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Stevens v. State

Court of Criminal Appeals of Oklahoma

May 10, 2018

ROBERT A. STEVENS, Petitioner
v.
THE STATE OF OKLAHOMA, Respondent.

          ATTORNEY FOR PETITIONER DEBRA K. HAMPTON.

          ATTORNEY FOR RESPONDENT MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA, JENNIFER B. WELCH ASSISTANT ATTORNEY GENERAL.

          OPINION REMANDING POST-CONVICTION PROCEEDING TO THE DISTRICT COURT OF CANADIAN COUNTY WITH INSTRUCTIONS

          LUMPKIN, PRESIDING JUDGE

         Â¶1 Petitioner, Robert A. Stevens, was charged on March 15, 1994 by Amended Information in the District Court of Canadian County with Murder in the First Degree (21 O.S.1991, § 701.7) in Case No. CF-1994-90; Shooting With Intent to Kill (21 O.S.Supp.1992, § 652) in Case No. CF-1994-91; and Forcible Sodomy (21 O.S.Supp.1992, § 888) in Case No. CF-1994-230. [1] On February 22, 1995, the State filed a Bill of Particulars in Case No. CF-1994-90 giving Petitioner notice that it intended to seek the death penalty as punishment for his commission of First Degree Murder.

         Â¶2 On April 19, 1996, Petitioner, while represented by counsel, entered a negotiated plea. Petitioner entered a plea of guilty to the murder offense and a plea of no contest to the other two offenses. The Honorable Edward C. Cunningham, District Judge, accepted Petitioner's pleas. As to CF-1994-90, the District Court sentenced Petitioner to imprisonment for life without the possibility of parole and ordered that this sentence run consecutively to his sentence in District Court of Oklahoma County Case No. CF-1994-5960. [2] As to CF-1994-91 and CF-1994-230, the District Court sentenced Petitioner to imprisonment for ten (10) years and ordered the sentences to run concurrent with Petitioner's sentence in CF-1994-90.

         Â¶3 Petitioner did not seek to withdraw his plea and his conviction and sentence became final on April 30, 1996. On April 27, 1997, Petitioner filed his first Application for Post-Conviction relief. On July 10, 1997, the District Court denied Petitioner's application. On October 2, 1997, this Court denied his appeal of the District Court's ruling in Robert A. Stevens v. State, Case No. PC-1997-1131, unpub. dispo. (Okl. Cr. Oct. 2, 1997).

         Â¶4 On January 17, 2017, Petitioner filed his Second Application for Post-Conviction Relief. Relying on 22 O.S.2011, § 1080, Petitioner claimed that his sentence of life without the possibility of parole was in violation of the Constitution in light of the United States Supreme Court's pronouncements in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). On January 23, 2017, the State filed its Response requesting that the District Court deny Petitioner's application. On February 6, 2017, the District Court entered its Order Denying Post-Conviction Relief summarily denying Petitioner's application without the aid of a hearing pursuant to 22 O.S.2011, § 1084. Petitioner timely appeals the denial of his Second Application for Post-Conviction Relief. [3]

         Â¶5 On September 20, 2017, we directed the State to file a response to Petitioner's appeal. The State filed its answer brief on November 20, 2017.

         BACKGROUND

         Â¶6 On or about the 8th day of March, 1994, Petitioner, while acting conjointly with Marcus Dewayne Stevens and Michael Ray Goode, kidnapped Johnny Lawrence and Lamount Dority and held them against their will. Petitioner, Goode, and Stevens shot Lawrence with handguns with the premeditated design to effect his death. Petitioner also fired a pistol at Dority, intending his death. On that same day, Petitioner forced a female victim to orally sodomize him. Lawrence died from his wounds. These offenses occurred in Canadian County, Oklahoma.

         Â¶7 Petitioner had not attained 18 years of age. He was 17 years and 259 days old at the time of the offenses.

         Â¶8 In his plea form, Petitioner admitted to shooting and killing Lawrence. In addition to that statement, the District Court had several different sources of information about Petitioner available to it at the plea hearing. The court heard evidence concerning the other offenses which Petitioner had committed, including the offense of First Degree Murder which Petitioner had committed in Oklahoma County. Petitioner shot and killed Jessie T. Bradley with a rifle on January 25, 1994. This occurred prior to the present offense.

         Â¶9 The District Court file in Canadian County contained the records concerning Petitioner's mental capacity. On June 24, 1994, an Application for Determination of Competency was filed on Petitioner's behalf. The District Court held a hearing on the application on June 28, 1994, and ordered that Petitioner be evaluated at the State mental health facility in Vinita. On December 15, 1994, the District Court held a post-examination competency hearing and determined that Petitioner was competent to stand trial.

         Â¶10 The District Court file also contained records concerning Petitioner's youthfulness. Based upon the fact that he was seventeen (17) years of age at the time of the charged offenses, Petitioner filed an Application for Certification as a Juvenile. On May 26, 1995, the District Court held a hearing on Petitioner's request, considered Petitioner's evidence and the statutory factors, and denied the application. Petitioner timely appealed the denial of his application and on December 12, 1995, this Court affirmed the District Court's denial.

