the date of the offense." 450

US. at 30. See 107 S.Ct. at 2451.

In Weaver, the challenged good time law "lengthen{ed] the period that someone in

[Weaver's] position must spend in prison." 450 U.S. at 34. As applied to Weaver's case,

the law was retroactive and more onerous than the law in effect at the time of his offense.

Thus retroactive application was prohibited by the ex post facto clause.’ In Miller, the

new sentencing guidelines increased the presumptive range within which the sentencing

judge had unreviewable discretion to fix a sentence for the offenses for which Miller was

convicted. The new guidelines were clearly more onerous in that they foreclosed Miller's

ability to challenge a sentence within the new presumptive range. Since the revised

sentencing law increased the quantum of punishment applicable to Miller's offense and

% The Court noted that "no ex post facto violation occurs if the change effected

is merely procedural and does ‘not increase the punishment nor change the ingredients of

the offense or the ultimate facts necessary to establish guilt. [Citations omitted] Alteration

of a substantial right, however, is not merely procedural, even if the statute ro ay

seemingly procedural form." 450 U.S. at 29, n. 12 (emphasis supplied). See also ’

107 S.Ct. at 2453 (quoting from Weaver).

directly and adversely affected the sentence Milier could receive, it was “void as applied

to [individuals] whose crimes occurred before the law's effective date." 107 S.Ct. at 2454.

The critical question in all of these cases was whether punitive measures under the

new law, when applied to the petitioners’ cases, were more onerous than the punitive

measures that would have been applied under the old law. Because the answer to that

question in each case was yes, the new laws clearly affected rights regarding punishment

and thus could not be considered "mere modes of procedure” which do not affect

substantial rights and which are not covered by the ex post facto prohibitions.

S. Confusion exists regarding the difference between changes in “mere modes of

procedure” and changes affecting substantial personal rights.

The significance of the term "procedural" was discussed at length in Kring, at 231.

The Court commented that "the term ‘procedure’ is so broad in its signification that it is

seldom employed in our books as a term of art." Ibid. Based on the common

understanding of the word at that time, the Court concluded that "it [was] obvious that a

law which is one of procedure may be obnoxious as an ex post facto law..." Id. at 232. In

those cases in which the Court has upheld retroactive application of changes in the laws

as affecting "mere modes of procedure," it has consistently reaffirmed the principle that the

ex post facto clause “was intended to secure substantial personal rights against arbitrary

and oppressive legislation", Dobbert, 432 U.S. at 293, and that a seemingly procedural

change violates the Clause if it “alters a substantial right." Miller, 107 S.Ct. at 2453;

Weaver, 450 U.S. at 29, n 12. Thus, recognizing that the "distinction between substance

and procedure ... sometimes prove[s] elusive," Miller, 107 S.Ct. at 2453, the Court has

steadfastly maintained the Kring position that laws which alter punishment or otherwise

affect substantial personal rights to the detriment of the criminal defendant are within the

parameters of the ex post facto clause “even if the [law] takes a seemingly procedural

form.” Ibid (quoting Weaver, 450 U.S. at 29, n. 12).

‘© See also Beazell v. Ohio, 269 U.S. 167, 171 (1925) ("Just what alterations of

procedure will be held to be of sufficient moment to transgress the constitutional

prohibition cannot be embraced within a formula or stated in a general proposition.")

In attempting to apply the “elusive” distinction between procedural and substantive,

lower courts have taken vanous approaches and sometimes have arrived at inconsistent

results. In the first case in which the affect of Oklahoma's 1985 resentencing statute was

considered, Green v. State, (decided October 9, 1985) the Oklahoma Court of Criminal

Appeals acknowledged that “a procedural change which does not injunousty affect a

substantial right to which an accused is entitled at the time of the offense is not ex post

facto though retroactive, but it 1s otherwmse if t does depnve him of a substantal ght”

713 P.2d at 1041, n.4. The court concluded that the 1985 resentencing provision abolished

“a substantial nght — the nght of modification to life impnsonment for an appellant who

suffered error in the second stage of tnal — and requires him to face the death penalty for

a second time.” Green, 713 P.2d at 1041, n.4. Thus, when a individual's death sentence

16, 1985, a death sentence could got be imposed and a life sentence was mandatory. This

holding and its underlying analysis were reaffirmed in Dutton

the Fifth Circuit's recent ex post facto analysis in Youngblood v. Lynaugh, 882 F 2d 956

(Sth Cir. 1989). The change in Texas law considered in Youngblead, permits refc

of a sentencing verdict that includes a punishment not authorized by law. Under the law

in effect at the time of Youngblood’s offense, such a verdict was considered “vor! at its

inception” and the offender was entitled to a new inal. id. at O57. The ex post facto test

as posed by the Fifth circuit was “whether Youngblood’s nght to retnal, to which he was

entitied before the passage of art. 37.10(>), was a ‘substantial protection’ within the

meaning of the Supreme Court's ex post facto jurisprudence.” Id. at 959. Reviewing this

a statute punishes a previously mnocent act, or makes more burdensome the standard of

proof, or eliminates a defense that was available at the time the act was commutted cannot

"The old statute § 701.13(E)(2) required that if error occurred during the capital

and to have the case remanded “for modification of the sentence to impnsonment for

life.” See Dutton v. Dixon, 757 P.2d at 377.

be dispositive of the inquiry whether such a statute violates the Ex Post Pecto clause.

Instead, once it is determined that the change operates retroactively, the “sahent issue [is]

whether the law operated to disadvantage the accused in the exercise of a substantial nght

OF protection that he previously enjoyed, not whether the circumstances of its application

conform to a paradigmatic or illustrative category of harms.” Id. at 959-960. Under this

analysis the court held that the change in Texas law “altered [Youngbioods’} nght to retnal

~ @ substantive right — to his material disadvantage. As applied to Youngblood, therefore,

art 37.100) is ex post facto.” Tbid. In a concurring opinion in Youngbleed, Judge Edith

H_ Jones observed that “the distinction between ‘mere modes of procedure’ and substantial

or vital procedural protections is a wobbly one under current Supreme Court

ence Id. at 91. She concluded that without further guidance, there were no

affected the defendant's nghts as to wolate the ex post facto

clause.” Id. at 961. See alse id. at 960 (Gee, concurring) (the Supreme Court's "modes

dures” authority “constitutes more of a bnght spectrum than a bright line.”

In another Fifth Circut decision, an ex post facto/due process analysis was apphed

——— polishing a judicialh } doctrine (carving doctrine) that could

murder after a prosecution and commcnon

| transacnon. Rubine v. Lynaugh, 845 F 2d

1266 (Sth Cir. 1988). In Rubino the Fifth Circuit’s analysis focused on the purpose of

the “ban on ex pest facto legislative or judicial action”, id. at 1273, and on the effect of the

abandonment of the “carving doctrine” on a person who would otherwise have been

entitied to its benefit. Id. at 1274 The court swept aside the state's argument that

Rubino had “fair warning” of the nature of the crimes and their punishment and focused

on the goal of restraiming arbitrary and vindictwe action by the government:

Courts and prosecutors may justifiably seek to punish criminals to the full

extent of the law, but when they take advantage of changes in the law that

put the defendant in a worse positon than he was at the time of his crime,

Id. at 1273. See also id. at 1280 (King, concurring) (emphasizing principle of governmental

restraint and Rubino’s reliance interest in the law as it existed at the time of his offense)."

With regard to the affect of the change, the Rubime court observed that although

the change “did not the lengthen the sentence applicable to any cnme . '\t] authonzed

multiple convictions and sentences in cases in which only one conviction and sentence

woukd have been possible before.” Id. at 1274. Thus persons in the same circumstance

as Rubino were subjected to an increase in punishment from that punishment which could

have been imposed under the old law. Ibid. The Fifth Circuit concluded that "[i}f the

deprived him of due process in affirming his conviction im rehance on the abandonment

of a protective rule in force at the time of his offense.” Ibid. In a concurring opimon,

Judge King astutely observed that the clear intention of the change was to increase to the

punishment that could be imposed on persons in Rubio's «1

was available under prior law. Id. at 1290.

In Coleman v. Saffe, 869 F.2d 1377 (10th Cir. 1989), the Tenth Circuit Court of

Appeals considered the constitunonality of the retroactive apphcation ot a judicial

enlargement of Section 701.13(F), an Oklahoma statute governing appellate review of a

death sentence. Although the ex post facto clause applies to legrsiatrve actions, the court

concluded that “an unforeseeable judicial enlargement of a cnminal statute, apphed

tively, operates precisely like an ex post facto law.” Id. at 1385 (quoting Bowie v.

City of Columbia, 378 U.S. 347 (1964). Thus, the court applied “ex post facto principles

to decide the due process issue.” The change in Coleman, as viewed by the Tenth Circuit,

has found an invalid aggravating circumstance.” 869 F.2d at 1386. While acknowledging

‘2 Judge King also concluded that loss of the carving doctrine as a “potential

of the ex post facto/due process doctrine. He charactenzed Miller v. Florida as ‘clearly

establish{ing] that a demal of an otherwise established nght to appellate review constitutes

a ‘substantial disadvantage’ within reach of the ex post facto doctrine,” 845 F 2d at 1279.

and he compared that action to depriving Rubino of the nght to challenge the tnal court's

that the change disadvantaged the offender, the Tenth Circuit concluded that the change

was only a matter of procedure” and thus was not covered by the ex post facto

promibinons As viewed by the Tenth Circus, the challenged change concerned the

manner in which the Oklahoma Court of Crminal Appeals determined the vahdity of a

Jeath sentence on direct appeal. After the Oklahoma court determines that a sentencing

error invaldated the death sentence, another statutory provision, § 701.13(E)(2), controls

provision (which is the subject of this petinon) was amendment in 1985, the only

punishment which could be imposed on resentencing was life. Engaging in a limited

analysis of the change in the Oklahoma court’s manner of appellate review, the Tenth

Circuit primarily relied on its opinion in United States v. Affect, 765 F.2d 944, 948 (10th

Cir 1985) AfMect concluded that under this Court's recent ex post facto cases a change

in law that “senously disadvantages’ a defendant 1s not prohibited by the Ex Post Facto

Clause if it affects only matters of procedure and does not “impose| | a pumshment for an

act which was not punishable at the time it was committed; or impose{ | additional

mt to that then prescribed. or change| | the rules of evidence by which less or

(quoting Cummings v. Missouri, 7] U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 856 (1867)).” 869

F.2d at 1386.° The Court discounted the fact that Weaver presented “the ex post facto

test in terms of ... “di

ntage| |” to the offender Also it did not address the language

in Weaver and Miller which appears to reaffirm the Kring principle that changes affecting

ent), cannot avoid ex post facto prohibitions even when the

"The language “seriously disadvantages” conflicts with the language in Beazell v.

