Upon the conviction of petitioner, a twice previously convicted
felon, in an Oklahoma trial court, the jury imposed a 40-year
sentence pursuant to instructions to do so under a provision of the
state habitual offender statute mandating such a sentence.
Thereafter, this provision was declared unconstitutional by the
Oklahoma Court of Criminal Appeals in another case, but that court
nevertheless affirmed petitioner's conviction and sentence, holding
that he was not prejudiced by the impact of the invalid statute
because his sentence was within the range of punishment that could
have been imposed in any event.
Held: The State deprived petitioner of due process of
law guaranteed by the Fourteenth Amendment. Under Oklahoma
statutes, a convicted defendant is entitled to have his punishment
fixed by the jury, and the jury, if it had been correctly
instructed, could have imposed any sentence of not less than 10
years. Thus, the possibility that the jury would have returned a
sentence of less than 40 years is substantial, and it is incorrect
to say that petitioner could not have been prejudiced by the
instruction requiring imposition of a 40-year prison sentence.
Petitioner's interest in the exercise of the jury's discretion in
imposing punishment is not merely a matter of state procedural law,
but is a liberty interest that the Fourteenth Amendment preserves
against arbitrary deprivation by the State. And the argument that,
in view of the Court of Criminal Appeals' statutory authority to
revise judgents on appeal, petitioner had no absolute right to a
sentence imposed by a jury, is unpersuasive. Pp.
447 U. S.
345-347.
Vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and
STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion,
post, p.
447 U. S.
347.
Page 447 U. S. 344
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was brought to trial in an Oklahoma court on a
charge of unlawfully distributing heroin. Since he had been
convicted of felony offenses twice within the preceding 10 years,
the members of the jury were instructed, in accordance with the
habitual offender statute then in effect in Oklahoma, [
Footnote 1]
Page 447 U. S. 345
that, if they found the petitioner guilty, they "shall assess
[the] punishment at forty (40) years imprisonment." The jury
returned a verdict of guilt and imposed the mandatory 40-year
prison term.
Subsequent to the petitioner's conviction, the provision of the
habitual offender statute under which the mandatory 40-year prison
term had been imposed was in another case declared unconstitutional
by the Oklahoma Court of Criminal Appeals.
Thigpen v.
State, 571
P.2d 467, 471 (1977). On his appeal, the petitioner sought to
have his 40-year sentence set aside in view of the
unconstitutionality of this statutory provision. The Court of
Criminal Appeals acknowledged that the provision was
unconstitutional, but nonetheless affirmed the petitioner's
conviction and sentence, reasoning that the petitioner was not
prejudiced by the impact of the invalid statute, since his sentence
was within the range of punishment that could have been imposed in
any event. [
Footnote 2] We
granted certiorari to consider the petitioner's contention that the
State deprived him of due process of law guaranteed to him by the
Fourteenth Amendment. 444 U.S. 963.
By statute in Oklahma, a convicted defendant is entitled to have
his punishment fixed by the jury. Okla.Stat., Tit. 22,
Page 447 U. S. 346
§ 926 (1976). [
Footnote 3]
Had the members of the jury been correctly instructed in this case,
they could have imposed any sentence of "not less than ten . . .
years." Okla.Stat., Tit. 21, § 51(A)(1) (1971). The possibility
that the jury would have returned a sentence of less than 40 years
is thus substantial. It is, therefore, wholly incorrect to say that
the petitioner could not have been prejudiced by the instruction
requiring the jury to impose a 40-year prison sentence.
It is argued that all that is involved in this case is the
denial of a procedural right of exclusively state concern. Where,
however, a State has provided for the imposition of criminal
punishment in the discretion of the trial jury, it is not correct
to say that the defendant's interest in the exercise of that
discretion is merely a matter of state procedural law. The
defendant in such a case has a substantial and legitimate
expectation that he will be deprived of his liberty only to the
extent determined by the jury in the exercise of its statutory
discretion,
cf. Greenholtz v. Nebraska Penal Inmates,
442 U. S. 1, and
that liberty interest is one that the Fourteenth Amendment
preserves a.gainst arbitrary deprivation by the State.