         DISCUSSION

         Â¶11 Petitioner asserts, again on appeal, that his sentence of life without the possibility of parole is in violation of the United States Constitution because he committed the offense before the age of 18. He argues that the District Court wrongly determined that the Supreme Court's recent decisions in Miller and Montgomery did not apply to him when it summarily denied his claim.

         Â¶12 This Court reviews the District Court's determination of an application for post-conviction relief for an abuse of discretion. State ex rel. Smith v. Neuwirth, 2014 OK CR 16, ¶ 12, 337 P.3d 763, 766. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

         Â¶13 Although Miller and Montgomery do not invalidate Petitioner's guilty plea, they are clearly applicable to his sentence of life without the possibility of parole. As the District Court failed to properly consider the applicable law pertaining to Petitioner's claim, we find that the District Court abused its discretion when it summarily denied Petitioner's claim.

         Â¶14 "The Post-Conviction Procedure Act governs post-conviction proceedings in this State." Wackerly v. State, 2010 OK CR 16, ¶ 2, 237 P.3d 795, 796. The Act provides petitioners with very limited grounds upon which to base a collateral attack on their judgments. Logan v. State, 2013 OK CR 2, ¶ 3, 293 P.3d 969, 973. Post-Conviction review is not intended to provide a second appeal. Carter v. State, 1997 OK CR 22, ¶ 2, 936 P.2d 342, 343. "Issues that were previously raised and ruled upon by this Court are procedurally barred from further review under the doctrine of res judicata; and issues that were not raised previously on direct appeal, but which could have been raised, are waived for further review." Logan, 2013 OK CR 2, ¶ 3, 293 P.3d at 973; Battenfield v. State, 1998 OK CR 8, ¶ 4, 953 P.2d 1123, 1125; 22 O.S.2011, § 1086.

         Â¶15 There are even fewer grounds available to a petitioner to assert in a subsequent application for post-conviction relief. Rojem v. State, 1995 OK CR 1, ¶ 7 n. 6, 888 P.2d 528, 530 n. 6 ("Subsequent applications for post-conviction relief can only be filed under certain, limited circumstances.") (citing 22 O.S.2011, § 1086). Section 1086 limits the grounds for relief asserted within subsequent petitions to only those grounds which for sufficient reason were not asserted or were inadequately raised. Johnson v. State, 1991 OK CR 124, ¶ 4, 823 P.2d 370, 372. This Court has recognized that an intervening change in the law which did not exist at the time of Petitioner's direct appeal or in previous post-conviction proceedings constitutes a sufficient reason for not previously asserting an allegation of error. VanWoundenberg v. State, 1991 OK CR 104, ¶ 2, 818 P.2d 913, 915.

         Â¶16 The State providently concedes that Petitioner's claim is properly raised. In Miller, the United States Supreme Court determined that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for offenders who were under the age of 18 at the time of their crimes. Miller, 567 U.S. at 465, 132 S.Ct. at 2460. "[ Miller ] rendered life without parole an unconstitutional penalty for a class of defendants because of their status--that is, juvenile offenders whose crimes reflect the transient immaturity of youth." Montgomery, 136 S.Ct. at 734 (quotations and citation omitted). Unlike its announcement in Graham v. Florida, 560 U.S. 48, 79, 130 S.Ct. 2011, 2032-33, 176 L.Ed.2d 825 (2010), the Supreme Court in Miller did not place a categorical prohibition against the imposition of life without parole sentences on juvenile homicide offenders. Luna v. State, 2016 OK CR 27, ¶ 9, 387 P.3d 956, 960. Instead, Miller held that an individualized sentencing hearing is required before an offender who committed his or her offense under the age of eighteen (18) years of age may be sentenced to life without the possibility of parole. Montgomery, 136 S.Ct. at 735; Miller, 567 U.S. at 483, 132 S.Ct. at 2460. "A hearing where 'youth and its attendant characteristics' are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not." Montgomery, 136 S.Ct. at 735 (quoting Miller, 567 U.S. at 465, 132 S.Ct. at 2460).

         Â¶17 In Montgomery, the United States Supreme Court determined that Miller announced a substantive rule of constitutional law which is given retroactive effect. Montgomery, 136 S.Ct. at 734. The Supreme Court also recognized for the first time that: "Where state collateral review proceedings permit prisoners to challenge the lawfulness of their confinement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge." Id., 136 S.Ct. at 731-32. Based upon the Supreme Court's holding in Montgomery, this Court in Luna v. State, 2016 OK CR 27, 387 P.3d 956, determined that Miller's holding applied retroactively to juvenile offenders whose convictions and sentences were final before Miller was decided. Luna, 2016 OK CR 27, ¶ 11, 387 P.3d at 960.

         Â¶18 Turning to the present case, Petitioner's conviction and sentence were final before the Supreme Court announced Miller. His original application for post-conviction relief was also decided before Miller. Thus, Petitioner's Second Application for Post-Conviction Relief was his first opportunity to raise a claim under Miller. Section 1080(f) of the Post-Conviction Procedure Act explicitly permits a petitioner to raise a challenge that his "conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy." As Miller is clearly an intervening change in the law which did not exist at the time of Petitioner's direct appeal or in previous post-conviction proceedings, we find ...


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