Ohio that describes those changes which are excluded as changes “in the mode of the tral

or the rules of ewdence, which do not deprive the accused of a defense and which operate

only » « limited and unsubstential manner to bis disadvantage” 269 US. at 170

(emphasis supphed ).

“ Ch licks v. Oklahoma, 447 U.S. 343 (1980) (right to have jury rather than

appellate court fix punishment is a substantial right that “substantially affects the

punishment imposed”, that cannot be deprived by characterizing it as a matter of state

procedural law )

change takes a seerungty procecers! form. The Coleman pane! concluded that the

challenged judicial action “effected only a procedural change in the way the Oklahoma

Court of Cruminai Appeals carnes out its statutonby-required renew of death sentences’.

869 F.2d at 1387, and thus could be retroactively applied to cases in which the offense

occurred pror to the change.

In Devine v. New Mexico Dept. of Corrections, 866 F.2d 339 (10th Cir. 1989), the

Tenth Circuit heid that the New Memco Supreme Court's construction and apphcation of

state parole statutes was unforeseeable and retroactively enhanced Devine's offense in

miolanon of due process The challenged action consisted of a judicial decision that

Devine’s parole eligibility was governed by a legisiatwe amendment that established a

codified and by all appearances was immediately repealed by another statutory provision

that established a mimmum parole eligibility term of ten years. In determining whether

the ex post facto principles apphed to judicial action, the court considered the twofold

Purpose behind a prohibimon on ex past facto laws “to restrain legislatures and courts

trom arbitrary and vindictwe action and to prevent prosecuton and punishment without

fair warning.” 866 F.2d at 344 (quoting Rubino, 845 F.2d at 1271). The court commented

that in its view, "it is potentially as arbitrary and vindictive to retroactively enhance

punishment for particular conduct, as it is to make particular conduct criminal.” = ft

conchuded that “the underpinnings of the ex post facto clause compe! applying it full force

to courts when they enhance punishment...” 966 F.2d at 346-345.

The Tenth Circut concluded that if the legrsiature had increased the minimum

sentence without parole after Devine's offense it would have violated the ex pest facto

clause because it would have increased the ume Devine would spend in jail before

hecoming ehgible for supervised release © The court considered the Rubino decision to

The court noted that the circuits have differed in their treatment of retroactive

of circuits take the position that where “guidelines merely channel the discretion of the

parole authority they do not constitute ex post facto laws because they do not directly

disadvantage particular defendants.” 866 F.2d at 343, n. 7.

be “parncularly instructwe” It noted that while the Texas court's abandonment of the

carving doctrine “did not make conduct criminal which was previously permitted _ [it]

enhanced the degree of punishment to which certain offenders would be exposed for

actions that wolated multiple statutes.” Id. at 344 Because the New Memco court's decision

was unforeseeable and had the effect of retroactively increasing the minimum parole

process.

On August 2, 1989, the Fourth Circuit rejected an ex post facto challenge to a

retroactive apphcation of an amendment to Virgima’s capital sentencing statute. Evans v.

Thompson, 88) F.2d 117 (4th Cir. 1989). Prior to the amendment, a person could only

be sentenced to death im Virgima by the same jury that determined guilt. The new statute

permitted resentencing before a new jury According to the court's analysis of pnor law

and the resentencing amendment, “the change .. was merely an ‘adjustment } in the

method of administering [petinoner's] pumshment that [was] collateral to the penalty

itself.” 881 F.2d at 120 (quoting Evans v. Commonwealth, 323 S.E.2d 114, 119 (Va. 1984).

that the amendment “neither increased the punishment attached to petinoner’s crime, nor

altered the ingredients of the offense, nor changed the ultimate facts necessary to establish

petitioner's guilt.” Ibid. Thus, the court held that the change did not violate the ex post

facto clause It equated the change im resentencing proceedings with circumstances in

Dobbert and dismissed petitioner's rehance on Kring based upon an interpretation of the

Kring opimon as “simply prowd|ing] that if at the time of the offense, a defendant 1s on

notice he can never be subyect to a death sentence, imposition of a death sentence violates

the Ex Post Facto Clause." Id. at 120. The court did not discuss the effect the change

had on possible punishment at resentencing.

Oklahoma law and the decision im Mr. Cartwnght’s case differ from Evans. The

Court of Criminal Appeals has consistently construed the pre-I985 version of §

701. 13(E\(2) as bestowing upon a particular group of capital defendants the right to a life

won’ cl all , ill Se al lel) iat

sentence and as creating a bar to the possibility of being resentenced to death see Green

Chaney, Dutton. In Evans, Virgunin’s death penalty statutes apparently were pot construed

as directly requirmg imposinon of life after a death sentence was set aside Instead, the

Virgma court held that the “statutory framework custing at the ume inhibited # remand

for a new tnal limited to the penalty issue only” because. under the Virgyma capita! murder

statutes, the same jury that decided guilt must also fix punishment. Evens +.

Commonwealth, 323 S.Ed. 2d 114, 117 (Va. 1989). Considering this difficulty, the court

had, in the past, “commuted” an invalid death sentence to life imprisonment Ibid ong

Patterson v. Commonwealth, 283 SE. 2d 212 (Va 198!).

This case likewise differs from Dobbert. Mr. Cartwrgh! does not assert a mght so

a life sentence because of the invalidity of 4 pre-cuisting capital sentencing statute

Instead, his claim to a life sentence is based upon a specific statutory provision, Okla

Stat. tit. 21, § 701.13(E)(2) (1981) that provides for a life sentence and that precludes «

remposition of the death sentence. Neither does he merely complain that the new

sentence (death) he is exposed to under the new resentencing law is more onerous than

D. A judicial change in the construction of a statute which abolishes an antecedent

right to an automatic life sentence on resentencing raises substantial constitutional!

questions about fundamental fairness and due process of law

There can be no question that under Oklahoma law as i was then construed

to an automanc life sentence was not abndged) unt! the Oklahoma Cour of Cmmuina:

Appeals rendered its decison in this case The decision im this case not only reversed the

court's previous ex past facto position regarding @ retroactive application of the 19RS

resentencing statute, it also abandoned its rehance on a state statutory provision that

controls retroactivity of criminal statutes, Okla Stat. ut. 22, § 3} (1981), and « departed

from a long line of Oklahoma decisions which were consistent with the clear language of

the statute.”

The decision in this case was clearly not a mere correction of obvious errors in a

previous decision, and it ceftainly was not dictated by any of the court's prior decisions.

In fact, the drastic departure from its prior construction of Oklahoma law more rese

legislative action than it does traditional judicial functions. The court did not decide that

its previous interpretation of § 3 was erroneous or that the statutory provision does not

apply to the resentencing provisior __ cither did the court conclude that it had erroneously

construed previous Oklahoma de ns dealing with retroactive application of statutes.

Instead the Oklahoma court de 1 to “adopt the statutory [sic] exception to the general

rule of nonretroactivity, enunci: the Utah Supreme Court ... which allows procedural

remedial statutes to apply top 4 actions.” 778 P.2d at 482. The court continues by

explaining that “a case is pe’ g from the time of its commencement until its final

determination upon appeal.” C .¢ would assume the court was referring to the completion

of the direct appeal, but apparently that was not the case considering the fact that Mr.

Cartwright’s direct appeal was completed before the adoption of the new resentencing law.

Discussing the effect of the change, the court ignored the fact that the old law

mandated a life sentence and that the new law permits a death sentence. The court

stated: “the amendment may or may not affect the outcome when petitioner is resentenced,

depending upon the sentencer’s determination after properly weighing the mitigating and

aggravating circumstances.” 778 P.2d at 483.

This decision raises questions of fundamental fairness that parallel the concerns

underlying the ex post facto prohibitions. "From the outset ... the ex post facto clauses have

been understood to have been principally aimed at curtailing legislative abuses." Warren

‘© Ip Dutton, both the statute and the cases were relied on for the principle that

a legislative enactment will not be considered retroactive unless the legislature expressly

so provides. The statutory provision, § 3, is codified in Title 22, Code of Criminal

Procedure, and was construed by the Oklahoma court as applying to the laws contained

in Titles 21 and 22

v. United States Parole Commission, 659 F.2d 183, 187 (D.C. Cir. 1981). See also Rubino,

845 F.2d at 1273 and 1280; and Devine, 866 F.2d at 343-344.

Considering the purpose of the ex post facto clause and its application to an

extension of a statute of limitations, Justice Learned commented:

The question turns upon how much violence is done to our instinctive

feelings of justice and fair play. For the state to assure a man that he has

become safe from its pursuit, and thereafter to withdraw its assurance, seems

to most of us unfair and dishonest.

Falter v. United States, 23 F.2d 420, 425-426 (2d Cir. 1928) cert. denied 277 U.S. 590

(1978). In James v. United States, 366 U.S. 213, 247 n. 3 (1961), Justice Harlan observed:

[T]he policy of the prohibition against ex post facto legislation would seem

to rest on the apprehension that the legislature, in imposing penalties on past

conduct, ... (as for instance when the penalty is increased retroactively on an

existing crime), may be acting with a purpose not to prevent dangerous

conduct generally but to impose by legislation a penalty against specific

persons or classes of persons.

The concerns thus expressed about the dangers of abuse and the need for restraint on

legislative actions apply with equal force to judicial action which is restrained by

application of the due process clause. See North Carolina v. Pearce, 395 U.S. 711, 725

(1969) ("Due process of law ... requires that vindictiveness against a defendant for having

successfully attached his first conviction must play no part in the sentence he receives after

a new trial). See also Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989) (retroactive

application of new sentencing provision violated due process because of reasonable and

detrimental reliance on old law) Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1989)

(addressing possibility of vindictive increase in punishment).

