Opposition Brief — Oklahoma v. Hain

Supreme Court, U.S.

FILED

ORIGINAL we

No. 93-1252

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

THE STATE OF OKLAHOMA

Petitioner,

vs.

SCOTT ALLEN HAIN

Respondent.

RESPONSE TO THE PETITIONER’S PETITION FOR

WRIT OF CERTIORARI

John Thomas Hall

Attorney for the Respondent

One West Third, Suite 700

Tulsa, Ok 74103

(918) 749-5201

March 14, 1994

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Reasons for Denying the Writ .............54-. s-

I. EQUAL PROTECTION IS AN INVALID ARGU-

MENT IN THIS INSTANCE AND IS UNAVAILABLE TO

THE STATE OF OKLAHOMA AS A FEDERAL QUES-

TION PURSUANT TO 28 U.S.C. § 1257....... 3

II. THE PETITIONER’S REASONS II AND III

FAIL TO STATE JURISDICTIONAL ISSUES BE-

CAUSE THE ISSUE OF GIVING THE LIFE WITH-

OUT PAROLE INSTRUCTION WAS DECIDED ON

ADEQUATE AND INDEPENDENT STATE GROUNDS... 4

ee ee ee ee ee ee 5

TABLE OF CASES

CITATION PAGES

lies ww. Stare. G2Zi P.26 371 ( Okl. Ce. 1991). .cccceces 3,4

Coleman _v. Thompson, 501 U.S. » 431 §$.Ct. 2546,

rr re ee ent ebbbeebeteobeses oma 2,39

ole =. Seem. Coe P.20 144 ( Chl. Ce. 1993) 2 occccceces mr

Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038,

ne Se ons toc en eee 606 wees weet evesceee 2,4

Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3496,

EE a 2,4

Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873,

Ee Se a: Zea

Oklahoma v. Ballard, Case No S-91-769, 65 OBAJ 560

SR rs, Se eo ea 2,3

Pappanastos v. Board of Trustees, 615 F.2d 219 (1980

a er Yaa eG eg ee eed eebeoeseeeeue 3

Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333,

3 FF £:) errr re Ter oe ee TT TE ETT eEe 2,4

TABLE OF U.S. STATUTES

Be Wee © SORT. seb cet e686 600 SO Cee OTRAS COOKER O ROR KOO NOS 1,2,4,5

RESPONSE TITION FOR WRIT OF I

Respondent, Scott Allen Hain, by and through his attorney,

John Thomas Hall, requests that the United States Supreme Court

deny the Writ of Certiorari to hear the issues raised in said

Petition for and because there are no federal grounds and the

decision on which the issue of retroactivity of the giving of the

life without parole sentencing option in first degree murder cases

in Oklahoma was decided on adequate and independent State grounds.

The Respondent has submitted other arguments in this matter on the

same opinion below in U.S. Supreme Court Case No. 93-7066.

OPINION BELOW

The opinion of the Oklahoma Court of Criminal Appeals below

which is the subject of this Writ is Hain v. State, 852 P.2d 744

(Okla. Cr. App. 1993). The opinion is attached as the Appendix in

Case No. 93-7066, Supra.

JURISDICTION

The Respondent denies that the Court has jurisdiction pursuant

to 28 U.S.C. § 1257 (a) because there is no equal protection issue

and the issue complained of by Petitioner was decided on adequate

and independent State grounds.

STATEMENT OF THE CASE

The Respondent would adopt his Statement of the Case in Case

No. 93-7066, and would state that there is no material disagreement

with Petitioner in its Statement of the Case.

SUMMARY OF THE ARGUMENT

The Petitioner argues that the decision of the Court below is

a violation of Equal Protection. The Respondent would argue that

Equal Protection applies to an individual, not a group. This by

simple logic would demand that any group which would come under the

aegis of Equal Protection would have to have at least one

individual init. As the State freely admits, there are no persons

in this class. Further, Equal Protection is not available to the

State. Hence, Equal Protection does not apply and the Writ should

be denied. Mitchell v. United States, 313 U.S. 80, 85 L.Ed.2nd

1201, 61 S.Ct. 873 (1941); Pennsylvania v. New Jersey, 426 U.S.

