# Opposition Brief — William Thomas Cartwright v. Oklahoma

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0480%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 1015

## Text

Supreme Court, US.

| ORIGINAL FILED

\

v > NOV 29 19869

‘

F SPANIOL, JR
. 89-5934 JOSEPH
Ho CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

WILLIAM THOMAS CARTWRIGHT,
Petitioner,
vs.
THE STATE OF OKLAHOMA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION
TO PETITIONER'S PETITION FOR
A WRIT OF CERTIORARI

ROBERT H. HENRY
ATTORNEY GENERAL OF OKLAHOMA

SUSAN STEWART DICKERSON
ASSISTANT ATTORNEY GENERAL
CHIEF, CRIMINAL DIVISION

112 State Capitol Building
Oklahoma City, Oklahoma 73105
(405) 521-3921

\/ ATTORNEYS FOR RESPONDENT

November, 1989

QUESTIONS PRESENTED

1. Whether application of the procedural rule enacted in 1985
permitting remand of Petitioner’s capital case for resentencing in
the event of punishment~-stage error to a homicide committed in 19282
violates the Ex Post Facto Clause of the Constitution.

2. Whether the change in position of the Oklahoma Court of
Criminal Appeals regarding such alleged violation of ex post facto
principles affects Petitioner’s substantive rights by making his
crime greater or inflicting greater punishment than when the crime
was committed.

3. Whether Petitioner can again be sentenced to death or is
entitled only to receive a sentence of life imprisonment pursuant

to the determinations made in answering the above-stated questions.

Questions Presented

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved
Statement of the Case

Statement of the Facts

Reasons Why the Writ Should Be Denied

PROPOSITION

THE PETITIONER MAY BE RESENTENCED WITHOUT
VIOLATING THE EX POST FACTO CLAUSE OF THE
UNITED STATES CONSTITUTION °

ae eee eee ee ee
CASES CITED

Cartwright v. Maynard, 802 F.2d 1203

(10th Cir. 1986) 6 -s & 6 & 2 ce

Cartwright v. Maynard, 822 F.2d 1477
(10th Cir. 1988) . a te te er ee

» 695 P.2d 549
(Okla. Crim. App. 1985) °

Cartwright v. State, 778 P.2d 479
(Okla. Crim. App. 1989) ... Cet el~

Cartwright v. State, 778 P.2d at 482 ..
Cartwright v. State, 778 P.2d at 483

Coleman v. Saffle, 869 F.2d 1377
I Pk ae te eg pod “a eet ww escde ire

Dobbert v. Florida, 432 U.S. 282
ee ee ana Ce eke se ee le Nena ele he ae

Dutton v. Dixon, 757 P.2d 376
ee ee I - g w k b lk ee 6+ eee

Kovash v. State, 519 P.2d 517
(Okla. Crim. App. 1974)
os Gee ole GO 6 2 6 6's et 6 tw 0 0ke

i, 107 U.S. 221
i oe MOBUGre "Geel a-ha - « we 6 « 6-8 8 6 & 2

, 108 S.Ct. 1853
(1988) . . * . . . . * . * . . * . . . . . . . . . . .

Maynard v. Cartwright, 108 S.Ct. at 1860 .......,

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

ii

>

, 482 U.S. 423
(1987) le ew ace ws

Nguyen v. State, 769 P.2d 167
(Okla. Crim. App. 1988)

, 765 F.2d 944
(10th Cir. 1985) VN gee eal Set ae ek

Weaver v. Graham, 450 U.S. 24 (1981)

STATUTES CITED
28 U.S.C. § 1257(a)
Okla.Stat.tit. 21 § 701.13 (1981)
Okla.Stat.tit. 21 § 701.13 (West Supp.1985)
Okla.Stat.tit. 21 § 701.13(E)(2) (West Supp. 1985)
Okla.Stat.tit. 21, § 1066 (1981)
Okla.Stat.tit. 22, § 1066 (1981)

U.S. Const. art. 1, § 10

iii

6

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No. 89-5934
IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

WILLIAM THOMAS CARTWRIGHT,
Petitioner,
vs.
THE STATE OF OKLAHOMA,

Respondent.
RESPONDENT'S BRIEF IN OPPOSITION TO
PETITION POR WRIT OF CERTIORARI

The Respondent, State of Oklahoma, by and through Robert H.
Henry, Attorney General of the State of Oklahoma, respectfully
requests that this Court deny the Petition for Writ of Certiorari
seeking review of the Opinion of the Court of Criminal Appeals of

the State of Oklahoma.

OPINIONS BELOW

The Opinion of the Oklahoma Court of Criminal Appeals below
remanding Petitioner’s cause for resentencing of Petitioner is
reported as Cartwright v. State, 778 P.2d 479 (Okla. Crim. App.
1989). That action involved Petitioner’s filing a state habeas
corpus action seeking to preclude his resentencing as violative of
ex post facto principles.