Numerous ex post facto decisions have alluded to.the concerns of due process and

have suggested circumstances which should be considered in derbtiaining when government

action (legislative or judicial) exceeds permissible bounds.” Discussing the role of the ex

post facto and due process clauses in restraining legislatures and courts "from arbitrary and

vindictive actions", the Fifth Circuit observed that when courts and prosecutors "take

‘7 In Breest v. Helgemoe, 579 F.2d 95 (1st Cir. 1978) the First Circuit suggested

that unforeseeable changes in parole eligibility standards that occur after a substantial lapse

of time and which frustrate a prisoner's reasonable expectation for release far beyond that

originally set "might be fundamentally unfair, and thus violative of due process.” Id. at 101.

advantage of changes in the law that put the defendant in a worse position than he was

at the time of his crime, we may suspect and disallow vindictiveness." Rubino, 845 F.2d

at 1273. Also, courts have acknowledged that the potential! for vindictive use of retroactive

lawmaking increases when because of the retroactive aspects of the changes, the persons

adversely affected are clearly identified before the change. See Warren v. United State:

Parole Commission, 659 F.2d 183, 195 (D.C. Cir. 1981) (with respect to statute depriving

prisoners of good time, lawmakers know which current prisoners will be so deprived,

thereby creating risk of legislative abuse).”

The authors of the ex post facto clause recognized that the potential for vindictive

and punitive action is inherent in certain government powers, e.g. the power to adopt

retroactive laws establishing more onerous standards of punishment for a specific category

of offenders. “Since judicial inquiry into the motives of the legislature is difficult and

unseemly,” it was reasonable and wise for the framers to ban such legislation. Warren at

189. Such inquiries into the motives behind judicial actions are even more “difficult and

unseemly" and thus the potential for arbitrary and vindictive action on the part of the

judicial branch calls for protections just as great.”

This Court should grant certiorari to provide guidance to the lower courts in

determining the parameters of due process restrictions on judicial decisions that affect

antecedent rights of criminal defendants to apply changes.

‘8 In Warren, the court held that the changes did not violate the ex post facto

clause. The category of prisoners to which Warren belonged was not disadvantaged by the

new guideline system and under the circumstances of the case, "no one in Warren's

position could have been unfairly singled out for vindictive or malicious condemnation."

659 F.2d at 194.

'? Decisions that address the retroactivity of statutes not controlled by the ex post

facto clause also provide guidelines for due process purposes. See United States v.

Fernandez-Toledo, 749 F.2d 703 (11th Cir. 1985) ("It would be manifestly unjust to apply

the new substantive law to the appellees because they were entitled to be released and

their release was ordered ... before the new law became effective... Their rights to bail had

already vested.” Id. at 705.

E. Subjecting Mr. Cartwright to a possible death sentence under the Court of

Criminal Appeals decision in his case raises equal protection questions.

Mr. Cartwright and an identifiable group of capital defendants have been singled

out by the Oklahoma court’s decision for special and more onerous treatment upon

vacation of an invalid death sentence than other capital defendants similarly situated.

There is no rational basis for distinguishing Mr. Cartwright’s case and the other cases

pending in federal court in which unconstitutional death sentences may be vacated from

those cases in which the Oklahoma court has applied the pre-1985 resentencing statute

after invalidation of a death sentence and required modification to life. To draw a line at

the date on which Mr. Cartwright’s case was decided (July 31, 1989) so that all persons

whose death sentences were vacated before that date (except Mr. Cartwright) receive the

benefit of the old law where as all persons whose death sentences are vacated after July

31, 1989 (including Mr. Cartwright) are subjected to a possible death sentence is arbitrary

and bear no rational relation to any legitimate state purpose. The law which is being

retroactively applied was passed in July of 1985 and numerous persons whose cases were

decided after that date have received the benefit of the old law because of the Oklahoma

court decision that the 1985 statute was not retroactive. Persons whose death sentences

have been vacated by the federal courts before July 31, 1989 (except Mr. Cartwright)

received the benefit of the old law and were sentenced to life. There is no rational basis

for distinguishing Mr. Cartwright’s case from theirs. Cf. Baxstrom v. Herold, 383 U.S. 107

(1966).

The equal protection clause was intended to ensure that similarly situated persons

received similar treatment and to prevent disfavored classes frm being singled out for

worse or less beneficial treatment. Cf. Griffith v. Kentucky, 107 S.Ct. 708, 712-14 (1987).

The facts before this court call out for a standard of equality which can counteract the

potential for abusive and vindictive treatment directed toward a particular group or

individual.

CONCLUSION

For all the above and foregoing reasons, Petitioner submits that the Court should

grant a writ of certiorari to address the important constitutional issues raised by the

retroactive application of a change in the resentencing law in this case.

By:

Respectfully submitted,

MANDY WELCH

Deputy Appellate Public Defender

MARK BARRETT

Assistant Appellate Public Defender

Deputy Appelig@fe Public Defender

1660 Cross Center Drive

Norman, Oklahoma 73019

(405) 325-3331

Counsel for Petitioner

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

WILLIAM THOMAS CARTWRIGHT,

Petitioner,

STATE OF OKLAHOMA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA

APPENDIX

INDEX FOR APPENDIX

Cartwright v. State, 778 P.2d 479 (Okla. Cr. 1989)

SD I 6 06a 8646 00648eenseeenen

Petition to Amend or Vacate Judgment

Order Denying Petition

Cartwright v. Maynard, 822 F.2d 1477,

affirmed Maynard v. Cartwright, 486 U.S. 356 (1988)

Judgment - United States District Court for the

Eastern District of Oklahoma, August 4, 1988 .......

List of Oklahoma Death Sentence Modified to Life Under

1976 Version of § 701.13(E)(2)

23a

24a

26a

Sa aa

—————

CARTWRIGHT V. STATE,

778 P.2a 479 (Okl.cr. 1989)

CARTWRIGHT, ‘Petitioner,

ad ra

_ STATE of Oklahoma, Respondent, .

Court of Ovid Apeals of Oklahoma.

Sas gi, 1989, ae"

Postconviction defendant, whose death

sentence was invalidated in federa! habeas

proceeding, filed application for writ of ha-

beas corpus and modification of invalid

death sentence to life imprisonment The

Court of Criminal Appeals, Bussey, J., held

that: (1) defendant could be resentenced

without violating due process or ex post

facto principles, and (2) amended statute,

which allows Court of Criminal] Appeals to

set aside death sentence when error found

during sentencing stage of trial and re

mand case for resentencing by trial! court,

is procedural statute with no substantive

effect on crime, and thus, provision of code

amended sentencing statute on remand.

Remanded for resentencing.

Lumpkin, J., filed specially concurring

opinion.

Parks, PJ., filed dissenting opinion.

1. Constitutional Law ¢199

Criminal Law ©°1206.1(2)

Amended statute allowing Court of

Criminal Appeals to set aside death sen-

Art. 1, § 10, el. 1; 21 O.S.Supp.1985,

§ 701.18, subd. E, par. 2.

2. Constitutional Law 199

Ex post facto clause does not prevent

State from depriving criminal defendant of

expectation to procedure that has not yet

accrued to his benefit U.S.C.A. Const

Art. 1, § 10, cd. 1.

3. Constitutional Lew ¢°199

Criminal Law ©°1206.1(2)

Crimina] defendant, whose death sen-

tence had been vacated as invalid by the

federal habeas court, could be resentenced,

without Violating -due process or ex post

facto principles, under amended statute

which allows Court of Criminal Appeals to

set aside death sentence when error is

found during sentencing stage of trial and

remand for resentencing by trial court

U.S.C.A. Const. Art 1, § 10, cl. 1; Const

Amend. 14; 21 O.S.Supp.1985, § 701.13,

subd. E, par. 2.

4. Criminal Law €1206.3(2)

Amended statute, which allows Court

of Criminal Appeals to set aside death sen-

tence when error is found during sentenc-

ing stage of trial and remand case for

resentencing by trial court, is procedura!

statute with no substantive effect on crime,

and thus, provision of code of crirnina) pro-

cedure stating that no part of code is retro

active unless expressly so declared did not

prohibit application of amended sentencing

statute on remand; overruling Dutton v.

Dizon 157 P.2d $76. 21 OS.Supp.1985,

§ 701.13, subd. E, par. 2; 22 0.S. 1981, § 3.

Mandy Welch, Deputy Appellate Public

Defender, Norman, for petitioner.

Robert H. Henry, Atty. Gen., Susan

Stewart Dickerson; Asst. Atty. Gen., Okla-

homa City, for respondent.

OPINION

BUSSEY, Judge:

On October 4, 1988, petitioner filed an

application for a writ of Habeas Corpus

and Modification of Invalid Death Sentence

to Life Imprisonment in Muskogee County

District Court Case No. CRF-82-192. On

November 16, 1988, oral argument on the

matter was held before this Court

‘PROCEDURAL BACKGROUND

Petitioner was tried by jury and convict-

a pete 200 7:98 tte Gate +1985), cert

denied, 474 U.S. 1073, 106 S.Ct 837, 88

L.Ed.2d 808 (1986). His petition for a writ

of habeas corpus in the United States Dis-

edhe Sate

CARTWRIGHT v. STATE Ok. 481

Ciuc as 778 P24 479 (OKLCr. 1999)

trict Court for the Eastern District of Okls-

homa was denied. The Tenth Circuit Court

of Appeals affirmed the denial of habeas

corpus relief in Cartwright v. Maynard,

802 F.2d 1208 (10th Cir.1986). Following

rehearing en banc, however, petitioner's

death sentence was vacated by the Tenth

Circuit’s holding that Oklahoma's aggre-

vating circumstance that a murder was es-

pecially heinous, atrocious, or crue] was

being applied in an unconstitutionally

vague and overbroad manner. Cartwright

v. Maynard, 822 F.2d 1477 (10th Cir.1987).