See
Vitek v. Jones, 445 U. S. 480,
445 U. S.
488-489, citing
Wolff v. McDonnell,
418 U. S. 539;
Greenholtz v. Nebrska Penal Inmates, supra; Morrissey v.
Brewer, 408 U. S. 471. In
this case, Oklahoma denied the petitioner the jury sentence to
which he was entitled under state law, simply on the frail
conjecture that a jury might have imposed a sentence equally as
harsh as that mandated by the invalid habitual offender provision.
Such an arbitrary disregard of the petitioner's right to liberty is
a denial of due process of law. [
Footnote 4]
The State argues, however, that, in view of the revisory
authority of the Oklahoma Court of Ciminal Appeals, the petitioner
had no absolute right to a sentence imposed by a
Page 447 U. S. 347
jury.
See Okla.Stat., Tit. 22, § 1066 (1971) ("The
Appellate Court may reverse, affirm or modify the judgment appealed
from. . ."). The argument is unpersuasive. The State concedes that
the petitioner had a statutory right to have a jury fix his
punishment in the first instance, and this is the right that was
denied. Moreover, it is a right that substantially affects the
punishment imposed. No case has been cited to us in which the Court
of Criminal Appeals has increased a sentence on appeal, and the
State's Assistant Attorney General indicated at oral argument that
it was doubtful whether the appellate court had power to do so. In
consequence, it appears that the right to have a jury fix the
sentence in the first instance is determinative, at least as a
practical matter, of the maximum sentence that a defendant will
receive. Nor did the appellate court purport to cure the
deprivation by itself reconsidering the appropriateness of the
petitioner's 40-year sentence. [
Footnote 5] Rather, it simply affirmed the sentence
imposed by the jury under the invalid mandatory statute. In doing
so, the State deprived the petitioner of his liberty without due
process of law.
Accordingly, the judgment is vacated and the case is remanded to
the Oklahoma Court of Criminal Appeals for further proceedings not
inconsistent with this opinion.
So ordered.
[
Footnote 1]
See 1976 Okla. Sess. Laws, ch. 94, § 1, codified at
Okla.Stat., Tit. 21, § 51(b) (Supp. 1977). The text of § 51
provided:
"(A) Every person who, having been convicted of any offense
punishable by imprisonment in the penitentiary, commits any crime
after such conviction is punishable therefor as follows:"
"1. If the offense of which such person is subsequently
convicted is such that upon a first conviction an offender would be
punishable by imprisonment in the penitentiary for any term
exceeding five (5) years, such person is punishable by imprisonment
in the penitentiary for a term not less than ten (10) years."
"2. If such subsequent offense is such that upon a first
conviction the offender would be punishable by imprisonment in the
penitentiary for five (5) years, or any less term, then the person
convicted of such subsequent offense is punishable by imprisonment
in the penitentiary for a term not exceeding ten (10) years."
"3. If such subsequent conviction is for petit larceny, or for
any attempt to commit an offense which, if committed, would be
punishable by imprisonmlent in the penitentiary, then the person
convicted of such subsequent offense is punishable by imprisonment
in the penitentiary for a term not exceeding five (5) years."
"(B) Every person who, having been twice convicted of felony
offenses, commits a third, or thereafter, felony offenses within
ten (10) years of the date following the completion of the
execution of the senbence, shall be punished by imprisonment in the
State Penitentiary for a term of twenty (20) years plus the longest
imprisonment for which the said third or subsequent conviction was
punishable, had it been a first offense, provided, that felony
offenses relied upon shall not have arisen out of the same
transaction or occurrence or series of events closely related in
time or location; provided, further, that nothing in this section
shall abrogate or affect the punishment by death in all crimes now
or hereafter made punishable by death."
