Edwards v. State

• Decision Date: 14 February 1979
• Docket Number: No. PC-77-475,PC-77-475
• Citation: 591 P.2d 313,1979 OK CR 18
• Parties: Bruce Wayne EDWARDS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 313

591 P.2d 313

Bruce Wayne EDWARDS, Appellant, v. The STATE of Oklahoma, Appellee.

No. PC-77-475.

Court of Criminal Appeals of Oklahoma.

Feb. 14, 1979.

An appeal from the District Court, Oklahoma County; Homer Smith, judge.

Bruce Edwards, appeals from the denial of post-conviction relief. Remanded for further proceedings.

Fred P. Gilbert, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Kay Karen Kennedy, Asst. Atty. Gen., for appellee.

OPINION

CORNISH, Presiding Judge:

The appellant, Bruce Wayne Edwards, was convicted on pleas of guilty in the District Court, Oklahoma County, in Case No. CRF-71-2890 and in Case No. CRF-72-500, for the offenses of Grand Larceny and Larceny From a Person. He was subsequently convicted in the District Court, Oklahoma County, in Case No. CRF-74-1220, for the offense of Attempted Robbery With Firearms, After Former Conviction of a Felony. Although he was sixteen and seventeen years of age, respectively, at the time the larcenies were committed, he was not given certification hearings. He now contends in his post-conviction proceeding that his prior convictions should be vacated because he was denied equal protection of the law, and that the judgment and sentence rendered in Case No. CRF-74-1220 should be reversed or modified for the reason that the convictions in Case No. CRF-71-2890 and Case No. CRF-72-500 were void. His applications for post-conviction relief in the District Court, Oklahoma County, premised on this challenge, have been denied by the judges of the District Court in reliance on Dean v. Crisp, 536 P.2d 961 (Okl.Cr.1975).

I

Title 10 O.S.1971, § 1101, which was in effect at the time of the contested convictions, ¹ defined the term "delinquent child" as a male person under the age of sixteen years. Under this statute, it was proper for the appellant to have been tried as an adult. However, in Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972), the Tenth Circuit Court of Appeals held that statute was unconstitutional because it violated equal protection, and subsequently in Radcliff v. Anderson, 509 F.2d 1093 (10th Cir. 1974), Cert. denied 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975), it determined that the ruling of Lamb should be applied retroactively.

In Dean v. Crisp, 536 P.2d 961 (Okl.Cr.1975), this Court held that the ruling of the Tenth Circuit in Radcliff was not binding on the courts of the State of Oklahoma. We also held in Dean that the applicable law was that which was in effect prior to the passage of the unconstitutional law: Comp.Stat.1931, Ch. 14, art. 4, § 1729, which provided that a delinquent child was any person under the age of sixteen and that the treatment accorded males under the unconstitutional statute was in fact the same as that to which they were entitled under the last valid statute. Relief was denied to all males between the ages of sixteen and eighteen years of age who had been treated as adults.

When the Tenth Circuit Court of Appeals declared 10 O.S.1971, § 1101, to be unconstitutional, the Oklahoma Legislature immediately in Laws 1972, Ch. 122, § 1, raised the determinative age for boys to eighteen years, rather than lowering the age for girls to sixteen years. We interpret this to be an expression of public policy that had the discriminatory aspect of the statute been realized before it was passed, the resolution of the discrepancy would have been uniformity at age eighteen rather than at age sixteen. Additional considerations which lead us to this conclusion were the undesirability and practical impossibility of achieving parity by initiating adult prosecutions against all women who were treated as juveniles during the period controlled by the unconstitutional statute and the inevitable violation against the prohibition against double jeopardy ² such procedure would entail.

In Garner v. State, 430 F.Supp. 692, 694 (W.D.Okl.1975), the federal district court acknowledged that at the time of petitioner's conviction it was undeniable that females were accorded preferential treatment, and that he was discriminated against by a gender-based differential statute. Although the conviction was affirmed after an evidentiary hearing, because the Court had no difficulty in finding with a moral and legal certainty petitioner would have been certified in the case, the Court in its initial opinion said:

". . . The fallacy of such view (i. e., that the petitioner received all the protection to which he was entitled) lies in its disregard of the federal constitutional reality. He was entitled to equal protection.

He was entitled to the same treatment as the favored class. In short, it was the treatment that he received which flaws the proceedings. . . ."

The inherent weakness in the majority approach in Dean is that it ignores the fact that during the period in question boys between the ages of sixteen and eighteen years did receive different treatment from that given to girls of the same age. Even if the position of Dean is adopted that boys received only the treatment to which they were entitled, then one must also accept the necessary corollary that the girls were given better treatment than that to which they were entitled. It is unavoidably true that there was unconstitutional discrimination and denial of equal protection.

Insofar as Dean v. Crisp, 536 P.2d 961 (Okl.Cr.1975), is inconsistent with the views expressed in this opinion, it is hereby overruled.

II

However, if Dean v. Crisp is to be overruled in part, the question of whether to give retroactive relief to all the boys between ages sixteen years and eighteen years who were prosecuted as adults without benefit of a certification hearing is presented.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, 608 (1965), the United States Supreme Court determined there is no absolute rule concerning retroactivity. The Court said:

". . . (W)e believe that the Constitution neither prohibits nor requires retrospective effect. . . . Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. . . ."

Subsequently, the Court promulgated three criteria to be used in determining the question of retroactivity: the purpose to be served by the new rule; the extent to which law enforcement officers have relied on the old rule; and the effect which a retrospective application of the new rule will have upon the administration of justice. ³

Then, in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), the United States Supreme Court stated that the Linkletter approach was not applicable to all retroactivity cases. ⁴ The issue in Robinson was the retrospective application of the prohibition against double jeopardy, the Court said:

"The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. . . ."

In United States v. United States Coin & Currency, 401 U.S. 715, 723, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the Supreme Court determined that privilege against self-incrimination could be properly invoked in forfeiture proceedings. The Court held that in the absence of a waiver of the privilege, such persons could not be properly prosecuted at all.

Certification of a juvenile is not a constitutional right, ⁵ but equal protection of the law is; and because girls between the ages of sixteen and eighteen years of age were treated as children, it can be said that the boys of the same age had a constitutional right to also be treated as children. Gender-based differential statutes infringe upon the fundamental right to liberty because they involve not only the possibility of incarceration but concern the severity and length of commitment as well. ⁶ Statutory classifications which distinguish between males and females are subject to scrutiny under the equal protection clause. ⁷ Juvenile statutes which are sexually discriminatory are violative of the equal protection clause of the Fourteenth Amendment because they are unreasonable, arbitrary and provide no rational basis for effecting the statutory legislative purpose. ⁸

The State argues that the instant case should be controlled by Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), which concerned the retroactivity of O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). In O'Callahan, the Supreme Court had ruled that when a person in military service is charged with a crime which is not "service connected," then the person is entitled to the constitutional guarantees of indictment by the grand jury and trial by jury in a civilian court. In Gosa the Court declined to hold that ruling to be retroactive. In the plurality opinion, Mr. Justice Blackmun used the approach of Linkletter and Stovall. He distinguished United States Coin & Currency and Robinson by saying that the question in Gosa was "the appropriateness of the exercise of jurisdiction by a military forum," as opposed to a civilian forum, rather than the question of whether a trial should have been held at all. We do not find Gosa applicable to the instant case. In Gosa the Supreme Court appeared to determine the only issue which matters is the truth-finding process. It found a civilian criminal trial and a military court-martial to be relatively equally reliable processes for arriving at the truth, and therefore retroactivity was not necessary.

In this case, the truth-finding function is not the only...