660, 49 L.Ed.2nd 124, 96 S.Ct. 2333(1976); Oklahoma v. Ballard, S-

91-769, 65 OBAJ 560 (February 12, 1994).

Further, the next two arguments of the Petitioner deal with no

recognizable federal issue. Moreover, if there is any federal

issue, such as the construction of “death is different", the

decision by the Court below was made on adequate and independent

State grounds. The only complaint seems to be that the Court below

has chosen in the instance of the death penalty to approach

sentencing in a way that is fundamentally fair, and has decided

that, in this case, the change in sentencing involves a fundamental

right and, therefore, is retroactive. Wherefore, there 1s no

jurisdiction under 28 U.S. § 1257 (a). Michigan v. Long, 463 U.S.

1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Coleman v. Thompson,

501 u.S. — .. 111 S.Ct 2546, 115 L.Ed.2d 640 (1991

31); Harris v.

Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)

REASONS FOR DENYING THE WRIT OF CERTIORARI

I. EQUAL PROTECTION IS AN INVALID ARGUMENT IN THIS

INSTANCE AND IS UNAVAILABLE TO THE STATE OF OKLAHOMA

AS A FEDERAL QUESTION PURSUANT TO 28 U.S.C. § 1257.

Anglo-American jurisprudence is quite clear concerning the

methodology for determining whether or not there has been a

violation of equal protection and, therefore a denial of due

process of law by the establishment of an unconstitutional class.

A case which sets forth this analysis is Pappanastos v. Board of

Trustees, 615 F.2d 219 (1980, CAS Ala.), at 220-221. The Court

found:

“we must first determine the burden of justification the

[challenged] classification [person].... must meet" (Cit.omit.).

“The proper degree of judicial scrutiny is a function of two

variables: first the nature of the right affected; and second, the

identity of the plaintiff. If the classification ‘interferes with

the exercise of a fundamental right, or operates to the peculiar

disadvantage of a suspect class, strict judicial scrutiny is then

the standard of review.’ (cit.omit.). Otherwise, the question is

whether the classification bears ‘a rational relationship to a

legitimate state interest’" (cit. omit.).

The State has two-problems in this Writ. First, the State

wants to talk about persons convicted of crimes before a law

becomes effective. The State of Oklahoma, in upholding the above

equal protection analysis in State of Oklahoma v. Ballard, Case No.

S-91-769, 65 OBAJ 560 (2/12/94), further states at 561; “No party

has cited, and this Court is unable to find, any authority showing

a person convicted of a crime, without more, is in a suspect

classification." The State makes no showing that this class is a

Suspect one, or that it is “similarly situated" to Scott Hain’s

class. It is certainly outside the narrow class created by the

Court in Allen v. State, 821 P.2d 371 (Okla.Cr. 1991) and Hain v.

State, 852 P.2d 744 (Okla. Cr. 1993).

Second, as admitted by the State, their class is hypothetical.

They allege, and there is in fact, no person in the class the State

wishes to protect. The rule is clear that “It is the individual

who is entitled to equal protection of the laws, and not merely a

group of individuals or a body of persons..." Mitchell v. United

States, 313 U.S. 80, at 97, 61 S.Ct. 873, 85 L.Ed 1201 (1941). The

State has no individual or person to protect.

Finally, equal protection is not a predicate for an action by

a State. The case of Pennsylvania v. New Jersey, 426 U.S. 660, at

665, 96 S.Ct. 2333, 49 L.Ed 2d 124 (1976), states conclusively,

"Claims brought by States on their own behalf cannot be predicated

on alleged violations of the equal protection clause, because the

equal protection clause protects people, not states."

Wherefore, the State has shown no jurisdiction pursuant to 28

U.S.C. § 1257 with its Reason I.

II. THE PETITIONER’S REASONS II AND III FAIL TO STATE

JURISDICTIONAL ISSUES BECAUSE THE ISSUE OF GIVING THE

LIFE WITHOUT PAROLE INSTRUCTION WAS DECIDED ON ADEQUATE

INDEPENDENT STATE GROUNDS.