The need to address Petitioner’s sentence arose from this
Court’s affirmance of a grant of federal habeas corpus relief in
Maynard v. Cartwright, 486 U.S. 356 (1988), where this Court upheld
the decision of the United States Court of Appeals for the Tenth
Circuit that Petitioner’s death sentence must be vacated because
jury discretion was not channeled constitutionally in assessing
whether the murder of Hugh Riddle was “especially heinous,
atrocious or cruel”. The Tenth Circuit opinion is reported as
Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987) (en banc).
A previous decision by a three-judge panel of that court affirming

the denial of federal habeas corpus relief is reported as

Cartwright v. Maynard, 802 F.2d 1203 (10th Cir. 1986).

The opinion of the Oklahoma Court of Criminal Appeals on
direct appeal is reported at 695 P.2d 548 (Okla. Crin. App. 1985),
cert. denied, 473 U.S. 911 (1985). The affirmance of Petitioner’s
appeal from the denial of post-conviction relief is reported at 708
P.2d 592 (Okla. Crim. App. 1985), cert. denied, 474 U.S. 1073

(1986).

JURISDICTION

The Opinion of the Oklahoma Court of Criminal Appeals was
entered on July 31, 1989. This Court’s jurisdiction is purportedly

invoked pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Article 1, Section 10, of the United States Constitution
provides, in part:

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

The Eighth Amendment to the United States Constitution
provides, in relevant part:

Excessive bail shall not be required, ... nor
cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution
provides in part:
-»+ nor shall any State deprive any person of
life, liberty, or property, without due
process of law.
Okla.Stat.tit. 21 § 701.13 (1981) provided in relevant part:
E. ...In addition to its authority regarding
correction of errors, the court, with regard
to review of death sentences, shall be
authorized to:
1. Affirm the sentence of death; or
2. Set the sentence aside and remand the
case for modification of the sentence to
imprisonment for life.
Okla.Stat.tit. 21 § 701.13 (West Supp.1985) provides as
follows, in pertinent. part:
E. In addition to its authority regarding
correction of errors, the court, with regard

to review of death sentences, shall be
authorized to: 5

Se Affirm the sentence of death; or

2. Set the sentence aside and remand the
case for resentencing by the trial court.

Okla.Stat.tit. 21, § 1066 (1981) provides, in pertinent part:
The appellate court may reverse, affirm or

modify the judgment appealed from, and may, if
necessary or proper, order a new trial.

STATEMENT OF THE CASE

The Petitioner, William Thomas Cartwright, was convicted in
the District Court, Muskogee County, State of Oklahoma, of shooting
with intent to kill and murder in the first degree. The Petitioner
received sentences of seventy-five (75) years and death
respectively.

Upon rehearing en banc of the Petitioner’s appeal from denial
of federal habeas corpus relief, the United States Court of Appeals

for the Tenth Circuit vacated Petitioner’s death sentence.

Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1988) (en banc).
This Court affirmed that decision in Maynard v. Cartwright, 486
U.S. 356 (1988).

Petitioner filed a petition for a writ of habeas corpus in
the Oklahoma Court of Criminal Appeals, seeking the modification
of his sentence to one of life imprisonment. That Court reversed
its position that the 1985 resentencing amendment could not be
retroactively applied under ex post facto principles and remanded
Petitioner’s cause to the state district court for resentencing.
Cartwright v. State, 778 P.2d 479 (Okla. Crim. App. 1989).

Petitioner, in his Pe*ition at 5, makes reference to an
acknowledgement by the State that modification to a life sentence
was the appropriate remedy. Importantly, the State simply
acknowledged the status of the law as then interpreted by the
Oklahoma Court of Criminal Appeals, not the correctness of that
interpretation. As addressed, infra, Respondent contends that
application of the resentencing provision of § 701.13(E)(2) in the
present case does not violate the Ex Post Facto Clause of the

United States Constitution.

A petition for rehearing on the state habeas corpus proceeding
was denied by the Oklahoma Court of Criminal Appeals on September

5, 1989.

STATEMENT OF THE FACTS

A discussion of the facts involved in the instant action is
found in Cartwright v. State, 695 P.2d 549, 550-51 (Okla. Crin.
App. 1985). This Court also discussed the facts in Maynard yv.
Cartwright, 108 S.Ct. 1853, 1856 (1988). Because of this Court’s
familiarity with those facts and because a review of the facts is
not central to determination of the issue presented herein,
Respondent declines to engage in further discussion of the facts

of Petitioner’s crimes against Hugh and Charma Riddle.

