Swart v. State

• Decision Date: 17 June 1986
• Docket Number: No. C-84-584,C-84-584
• Citation: 720 P.2d 1265
• Parties: Thomas Deshawn SWART, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1265

720 P.2d 1265

Thomas Deshawn SWART, Appellant, v. STATE of Oklahoma, Appellee.

No. C-84-584.

Court of Criminal Appeals of Oklahoma.

June 17, 1986.

Johnie O'Neal, Asst. Public Defender, Tulsa, Okl., for appellant.

Michael C. Turpen, Atty. Gen., Terry Jenks, Asst. Atty. General, Oklahoma City, for appellee.

Stephen C. Lewis, State Representative, Shawnee, James E. Hamilton, State Representative, Poteau, Don G. Pope, General Counsel, Okla. Dept. of Corrections, Oklahoma City, as Amici Curiae urging affirmance.

OPINION

PARKS, Presiding Judge:

With this case, we are called upon to assess the constitutionality of the Oklahoma Intermediate Offender Act, currently codified at 22 O.S.Supp.1984, § 995 et seq. After oral argument, and upon consideration of the excellent briefs filed by appellant, the State of Oklahoma, and various amicus curiae, we determine the Act is unconstitutional.

On January 12, 1984, and January 17, 1984, the appellant, Thomas Deshawn Swart, was charged in the District Court of Tulsa County, Case No. CRF-84-114 and CRF-84-178, with the crimes of Attempted Burglary and Knowingly Concealing Stolen Property. On March 16, 1984, the appellant appeared for arraignment, and indicated his wish to plead guilty to a thirty (30) month negotiated sentence. The trial judge, the Hon. Jay Dalton, though expressing doubts concerning the constitutionality of the Oklahoma Intermediate Offender Act [hereinafter referred to as the NIO Act, or the Act], ¹ ruled the Act had application to appellant's cases, and that he would sentence the appellant accordingly. Appellant filed a petition for an extraordinary writ in this Court, which was denied. After denial by this Court, appellant, on June 8, 1984, entered his pleas of guilty to each offense. Despite the State's recommendation of a thirty (30) month determinate sentence on each offense, the trial court sentenced appellant to an indeterminate sentence with the Department of Corrections [herinafter referred to as the D.O.C.]. Appellant timely moved to withdraw his plea of guilty, citing the unconstitutionality of the NIO Act. After this motion was overruled, an appeal was perfected with this Court.

I.

The NIO Act is an attempt by the Oklahoma Legislature to classify any person between the ages of eighteen and twenty-one, or a juvenile certified to stand trial as an adult, who has been convicted of a nonviolent offense, as a "nonviolent intermediate offender." 22 O.S.Supp.1984, § 995.1. Upon a verdict of guilty, or a plea of guilty or nolo contendere, a trial judge has two sentencing options regarding the "non-violent intermediate offender": The judge may impose a deferred sentence, or impose an indeterminate sentence with the D.O.C. Id. at § 995.3(B). If the later option is taken a rehabilitation plan is filed by the D.O.C. within ninety (90) days after sentencing. This report includes an assessment of "security risks and offender needs and a specific course of action, including, where applicable, psychological counseling, psychiatric treatment, medical treatment, education or vocational training, work, restitution, and such other programs, which will offer the best opportunity for rehabilitation of said offender." Id. at 995.3(B). If no objections to the plan are filed by the District Attorney or the offender, the plan is automatically deemed approved by the trial court. If an objection is filed, the trial court shall conduct a hearing, and either approve or reject the plan. Id. All updated plans must go through the same procedure.

Once the offender is placed with the D.O.C., that agency has broad powers under the act to place the offender with various institutions within and without the D.O.C., or grant the offender a supervised probation. Id. at §§ 995.4, 995.7. If the D.O.C. seeks to transfer an offender from probation to confinement, it must "provide an appropriate due process hearing and administrative appeal procedure." Id. at § 995.5. At any time prior to the offender's twenty-second birthday, the trial court may, upon recommendation from the D.O.C., discharge the offender from custody. Id. at § 995.8. At the age of twenty-two, the trial court may discharge the offender, set a determinate sentence, giving credit for time already served under the NIO Act, or order the offender to continue under the NIO Act for an additional two years. Id. at § 995.9.