The rule for adequate and independent state grounds in direct

appeal matters has been set forth in Michigan v. Long, 463 U.S.

1032, at 1042, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and

reiterated for the purposes of post conviction relief in Harris v.

Reed, 489 U.S. 255, at 261, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

The Court wrote in Harris, id., citing Long, supra., "..., if ‘it

fairly appears that the state court rested its decision on federal

law,’ this Court may reach the federal question on review unless

the state court’s opinion contains a "plain statement that [its]

decision rests upon adequate and independent state grounds.’"

In Hain v. State, supra., at 753, the Court stated, "“" As

discussed in Allen v. State, 821 P.2d 371 (Okl. Cr. 1991), we find

no constitutional prohibition to the application of this possible

sentencing option in cases where the penalty became law in the

period while the offender awaited trial. " Rather than recite the

passages in full here, the salient portions of the opinion of the

Court in Allen, supra, are attached to this Response, as “Appendix"

and incorporated herein as if pled in full. The State did not file

a § 1257 appeal in Allen, and there would possibly be a waiver of

those issues here. Harris, supra, and Long, supra.

Upon consideration of the extensive discussion of the Oklahoma

Court of Criminal Appeals in Allen, supra, the Respondent would

assert that this Court must find that there is unequivocally a

"plain statement" that the decision of the Court of Criminal

Appeals rests on adequate and independent state grounds. This is

particularly clear when the said Court addresses the state

sentencing and weighing procedures in death penalty cases.

Therefore, the Petitioner is still without jurisdiction for this

Writ. The Court found in Coleman v. Thompson, 501 U.S. ____, 111

S.Ct. 2546, at 2553, 115 L.Ed.2d 640 (1991):

“ This Court will not review a question of federal law decided

by a state court if the decision of that state court rests on a

state law ground that is independent of the federal question and

adequate to support the judgement. (cit.omit.) This rule applies

whether the state law ground is substantive or procedural.

(cit.omit.) In the context of direct review, the independent and

adequate state law ground is jurisdictional. Because this Court

has no power to review a state law determination that is sufficient

to support the judgement, resolution of any independent federal

ground for the decision could not affect the judgement and would

therefore be advisory."

CONCLUSI

The Court should deny the Petitioner’s Writ of Certiorari

because Equal Protection does not obtain in this case and the Court

of Criminal Appeals made its decision on giving the life without

parole instruction on adequate and independent state grounds.

Therefore, this Court has no jurisdiction pursuant to 28 U.S.C. §

igo? .

Respectively submitted,

ohn

y Attorney for Respondent

One West Third, Suite 700

Tulsa, Ok 74103

(918) 749-5201

No. 93-1252

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

THE STATE OF OKLAHOMA

Petitioner,

vs.

SCOTT ALLEN HAIN,

Respondent.

CERTIFICATE OF SERVICE

I, John Thomas Hall, a member of the Bar of this Court, hereby

certify that one (1) copy of the foregoing Response to Writ of

Certiorari was mailed, first class, postage paid, to:

Ms. A. Diane Blaylock

Assistant Attorney General

112 State Capitol Bldg.

SZ Ste (ee LED

Oklahoma City, OK 73105.

‘fare Thomas/Aall

Attorney for the

me A

Dated: March 14, 1994

NO. 93-1252

STATE OF OKLAHOMA,

PETITIONER,

vs.

SCOTT ALLEN HAIN,

RESPONDENT.

APPENDIX TO

RESPONSE TO PETITION TO WRIT OF CERTIORARI

of his rights in any manner. We have

considered the entirety of the proceedings

and find that the record supports a finding

of malice aforethought. State v. Durant,

609 P.2d 792 (OkI.Cr.1980).

[5] Having considered the errors which

Appellant raises in connection with our re-

view of the trial court’s denial of Appel-

jant’s request to withdraw his guilty plea,

we cannot reach the conclusion that the

trial court erred. The decision to allow the .

withdrawal of a plea is within the sound

discretion of the trial court and we will not

interfere unless we find an abuse of discre-

tion. Hopkins v. State, 764 P.2d 215 (Okl.