REASONS WHY THE WRIT SHOULD BE DENIED
PROPOSITION

THE PETITIONER MAY BE RESENTENCED WITHOUT
VIOLATING THE EX POST FACTO CLAUSE OF THE
UNITED STATES CONSTITUTION

In Maynard v. Cartwright, 108 S.ct. at 1860, this Court stated
that its decision affirming the vacation of Petitioner’s death
sentence due to the overbroad interpretation of the statutory
aggravating circumstance that the murder of Hugh Riddle was
especially heinous, atrocious or cruel was

“without prejudice to further proceedings

in the state courts for redetermination of the
appropriate sentence.”

Petitioner sought to have the sentence of life imprisonment

declared the appropriate sentence through the filing of the state
habeas corpus petition wherein he asserted that the only recourse
was to modify his sentence to life imprisonment.

The Oklahoma Court of Criminal Appeals disagreed, reversing

its previous position that a life sentence was the only possible

punishment available. Cartwright v. State, 778 P.2d at 482. In
Dutton v. Dixon, 757 P.2d 376, 381 (Okla. Crim. App. 1988), a

majority of the Oklahoma Court of Criminal Appeals held that

Okla.Stat.tit. 21 § 701.13(E)(2) (West Supp. 1985) could not be

Se ee,

applied retroactively under ex post facto principles. In
Cartwright v. State, 778 P.2d at 482, the court engaged in a
discussion of such principles, concluding that application of the
resentencing statute in Petitioner’s case does not violate such
principles, overruling Dutton v. Dixon. Cartwright v. State, 778
P.2d at 483.

The Oklahoma Court of Criminal Appeals relied upon the opinion
of the United States Court o1 Appeals for the Tenth Circuit in
Coleman v. Saffle, 869 F.2d 1377, 1385 (10th Cir. 1989), in
reaching this conclusion. Coleman also involved the appeal from
denial of federal habeas relief of a capital defendant who raised
an ex post facto claim. That claim concerned the change in
interpretation by the Oklahoma Court of Criminal Appeals concerning
its power to reweigh aggravating and mitigating circumstances in
the event that an aggravating circumstance was declared infirm upon
appeal. Although that claim addressed judicial interpretation
rather than retroactive interpretation of a statutory enactment,
the Tenth Circuit applied ex post facto principles in denying

Coleman’s claim.

As discussed by the court in Coleman v. Saffle, id.:

(T)he critical test, as stated in recent
Supreme Court cases, is whether, as applied,
the change impairs “substantial personal
rights,” or merely changes “modes of procedure
which do not affect matters of substance.”
» 432 U.S. 282, 293, 97
S.Ct. 2290, 229 [sic], 53 L.Ed.2d 344 (1977)
(quoting Beazel] _v. Ohio, 269 U.S. 167, 171,
46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)); see
also ida, 482 U.S. 423, 107
S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987);
» 765 F.2d 944, 948
(10th Cir.1985)(en banc)(no ex post facto
violation if new law is merely procedural and
does nct increase punishment for, or change
the elements of, an offense, or alter facts
necessary to establish guilt).

Applying the analysis employed by the Tenth Circuit in the
Coleman case, the Oklahoma Court of Criminal Appeals held that
Petitioner “can be resentenced without violating due process or
the ex post facto prohibition of either the Oklahoma or Federal

Constitutions.” Cartwright v. State, 778 P.2d at 482. Important

to the court’s determination was the fact that resentencing would

subject Petitioner to the same possible punishments as existed at
the time of trial: death or life imprisonment.

Moreover, the court concluded that Petitioner did not have a
“right” to a modified sentence of life imprisonment (the previous
erroneous interpretation of ex post facto Principles employed by

the Oklahoma Court of Criminal Appeals in Dutton v. Dixon, 75 P.2d
376, 381 (Okla. Crim. App. 1988) and its predecessors). As stated

by the court:

Defendants may have had expectations that
their sentences would automatically be
modified to life imprisonment, but the ex post
facto clause does not prevey. the State from
depriving a criminal defendant of an
expectation as to a procedure that has not yet
accrued to his benefit.

675 P.2d 577 (Utah 1983).

Cartwright v. State, 778 P.2d at 482.

It would be illogical indeed to permit a retrial of both

issues of guilt and punishment where an appellate court has
determined that error occurred during the guilt stage of a capital
case, yet not permit a retrial of the sentencing stage of trial
where error occurred only during that latter stage of trial.
Respondent notes that its position consistently has been that it
is permissible for the Oklahoma Court of Criminal Appeals to
independently reweigh aggravating and mitigating circumstances
(the Coleman issue) and to resentence in the event of punishment-
stage error (the issue presently before this Court). Oklahoma law
long has provided the Oklahoma Court of Criminal Appeals with the
authority to order a new trial as a mechanism to correct errors.
Okla.Stat.tit. 22, § 1066 (1981). Here correction of error is
accommodated by a new trial regarding punishment. The State simply
acceded to gtare decisis in the brief on rehearing when it
acknowledged that Oklahoma law did not allow for resentencing in
Petitioner’s case.

