Cartwright v. State

• Decision Date: 31 July 1989
• Docket Number: No. H-88-820,H-88-820
• Citation: 1989 OK CR 41,778 P.2d 479
• Parties: William Thomas CARTWRIGHT, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 479

778 P.2d 479

William Thomas CARTWRIGHT, Petitioner, v. STATE of Oklahoma, Respondent.

No. H-88-820.

Court of Criminal Appeals of Oklahoma.

July 31, 1989.

Mandy Welch, Deputy Appellate Public Defender, Norman, for petitioner.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma 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.

I. 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 L.Ed.2d 661 (1985). Petitioner's appeal from denial of state post-conviction relief was denied. Cartwright v. State, 708 P.2d 592 (Okl.Cr.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 District Court for the Eastern District of Oklahoma was denied. The Tenth Circuit Court of Appeals affirmed the denial of habeas corpus relief in Cartwright v. Maynard, 802 F.2d 1203 (10th Cir.1986). Following 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 Cir.1987). The Tenth Circuit directed the district court "to 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 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. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The Supreme Court also declared that its judgment was without prejudice to further proceedings in the state courts for redetermination of the appropriate sentence. Id. at 486 U.S. ----, 108 S.Ct. at 1860, 100 L.Ed.2d at 383.

II.

In Stouffer v. State, 742 P.2d 562, 563-64 (Okl.Cr.1987) (Opinion on Rehearing), this Court reconsidered 21 O.S.1981, § 701.13(F), and held that it had the authority to independently reweigh aggravating and mitigating circumstances when, on appellate review, an aggravating circumstance 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 factual substantiation of the verdict and determination of the validity of the sentence. Id. Prior to Stouffer, this Court had, when finding an error during the sentencing stage of trial, automatically modified the sentence to life imprisonment.

In Castro v. State, 749 P.2d 1146, 1150 (Okl.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, or change the legal 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 establishing guilt or innocence. Castro, at 1151. Finally, quoting Dobbert 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 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. Dixon, 757 P.2d 376, 381 (Okl.Cr.1988), a majority of this Court held that 21 O.S.Supp.1985, § 701.13(E)(2), which allows this Court to set aside a death sentence when error is found during the sentencing stage of trial 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(E)(2). The Dutton court stated that "the retroactive application 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 [an] accused to his disadvantage." Id. at 381. The majority concluded, "[w]hile the 1985 resentencing amendment may appear to take a seemingly procedural form, in its practical operation it deprives the petitioner of a substantial right, 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 right, i.e., automatic modification to life imprisonment.

III.

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 prohibition against ex post facto laws concerns legislative enactments. However, the Court applied 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 is whether the change impairs "substantial personal rights," or 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, 2298, 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 punishment, and (3) the quantity and degree of proof necessary to establish guilt. See also United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985); Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 68-69, 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 punishment prescribed therefor, and the quantity or degree of proof necessary to establish guilt, all remain unaffected by the amended statute. See Miller v. Florida, 482 U.S. 423, 433-34, 107 S.Ct. 2446, 2452, 96 L.Ed.2d 351, 362 (1987). Even on remand, petitioner faces the same possible punishment as before: life imprisonment or death. We therefore find the new sentencing amendment to be a procedural change in the law, and not prohibited by the ex post facto prohibition.

We also find the argument in Dutton, that defendants had a "right" 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 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 facto prohibition of either the Oklahoma or Federal Constitutions.

IV.

With regard to statutory construction and retroactivity, 22 O.S.1981, § 3 provides: "No part of this code is retroactive unless expressly so declared." In Dutton, the majority held that since the amendment contained no express...