Salazar v. State
| Decision Date | 30 August 1993 |
| Docket Number | No. F-88-569,F-88-569 |
| Parties | Maximo Lee SALAZAR, Petitioner, v. The STATE of Oklahoma, Respondent. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
ORDER DENYING PETITION FOR REHEARING AND DIRECTING
ISSUANCE OF MANDATE
Maximo Lee Salazar, appellant, was tried by jury and convicted of the crimes of First Degree Murder (21 O.S.Supp.1982, § 701.7(A)) and First Degree Burglary (21 O.S.1981, § 1431) in Comanche County District Court Case No. CRF-87-460. The jury set punishment on the burglary conviction at ten (10) years imprisonment. Following a second stage proceeding, the jury recommended appellant be put to death for the murder conviction. The trial court sentenced accordingly and appellant appealed to this Court. By published opinion handed down on April 29, 1993, this Court affirmed Salazar's Judgment and Sentence for First Degree Burglary. Salazar's conviction for First Degree Murder was also affirmed, but his sentence of death was vacated and the cause remanded for resentencing. 852 P.2d 729.
Pursuant to Rule 3.14, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1993, Ch. 18, App., the State has filed a Petition for Rehearing. According to Rule 3.14, a Petition for Rehearing shall not be filed as a matter of course, but only if at least one of the following criteria is met:
(1) [S]ome question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or
(2) [T]he decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.
In its Petition for Rehearing, the State raises four grounds for rehearing: (1) the decision is in conflict with Pollard v. State, 521 P.2d 400 (Okl.Cr.1974), a case not cited by the State in its brief; (2) the life without parole provision should not be applied retroactively; (3) proposed House Bill No. 1366 indicates a legislative intent that the life without parole provision applies only to persons who committed their crimes after November 1, 1987; and (4) the life without parole provision could be waived if not specifically requested. As to the State's first ground for rehearing, a review of Pollard v. State, 521 P.2d 400 (Okl.Cr.1974), shows that case is distinguishable from Salazar's case and does not change the Court's decision. As to the second and fourth grounds, those issues were addressed in this Court's opinion and are not grounds for rehearing. As to the third ground, the final version of House Bill No. 1366 deleted the section on the life without parole provision, and thus does not apply to this case.
On June 10, 1993, the State filed a motion to supplement its Petition for Rehearing asserting that the newly enacted Senate Bill No. 451 (enacted June 7, 1993), which contains language amending 22 O.S.1991, § 701.10a, warrants a rehearing of the Salazar case. This contention is without merit. Section 701.10a(1)(a) was amended so that when a capital case is remanded for resentencing the judge or the jury is authorized to impose "any sentence authorized by law at the time of the commission of the crime ..." To apply this statute to Salazar would deprive him of a sentencing option that this Court has stated was available to him in Wade v. State, 825 P.2d 1357 (Okl.Cr.1992), and Allen v. State, 821 P.2d 371, 376 (Okl.Cr.1991), and would result in harsher penalty options, which would violate the prohibition against imposing a harsher punishment in an ex post facto manner. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); J.M.R. v. Moore, 610 P.2d 811 (Okl.Cr.1980). Thus, the State's argument that its Petition for Rehearing should be granted based on this newly enacted statute is without merit.
IT IS THEREFORE THE ORDER OF THE COURT that the Petition for Rehearing filed herein be DENIED. The Clerk of this Court is directed to issue the mandate forthwith.
IT IS SO ORDERED.
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Vice
Presiding Judge
/s/ James F. Lane
/s/ Charles S. Chapel
I continue to disagree with the course the Court has taken in this case. By once again using some sort of ephemeral and highly questionable "death is different" label as an excuse to invent a new set of rules governing punishments, the Court overlooks still more authority holding the punishment in effect at the time the crime is committed is the punishment a convicted defendant shall receive. By the use of some sort of "ex post facto" label, the Court apparently holds cases handed down after Appellant's trial would result in a harsher punishment if overruled now.