The Tenth Circuit directed the district court

“wo enter judgment that the writ of habeas

corpus is denied but as law and justice

require, the death sentence of petitioner is

invalid under the Eighth and Fourteenth

Amendments to the United States Constitu-

tion.” The Tenth Circuit further stated

that the judgment was without prejudice to

further proceedings by the State for rede

termination of the sentence on the convic-

tion. Jd at 1492. Finally, the Tenth Cir-

cuit expressed “no opinion concerning the

constitutionality of a retroactive application

of Oklahoma's (resentencing) procedure.”

Id. at 1492 n. 8. The State of Oklahoma

appealed to the United States Supreme

Court which delivered a unanimous opinion

upholding the opinion of the Tenth Circuit.

Maynard v. Cartwright, 486 US. 356, 108

S.Ct. 1853, 100 LEd2d 372 (1988). The

Supreme Court also declared that its judg-

ment was without prejudice to further pro-

ceedings in the state courts for redetermi-

nation of the appropriate sentence. /d at

486 US. ——, 108 S.Ct at 1860, 100

L.Ed.2d at 383.

tl.

In Stouffer v. State, 742 P.2d 562, 563-

64 (Okl.Cr.1987) (Opinion on Rehearing),

this Court reconsidered 21 0.S.1981,

§ 701.13(F), and held that it had the author-

ity to independently reweigh aggravating

and mitigating circumstances when, on ap-

pellate review, an aggravating circum-

stance found by the jury was determined to

be invalid We stated that such a review

was implicit in this Court's obligation to

make a factua! substantiation of the verdict

and determination of the validity of the

sentence. Jd Prior to Stouffer, this Court

had, when finding an error during the sen-

tencing stage of trial, automatically mod-

ified the sentence to life imprisonment.

In Castro v. State, 149 P.2d 1146, 1150

(Okl.Cr.1987) (Opinion on Rehearing), this

Court discussed the ex post facto aspects

of Stouffer. We stated that the

set forth in Stouffer did not deprive (defen-

dants) of a defense which was previously

available, or change the lega! definition of

the offense, or the punishment to be meted

out, or affect the criminal quality of the act

charged, or change the questions which

may be considered by the jury in establish-

ing guilt or innocence. Castro, at 1151.

Finally, quoting Dobberi v. Florida, 432

U.S. 282, 293-94, 97 S.Ct 2290, 2298, 53

L.Ed.2d 344 (1977), this Court asserted that

procedural changes in a statutory capita!

sentencing scheme which simply alter the

methods employed in determining whether

the death penalty was to be imposed is not

ez post facto even though it may work to

the disadvantage of 2 defendant Jd at

1150.

In Dutton v. Dizon, 757 P.2d 376, 381

(Okl.Cr.1988), a majority of this Court held

that 21 O.SSupp.1985, § 701.13(E\2),

which allows this Court to set aside a death

sentence when error is found during the

sentencing stage of tria]) and remand the

case for resentencing by the trial court,

cannot be applied retroactively. The prior

statute automatically modified the sentence

to life imprisonment if error was found in

the sentencing stage. See 21 O.S.1981,

§ 701.13(EX2). The Dutton court stated

that “the retroactive application of the 1985

resentencing amendment of Section 701.-

13(EX2) ... would constitute a violation of

the Federal and Oklahoma Constitutions as

an ex post facto application of a law which

inflicts a greater punishment than the law

annexed to the crime at [the] time it was

cormmitted or alters [the] situation of [an)

accused to his disadvantage.” Jd at 381.

The majority concluded, “[wJhile the 1985

resentencing amendment may appear to

take a seemingly procedura] form, in its

practical! operation it deprives the petitioner

ly like an ex post facto law. Jd. at 1385.

The Court stressed that the relevant in-

quiry in ex post jocto analysis is whether

the change impairs “substantia) persona!

rights,” or merely changes “modes of pro

cedure which do not effect matters of sub

stance.”

In Coleman, the Court stated that an

offender does. not win an ez post facto

argument by proving disadvantage alone.

See also Dobdbert v. Florida, 432 U.S. 282,

293, 97 S.Ct. 2290, 2298, 53 LEd2d 344

(1977). The Court declared that the true

focus of ex post facto unalysis is on (1) the

elements of the offense, (2) the conditions

68, 68-69, 70 LEA. 216 rte

0) We find that the enantio statute

allowing for resentencing does not violate

hibited by the ez post facto prohibition.

[2,3] We also find the argument in

prisonment, but the ex post facto clause

does not prevent the State from depriving a

criminal defendant of an expectation as to

a procedure that has not yet accrued to his

benefit. See State v. Norton, 675 P.2d 577

(Utah 1983). We hold that petitioner can

be resentenced under the amended statute

without violating due process or the ex post

Sacto prohibition of either the Oklahoma or

Federa) Constitutions. |

IV. :

[4] With regard to statutory construc

tion and retroactivity, 22 0.S.1981, § 3 pro-

vides: “No part of this code is retroactive

unless expressly so declared.” In Dutton,

the majority held that since the amendment

contained no express language indicating

its retroactive effect, it can only apply pro

spectively. Dutton, at 881. However, we

find that we should adopt the statutory

exception to the genera) rule of nonretroac-

tivity, enunciated by :the Utah.: Supreme

Court in Sjate » Norton,.eupra, which

determination upon * appeal. Norton, at

585:. As we have already determined, the

resentencing amendment is procedural, as

it has no substantive effect on petitioners

crime. The amendment may or may not

affect the outcome when petitioner is re

mitigating and aggravating circumstances.

Accordingly, 22 08.1981, § 8 does not pro-

hibit application of the amended sentencing

statute on remand. To the extent Dutton

v. Dizon, 757 P.2d $76 (Oki.Cr.1988) is in-

consistent with this opinion, it is hereby

expressly overruled.

Finally, we are aware that 21 0.S.1981,

§ 701.10 appears to require that capital

defendants be sentenced by the same jury

that convicted them. However, statutes

are to be construed so as to effectuate

their purpose. Owens v. State, 665 P.2d

832, 834 (Okl.Cr.1983). Moreover, the more

recent enactment, Section 701.13(EX2) con-

trols over Section 701.10. ‘See Delfrate v.

State, 7832 P.2d 900, 902 (Okl.Cr.1987).

Thus, we find that Section 701.13(E)(2) au-

thorizes this Court to remand a capita! case

for resentencing before a new jury or be-

—_ the trial judge, whichever is applica-

le.

We therefore hold that Case No. CRF-

82-192 must be REMANDED to Muskogee

County District Court for RESENTENC-

ING pursuant to 21 0O.S.Supp.1985,

§ 701.18(E\(2). .

' LANE, V.PJ., and BRETT, J.

concur.

LUMPKIN, J., specially concurs.

PARKS, PJ., dissents.

LUMPKIN, Judge, specially

concurring.

I concur with the Court's opinion on this

case and write to further address the appli-

cation of 22 O.S.1981, 33. Title 22 OS.

1981, § 1, -provides: “This chapter shall be

known as the code of criminal procedure of

the State of Oklahoma.” Title 22 0.S.1981,

§ 3 applies to the code of criminal proce

dure: Title 21 O.S.1981, § 1, provides:

“This chapter shall be known as the pena!

j Okl. 483

code of the State of Oklahoma.” The pro

visions of Title 21, Oklahoma Statutes,

PARKS, Presiding Judge, dissenting.

I dissent for the reasons stated in my

applied retroactively. Dutton, 757 P.2d at

381.

FILED

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF ORSARQMNM wrtus

WILLIAM THOMAS CARTWRIGHT,

Petitioner,

STATE OF OKLAHOMA,

Respondents.

AUG 21 1999

JAMES W. PATTERSON

——rerr-

Case No. H-88-820

PETITION TO AMEND JUDGMENT BY REQUIRING MODIFICATION

OF SENTENCE TO LIFE IMPRISONMENT UNDER 21 O.S. 1981 §

701.13(E)(2), OR IN THE ALTERNATIVE, MOTION TO VACATE THAT

PORTION OF THE COURTS JUDGMENT WHICH SUBJECTS

PETITIONER TO A POSSIBLE DEATH SENTENCE AND TO SCHEDULE

CASE FOR ORAL ARGUMENT ON THE RETROACTIVE APPLICATION

OF THE 1985 AMENDMENT TO § 701.13(E)(2) TO THIS CASE

On July 31, 1989, this court entered judgment in the above styled cause remanding

Case No. CRF-82-192 to the Muskogee County District Court for resentencing under 21

O.S. Supp. 1985, § 702.13(E)(2) (as amended effective July 16, 1985) thereby reversing

the court’s previous holdings in Green v. State, 713 P.2d 1032, 1038 (Okl.Cr. 1985) and

Dutton v. Dixon, 757 P.2d 376 (Okl.Cr. 1988) that the 1985 resentencing statute, §

702.13(E)(2), was not retroactive. For the reasons set forth below, Mr. Cartwright

respectfully requests that the court amend its judgment by requiring a modification of

sentence to life imprisonment in accordance with the provisions of 22 O.S. 1981 §

701.13(E)(2) (before the 1985 amendment). In the alternative, Mr. Cartwright requests

that the court vacate that portion of its judgment that permits the imposition of a death

sentence and schedule oral argument on the retroactive application of § 702.13(E)(2), as

amended in 1985, to Mr. Cartwright’s case.

REASONS THE COURT SHOULD RECONSIDER ITS

RETROACTIVE APPLICATION OF § 702.13(E)(2)

A. A retroactive application of § 702.13(E)(2) in Mr. Cartwright’s case without notice

that the court was reconsidering its previous holdings in Dutton v. Dixon, and Green

v. State and without giving the parties an opportunity to be heard on the matter

violates fundamental fairness guaranteed by Article 2, Section 7 of the Oklahoma

Constitution and the Fourteenth Amendment of the United States Constitution.

The court’s decision to remand Mr. Cartwright’s case for resentencing under the

amended version of § 701.13(E)(2) instead of requiring modification to life under the pre-

1985 version hinges on its decision to reverse its earlier holdings in Green and Dutton

and the judicial creation of an exception to 22 O.S. 1981, § 3. If either of these actions

was incorrect, Mr. Cartwright is being wrongfully deprived of his right to be resentenced

to life and is being wrongfully subjected to the possibility of a death sentence.