Respondent submits that the rule announced by the Oklahoma
Court of Criminal Appeals in Petitioner’s attempt to gain state
habeas corpus relief is the correct interpretation of law

addressing ex post facto principles. This Court has addressed

those principles in the context of a state criminal capital case.

In Dobbert vy. Florida, 432 U.S. 282, 292 (1977), this Court
concluded that statutory changes in the role of judge and jury in

death penalty cases rendering the jury’s verdict on the imposition
of sentence advisory did not violate the Ex Post Facto Clause of
the Constitution when applied to a case in which the changes in the
law occurred after the commission of the crime but prior to the
trial of the matter. The changes were viewed as procedural in
nature, permitting their application to a case which commenced
prior to their effective date.

Procedural changes do not constitute ex post facto laws even
though they may work to the disadvantage of a defendant. JId., at
293. In the present case, the Petitioner may be disadvantaged by
the 1985 amendment providing for resentencing through a perceived
Claim of entitlement to modification of his sentence to life
imprisonment where punishment~stage error was present. However,
the provision for resentencing does not increase the potential
punishment to be received: as charged pursuant to the filing of
a Bill of Particulars, Petitioner was subject to a sentence of
death or life imprisonment. A resentencing procedure subjects him
to those same alternatives. Cf. Miller v. Florida, 482 U.S. 423,
436 (1987) (state sentencing guideline statute enacted after the
defendant’s crime which increased the presumptive sentence range
constituted an ex post facto law as applied to that defendant).

The affirmance by this Court of the Tenth Circuit’s decision
that Petitioner’s sentence of death was premised upon an invalid
Seqnetuny aggravating circumstance does not operate as an acquittal
regarding a verdict of death upon consideration of any aggravating
circumstance which constitutionally does apply. The 1985
resentencing amendment operates as a procedure to ensure that the
appropriate sentence is imposed in a capital case. It does not
create a new circumstance in which death may be the appropriate

sentence as was the case in Kring v. Missouri, 107 U.S. 221, 228

(1883). The Tenth Circuit distiryuished application of Kring in

United States v. Affleck, 765 F.2d 944, 950 (10th Cir. 1985), when

it conciuged that new rules governing bail pending appeal did not
violate ex post facto principles. Kring is similarly
distinguishable in the instant case.

Neither is the instant situation akin to that present in
Weaver v. Graham, 450 U.S. 24 (1981), where this Court held that
a Florida “gain time” sentencing credit statute was an ex post
facto law as applied to a criminal defendant whose crime occurred
prior to the statute’s enactment. In that case this Court
reiterated its recognition

that a prisoner’s eligibility for reduced

imprisonment is a significant factor entering

into both the defendant’s decision to plea

bargain and the judge’s calculation of the

sentence to be imposed (cites omitted)
450 U.S. at 32. Petitioner Weaver had pleaded guilty to second
degree murder, no doubt evaluating his actual incarceration time
in making his decision to so plead.

In th- present case Petitioner entered pleas of not guilty to
the crime and Bill of Particulars.. Moreover, the jury imposing
sentence in Petitioner’s case based its determination of sentence
upon weighing aagravating and mitigating circumstances, not
eligibility for release. Under Oklahoma law the jury is precluded
from being informed of parole considerations. See eg. Kovash v.
State, 519 F.2d 517 (Okla. Crim. App. 1974), cert. denied 419 U.S.

830. See also Nguyen v. State, 769 P.id 167, 173 (Okla. Crim. App.

1988) (rule applies to capital case). Similarly the factfinder who
will resentence Petitioner (a jury should he request one) will
evaluate the appropriateness of the death sentence through proper
criteria.

Remanding Petitioner’s case for resentencing does not
constitute an arbitrary act, but rather a reasoned response to this
Court’s directive that his prior sentence was unconstitutionally

imposed. As discussed, supra, remand of the cause for resentencing

is not violative of ex post facto principles.

For the foregoing reasons, Respondent respectfully requests

that Petitioner’s Petition for a‘Writ of Certiorari be denied.

On this aq

Respectfully submitted,

ROBERT H. HENRY
ATTORNEY GENFRAL OF OKLAHOMA

'
SUSAN STEW, DICKERSON, OBA #2346
ASSISTANT ATTORNEY GENERAL

ASSISTANT ATTORNEY GENERAL
CHIEF, CRIMINAL DIVISION

112 State Capitol Building
Oklahoma City, OK 73105
(405) 521-3921

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF MAILING

day of November, 1989, a true and correct copy

of the foregoing was mailed to:

Mandy Welch

Norman, OK

73019

16601 Cross Center Drive

SSD/vid/cartwrt brf

PUSAN STRWART DICKERSON

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0480%3A3. Public record. Not legal advice.