Oken v. State

• Decision Date: 14 December 2001
• Docket Number: No. 5, No. 27 Sept. Term 2001.
• Citation: 786 A.2d 691,367 Md. 191
• Parties: Steven Howard OKEN v. STATE of Maryland.
• Court: Maryland Court of Appeals

786 A.2d 691

367 Md. 191

Steven Howard OKEN v. STATE of Maryland.

Nos. Sept. Term 2001.

Court of Appeals of Maryland.

December 14, 2001.

Reconsideration Denied January 4, 2002.

Fred Warren Bennett (Michael E. Lawlor of Bennett & Nathans, LLP, on brief) of Greenbelt, for appellant.

Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, for appellee.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

WILNER, Judge.

Fourteen years after he sexually assaulted and murdered Dawn Garvin in her home in Baltimore County, almost eleven years after he was convicted of that murder and sentenced to death by a jury in the Circuit Court for Baltimore County, nine years after we affirmed both the murder conviction and the sentence of death, and five years after we concluded in his appeal from the denial of post-conviction relief that no error warranting relief was committed, Steven Howard Oken is back before us, seeking a new sentencing hearing. This time, he claims that, by reason of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Maryland's capital punishment law, under which he was sentenced, is in violation of both the Federal and State Constitutions. He urges that, for a number of reasons, Apprendi renders the statutory scheme invalid, that the Supreme Court's decision, filed in 2000, applies retroactively to his case, and that he should be excused from his failure to raise the argument he now makes to us at his trial, in his direct appeal, or in any of the earlier applications for post-conviction or habeas corpus relief.

For the reasons that we recently stated in Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001), we conclude that Apprendi is not applicable and does not invalidate the State's capital punishment law. We therefore do not need to reach the question of whether that decision should be applied retroactively to Oken's case or whether Oken waived any right to present the complaints that he claims emanate from Apprendi.

BACKGROUND

On November 1, 1987, Oken sexually assaulted and murdered Dawn Garvin in her home in Baltimore County.¹ In light of his plea of not criminally responsible, the trial was bifurcated, with the question of guilt or non-guilt being taken up first. On January 18, 1991, after a trial on four counts arising from the incident, a jury in the Circuit Court for Baltimore County found Oken guilty of first degree murder, first degree sexual assault, burglary, and use of a handgun in a crime of violence. On January 21, 1991, Oken elected a bench trial on the criminal responsibility issue, and, after a hearing on that matter, Judge James T. Smith found that he was criminally responsible on all four counts. The same jury that resolved the issue of guilt then found that he was a principal in the first degree in Ms. Garvin's death and sentenced Oken to death on the first degree murder conviction.²

On September 17, 1992, this Court, on direct review of the judgments entered against him, overturned the burglary conviction for lack of sufficient evidence but affirmed the other convictions and the sentence of death. See Oken v. State, 327 Md. 628, 612 A.2d 258 (1992),

cert. denied, 507 U.S. 931, 113 S.Ct. 1312, 122 L.Ed.2d 700 (1993) (Oken I).

On October 19, 1993, Oken filed a Petition for Post Conviction Relief in the Circuit Court for Baltimore County pursuant to Maryland Code, Art. 27, § 645A, alleging that, for over 50 various reasons, his conviction, sentence, and confinement were unlawful and unconstitutional under both the Federal and Maryland constitutions. On May 5, 1994, the court (Judge Dana Levitz), applying the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), found that trial counsel's decisions regarding Oken's defense fell within the ambit of the objective standard of reasonableness in the profession and that a substantially different outcome would not have occurred had counsel acted differently. Judge Levitz stated:

"Petitioner's trial counsel ... did an admirable job considering the case he was faced with and the problems Petitioner presented. Petitioner's appellate counsel also did a fine job in presenting a weak case to the court of appeals. It is also clear from the transcript that Judge Smith went out of his way to ensure Petitioner received a fair trial.... In fact, the fine performances by all involved in this case makes Petitioner's conviction and sentence all the more credible."

State v. Oken, No. 89CR3102, slip op. at p. 29-30 (Balt. County Cir. Ct. May 5, 1994); R., Case No. 27, at 1461-62.