II.

In his three-fold challenge to the constitutionality of this act, the appellant first contends that the NIO Act is unconstitutional due to the statute's mandate in 22 O.S.Supp.1984, § 995.3 that, in the appellant's terms, the trial judge "ignore the jury's assessment of punishment." Brief of Appellant at 6. "This ... provision of the statute renders [the Act] unconstitutional because it expressly conflicts with an Oklahoma Defendant's right under 22 O.S.1981, § 926 to have a jury assess his punishment." Id.

We addressed, and rejected, a similar argument in Wood v. State, 557 P.2d 436 (Okl.Cr.1976). In Wood, we considered a challenge to 21 O.S.Supp.1973, § 701.4, ² which required the trial court to "set an indeterminate sentence [of not less than ten (10) years nor more than life] ... on a finding of guilty by the jury of murder in the second degree." The defendant in Wood argued the statute was unconstitutional "for the reason that it deprives a defendant of his right to have the jury assess punishment." Id. at 443. In rejecting this claim, a unanimous court held

[u]nder Article II, Section 19 of the Oklahoma Constitution, as amended, the right of a trial by jury remains inviolate. However, the Constitution does not require that the jury, once issues of fact have been presented to it and it has determined that an accused it [sic] guilty of the crime charged, must assess punishment. As stated in 23A C.J.S. Criminal Law § 1141, where the fine or period of imprisonment is fixed by law, it is usually for the court and not for the jury to assess it unless such power is conferred on a jury by constitutional or statutory provision. In Oklahoma a defendant's right to have a jury assess punishment is a matter of statute, 22 O.S. § 926 and § 927.

It should also be noted that in the syllabus of the Court in Burtt v. State, 64 Okl.Cr. 68, 77 P.2d 580 [1938], this Court held that § 927, which permits the trial court to assess punishment when the jury fails to do so, is not unconstitutional as depriving a defendant of his right to trial by jury.

Id. at 444.

Appellant, however, questions the validity of the above reasoning, and attempts to fashion a constitutional right to jury sentencing from the U.S. Supreme Court's decision in Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). We disagree with appellant's assumption that Hicks has application to the NIO Act, so as to render the Act unconstitutional on this basis. Contrary to appellant's assertion, Hicks did not establish a constitutional right to a jury's assessment of punishment; rather, Hicks states that due process is offended if an accused is arbitrarily deprived of a right granted by state statute. ³ Id. at 346, 100 S.Ct. at 2229. "[T]he extent of [an] appellant's constitutional right to be sentenced by a jury turns on the extent to which the Oklahoma state legislature has created such a right." Drennon v. Hess, 642 F.2d 1204, 1205 (10th Cir.1981). The decision whether to establish, expand, or limit such a statutorily created right is purely within the authority of the Legislature. It is only when such a right has been established by the Legislature, and then is subsequently abrogated in an improper manner by state officials, that federal due process is offended. Accord Drennon v. Hess, supra. This allegation is therefore without merit.

III.

Appellant also asserts that the NIO Act denies him the equal protection of law, as guaranteed by the Fourteenth Amendment to the Federal Constitution. We are not persuaded that the NIO Act is unconstitutional on this basis.

In analyzing the constitutionality of a statute under the equal protection clause, the U.S. Supreme Court has developed a two tiered test: First, the Court has held that "equal protection analysis requires strict scrutiny of a legislative classification ... when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). Classifications subjected to strict scrutiny will be upheld only if they are substantially related to an extremely important or compelling end of government. If the classification does not invoke analysis under the strict scrutiny tier, the legislation is then analyzed under the "rational relationship test." Under this approach, a legislative classification "must be reasonable, nor arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). In short, the challenged classification must be "rationally related to a legitimate state interest." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976). Under this second tier, "a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect." Danridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970).

The classification challenged in this case is defined by 22 O.S.Supp.1984, § 995.1(1) of the NIO Act as those persons "eighteen (18) through twenty-one (21) years of age convicted of a nonviolent offense or a juvenile who has been certified to stand trial as an adult and who is convicted of a nonviolent offense." The term, "nonviolent offense," is defined at 22...