Furthermore, even when a court clearly has the authority to act, “it must nonetheless act

in accord with the dictates of the Constitution--and, in particular, in accord with the Due

Process Clause." Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 839 (1985). At a

minimum, the guarantee of due process requires that "persons forced to settle their claims

ot right and duty through the judicial process must be given a meaningful opportunity to

be heard." Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 786 (1971).

The Due Process Clause was designed to protect individuals against lawless and

arbitrary actions by the state. City of Edmond v. Wakefield, 537 P.2d 1211, 1213 (Okla.

1975). The most “fundamental requisite of due process is the opportunity to be heard .

. . at a meaningful time and in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254,

267, 90 S.Ct. 1011, 1020 (1970). A meaningful opportunity to be heard necessarily requires

that the an individual have notice of the issues being considered and the legal principles

being applied and an opportunity to address the application of those principles to his case

in an adversarial proceeding. "[DJeprivation of life, liberty or property by adjudication

[must be preceded] by notice and opportunity for hearing appropriate to the nature of the

case." Id., quoting from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70

S.Ct. 652, (1950).

When Mr. Cartwright filed this action to obtain a valid and proper sentence under

Oklahoma law, he was clearly entitled to a life sentence under the established laws of this

state. See Dutton. At no time in these proceedings did the State challenge the validity

of Dutton or ask the court to reverse its holding in Dutton. Neither did this court ever

suggest to the parties that it was in fact reconsidering its holding in Dutton or that it was

considering adopting an exception to the nonretroactivity provisions of 22 O.S. 1981 § 3.

Under these circumstances, Mr. Cartwright was deprived of "a substantial right" to a life

sentence, Green v. State,-713 P.2d at 104, n.4 and Dutton v. Dixon, 757 P.2d at 38),

without notice that the court was reconsidering established law and without an opportunity

to be heard on the matter. In short, Mr. Cartwright was deprived of his “substantial right

to @ life sentence” without due process of law. In the process, important arguments based

on constitutional and statutory provisions against retroactive application of the amended

resentencing provision were overlooked. Rendering a decision of such monumental

significance without the most thorough and thoughtful analysis possible gives the

appearance of arbitrariness and caprice, and in a death penalty case by itself’ calls into

question the validity of the court's decision.

"As [the United States Supreme Court] ha[s} often stated, there is a significant

consutuuional difference between the death penalty and lesser punishments:

‘[D]eath is a different kind of punishment from any other which may be

imposed in this country. . . . From the point of view of the defendant, it is

different in both its severity and its finality. From the point of view of

society, the action of the sovereign in taking the life of one of its citizens also

differs dramatically from any other legitimate state action. It is of vital

importance to the defendant and to the community that any decision to

impose the death sentence be, and appear to be, based on reason rather

than caprice or emotion.’ Gardner v. Florida, 430 U.S. 349, 357-358, 97

S.Ct. 1197, 1204 $1 LEd.2d 393 (1977)(opinion of Stevens, J.)."

Beck y. Alabama, 100 S.Ct. 2382, 2389-90 (1980).

The court's decision in this case turns on an analysis and construction of

constitutional principles, statutory provisions, and court decisions that were never addressed

by the parties. Such a review is equivalent to the ex parte preliminary appellate review

in Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816 (1963), which the Supreme

Court determined did not-“comport with fair procedure." In essence, the court has singled

out Mr. Cartwright for different treatment without giving him an opportunity to be heard

ghee

on the reasons he should receive the same treatment accorded defendants who were tried

and sentenced to death during the same period of time.

When an individual has been denied due process, he is entitled to be restored to

"the position he would have occupied had due process of law been accorded to him in the

first place." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191 (1965). This can

only be done by vacating that portion of the judgment that permits innate of another

death sentence and by permitting Mr. Cartwright to be heard on the retroactive application

of the 1985 resentencing amendment.

B. By reversing Green and Dutton and by a retroactive application of a judicially

created exception to the nonretroactivity statute, this court deprived Mr. Cartwright

of an accrued right to have his sentence modified to life imprisonment in violation

of due process of law and in violation of Sections 52 and 54 of Article 5 of the

Oklahoma Constitution.

At all stages of Mr. Cartwright’s case:

1. When he was tried - October, 1982;

2. When his case was decided on direct appeal - January 7, 1985;

3. When the Supreme Court denied certiorari - July 1, 1985;

4. When the Tenth Circuit invalidated his death sentence -June 22, 1987;

5. When the Supreme Court affirmed the Tenth Circuit’s decision - June 6,

1988;

6. When the United States District Court entered its final judgment invalidated

Mr. Cart’ tight’s death sentence - August 4, 1988;

7. When Mr. Cartwright petitioned this court for relief from his invalid death

sentence - October 4, 1988;

he had a right under the laws of this State and the decisions of this court to a life

sentence. Before July 16, 1985, when a death sentence was determined to be invalid, 21

O.S. 1981 § 701.13(E)(2) required that the case be "remand{ed] ...for modification of the

sentence to imprisonment for life." See Johnson v. State, 665 P.2d 815, 826-27 (Okl.Cr.

1983) (on rehearing); and Chaney v. Brown, 699 P.2d 159, 161 (Okl.Cr. 1985) (holding that

§ 701.13(E) “allow[ed] this Court one remedy only if error has tainted the validity of the

sentencing stage of trial, and that [was] to modify the sentence to life imprisonment"). On

October 9, 1985 (after the effective date of the 1985 amendment to § 702.13(E)(2)) this

court vacated the death sentence of Danny George Parker and remanded the case for

modification of the sentence to life imprisonment. Green v. State, 713 P.2d 1032, 1043

(Okl.Cr. 1985). In Green, with regard to Parker's case, this court held that if applied

retroactively, the 1985 amendment would deprive Parker of "a substantial right---the right

of modification to life imprisonment for an appellant who suffered error in the second

stage of trial---and require[ ] him to face the death penalty for a second time." 713 P.2d

at 1041 n. 4. The court applied the resentencing legislation in effect "at the time {Parker's}

appeal was filed", Id. at 1041, and remanded the case for modification to life. Id. at 1043.

This court did not address the retroactivity of the 1985 resentencing amendment again until

it decided Dutton v. Dixon on May 25, 1988.

In Dutton, this court again held that retroactive application of the 1985 amendment

would deprive an individual with an invalid death sentence of a substantial right in

10a

violation of the ex post fact clause, and, in addition, that the amended statute was not

retroactive under 22 O.S. 1981 § 3. 757 P.2d at 378-381.

Thus, when the 10th Circuit Court of Appeals invalidated Mr. Cartwright’s death

sentence on June 22, 1987, and when that decision was affirmed by tne Supreme Court on

June 6, 1988, the 1985 amendment was not applicable to his case. Under the ‘applicable

Statute, Mr. Cartwright’s case could only be remanded "for modification of the sentence

to imprisonment for life", 21 O.S. 1981 § 701.13(E)(2). He could not be resubjected to the

possibility of another death sentence. This was the stawus of Oklahoma law when

Cartwright filed this action seeking relief in this court from his invalid death sentence.

Regardless of the correctness of the court's decision with respect to ex post facto

prohibitions, when Mr. Cartwright’s death sentence was invalidated and when he petitioned

this court for modification of his sentence to life, the amended resentencing Statute was

not applicable to his case under the decisions of this court interpreting the laws of the

State of Oklahoma. Thus, as a matter if fact, when this court held on July 31, 1989, that

retroactive application of the resentencing statute would not violate ex post facto

prohibitions and when it adopted an exception to the statutory proscription on retroactivity,

it amended the amendment to the resentencing statute so as to make it applicable to Mr.

Cartwright’s case. The court’s decision changed in mid-stream Mr. Cartwright’s available

sentence from a mandatory life sentence to the possibility of a death sentence. Mr.

Cartwright was thereby deprived of a right which had clearly accrued before the judicial

amendment of the law - his death sentence was invalid and he was entitled to a life

Sey hanme,

lila

sentence. When this court changed the law he then became subject to another death

sentence. The fundamental unfairness of applying this judicial amendment of the

resentencing statute retroactively to Mr. Cartwright’s cdse violates due process of law and

the clear intent of Sections 52 and 54 of Article 5 of the Oklahoma Constitution.

1. Retroactive application of the court’s recently adopted exception to

nonretroactivity under 22 O.S. 1981 § 3 is fundamentally unfair and in

violation of due process of law.

The due process principles governing judicial decisions that retroactively affect

potential punishment -- whether the right is characterized as procedural or penal’ -- focus

on the same concerns that prompted ex post facto prohibitions -- the “protection of the

individual against arbitrary actions of the government." Wolf v. McDonnell, 418 U.S. 539,

558, 94 S.Ct. 2963, 2976 (1974). See Weaver v. Graham, 101 S.Ct. 960, 964 (1981) (the

ex post facto "ban ... restricts governmental power by restraining arbitrary and potentially

vindictive legislation.").?, When the potential punishment involved is death, due process and

the eighth amendment require that the State, whether acting through the legislature or the

courts, ensure that its decisions comport with "fundamental principles of procedural

' "The Constitution deals with substance, not shadows. Its inhibition was levelled at

the thing, not the name." “Weaver, 101 S.Ct. 960, 965, = 15 (1981). "It is the effect, not

the form, of the law that determines whether it [violates due process]]". Weaver, 101 S.Ct.

at 965.

? Weaver held that retroactive changes in parole standards that "disadvantaged [the

petitioner] by reducing the] opportunity to shorten his time in prison simply through good

conduct" violated the lex post facto clause. 101 S.Ct. at 967.

12a

fairness....[and are] and appear to be, based on reason rather than caprice or emotion."

Gardner v. Florida, 97 S.Ct. 1197, 1204 51 L.Ed.2d 393 (1977)(opinion of Stevens, J.).

Under the circumstances of this case, the court's decision to adopt a newly created

excr tion to the nonr-troactivity statute (22 O.S. 1981 § 3) and remand Mr. Cartwright's

case for reseritencuy .ith a potential for another death sentence runs head on into

constitutional concerns that militate against retrospective application of new laws. This is

a case in which the Tenth Circuit Court of Appeals and the Supreme Court held that this

court had violated the United States Constitution time and time again by approving a

vague and overly broad construction of the "especially heinous" aggravating circumstance.