The Oklahoma Legislature has since amended § 51(b).
See
1978 Okla.Sess.Laws, ch. 281, § 1, Okla.Stat., Tit. 21, § 51(b)
(Supp. 1979).
[
Footnote 2]
"Defendant asserts in his fourth assignment of error that
[Okla.Stat., Tit. 21,] § 51(b), under which he was sentenced, is
unconstitutional. We agree. This question was laid to rest by this
Court in
Thigpen v. State, Okla. Cr.,
571 P.2d
467 (1977). We must find however, that the defendant was not
prejudiced by the use of this statute in that the sentence imposed
is within the range of punishment authorized by the provisions of
[Okla.Stat., Tit. 21,] § 51(A)."
Hicks v. State, No. F-77-751 (Mar. 8, 1979).
The decision of the Oklahoma Court of Criminal Appeals is
unreported. A petition for rehearing was denied April 6, 1979.
[
Footnote 3]
Only if the jury fails to do so may the trial court impose
sentence. Okla.Stat.Tit. 22, § 927 (1971).
[
Footnote 4]
Because of our disposition of the case, we do not reach the
petitioner's several other contentions.
[
Footnote 5]
Because the appellate court did not purport to resentence the
petitioner, we have no occasion to consider his contention that due
process of law requires that the State provide him with notice and
a hearing including the opportunity to present mitigating evidence,
before appellate sentencing.
See McGautha v. California,
402 U. S. 183,
402 U. S.
218-220;
Specht v. Patterson, 386 U.
S. 605,
386 U. S. 606.
See also Mempa v. Rhay, 389 U. S. 128.
MR. JUSTICE REHNQUIST, dissenting.
The Court concludes that the Oklahoma Court of Criminal Appeals
denied petitioner due process of law by refusing to vacate the
sentence imposed at his trial for unlawful distribution
Page 447 U. S. 348
of heroin. That conclusion, in turn, depends on the Court's
assertion that petitioner was impermissibly denied his
state-created right to be sentenced by a jury. Because I believe
that the Court either mischaracterizes the right conferred by state
law or erroneously assumes a deprivation of that right, I
dissent.
The Court is undoubtedly correct that Oklahoma law does confer a
right to have a sentence imposed by a jury. Okla.Stat., Tit. 22, §
926 (1971). But it is equally true that petitioner was sentenced by
a jury. The question is whether that sentence was validly imposed,
either as a matter of state or federal law. For if the petitioner
was constitutionally sentenced by his jury in the first instance,
he has been afforded the process the State guaranteed him. The
Oklahoma court found that petitioner was not properly sentenced. If
this conclusion rested on an interpretation of state law, or a
correct interpretation of federal law, then I would have less
difficulty agreeing with the Court that petitioner was entitled to
a new jury sentencing under principles of due process. But the
Court fails to inquire into the basis of the Oklahoma court's
conclusion that petitioner was improperly sentenced in the first
instance. That question is central to the resolution of the due
process issue presented by the case. The Court simply assumes that
the Oklahoma court found that petitioner had not been sentenced in
conformity with state law. This is an assumption, however, that
cannot be divined from the available state cases. Those cases in
fact strongly indicate that the decision of the state court here
rested on an erroneos interpretation of federal law, not state law.
If so, the Oklahoma court decision refusing to afford petitioner an
opportunity to be resentenced by a jury would be correct, albeit
for the wrong reason.
The issue in this case, then, is whether petitioner's original
sentence denied him equal protection. The Oklahoma sentencing
statute in effect at the time of petitioner's trial was designed to
provide for increased sentences to multiple offenders
Page 447 U. S. 349
of the criminal laws.
* Under
Okla.Stat., Tit. 21, § 51(A) (Supp. 1977) a defendant who is found
guilty of an offense punishable by a term of imprisonment in excess
of 5 years, after having been convicted of one offense punishable
by imprisonment, is subject to sentence, fixed by the jury, ranging
from 10 years to apparent infinity. (Oklahoma juries have
apparently exercised this discretion with great relish, imposing
sentences as long as 1,500 years in prison for second-time
offenders.
