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Johnson v. Elliott

Court of Criminal Appeals of Oklahoma

May 24, 2019

JESSE ALLEN JOHNSON, Petitioner
v.
THE HONORABLE RAY C. ELLIOTT, JUDGE OF THE DISTRICT COURT, THE STATE OF OKLAHOMA, Respondent.

         

          Petition for certiorari filed at, 08/22/2019

          DAVID B. LEWIS, Presiding Judge, DANA KUEHN, Vice Presiding Judge, GARY L. LUMPKIN, Judge. ROBERT L. HUDSON, Judge - Dissent (Writing Attached). SCOTT ROWLAND, Judge I dissent by separate writing.

Page 1090

          ORDER GRANTING APPLICATION FOR EXTRAORDINARY RELIEF AND REMANDING MATTER TO DISTRICT COURT

          [¶1] 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 22, 2018.

          [¶2] 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. C-2007-83.

          [¶3] 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 for resentencing.

          [¶4] 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 resentencing.

          [¶5] 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).

          [¶6] 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.

          [¶7] 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).

          [¶8] 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

Page 1091

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 ...


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