The Court summarily dismisses Pollard v. State, 521 P.2d 400 (Okl.Cr.1974) as being "distinguishable" from Appellant's case and does not change the Court's decision. What that means is this Court chooses to ignore yet more authority holding that the appropriate punishment is that in effect at the time the crime is committed. Id. at 401-02 ().
Pollard, like other Oklahoma caselaw to the same effect, is not changed by some spurious judicial trump card in a capital case. The majority's reliance on Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) for its death is different analysis was misplaced before, and still is. Caldwell dealt with comments by the prosecutor telling the jury the responsibility for the death sentence rested somewhere other than with them. The Supreme Court noted because of the finality of the sentence, "the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion." Id. at 329, 105 S.Ct. at 2639. The body of the case and a footnote make it clear the Court's focus was not on the punishment options available to the sentencer, but on how the sentencer's discretion may have been influenced by improper comments by the prosecutor. See Id. at 329 n. 2, 105 S.Ct. at 2640 n. 2 ().
Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), although dealing primarily with an ex post facto question, also lends support to the idea the proper punishment is the one in effect at the time the crime was committed. There, a defendant committed a murder punishable by death under a statute later declared to be unconstitutional. He was caught and tried under a new procedure, also allowing for the imposition of the death penalty. The Supreme Court upheld the conviction noting in pertinent part (for purposes of this analysis) the existence of the old statute served as an "operative fact to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder" Id., 432 U.S. at 298, 97 S.Ct. at 2300. I do not believe it would be stretching the point to claim the Court based its assumption on the principle that the appropriate punishment was the one in effect at the time the crime was committed. This further detracts from the credibility of the Court's "death is different" analysis.
In short, I see nothing holding that, simply because the punishment range is undeniably greater, standard rules of statutory construction do not apply. Therefore, I must dissent to the Court's summarily dismissing established caselaw as being "distinguishable" because of some spurious "death is different" judicial trump card.
Of even more concern is the Court's use of an "ex post facto" principle to reject the clear intention of the Legislature as being inconsistent with Wade v. State, 825 P.2d 1357 (Okl.Cr.1992) and Allen v. State, 821 P.2d 371 (Okl.Cr.1991). As I read the Court's order, to use the clear intention of the Legislature and overrule Wade and Allen "would violate the prohibition...
To continue reading
Request your trial
-
Jones v. State, F-91-433
...of the res gestae or under the common scheme or plan exception. Salazar v. State, 852 P.2d 729, 736 (Okl.Cr.1993), reh'g denied, 859 P.2d 517 (Okl.Cr.1993); Dunagan v. State, 755 P.2d 102, 104 Both Jones and Hammon filed motions in limine to prevent the State from introducing evidence conce......
-
Williamson v. Reynolds
...lack of expert assistance." Rogers, 890 P.2d at 967. In Salazar v. State, 852 P.2d 729, 735 (Okla.Crim.App.1993), reh'g denied, 859 P.2d 517 (Okla.Crim.App.1993), the court included a requirement that the defendant must demonstrate on appeal that he was prejudiced by the lack of expert In A......
-
Hammon v. State
...part of the res gestae or under the common scheme or plan exception. Salazar v. State, 852 P.2d 729, 736 (Okl.Cr.1993), reh'g denied, 859 P.2d 517 (1993); Dunagan v. State, 755 P.2d 102, 104 Both Hammon and Jones filed motions in limine to prevent the State from introducing evidence concern......
-
Scott v. State
...case, cured the error.4 Accordingly any error was cured. See Salazar v. State, 852 P.2d 729, 732 (Okl.Cr.1993), reh'g denied, 859 P.2d 517 (Okl.Cr.1993); See also Stiles v. State, 829 P.2d 984, 988 (Okl.Cr.1992) (holding "violence to your conscience" an acceptable Appellant next argues the ......