Ekstrand v. State, No. H-89-1275

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Citation1990 OK CR 21,791 P.2d 92
Docket NumberNo. H-89-1275
PartiesHugo Darwin EKSTRAND, Petitioner, v. STATE of Oklahoma, and The Department of Corrections, Respondents.
Decision Date04 April 1990

Page 92

791 P.2d 92
Hugo Darwin EKSTRAND, Petitioner,
v.
STATE of Oklahoma, and The Department of Corrections, Respondents.
No. H-89-1275.
Court of Criminal Appeals of Oklahoma.
April 4, 1990.

Page 93

ORDER

On December 12, 1989, the petitioner, Hugo Darwin Ekstrand, filed an application for this Court to assume jurisdiction and issue a writ of habeas corpus in Tulsa County District Court Case No. CRF-87-728. Petitioner has alleged that 57 O.S.Supp.1988, § 138 is an ex post facto law as applied to him in that it computes earned time credits in such a way as to allow him fewer credits than he was given under the previous statute, thereby lengthening his sentence. On December 20, 1989, this Court directed a response from the Respondents. On January 29, 1990, the Respondents filed their response.

The saga concerning this Court's holding as to 57 O.S.Supp.1988, § 138 began on June 20, 1989, when this Court granted post-conviction relief in Mahler v. State, 776 P.2d 565 (Okl.Cr.1989), finding that 57 O.S.Supp.1988, § 224 was an ex post facto law as applied to prisoners whose crimes were committed prior to the effective date of the November 1, 1988, amendment. Relying on Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), this Court found that the new statute constricted a prisoner's opportunity to earn early release, and thereby made more onerous the punishment for crimes committed before its enactment. We held that prisoners whose crimes were committed prior to the effective date of the amendment were entitled to the benefits of § 224 as it existed prior to the amendment. Mahler, 776 P.2d at 566. We did not hold that prisoners were entitled to earn credits under both statutes, but rather, that prisoners whose crimes were committed prior to the amendment were entitled to receive the credits under the law as it existed at the time they had committed their crime, plus any new opportunities to earn additional credit not available under the prior law.

On October 10, 1989, we entered an order withdrawing the June 20th order, holding that we had exceeded our criminal jurisdiction, and finding that proper jurisdiction lay in the Oklahoma Supreme Court. Mahler v. State, 781 P.2d 835 (Okl.Cr.1989).

Finally, on December 5, 1989, we issued a final order disposing of the original proceeding that was still pending in this Court. Mahler v. State, 783 P.2d 973 (Okl.Cr.1989). We explained that a complaint concerning earned time credits is not properly brought under the Post-Conviction Procedure Act, 22 O.S.1981, § 1080 et seq., because such a complaint does not involve an attack upon the prisoner's underlying conviction or imposition of sentence. We concluded that the only method by which this Court could obtain jurisdiction over a complaint concerning earned time credits was if the matter was brought as a writ of Habeas Corpus and even then, only if a petitioner could claim entitlement to immediate release. Id.

In the meantime, the State of Oklahoma filed an application for a writ of prohibition in the Oklahoma Supreme Court, arguing that this Court had exceeded its jurisdiction

Page 94

in its original Mahler ruling. The Oklahoma Supreme Court recently held that jurisdiction over questions pertaining to the length of sentences and credit time for reduction of those sentences belonged in this Court. The State of Oklahoma, et al., v. The Court of Criminal Appeals of the State of Oklahoma, 61 O.B.A.J. 145, 148 (Okla. January 16, 1990). We, therefore, turn to the petition presently before this Court.

Petitioner Ekstrand claims that the amendment to § 138 is unconstitutional as an ex post facto law when applied to him, because his crime was committed before the statute's amendment. Two elements must be present for a criminal or penal law to be ex post facto: (1) it must be retrospective, that is, it must apply to events occurring before its enactment, and (2) it must disadvantage the offender affected by it. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). Furthermore, a law need not impair a "vested right" to violate the ex post facto prohibition. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). We now consider the Oklahoma statute in light of these two considerations.

The initial inquiry is whether 57 O.S.Supp.1988, § 138 applies to prisoners convicted for acts committed before the amendment's effective date. Title 57 O.S.Supp.1988, § 138(H) provides that as of the effective date of the act, November 1, 1988, all inmates currently under the custody of the Department of Corrections shall receive their assignments and all credits from that date forward shall be calculated pursuant to this act. Therefore, it is a retrospective law which can be applied to petitioner only if it is not to his detriment. Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).

