# Petition for Writ of Certiorari — William Thomas Cartwright v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0480%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 497 U.S. 1015 ## Text .) 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* | 27 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 EE ob ebees se peweccdersoceee decree csewenesevecnes 1 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, wv . nw, 16 . 14, 15, 17, 21, 2 . 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. 6 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). 9 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 10 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). 1] 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.") 12 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. 13 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, i4 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 1s 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 ) 16 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. 17 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 Mr 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 19 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 20 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. 21 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. 22 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. 23 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 24 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1989 WILLIAM THOMAS CARTWRIGHT, Petitioner, v. 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) la Sa 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- is 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 1. ‘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 2a 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 3a 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. Vv 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. 4a a 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 § 5a 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). ~ 6a 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 7a 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 hs 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; 9a 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. BO 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. 9 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 10 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. 11 ha 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. 12 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. 13 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 14 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 15 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" 16 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 17 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 \ | 18 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 FT 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, By Osred SEP 7_1988 Deputy Clerk — 25a . s* 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 t. 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 j 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0480%3A2. Public record. Not legal advice.