Joseph Arthur Carbray, Petitioner-appellant, v. Ron Champion, Warden, Respondent-appellee, 905 F.2d 314 (10th Cir. 1990)

Appellant Joseph Arthur Carbray is presently incarcerated in Oklahoma pursuant to a state conviction for the state-law crime of assault with a deadly weapon, after former conviction of a felony. The state trial judge imposed a 199-year sentence based on the recommendation of the jury.¹  On direct appeal, the Oklahoma Court of Criminal Appeals affirmed the conviction but modified the sentence to a 75-year term of imprisonment because of its conclusion that the prosecutor made prejudicial remarks during the sentencing phase of the trial proceedings. See Carbray v. State, 545 P.2d 813, 815-16 (Okla.Crim.App.1976). The prosecutor's prejudicial remarks concerned the possibility of pardon and parole, which apparently had significantly reduced the amount of time that the appellant had been incarcerated as a result of his earlier convictions. Id. Because the Oklahoma Court of Criminal Appeals concluded that those references contributed to the jury's assessment of the particular punishment in this case, the court concluded that the sentence should be reduced from 199 years to 75 years.

We believe that appellant has made a "substantial showing of the denial of a federal right" necessary for the issuance of a certificate of probable cause pursuant to 28 U.S.C. § 2253. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 3394, 77 L. Ed. 2d 1090 (1983). Accordingly, we grant appellant's application for a certificate of probable cause.

Appellant raises two issues in his petition for habeas corpus relief under 28 U.S.C. § 2254. First, appellant challenges the validity of those prior convictions which were used to enhance his present sentence. It appears from the record²  that appellant was sentenced pursuant to the following provision of the Oklahoma recidivism statute:

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.

Okla.Stat. tit. 21, Sec. 51(A) (1) (1981). Appellant argues that an invalid 1957 juvenile conviction was improperly used to enhance his sentence.

Although the 1957 juvenile conviction was stricken from the information and was not presented to the jury in the sentencing phase, appellant argues that four subsequent felony convictions were used to enhance his sentence and that they all resulted from the allegedly invalid 1957 juvenile conviction. Appellant contends that because of the 1957 conviction, he was reluctant to testify on his own behalf in three of the subsequent felony cases. Additionally, appellant maintains that the fourth of those convictions resulted from a trial in which the 1957 conviction was used to impeach his testimony.

" 'Under Oklahoma law, only one prior conviction is necessary to enhance a defendant's sentence.' " Beavers v. Alford, 582 F. Supp. 1504, 1506 (W.D. Okla. 1984) (quoting Anderson v. Brown, No. 81-2247 (10th Cir., March 8, 1982) (unpublished opinion)). We note that one of the defendant's prior convictions, (Case No. 20-839), was based on a guilty plea. See R. Vol. I, Doc. 3, Addendum (Appellant's Br. before Oklahoma Court of Criminal Appeals at 8-9). Any connection between the 1957 conviction and the subsequent guilty plea conviction used to enhance appellant's present sentence is too attenuated to amount to constitutional error. Therefore, we affirm the district court's ruling that the enhancement of appellant's sentence was not constitutional error.

Appellant's second argument is that he was deprived of a liberty interest without due process when the Oklahoma Court of Criminal Appeals arbitrarily chose to resentence him to 75 years. See Carbray v. State, 545 P.2d 813, 815-16 (Okla.Crim.App.1976).³  This question is controlled by Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d 175 (1980).

In Hicks, the defendant had been sentenced to imprisonment for forty years by a jury which had been instructed that this was the mandatory sentence for the charged offenses. Hicks, 447 U.S. at 344, 100 S. Ct. at 2228. The Oklahoma Court of Criminal Appeals subsequently declared unconstitutional the mandatory sentencing statute under which the defendant was sentenced. Id. at 345, 100 S. Ct. at 2229. Thereafter, when the defendant appealed his sentence to the Oklahoma Court of Criminal Appeals, that court concluded that Hicks had not been prejudiced because the forty-year sentence was within the range of permissible sentences that could have validly been imposed under a different section of the habitual offender statute. Id.

The Supreme Court reversed, stating:

Where ... 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, ... and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.

Hicks, 447 U.S. at 346, 100 S. Ct. at 2229 (citation omitted).

Our original opinion interpreted Hicks as establishing a liberty interest protected under the Fourteenth Amendment in having the convicting jury exercise its discretion under Okla.Stat. tit. 22, Sec. 926 (1981) in every instance. We reached that conclusion based on our belief that Hicks prohibited the Court of Criminal Appeals from substituting its own discretion for that of the jury once it had determined the jury's verdict was the result of an invalid instruction. However, we failed to focus on language in Hicks suggesting that, if authorized by state law, the Oklahoma Court of Criminal Appeals might be able to substitute its own independent judgment for that of the jury and resentence a defendant based on what it determined to be the valid, applicable law:

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.