Whether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor is a federal question. Weaver v. Graham, supra, 450 U.S., at 33, 101 S.Ct., at 966. Under the second inquiry, we must determine whether the amendment makes more onerous the punishment for crimes committed before its enactment.

Title 57 O.S.1981, § 224, provided in pertinent part,

Each inmate who works for the state, county or municipality under this section shall be provided three (3) credit days, to be taken off his sentenced time, for each earned day of service.

Also, under 57 O.S.1981, § 138, every inmate who engaged in work, attended school or participated in a vocational training program, had one (1) day deducted from his sentence for each day that he engaged in such activity. In addition to the earned credits, an inmate was entitled to a deduction of twenty (20) days for each pint of blood donated to the American Red Cross or any approved agency or hospital. However, no inmate could receive blood credit for more than four...

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32 practice notes
  • Canady v. Reynolds, Nos. O-94-308
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 24, 1994
    ...to 233 days of level two non-promotional credits; and he is entitled to approximately 154 days of credit pursuant to Ekstrand v. State, 791 P.2d 92 (Okl.Cr.1990). Petitioner McManus also alleges he is entitled to relief as a result of Ekstrand. He also alleges ex post facto violations and o......
  • Farris v. Allbaugh, No. 16-6347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 22, 2017
    ...2016) (unpublished) (discussing the ODOC's long-abandoned practice of awarding credits for blood donations). 4. See Ekstrand v. State, 791 P.2d 92, 94-95 (Okla. Crim. App. 1990) (discussing significant changes to the ODOC's system of awarding credits), abrogated in part on other grounds by ......
  • Tennial v. Glanz, Case No. 15-CV-0041-GKF-TLW
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • December 17, 2015
    ...Appeals, in this case, Tulsa County District Court. Canady v. Reynolds, 880 P.2d 391, 397 (Okla. Crim. App. 1994); Ekstrand v. Oklahoma, 791 P.2d 92 (Okla. Crim. App. 1990), abrogated on other grounds by Waldon v. Evans, 861 P.2d 311 (Okla. Crim. App. 1993). "For a writ of habeas corpus Pet......
  • Herd v. Allbaugh, CIV 16-443-RAW-SPS
    • United States
    • United States District Courts. 10th Circuit. Eastern District of Oklahoma
    • October 25, 2016
    ...2016. /s/_________ Ronald A. White United States District Judge Eastern District of Oklahoma --------Footnotes: 1. Ekstrand v. State, 791 P.2d 92 (Okla. Crim. App. 1990), abrogated on other grounds by Waldon v. Evans, 861 P.2d 311 (Okla. Crim. App. 1993)....
  • Request a trial to view additional results
32 cases
  • Canady v. Reynolds, Nos. O-94-308
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 24, 1994
    ...to 233 days of level two non-promotional credits; and he is entitled to approximately 154 days of credit pursuant to Ekstrand v. State, 791 P.2d 92 (Okl.Cr.1990). Petitioner McManus also alleges he is entitled to relief as a result of Ekstrand. He also alleges ex post facto violations and o......
  • Farris v. Allbaugh, No. 16-6347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 22, 2017
    ...2016) (unpublished) (discussing the ODOC's long-abandoned practice of awarding credits for blood donations). 4. See Ekstrand v. State, 791 P.2d 92, 94-95 (Okla. Crim. App. 1990) (discussing significant changes to the ODOC's system of awarding credits), abrogated in part on other grounds by ......
  • Tennial v. Glanz, Case No. 15-CV-0041-GKF-TLW
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • December 17, 2015
    ...Appeals, in this case, Tulsa County District Court. Canady v. Reynolds, 880 P.2d 391, 397 (Okla. Crim. App. 1994); Ekstrand v. Oklahoma, 791 P.2d 92 (Okla. Crim. App. 1990), abrogated on other grounds by Waldon v. Evans, 861 P.2d 311 (Okla. Crim. App. 1993). "For a writ of habeas corpus Pet......
  • Herd v. Allbaugh, CIV 16-443-RAW-SPS
    • United States
    • United States District Courts. 10th Circuit. Eastern District of Oklahoma
    • October 25, 2016
    ...2016. /s/_________ Ronald A. White United States District Judge Eastern District of Oklahoma --------Footnotes: 1. Ekstrand v. State, 791 P.2d 92 (Okla. Crim. App. 1990), abrogated on other grounds by Waldon v. Evans, 861 P.2d 311 (Okla. Crim. App. 1993)....
  • Request a trial to view additional results

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