881 P.2d 88 (Okla.Crim.App. 1994), F-93-786, Crawford v. State

Docket NºF-93-786.
Citation881 P.2d 88
Party NameJoseph CRAWFORD, Appellant, v. STATE of Oklahoma, Appellee.
Case DateAugust 31, 1994
CourtCourt of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 88

881 P.2d 88 (Okla.Crim.App. 1994)

Joseph CRAWFORD, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-93-786.

Court of Criminal Appeals of Oklahoma.

August 31, 1994.

Page 89

An Appeal from the District Court of Creek County; Charles S. Woodson, District Judge.

Frank Pacenza, Cleveland, for appellant, at re-sentencing.

Lendell S. Blosser, Asst. Appellate Indigent Defender, Norman, for appellant, on appeal.

Lantz McClain, Dist. Atty., Michael S. Loeffler, Asst. Dist. Atty., Sapulpa, for State, at re-sentencing.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for State, on appeal.

OPINION

LUMPKIN, Presiding Judge:

Appellant Joseph Crawford was tried by jury and convicted in October 1988 of Murder in the First Degree (21 O.S.Supp.1982, § 701.7); First Degree Burglary, After Former Conviction of a Felony (21 O.S.1981, § 1431); Robbery by Force, After Former Conviction of a Felony (21 O.S.1981, § 791); and Larceny of an Automobile, After Former Conviction of a Felony (21 O.S.1981, § 1720), Case No. CRF-88-41, in the District Court of Creek County. The jury found the existence of one aggravating circumstance and recommended punishment of death for the murder conviction and imprisonment for ninety-nine (99) years for the burglary conviction; forty-five (45) years for the robbery conviction and twenty (20) years for the larceny of an automobile conviction. The trial court sentenced accordingly. From this judgment and sentence Appellant perfected a direct appeal.

In Crawford v. State, 840 P.2d 627 (Okl.Cr.1992) this Court affirmed the convictions for First Degree Murder, Robbery by Force and Larceny of an Automobile and reversed the conviction for first degree burglary. The death sentence imposed as punishment for the first degree murder conviction was set aside and the case remanded to the trial court for re-sentencing based upon a finding of insufficient evidence to support the sole aggravating circumstance. Life imprisonment without the possibility of parole was the sentence imposed upon re-sentencing. It is from that sentence which Appellant now appeals.

Life imprisonment without the possibility of parole and life imprisonment were the only two sentencing options upon remand. Appellant requested the sentencing decision be made by a jury. The trial court opined that the opinion handed down by this Court precluded jury re-sentencing. 1 Therefore, Appellant's request was denied and he was re-sentenced in a non-jury proceeding. On appeal, Appellant argues in the alternative that denying him a jury for re-sentencing under 21 O.S.Supp.1989, § 701.10a 2 was a violation

Page 90

of the Equal Protection Clause of the United States Constitution. He also argues that 21 O.S.Supp.1989, § 701.10a was improperly applied in this case and he should have been resentenced under the provisions of 22 O.S.1991, § 929.

As to his first argument, Appellant contends that in as much as jury re-sentencing is available in non-capital cases, 3 the denial of jury re-sentencing in capital cases unfairly sets apart capital defendants who successfully appeal their death sentences. He argues this deprives capital defendants of the opportunity to have a jury re-sentence them in violation of the equal protection clause of the Fourteenth Amendment. The State finds no equal protection violation and argues the statute allows for leeway in plea negotiations between the prosecution and the defense when a capital case is remanded for resentencing.

The process for analyzing the constitutionality of a statute under the Equal Protection Clause has been previously set forth in Swart v. State, 720 P.2d 1265 (Okl.Cr.1986). In Swart we stated:

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...

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