Cr.1988); Vuletich v. State, 735 P.2d 568

(Okl.Cr.1987); Ligon v. State, 712 P.2d 74

(OkI.Cr.1986); Darnell v. State, 623 P.2d

617 (Okl.Cr.1981). Insofar as Petitioner

has failed to allege any irregularities which

would indicate that his plea was involun-

tary, we cannot say that the trial court

abused its discretion.

{6] With the validity of Appellant's plea

established, we shift our consideration to

the penalty portion of the proceedings. We

find that the trial court erred when it re-

fused to consider the possible assessment

of a sentence of life without parole. Ac-

cordingly we find that the case must be

remanded to the trial court for a new trial

on sentencing pursuant to 21 0.S.Supp.

1990, § 701.13(E).

{7} The issue before us now concerns

whether or not the application of a newly

enacted, intermediate level of punishment

for the offense of First Degree Murder

subsequent to the commission of the of-

fense in question would violate the prohibi-

tions against ex post facto laws found in

both the Constitutions of the United States

and the State of Oklahoma. We find that

it would not.

[8] The purpose of the rules against the

passage of ex post facto laws, Art. I, § 10

of the United States Constitution and Art.

2, § 15 of the Oklahoma Constitution, was

to assure that “federal and state legisla-

tures were restrained from enacting arbi-

trary or vindictive legislation.” Miller v.

Florida, 482 U.S. 423, 107 S.Ct. 2446, 96

ALLEN v. STATE + Oh. STG

Cite as 821 P.2d 371 (OkLCr. 1991)

L.Ed.2d 351 (1987). In a criminal context,

these protections apply only to laws or

judicial interpretations which directly af-

fect the punishment of the defendant.

Morris v. Meachum, 718 P.2d 1354 (Okl.

1986). “{No] ex post facto violation occurs

if a change does not alter ‘substantial per-

sonal rights’ but merely changes modes of

procedure which do not affect matters of

substance.” Miller, 482 U.S. at 430, 107

S.Ct. at 2451, 96 L.Ed.2d at 360. See also

Barnes v. State, 791 P.2d 101, 103 (Okl.Cr.

19990).

In Miller, the Supreme Court examined

the ex post facto implications of changes in

the Florida sentencing procedures which

affected the punishment for crimes commit-

ted previous to the enactment of the

changes. The Court was very specific in

its definition of the purpose of the ex post

facto clause, holding that it only applied in

four very specific situations:

Ist. Every law that makes an action

done before the passing of the law, and

which was innocent when done, criminal

and punishes such action. 2d. Every

law that aggravates a crime, or makes it

greater than it was, when committed.

3d. Every law that changes the punish-

ment and inflicts a greater punishment

than the law annexed to the crime, when

committed. 4th. Every law that alters

the legal rules of evidence, and receives

less, or different testimony, than the law

required at the time of the commission of

the offense, in order to convict the of-

fender.

Id. quoting Calder v. Bull, 3 Dall. 386, 1

L.Ed. 648 (1798). The present case invokes

concern under the third identified principle.

In Miller, the Court makes it quite clear

that no violation occurs unless the change

in the law alters “punishment beyond what

was prescribed when the crime was con-

summated.” Jd. This holding accords

with previous decisions cf this Court. In

Dutton v. Dizon, 757 P.2d 376, 379 (Okl.

Cr.1988), this Court acknowledged that the

rule required the finding of two elements;

first, that the law was enacted subsequent

to the conduct to which it was being ap

plied; and second, “ ‘it must disadvantage

/

a

4

t

wl s wee

376 Oki.

the offender affected by it.'” Jd, quoting

Miller, 482 U.S. at 431, 107 S.Ct. at 2451,

96 L.Ed.2d at 360.

{9} Our analysis in such a case must

focus on the potential punishments avail-

able for a particular act and not on the

actual punishment received for the crime.

Id. In the present case, the State admits

that the change in penalty in question here

did not affect the maximum or the mini-

mum punishment to which Appellant could

have been subjected. Instead, the State

merely argues that the addition of an inter-

mediate level of punishment is a substan-

tive change rather than purely procedural,

thus the prohibition applies. We cannot

agree with this analysis.