Had this court correctly interpreted and applied eighth amendment principles to Mr.

Cartwright’s claim at that time, Oklahoma law would have required that his sentence be

modified to life.

The judge of this court writing the opinion in this case is the same judge who

initially rejected Mr. Cartwright’s challenge to the validity of the "especially heinous”

circumstance on direct appeal. He is also the same judge who was asked to recuse in

post-conviction proceedings because of a conversation he had with the Muskogee County

district judge about the speed with which Mr. Cartwright’s case should move through the

State courts.’

> See PC 85-594: Motion to Disqualify the Honorable Hez J. Bussey with affidavit of

Don Ed Payne attached, filed September 23, 1985; and Order Denying Motion to

Disqualify signed by Hez J. Bussey and filed September 26, 1985.

l3a

Under the circumstances of this case -- considering that the court sua sponte

undertook reversal of existing law and creation of a special exception in Mr. Cartwright’s

case -- the appearance of arbitrariness, caprice and bias cannot be discounted. For these

reasons, it is fundamentally unfair that Mr. Cartwright be deprived of the life sentence to

which he was entitled when he filed this action. The unfairness is not alleviated by the

court’s recent characterization of the possibility of being sentenced to death as opposed

to being entitled to a mandatory life sentence as being procedural and remedial. In

reality, the procedural aspects of the statute have not changed - in both versions, when a

death sentence is invalid, the statute calls for a remand for resentencing It is only the

substance of the available punishment that has changed -- from a maximum of life to the

possibility of death. It is the retroactive application of that change in substance about

which Mr. Cartwright complains.

2. Retroactive application of the recently adopted exception to nonretroactivity

under 22 O.S. 1981 § 3 violates Sections 52 and 54 of Article 5 of the

Oklahoma Constitution.

Sections 52 and 54 of Article 5 of the Oklahoma Constitution provide as follows:

§ 52. ... After suit has been commenced on any cause of action, the Legislature

shall have no power to take away such cause of action, or déstroy any

existing defense to such suit. [Emphasis added].

§ 54. The repeal of a statute [including repeal by amendment, One Chicago Coin’s

Play Boy Marble Bd., No. 19771 v. State ex rel. Adams, 202 Ok!.246, 212

P.2d 129 (Okl. 1949)} shall not ...affect any accrued right, or penalty incurred,

or proceedings begun by virtue of such repealed statute. [Emphasis added].

By reversing its prior holdings in Green and Dutton and by retroactively applying a newly

adopted exception to 22 O.S. 1981 § 3, the court has deprived Mr. Cartwright of an

l4a

absolute right to a life sentence and deprived him of a defense to a death sentence that

existed when he filed this action.‘ The court’s action is in utter disregard of the language,

spirit and intent of Sections 52 and 54 of Article 5 of the Oklahoma Constitution.

Petitioner respectfully requests that the judgment be amended to exclude Mr.

Cartwright from the effect of the "exception to nonretroactivity" and to remand the case

for modification to life imprisonment in accordance with the law that existed when this

action was filed. In the alternative, petitioner requests that the court vacate that portion

of its judgment permitting reimposition of the death sentence in order to consider the

effect of Sections 52 and 54 on the validity of the court’s application of its newly adopted

exception to 22 O.S. 1981 § 3.

Cc. The exception to nonretroactivity relied on by the Utah Supreme Court in State v.

Norton, 675 P.2d 577 (Utah 1983) is not applicable to the Oklahoma

nonretroactivity statute.

As this court pointed out in Dutton, 757 P.2d at 381, Title 22 includes a special

Statute regarding retroactivity of statutes that apply to criminal actions. 22 O.S. 1981 § 3.

One of the arguments urged by the State in Dutton was that this provision only applied

* Petitioner’s right to have his sentence modified to life accrued when his jury

sentenced him to death on the basis of an unconstitutional aggravating circumstance.

However, the court need not reach this question in view of the fact that the right to a

modification of his sentence to life had unquestionably accrued under established

Oklahoma law when the federal courts invalidated his death sentence and he filed this

action. Blacketer v. State, 485 P.2d 1069 (Okl.Cr. 1971) ("Accrued right" is a matured

cause of action or legal authority to demand redress). Any subsequent change in

Oklahoma law, such as this court’s adoption of an exception to the nonretroactivity

provisions of 22 O.S. 1981 § 3 which subjects him to a more severe punishment than life

and deprives him of an existing defense to a death sentence violates of Sections 52 and 54

of Section 5 of the Oklahoma Constitution and due process of law.

15a

to statutes that were codified in Title 22 and thus did not apply to the resentencing

provision in Title 21. Holding that § 3 of Title 22 did apply to § 701.13(E)(2), the court

referred to the fact that "by its own terms, Title 22 “applies to criminal actions...". 757

P.2d at 381. In Mr. Cartwright’s case, the court does not abandon its decision in Dutton

that § 3 of Title 22 on its face applies to § 701.13(E)(2) of Title 21. Instead, it concluded

that it could ignore § 3 by “adopting the statutory exception to the general rule of

nonretroactivity, enunciated by the Utah Supreme Court in State v. Norton, [675 P.2d 577

(Utah 1983)] - that remedial and procedural amendments apply to accrued, pending, and

future actions." However, the court’s reliance on the exception referred to in Norton is

misplaced.

The statute discussed in Norton is not a statute that expressly refers to provisions

applicable to criminal actions and it does not specifically refer to provisions related to

criminal procedure. Instead it is a general statute that applies to all of Utah’s laws.’ See

Shupe v. Wasatch Electric Company, Inc., 546 P.2d 896 (Utah, 1976); and Union Pacific

Railroad Company v. Trustees, Inc., 329 P.2d 398 (Utah 1958). The exception upon which

the Utah court relied was "a long-standing exception [recognized in Utah] to the general

rule of nonretroactivity." 675 P.2d at 585. Unlike Oklahoma’s § 3, Utah's nonretroactivity

Statutes does not specificaliy limit the retroactive application of statutes affecting criminal

* Utah Code Ann., § 68-3-3 provides:

No part of these revised statutes is retroactive, unless expressly

so declared.

ORAPNO hws

16a

actions and criminal procedures. Also, Oklahoma c.sarly does not have a long-standing

exception to § 3 for procedural amendments. Such en exception to a statute that by its

terms applies to “the code of criminal procedure” is i congruent with the original intent

of the statute and in fact, would have the effect of rep=aling the statute.

As the court recognized in Dutton, in order ‘o determine the intent of the

legislature when it passed § 3, it is necessary to view the provision in context! Section

2082 of the Revised Laws of 1910 (now 22 O.S. § 1) referred to the series of laws

contained in Chapter 23 of the Revised Laws as “the penal code of the State of

Oklahoma." 22 O.S. 1981 § 1. Section 2088 of the Revised Laws 1910 (§ 1 of Title 22)

describing the purpose of the provisions in the "penal code," states:

This chapter specifies the classes of persons who are deemed capable of

crimes, and liable to punishment therefor; and defines the nature of the

various crimes; and prescribes the kind and measure of punishment to be

inflicted for each. The manner of prosecuting and convicting criminals is

regulated by the code of criminal procedure.

Sections 5535, 5537, 5542, and 5544 of Revised Laws 1910 (now 22 O.S. 1981 §§ 1, 3, 8

& 10) state:

§ 1. Title of code [Section 5535, Revised Laws 1910]

This chapter shall be known as the code of criminal procedure of the State of

Oklahoma.

§ 3. Code not retroactive [Section 5537, Revised Laws 1910]

No part of this code is retroactive unless expressly so declared.

* When these statutes were passed (1910), Title 21 and Title 22, Oklahoma Statutes

did not exist.

17a

§ 8. Application of statutes [Section 5542, Revised Laws

1910)

This chapter applies to criminal actions and to all other proceedings in criminal

cases which are herein provided for. [Emphasis added].

§ 10. Criminal action defined. [Section 5544, Revised Laws

1910]

The proceeding by which a party charged with a public offense is accused and

brought to trial and punishment, is known as a criminal action. [Emphasis added].

The clear intent of Section 5537 (now § 3) is that statutes regulating criminal actions,

including statutes that affect criminal procedure, in the State of Oklahoma are not

retroactive unless they are expressly so declared. In 1910, when § 5537 was adopted, Title

22 did not exist, so § 3 could not have been limited to those laws later published under

Title 22 but rather expressly refer to any portion of the laws that govern criminal actions.

Moreover, if the 1985 amendment to the § 701.13(E)(2) is merely procedural, as

the court now says that it is, it clearly should be governed by § 3 of Title 22, which

expressly controls provisions in the “code of criminal procedure". Thus the 1985

amendment, effective July 16, 1985, is not retroactive and cannot be applied to cases in

which the crime occurred in 1982, the trial in 1982, and the conviction that became final

on direct appeal before July 16, 1985, the effective date of the amendment.

On the other hand; if the nature of the provision is to be determined by the Title

of Oklahoma Statutes in which it appears, the remand provision - § 701.13(E)(2) must be

considered a penal statute identifying a particular punishment for a particular class of

18a

people. When so viewed, the 1985 amendment clearly prescribes certain punishment -- life

or death -- for a particular class of persons -- those convicted of murder whose original

death sentence is invalid. The amended or repealed provision likewise prescribed a

particular punishment -- life imprisonment only -- for a particular class of persons -- those

convicted of murder whose original death sentence is invalid. When viewed in this context,

the 1985 amendment to § 701.13(E)(2) clearly increases punishment for a particular

category of persons who previously could only receive life imprisonment. Mr. Cartwright

is in that category and can only receive life imprisonment unless the 1985 amendment is

retroactively applied to him.

In order to reconcile the terms of 22 O.S. 1981 § 3 with Judge Lumpkin’s position,

60 OBJ at 1959 (concurring in part and dissenting in part), one would have to conclude

the resentencing amendment (which was not placed in the “criminal code") was not

intended as merely a provision of criminal procedure but rather is statute affecting

substantive penal laws, in which case the ex post facto prohibitions would apply and Mr.

Cartwright would be entitled to the benefit of the penal laws as they existed at the time

of his offense -- in other words he would be (and is) entitled to have his case remanded

for modification to life imprisonment. See § 701.13(E)(2) before the 1985 amendment.