Id. at 347, 100 S. Ct. at 2230 (footnote omitted).⁴ 

The United States Supreme Court has recently confirmed what was implicitly suggested by that language in Hicks. In Clemons v. Mississippi, --- U.S. ----, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990), the Court held that where a state appeals court determines that the jury-imposed death sentence was based in part on consideration of an invalid aggravating circumstance, the appellate court can reweigh the valid aggravating and mitigating circumstances and redetermine the sentence, even though the initial sentence had to be determined by the jury. In Clemons, the Court distinguished its holding in Hicks, concluding that " [w]e specifically pointed out [in Hicks ], however, that the Oklahoma Court of Criminal Appeals 'did not purport to cure the deprivation by itself reconsidering the appropriateness' of the 40-year sentence, id. at 347, 100 S. Ct. at 2230 (footnote omitted), thus suggesting that appellate sentencing, if properly conducted would not violate due process of law." Clemons, --- U.S. at ----, 110 S. Ct. at 1447. Thus, the Supreme Court has now made it clear that if a state appellate court has authority to exercise its own discretion and to modify a jury sentence on appeal as a matter of state law, no due process violation occurs.

Appellant argues that the modification of his sentence by the Oklahoma Court of Criminal Appeals deprived him of a liberty interest without due process of law because " [u]nder Oklahoma law a defendant has a statutory right to have his sentence set by the jury which finds him guilty." Clopton v. State, 742 P.2d 586, 587 (Okla.Crim.App.1987). See Dean v. State, 778 P.2d 476, 478 (Okla.Crim.App.1989); Okla.Stat. tit. 22, Sec. 926 (1981). However, the Oklahoma Court of Criminal Appeals has ruled that it has the authority as a matter of state law to modify a defendant's sentence on appeal.

In Clopton v. State, 742 P.2d 586, 587 (Okla.Crim.App.1987), the Oklahoma Court of Criminal Appeals held that "where the sentence has been modified to the minimum, the appellant has clearly suffered no prejudice from this Court's setting of the sentence, because the jury could not possibly have imposed a lesser punishment." Id. at 587. In Clopton, the jury was instructed that, if they found defendant guilty, under the Habitual Criminal Act the minimum sentence was a twenty-year prison term. Id. On appeal, the Oklahoma Court of Criminal Appeals held that the jury should have been instructed to impose a sentence under the Uniform Controlled Substance Act. Id. The minimum sentence under that statute for defendant's offense was four years. Id. The Court of Criminal Appeals held that " [w]e must, therefore modify appellant's sentence to the minimum provided under the enhanced punishment provision of the Uniform Controlled Substance Act, which is four (4) years." Id.

Clopton would seem to suggest that the Oklahoma Court of Criminal Appeals' discretion in modifying sentences is limited to reducing a sentence to the statutory minimum. However, that court has reduced sentences to levels above the statutory minimum in cases involving prosecutorial misconduct at trial. See Massingale v. State, 713 P.2d 15 (Okla.Crim.App.1986); Freeman v. State, 681 P.2d 84 (Okla.Crim.App.1984). It is not at all clear to us why the Oklahoma Court of Criminal Appeals has apparently drawn a distinction between cases involving prejudicial prosecutorial misconduct during trial and cases where the prejudice results from a jury instruction relying on an inapplicable statute, see, e.g., Clopton v. State, 742 P.2d 586, 587 (Okla.Crim.App.1987), or from a statute subsequently declared invalid, see, e.g., Nipps v. State, 626 P.2d 1349 (Okla.Crim.App.1981). However, the Oklahoma Court of Criminal Appeals evidently has drawn that distinction as a matter of state law.⁵ 

It appears that the Oklahoma Court of Criminal Appeals has done in this case precisely what the Supreme Court held was permissible in Clemons. After concluding that the prosecutor's remarks constituted prejudicial misconduct, the Oklahoma Court of Criminal Appeals held that "justice dictates our modification of the defendant's sentence from a term of one hundred ninety-nine (199) years' imprisonment to a term of seventy-five years' imprisonment." Carbray v. State, 545 P.2d 813, 816 (Okla.Crim.App.1976). This action represents a determination by the highest criminal court of Oklahoma that the new 75-year sentence is appropriate and that it has the authority, as a matter of state law, to so modify sentences under these circumstances. Therefore, we hold that the modification of appellant's sentence by the Oklahoma Court of Criminal Appeals did not deprive appellant of any liberty interest in violation of the Due Process Clause of the United States Constitution. Accordingly, the judgment of the district court is AFFIRMED.