There is no question that in this case

consideration of the life without parole sen-

tence is a retroactive application of a puni-

tive statute. However, our analysis may

not stop here. In order to affirm the tria!

court's refusal to consider this punishment,

we must also find that imposition of the

sentence could have disadvantaged Appel-

lant by subjecting him to a harsher punish-

ment than was available at the time he

committed his crimes. While we will not

speculate as to the comparative drawbacks

between a life in prison without chance of

parole and the actual imposition of the

death penalty, we believe that any possibili-

ty of a sentence which avoids the death

penalty cannot be said to be disad-

vantageous to the offender.

Accordingly, we find that the trial

court’s refusal to consider the possibility of

imposing a sentence of life without parole

provision under the provisions of 21

O.S.Supp.1987, § 701.10 was error. This

result is even more compelling in the

present case, wherein the Petitioner urged

the court to consider the sentence and exe-

cuted a valid waiver of his constitutional

right against the application of any ex post

facto law. The waiver of this right is just

as valid as the waiver of any of the other

constitutional protections given up in con-

nection with a plea of guilty.

Our next consideration must be how the

error may be rectified. It is true that in

cases where the sentence is death, this

821 PACIFIC REPORTER, 2d SERIES

Court has a wide spectrum of authority in

conjunction with its appellate powers. In

addition to the general power to “reverse,

affirm or modify the judgment appealed

from” provided in 22 0.S.1981, § 1066, the

legislature enacted specific powers as a

part of the capital sentencing procedures

which control in death penalty cases. We

are charged, in 21 0.S.1981, § 701.13, with

determining, inter alia, “whether the sen-

tence of death was imposed under the influ-

ence of passion, prejudice, or any other

arbitrary factor.” On the record before us,

we must conclude that the trial court’s

error of law concerning the available sen-

tencing options must be construed as an

arbitrary factor, which has a negative im-

pact on the validity of the death sentence.

It has long been recognized that a sys-

tem of capital punishment must meet strict

constitutional requirements to be upheld.

The primary goal of any such system must

be the allowance of individualized sentenc-

ing tempered by a controlled amount of

discretion, exercisable by the trier of fact.

See generally, Gregg v. Georgia, 428 U.S.

153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976);

Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed.2d 346 (1972). In the present

case, we are presented by a situation where

the sentencer did not fully understand the

options available, thus rather than the

more usual case involving “unbridled dis-

cretion,” we have just the opposite. The

trial court committed no less an error, how-

ever, when it took such a restricted view of

its sentencing options that it failed to allow

Petitioner the full benefit of all the sen-

tences provided by law.

We considered a similar sentencing prob-

lem in Walker v. State, 780 P.2d 1181

(Okl.Cr.1989). In that case, we held that

when the trial court did not recognize the

extent of its legal authority to fashion a

proper punishment, it cannot be said that it

had properly exercised its discretion. We

held that when the trial court has operated

under a mistaken impression of law, the

case must be remanded for resentencing.

We find that to be the appropriate remedy

in this case.

ALLEN v. STATE Okl. 377

Cite as 821 P.2d 371 (OkLCr. 1991)

This Court has recognized, as has the

Supreme Court, that many of the errors in

capital cases may be found either to be

harmless in light of the totality of the

record on appeal, or that in the case of an

invalid aggravating circumstance, reweigh-

ing by the appellate court may indicate that

the death sentence would still have been

given notwithstanding the absence of the

invalid aggravator. See Clemmons v. Mis-

sissippi, 494 U.S. 738, 110 S.Ct. 1441, 108

L.Ed.2d 725 (1990). See also Castro v.

State, 745 P.2d 394 (Okl.Cr.1787), cert. de-

nied, 485 U.S. 971, 108 S.Ct. 1248, 99

L.Ed.2d 446 (1988), on reh. 749 P.2d 1146

(Okl.Cr.1987), cert. denied 485 US. 971,

108 S.Ct. 1248, 99 L.Ed.2d 446 (1988);

Stouffer v. State, 738 P.2d 1349 (Okl.Cr.