Dz. The Ex Post Facto Analysis in Coleman v. Saffle is not applicable to the 1985

amendment to § 701.13(E)(2).

The decision in Mr. Cartwright’s case mistakenly relies on the Tenth Circuit's

opinion in Coleman v. Saffle, 869 F.2d 1377 (10th Cir. 1989). The court overlooks the fact

that the ex post facto analysis in Coleman v. Saffle, was limited to this court’s adoption

19a

of a “harmless error" review for determining whether a jury's imposition of death is invalid

in the first instance. See Stouffer v. State, 742 P.2d 562 (Okl.Cr. 1987) (on rehearing) and

Castro v. State, 749 P.2d 1146 (Okl.Cr. 1987) (on rehearing). Coleman is not applicable

to a retroactive application of a resentencing statute which increases punishment on

resentencing from a maximum of life to the possibility of death for a person whose death

sentence has been determined to be invalid. Thus, the ex post facto analyses in Coleman

and Castro are not inconsistent with the analysis in Dutton.

Mr. Cartwright urges that the ex post facto holding in Dutton was correct and

exposing him to a sentence of death by retroactively applying the 1985 amendment to his

case deprives him of the substantial right of a maximum sentence of life in violation of the

ex post facto prohibitions. However, the court need not reach this question since Mr.

Cartwright is entitled to the benefit of the pre-1985 resentencing provisions of §

701.13(E)(2) under Oklahoma law as it existed when his death sentence was held to be

invalid and when he filed this action, and a retroactive application of a newly created

exception which would deprive him of his accrued right to a life sentence and a defense

to a death sentence violates the Oklahoma constitution and due process of law.

E. Application of different standards of punishment on resentencing in Mr.

Cartwright’s case from those applied in Dutton v. Dixon and other cases in which

the direct appeal was final before the 1985 amendment to § 701.3(E)(2) deprives

Mr. Cartwright of due process of law and equal protection of the laws.

Mr. Cartwright’s invalid death sentence was imposed before the legislature amended

§ 701.13(E)(2) to permit resentencing with the possibility of another death sentence. Also,

his appeal to this court challenging the constitutionality of the “especially heinous"

RASS

20a

aggravating circumstance and the validity of his death sentence was lodged in this court

and his conviction affirmed before the effective date of the amendment. Except for an

erroneous decision on Mr. Cartwright's direct appeal, he would now have a life sentence.

The same is true of Lonnie Joe Dutten except that this court accorded Dutton the benefit

of the law in effect at the time of his trial and appeal. To deprive Mr. Cartwright of the

same protection afforded Lonnie Joe Dutton and other defendants whose death sentences

were properly invalidated on direct appeal before the adoption of the 1985 amendment

violates the due process and equal protection clauses of the Fourteenth Amendment.

CONCLUSION

For the reasons set forth above, Mr. Cartwright respectfully petitions the court to

amend its judgment remanding his case for resentencing by requiring that his sentence be

modified to life imprisonment in accordance with the provisions of the pre-1985 version

of § 701.13(E)(2). In the alternative, petitioner asks that the court vacate that portion of

the judgment permitting a reimposition of the death penalty and schedule ora! argument

in order that he can be heard regarding a retroactive application of the 1985 amendment

to § 701.13(E)(2) to his case.

Respectfully submitted,

MANDY WELCH

Deputy Appellate Public Defender

Oklahoma Bar’No. 9455

1660 Cross Center Drive

Norman, Oklahoma 73019

(405) 325-3128

ATTORNEY FOR APPELLANT

2la

Certificate of Service

This is to certify that a true and correct copy of the foregoing Petition To Vacate

was served upon the Attorney General for the State of Oklahoma by leaving a copy of the

same with the clerk of the Court of Criminal Appeals this 21st day of August, 1989.

Wade nine

Mandy Welch \

IN COURT OF CRIMINAL APPEALS

STATE OF OKLAHOMA

IN THE COURT OF CRIMINAL APPEALS OF THE STAT OF OkEAROMRC?

YAMES W. PATTERSON

WILLIAM THOMAS CARTWRIGHT, CLERK

Petitioner,

-vs- No. H-88-820

THE STATE OF OKLAHOMA,

“1 ee ee 7

Respondent.

ORDER

Having carefully examined the petition. and being

sufficiently advised in the premises, this Court finds that the

petitioner's allegations of error are without merit, and the

petition is DENIED. Yhe Clerk of this Court is directed to issue

the mandate forthwith.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this A L

¥ =

day of temper. 989.

ATTEST

23a

aR URW OOOHRS Apes UIP Ia Boe

takghRes

“Exhibit B"

Fut

raster ontoek afte aa

IN THE UNITED STATES DISTRICT COURT CR STIAN DISTOMT G7 Fei ance

FOR THE EASTERN DISTRICT OF OKLAHOMA G33 AUS <6 AY > UL

ee pa aT ES

WILLIAM THOMAS CARTWRIGHT,

)

Petitioner, )

)

-vs- ) No. 86-54-C

)

GARY D. MAYNARD, et al ) \

) &

Respondents )

JUDGMENT

This case comes before this court pursuant to the mandate

and judgment of the United States Court of Appeals for the Tenth

Circuit in Cartwright v. Maynard, No. 86-1231, affirming in part

and reversing in part this court's judgment denying a writ of

habeas corpus.

In accordance with the opinion of the Court of Appeals,

Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987), the writ

of habeas corpus is denied with regard to petitioner's conviction

for first degree murder, but, determining the case as law and

justice require, Carafas v. LaVallee, 319 U.S. 234, 239, 88 S.Ct.

1556, 1560, 20 L.Ed. 2d 554 (1968); Chaney v. Brown, 730 F.2d

1334, 1358 (10th Cir.), cert. denied, 469 U.S. 1090, 105 S.Ct.

601, 83 L.Ed.2d 710 (1984), the death sentence of petitioner is

invalid under the Eighth and Fourteenth Amendments to the United

States Constitution, and the execution of petitioner under this

invalid death sentence is enjoined. Cartwright v. Maynard, 822

P.2d at 1492 (10th Cir. 1987). This judgment is without

NB Gare

24a

prejudice to further proceedings by the state for redetermination

of the sentence on the conviction. Id. n. 8.

‘

Dated this 4 day of August, 1988.

United States District Judge

Judgment prepared by plaintiff's attorney, Mandy Welch

and was approved by phone by defendant's attorney, David

Lee.

I hereby certify that the ancexed instewnent

is a true and correct copy of the original on

file ln my office

ATTEST:

LEv!S L. VAUGHN

Clerk, U.S. District Court

2 E Disyrct of Dklshoma,

Osred SEP 7_1988

Deputy Clerk

—

25a

rene eee eee

r | Stave Of Oxtanonn

OKLAHOMA DEATH SENTENCES MODIFIED TO LI

UNDER 1976 VERSION of § 701.13(E) (2) JUL 31 1989

UAMES W. PATTERSON

Boutwell v. State, 659 P.2d 322 (Okl. Cr. 1983) IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OMACLERK

Brennan v. State, 766 P.2d 1385 (Okl. Cr. 1988)

FOR PUBLICATION

WILLIAM RTWRIGBT,'

Bromley v. State, 757 P.2d 382 (Okl. Cr. 1988) ILLIAM THOMAS CA

)

tione )

Burrows v. State, 640 P.2d 533 (Okl. Cr. 1982) a os )

-vs- ) No. 8-88-820

Chaney v. Brown, 699 P.2d 159 (Okl. Cr. 1985) )

)

Dutton v. Dixon, 757 P.2d 376 (Okl. Cr. 1988) STATE OF OKLAHOMA,

° )

Driskell v. State, 659 P.2d 343 (Okl. Cr. 1983) Respondent

Eddings v. State, 688 P.2d 342 (Okl. Cr. 1984)

OPINION

Glidewell v. State, 663 P.1d 738 (Okl. Cr. 1983) BUSSEY, Judge:

Green v. State, 713 P.2d 1032 (Okl. Cr. 1985) On October 4, 1988, petitioner filled an application for

ee ee ee eee eee en oe a writ of Habeas Corpus and Modification of Invalid Death Sentence

Te ea eee Orr ete tee to Life Imprisonment i'n Muskogee County District Court Case No.

Pe ERE ERR RT TE ae eS ieee CRF-82-192. On November 16, 1988, oral argument on the matter was

Wilson v. State, 756 P.2d 1240 (Okl. Cr. 1988) atidh tadeeins ihe eeenlh

PROCEDURAL BACKGROUND

Petitioner was tried by jury and convicted of First

Degree Murder and sentenced to death on October 25, 1982.

Petitioner's first degree murder conviction and sentence of death

was affirmed on direct appeal. Cartwright v. State, 695 P.2d 548

(Okl. Cr. 1985), cert. denied. 473 U.S. 911, 105 S.Ct. 3538, 87

LeEd.2d 661 (1985). Petitioner's appeal from denial of state

post-conviction relief was deni'ed. Cartwright v. State, 708 P.2d

The offenses in all of cases cited above were committed before :

July 16, 1985, and resentencing was governed by the version of § 592 (Okl. Cr. 1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 837,

701.13(E) (2) before the 1985 resentencing amendment.

88 L.Ed.2d 808 (1986). 4#is petition for a writ of habeas corpus

26a !

in the United States District Court for the Eastern District of

Oklahoma was denied. The Tenth Circuit Court of Appeals affirmed

the denial of habeas corpus celi'ef in Cartwright v. Maynard, 802

P.2d 1203 (10th Circ.1986). Pollowi'ng rehearing en banc. however,

petitioner's death sentence was vacated by the Tenth Circuit's

holding that Oklahoma's aggravating circumstance that a murder was

especially heinous, atrocious. or cruel was being applied in an

unconstitutionally vague and overbroad manner. Cartwright v.

Maynard, 822 F.2d 1477 (10th Circ.1987). The Tenth Circuit

directed the district court “to enter judgment that the wri't of

habeas corpus is denied but as Law and justi'ce require, the death

sentence of petitioner is invalid under the Eighth and Fourteenth

Amendments to the United States Constitution." The Tenth Circuit

further stated that the judgment was without prejudice to further

proceedings by the State for redetermination of the sentence on

the conviction. Id. at 1492. Finally» the Tenth Circuit

expressed "no opinion concerning the constitutionality of a

retroactive application of Oklahoma's [resentencing] procedure."