See Callins v. State, 500
P.2d 1333 (Crim.App. 1972).) Defendants convicted of more than
one
Page 447 U. S. 350
prior offense were subject to sentencing under § 51(b). Section
51(b) did not invest the jury with discretion to determine the
length of the term of imprisonment. Instead, the section provided a
formula for determining the length of the mandatory sentence to be
imposed by a jury pursuant to instruction. This statutory scheme
permitted the jury to impose sentences on defendants with only one
prior conviction far in excess of those which were specified for
defendants with two or more prior convictions. In
Thigpen v.
State, 571 P.2d
467 (Okla.Crim.App. 1977), decided after petitioner's mandatory
sentence was imposed by the jury, a defendant with only one prior
conviction challenged the constitutionality of the statute. The
court concluded that this potential for disparate sentences
rendered § 51(b) "unconstitutional," and struck that section.
The
Thigpen opinion does not indicate whether this
conclusion is based on an interpretation of the State or Federal
Constitution. The opinion does indicate, however, that, in
determining the constitutionality of the Act, the court had relied
on an advisory opinion submitted by an Oklahoma state district
judge. 571 P.2d at 471, n. 3. That advisory opinion is attached as
an appendix to the court opinion. The position advocated in the
advisory opinion is that the Oklahoma sentencing statute violated
the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution because of the potential for longer
terms of imprisonment to those convicted of only one prior offense.
The author of the advisory opinion relies exclusively on federal
law in reaching this determination.
In this case, the Oklahoma court thought the federal equal
protection holding in
Thigpen applied to petitioner's
sentencing as well. I cannot agree. Petitioner was a third-time
offender who was given the benefit of the more lenient mandatory
sentencing provisions before the decision in
Thigpen.
Thus, he was not within the class of one-time offenders subject to
more burdensome treatment under the statute. Since
Page 447 U. S. 351
petitioner was a member of the favored class, I cannot agree
that petitioner's sentencing denied hm equal protection or any
other rights guaranteed under the Federal Costitution, I am unable
to agree that due process required the State to afford him any
additional opportunity to be sentenced by another jury, and would
therefore affirm the judgment of the Court of Criminal Appeals of
Oklahoma.
* The text of Okla.Stat., Tit. 21, § 51 (Supp. 1977),
provides:
"(A) Every person who, having been convicted of any offense
punishable by imprisonment in the penitentiary, commits any crime
after such conviction is punishable therefor as follows:"
"1. If the offense of which such person is subsequently
convicted is such that upon a first conviction an offender would be
punishable by imprisonment in the penitentiary for any term
exceeding five (5) years, such person is punishable by imprisonment
in the penitentiary for a term not less than ten (10) years."
"2. If such subsequent offense is such that upon a first
conviction the offender would be punishable by imprisonment in the
penitentiary for five (5) years, or any less term, then the person
convicted of such subsequent offense is punishable by imprisonment
in the penitentiary for a term not exceeding ten (10) years."
"3. If such subsequent conviction is for petit larceny, or for
any attempt to commit an offense which, if committed, would be
punishable by imprisonment in the penitentiary, then the person
convicted of such subsequent offense is punishable by imprisonment
in the penitentiary for a term not exceeding five (5) years."
"(B) Every person who, having been twice convicted of felony
offenses, commits a third, or thereafter, felony offenses within
ten (10) years of the date following the completion of the
execution of the sentence, shall be punished by imprisonment in the
State Penitentiary for a term of twenty (20) years plus the longest
imprisonment for which the said third or subsequent conviction was
punishable, had it been a first offense; provided, that felony
offenses relied upon shall not have arisen out of the same
transaction or occurrence or series of events closely related in
time or location; provided, further, that nothing in this section
shall abrogate or affect the punishment by death in all crimes now
or hereafter made punishable by death."