Oken sought leave to appeal, which we granted. We found no error, however, and thus affirmed the denial of relief. See Oken v. State, 343 Md. 256, 681 A.2d 30 (1996),

cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 681 (1997) (Oken II). Oken thereafter filed a Motion For Reconsideration, which this Court denied on July 25, 1996.

On February 27, 1997, Oken filed a petition for writ of habeas corpus with the U.S. District Court for the District of Maryland. See Oken v. Nuth, 30 F.Supp.2d 877, 879-80 (D.Md.1998)

(detailing the procedural history of Oken's habeas corpus petition, including Oken's motion to declare Maryland a non-opt-in State under the Anti Terrorism and Death Penalty Act). The District Court rejected his complaints and denied relief. See Oken v. Nuth, 64 F.Supp.2d 488, 513-14 (D.Md.1999). That decision was later affirmed by the U.S. Court of Appeals for the Fourth Circuit. See Oken v. Corcoran, 220 F.3d 259, 271 (4th Cir.2000),

cert. denied, 531 U.S. 1165, 121 S.Ct. 1126, 148 L.Ed.2d 992 (2001) (Oken III).

On February 21, 2001, Oken filed two separate motions in the Circuit Court for Baltimore County—one, a motion to reopen his post-conviction case and the other a motion to correct an illegal sentence and award him a new sentence hearing. Both were grounded on the assertion that the recent decision of the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), rendered his sentencing proceeding invalid. In the post-conviction case, Oken argued that the indictment returned in his case was structurally defective in that it failed to state the first degree sexual offense as an aggravating factor or that Oken was a principal in the first degree. R., Case No. 5, at 5-7. He contended further that, under the standards set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989),Apprendi provided a "watershed rule of law" and therefore applied retroactively to his case. R., Case No. 5, at 7-9. For these reasons, Oken contended his sentence was illegal. After a hearing, Judge Levitz denied the motion, concluding that Apprendi had no application to the Maryland capital sentencing law. Tr., Levitz, at p. 16 (March 21, 2001).

In his motion to correct an illegal sentence, filed pursuant to Maryland Rules 4-345(a) and (b), Oken contended that Apprendi invalidated Maryland's death penalty scheme. He urged that the maximum penalty for first degree murder was life imprisonment, with or without parole, and that the weighing of aggravating and mitigating factors was a "fact" which increased that penalty to death. R., Case No. 5, at 39-40. Therefore, as the weighing process was neither charged in the indictment nor proven beyond a reasonable doubt, he urged his sentence was illegal. Id. at 48. In arguing the motion, he posited, "Our argument is, ..., that any fact which increases the prescribed range of penalties must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt." Tr., Smith, at p. 3 (March 21, 2001) (emphasis added). As support, Oken cited several Federal drug cases in which Federal courts overturned sentences based on Apprendi where a judge's finding of a particular fact increased a defendant's mandatory minimum sentence or the alleged fact was not contained in the indictment. Id. at pp. 5-6, 13-15. His argument was that, to pass muster under Apprendi, the indictment must "include the capital murder language," allege that the defendant is a principal in the first degree, and allege further the aggravating circumstances upon which the State intends to rely. Id. at p. 15. Because the indictment in his case did not contain these key elements, Oken argued that the indictment was structurally defective. Id. at p. 17.

On February 23, 2001, Oken, pro se, filed a Motion for a New Trial pursuant to Maryland Rule 4-331(b), claiming that the indictment in his case was mistaken or irregular based on the rule of law announced in Apprendi. R., Case No. 5, at 64. He repeated his complaint about the failure of the indictment to allege the capital nature of the offense, the aggravating factors, and his principalship, but added that the notice of intention to seek the death penalty, delivered to him after the indictment was filed, constituted a constructive, and invalid, amendment to the indictment. Id. at 71-73.

On March 21, 2001, following a hearing on the motion to correct illegal sentence and for a new sentencing hearing, Judge James T. Smith denied relief, concluding, as had Judge Levitz, that Apprendi did not invalidate Maryland's capital punishment law. He determined that the...