Id. at 1492 n.8. The State of Oklahoma appealed to the United

States Supreme Court which delivered a unanimous opinion upholding

the opinion of the Tenth Circuit. Maynard v. Cartweight, _U0-S~

__+ 108 S.Ct. 1853, 100 L.&d.2d 372 (1988). The Supreme Court

also declared that its judgment was wi'thout prejudice to further

proceedings in the state courts for redetermination of the

appropriate sentence. Id. at U.S._. 108 S.Ct. at 1860, 100

LeEd.2d at 383.

II.

In Stouffer v. State. 742 P.2d 562, 563-64 (Okl. Cr.

1987) (Opinion on Rehearing). this Court reconsidered 21 0O-S.-

1981, §701.13 (PF), and held that it had the authority to

independently rceweigh aggravating and mitigating circumstances

whens on appellate ceview, an aggravating circumstance found by

the jury was determined to be invalid. We stated that such a

review was implici't in this Court's obligation to make a factual

substantiation of the verdict and determi'natiion of the validity of

the sentence. Id. Prior to Stouffer. this Court had, when

finding an erroc during the sentenci'ng stage of trial,

automatically modified the sentence to Life imprisonment.

In Castro v. State. 749 P.2d 1146, 1150 (OklL. Cr.

1987) (Opinion on Rehearing), this Court discussed the ex post

facto aspects of Stouffer. We stated that the principles set

forth in Stouffer did not deprive [defendants] of a defense which

was previously available. oc change the legal definition of the

offense. oc the puni’shment to be meted out. or affect the criminal

quality of the act charged, or change the questions which may be

considered by the jury in establishing guilt or innocence.

Castro, at 15ll. Finally. quoting Dobbert v. Florida, 432 U.S.

282, 293-94, 97 S.Ct. 2290, 2298, 53 L.Eds2d 344 (1977), thi's

Court asserted that procedural changes in a statutory capital

sentencing scheme which simply alter the methods employed in

determining whether the death penalty was to be imposed is not ex

post facto even though it may work to the disadvantage of a

defendant. Id. at 1150.

In Dutton v. Dixone 757 P.2d 376, 381 (OklL. Cr.

1988), a majocity of this Court held that 21 0O.S. Supp. 1985,

$701.13 (£)(2), which allows this Court to set aside a death

sentence when error is found during the sentencing stage of trial

and cemand the case for resentencing by the trial court. cannot

be applied retroactively. The prior statute automati'cally modified

the sentence to Life imprisonment if error was found in the

sentencing stage. See 21 0.S. 1981, § 701.13 (£)(2). The Dutton

court stated that “the retroactive appli'cation of the 1985

resentencing amendment of Section 701.13 (E)(2)...would constitute

a violation of the Federal and Oklahoma Constitutions as an ex

post facto application of a law which inflicts a greater

punishment than the Law annexed to the crime at [the] time it was

committed or alters [the] situation of lan] accused to his

disadvantage." Id. at 381. The majority concluded, “(wlhile the

1985 resentencing amendment may appear to take a _ seemingly

procedural form, in its practical operation it deprives the

petitioner of a substantial cight. and... it is therefore ex post

facto." Id. at 381.

We find the ex post Facto analysis applied in Castro to

be highly inconsistent with the ex post facto analysis applied in

Dutton. Castro held that the retroactive application of a

judicial interpretation of a statute, denying defendants automatic

modification to Life imprisonment. does not violate the ex post

facto prohibition. while Dutton held that the retroactive

application of a statute providing for resentencing violates ex

post facto principles because it deprives defendants of a

substantial cight, i-@.- automatic modification to Life

imprisonment.

Itt.

In Coleman v. Saffle, 869 F.2d 1377 (10th Cir. 1989),

the Court stated that changes in the law by judicial construction

implicate the Due Process Clause while the prohibitio. against ex

post facto laws concerns legislative enactments. However, the

Court appli'ed ex post facto principles in deciding the due process

issues of Stouffer because an unforseeable judicial enlargement of

a criminal statute operates precisely Like an ex post facto Law.

Id. at 1385. The Court stressed that the relevant inquiry in ex

post facto analysis i's whether the change impairs “substantial

personal rights." orc merely changes “modes of procedure which do

not effect matters of substance.”

In Coleman. the Court stated that an offender does not

win an ex post facto argument by proving disadvantage alone. See

also Dobbert v. Florida» 432 U.S. 282, 293, 97 S.Ct. 2290, 53

L.Ed. 2d 344 (1977). The Court declared that the true focus of ex

post facto analysis is on (1) the elements of the offense, (2) the

conditions and quantum of puni'shment. and (3) the quantity and

degree of proof necessary to establi'sh guilt. See also United

States v. AEEleck. 765 F.2d 944, 948 (10th Cir. 1985); Beazell v.

Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 70 L.Ed. 216 (1925).

We find that the amended statute allowing’ for

resentencing does not violate the prohibition of ex post facto.

As applied to the petitioner, the crime for which he was charged,’

the puni'shment prescribed therefor. and the quantity or degree of

proof necessary to estabiish guilt. all cemain unaffected by the

amended statute. See Miller v. Florida. 482 U.S. * 107

S.Ct.2446, 2452, 96 L.Ed.2d 351, 362 (1987). Even on remand,

petitioner faces the same possible puni'shment as before: Life

imprisonment oc death. We therefore find the new sentencing

amendment to be a procedural change in the Law, and not prohibited

by the ex post Facto probibition.

We also find the argument in Dutton, that defendants had

a “cight" to a mandatory sentence of Life imprisonment if error

was Found in the sentencing stage of trial.» to be inaccurate.

Defendants may have had expectations that their sentences would

automatically be modified to Life imprisonment, but the ex post

facto clause does not prevent the State from depriving a criminal

defendant of an expectati'on as to a procedure that has not yet

accrued to his benefit. See State v. Norton. 675 P.2d 577 (Utah

1983). We hold that petitioner can be resentenced under the

amended statute without violating due process or the ex post facto

prohibition of either the Oklahoma or Federal Constitutions.

IV. °

With cegard to statutory construction and retroactivity,

22 0.S. 1981, §3 provides: "No part of this code is retroacti've

unless expressly so declared." In Dutton, the majority held that

Since the amendment contained no express language indicati'ng its

retroactive effect. it can only apply prospectively. Dutton. at

381. However, we find that we should adopt the statutory

exception to the general rule of nonretroactivi'ty, enunciated by

the Utah Supreme Court in State v. Norton, supra. which allows

procedural remedial statutes to apply to pending actions. For

purposes of the exception. a case is pending from the time of its

commencement until (its final determination upon appeal. Norton,’

at 585. As we have already determined, the resentencing amendment

is procedural, as itt has no substantive effect on petitioner's

wcine. The amendment may or may not affect the outcome when

petitioner is cesentenced, depending upon the- sentencer's

determination after properly weighing the mitigating and

aggravating circumstances. Accordingly, 22 0.S. 1981, §3 does not

prohibit appLli'cation of the amended sentencing statute on remand.

To the extent Dutton v. Dixon, 757 P.2d 376 (OkL. Cr. 1988)

is inconsistent with this opinion, it is hereby expressly

overruled.

Finally. we are aware that 22 0.S. 1981, §701.10 appears

to require that capital defendants be sentenced by the same jury

that convicted them. However. statutes are to be construed so as

to effectuate theic purpose. Owens v. State, 665 P.2d 832, 834

(Okl. Cre 1983). Moreover. the more recent enactment. Section

701.13 (€)(2) controls over Section 701.10. See Delfrate v~

State. 732 P.2d 900, 902 (OkL. Cr. 1987). Thus» we find that

Section 701.13 (€)(2) authorizes this Court to remand a capital

case for cesentenci'ng before a new jury or before the trial judge,

whichever is applLi'cable.

Vv:

We therefore hold that Case No. CRF-82-192 must be

REMANDED to Muskogee County District Court for RBSENTENCING

pursuant to 21 0.S. Supp. 1985, §701.13 (&) (2).

OPINION BY: BUSSEY. J.

PARKS, P.J.: DISSENTS

LANE, V.P.J.: CONCOURS

BRETT, J.: CONCURS

LUMPKIN, J.: SPECIALLY CONCURRING

MANDY WELCH

DEPUTY APPELLATE PUBLIC

DEFENDER

NORMAN, OKLAHOMA

ATTORNEY FOR PETITIONER

ROBERT H. HENRY

ATTORNEY GENERAL

SUSAN STEWART DICKERSON

ASSISTANT ATTORNEY GENERAL

STATE OF OKLAHOMA

OKLAHOMA CITY. OKLAHOMA

ATTORNEY FOR RESPONDENT

LUMPKIN, Judge: SPECIALLY CONCURRING

I concur with the Court's opinion on this case and write to further

address the application of 22 0.S. 1981, § 3. Title 22 0.S. 1981, § 1, provides:

"This chapter shall be known as the code of criminal procedure of the State of

Oklahoma." Title 22 0.S. 1981, § 3 applies to the code of criminal procedure.

Title 210.S. 1981, § 1, provides: "This chapter shall be known as the penal

este of the State of Oklahoma." The provisions of Title 21, Oklahoma Statutes,

must be interpreted under the ex post facto prohibition of either the Oklahoma

or Federal Constitutions. Title 22 0.S. 1981, § 3 is not applicable to the penal

code of the State of Oklahoma contained in Title 21, Oklahoma Statutes.

PARKS, P.J., Dissenting

I dissent for the reasons stated in my opinion in Dutton

v. Dixon, 757 P.2d 376 (Okla. Crim. App. 1988). I would

emphasize that under 22 0.S. 1981, § 3, the resentencing

provision codified dt 21 0.5. Supp. 1985, § 701.13(E)(2), is

not to be applied retroactively "unless expressly so declared."

Because retroactivity was not “expressly so declared" by the

Oklahoma Legislature, the resentencing amendment should not be

applied retroactively. Dutton, 757 P.2d at 381.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.