ROBERT A. STEVENS, Petitioner
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
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,
Â§ 701.7) in Case No. CF-1994-90; Shooting With
Intent to Kill (21 O.S.Supp.1992, Â§ 652) in Case
No. CF-1994-91; and Forcible Sodomy (21 O.S.Supp.1992,
Â§ 888) in Case No. CF-1994-230.  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
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.
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.
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).
January 17, 2017, Petitioner filed his Second Application for
Post-Conviction Relief. Relying on 22 O.S.2011, Â§
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, Â§
1084. Petitioner timely appeals the denial of his Second
Application for Post-Conviction Relief. 
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.
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.
Petitioner had not attained 18 years of age. He was 17 years
and 259 days old at the time of the offenses.
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.
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.
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.
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.
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, Â¶ 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, Â¶ 35, 274
P.3d 161, 170.
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.
"The Post-Conviction Procedure Act governs
post-conviction proceedings in this State." Wackerly
v. State, 2010 OK CR 16, Â¶ 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, Â¶ 3, 293 P.3d 969, 973.
Post-Conviction review is not intended to provide a second
appeal. Carter v. State, 1997 OK CR 22, Â¶ 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, Â¶ 3, 293 P.3d at
973; Battenfield v. State, 1998 OK CR 8, Â¶ 4, 953
P.2d 1123, 1125; 22 O.S.2011, Â§ 1086.
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, Â¶ 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, Â¶ 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, Â¶ 2, 818
P.2d 913, 915.
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, Â¶ 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).
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, Â¶ 11, 387 P.3d at 960.
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