1987), on rehearing, 742 P.2d 562 (Okl.Cr.

1987), cert. denied 484 U.S. 1036, 108 S.Ct.

763, 98 L.Ed.2d 779 (1988). In the case

before us now, however, we cannot say

that the error is harmless. Much testimo-

ny was presented concerning the ramifica-

tions of a life sentence. The trial court

indicated that it chose the death sentence

specifically for the purpose of keeping Peti-

tioner in prison forever. We cannot predict

what effect the third option of life without

parole may have had on the sentence pro-

nounced. Likewise, our ability to reweigh

is not implicated here. We are not con-

cerned with the finding that one of the

aggravating circumstance, and its attend-

ant evidence, should not have been con-

sidered by the trial court. We are instead

faced with a situation where the court fell

short of considering all available options.

Reweighing the aggravating and mitigat:

ing evidence provides no guidance as to

whether the trial court would have opted

for a sentence of life without parole had it

so considered. Although we find that Ap

pellant’s murder conviction is AFFIRMED,

we find that our only viable option is to

REMAND THE CASE FOR A NEW TRI-

AL ON SENTENCING, with the court giv-

ing proper consideration to all three possi-

ble punishments for the crime of First De-

gree Murder; Life in Prison, Life in Prison

without the Possibility of Parole and the

Death Penalty.

»

_BRETT and JOHNSON, JJ., concur.

PARKS, J., specially concurs.

LUMPKIN, V.PJ., concurs in result. ..

PARKS, Judge, specially concurring: .~

This Court established guidelines for the

taking of guilty pleas in King v. State, 553

P.2d 529 (Oki.Cr.1976). It continues to be

the opinion of this writer that the King

directives should be followed step by step

whenever a plea of guilty or nolo conten-

dere is entered. Ocampo v. State, 778

P.2d 920, 925 (Okl.Cr.1989) (Parks, PJ.,

concurring in part/dissenting in part). If

they were, most of the questions concern-

ing reliability of these pleas would be elimi-

nated. Compliance with King “best expe-

dites the interests of justice and promotes

finality by foreclosing state and federal

collateral attacks.” Ocampo, 778 P.2d at

925. On the basis of stare decisis, how-

ever, I must yield my view to that of the

majority of this Court and apply the stan-

dards set forth in Ocampo. Having done

this, I concur in the instant case.

DENIAL OF PETITION

FOR REHEARING

The State of Oklahoma has requested

that this Court grant rehearing in the

above captioned case on the basis that the

decision to remand the case for resentenc-

ing runs afoul of the section of the Okla-

homa statutes which prohibits retroactive

application of statutes without specific au-

thority from the legislature, 22 0.S.1981,

§ 3. The death sentence meted out to Al

len by the jury was reversed by this Court

and remanded to the trial court in order

that consideration could be made as to all

the appropriate punishments, including the

option of life without parole. The State

contends that this result is improper in that

Section 3 of Title 22 prohibits retroactive

application of newly passed or revised stat-

utes.

[10] We disagree with the State’s con-

clusion and hold that the provisions of Sec-

tion 3 are applicable only to Title 22. In

Section 1 of Title 22, the Legislature pro-

vided that “{tJhis Chapter shall be known

“sees

Ai thst

ts

J) HALL AND BROWNING, Al, SRNEYS

ONE WEST THIRD STREET, SUITE 700

TULSA, OKLAHOMA 74103

(918) 749-5201

John Thomas Hall Anno Harvey Browning

Attorney at Law

Attorney at Law

March 14, 1994

Mr. William K. Sutter

Clerk of The U.S. Supreme Court

One lst Street NE

Washington, D.C. 20543

<TTED |

EC -.

ye

RE: Oklahoma v. Hain,

Ue ine Ucn

NO. 93-1252 OS OREME COURT, us.

_—

—r

Dear Mr. Sutter:

Enclosed is the Response to Writ of Certiorari. Please, file

the Response and return a file stamped copy.

Thank you.

Sincerely,

# pir 62

_/ John Thomas Hall