ORDER GRANTING APPLICATION FOR EXTRAORDINARY RELIEF
AND REMANDING MATTER TO DISTRICT COURT
On November 29, 2018, Petitioner, by and through counsel
Melissa A. French, filed an application for an extraordinary
writ in this Court from Oklahoma County District Court Case
No. CF-2005-5714. Petitioner seeks an extraordinary writ to
prohibit the Honorable Ray C. Elliott, District Judge, from
resentencing him without empaneling a jury pursuant to 22
O.S.2011, § 929. Petitioner submits the District Court
cannot legally sentence him without first empaneling a jury
pursuant to the Mandate issued in Jesse Allen Johnson v.
State of Oklahoma, Appeal No. PC 2017-755, issued May
Petitioner, age seventeen, entered a blind plea of guilty on
November 29, 2006, to First Degree Murder. He was sentenced
to life imprisonment without the possibility of parole.
Petitioner's certiorari appeal to this Court was affirmed
in a Summary Opinion issued October 3, 2007, Appeal No.
Citing Miller v. Alabama, 567 U.S. 460, 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012), Montgomery v.
Louisiana, 577 U.S. ____, 136 S.Ct. 718, 193 L.Ed.2d 599
(2016), and Luna v. State, 2016 OK CR 27, 387 P.3d
956, Petitioner filed a post-conviction application in the
District Court on March 13, 2017, alleging that because he
was a minor at the time he was sentenced, the imposition of a
life without parole sentence was unconstitutional. The denial
of Petitioner's post-conviction application was appealed
to this Court. In an Order issued May 22, 2018, Appeal No. PC
2017-0755, Petitioner's sentence of life without parole
was vacated and the matter was remanded to the District Court
On August 27, 2018, Petitioner filed in the District Court a
request for a jury trial on resentencing to which the State
objected. A hearing was held before Judge Elliott on October
18, 2018. Judge Elliott denied Petitioner's request for a
jury resentencing as he found Petitioner waived his right to
sentencing by a jury when Petitioner entered his blind plea
of guilty in 2006. Petitioner is seeking extraordinary relief
from this Court to reverse the order denying jury
For a writ of prohibition Petitioner must establish that (1)
a court, officer or person has or is about to exercise
judicial or quasi-judicial power; (2) the exercise of said
power is unauthorized by law; and (3) the exercise of said
power will result in injury for which there is no other
adequate remedy. Rule 10.6(A), Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch.18, App. (2019).
In Stevens v. State, 2018 OK CR 11, ¶¶ 31,
38-40, 422 P.3d 741, 749-751, the District Court's order
denying post-conviction relief was reversed by this Court,
the matter was remanded to the District Court for
resentencing, and the procedures for conducting said
resentencing were established. As in the present case where
Petitioner entered a plea of guilty and was sentenced to life
without the possibility of parole for First Degree Murder,
Stevens was sentenced to life without the possibility of
parole when he entered a negotiated plea of guilty in 1996 to
First Degree Murder. Stevens directs that the trial
court shall schedule the matter for resentencing in
accordance with both Sections 812.1 and 929 of Title 22 and
to conduct resentencing pursuant to Section 929 of Title 22.
Section 929(C) directs that if a written request for a jury
trial is filed within twenty days of the date of the
appellate court order, the trial court shall impanel
a new jury for a new sentencing proceeding. This means there
is no judicial discretion in whether or not a judge proceeds
with a jury for resentencing. If the State or defendant files
a request, but is outside the twenty days, then the trial
court must utilize Section 929(B).
Allowing for a discretionary decision, Section 929(B) directs
that when a criminal case is remanded for vacation of a
sentence, the trial court may (1) set the case for a
nonjury sentencing proceeding; or (2) if the defendant or the
prosecutor so requests in writing, impanel a new sentencing
jury. In this case, a written request for a jury trial was
not filed within twenty days from the date of this
Court's Order granting post-conviction relief. Thus,
Section 929(C)'s mandatory language is not at issue, and
the judge correctly used Section 929(B) in making a decision.
Section 929(B) gives the trial judge the discretion to
impanel a jury if requested or to set the case for nonjury
sentencing. In making his decision, Judge Elliott denied
Petitioner's request for jury trial resentencing based
upon a finding that Petitioner waived his right to sentencing
by a jury when he entered his blind plea in 2006.
This finding is contrary to our decision in Stevens.
Petitioner did not waive his rights under Miller
when he entered his guilty plea. Stevens, 2018 OK CR
11, ¶ 23, 422 P.3d at 748. The Sixth Amendment demands
that the trial necessary to impose life without parole on a
juvenile homicide offender must be a trial by jury, unless a
jury is affirmatively waived. Stevens, 2018 OK CR
11, ¶ 34, 422 P.3d at 750. Petitioner's waiver of
his right to jury trial in 2006 was not an affirmative waiver
of his rights to a jury on sentencing that he now possesses
Therefore, we find this holding is an abuse of discretion as
it is contrary to this Court's holding in
Stevens. Petitioner has met his burden for an
extraordinary writ. The trial court's denial of
Petitioner's request for jury trial resentencing based
upon waiver is VACATED, and the matter is REMANDED to the
trial court for a decision using his discretion under the
directives in Stevens v. State, 2018 OK CR 11,
¶¶ 38-39, 422 P.3d 741, 750-751, in determining
which resentencing procedure pursuant to Section 929 of Title
22 is appropriate. Petitioner's pleas of guilty and
convictions remain constitutionally valid.
The Clerk of this Court is directed to transmit a copy of
this Order to the Honorable Ray C. Elliott, District Judge,
as well as the parties.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this ...