Pickens v. State , 74 O.B.A.J. 2099 ( 2003 )

L UMPKIN, Judge,

Dissents.

1 Remanding this case for a jury determination on the issue of mental retardation is premature at this time and essentially "skips a step" in the Murphy analysis. In support of his claim, Petitioner has presented the following: 1) a copy of his first application for post-conviction relief showing the issue of his mental retardation has been raised previously; 2) a copy of the trial testimony of Dr. Hesson concerning his expert opinion on Petitioner's mental age and the contributing factors to that conclusion; 3) an affidavit from Dr. Mark Cunningham, Ph.D., concerning his June 2001 evaluation of Petitioner and his findings that before Petitioner was 18 years old he had IQ test scores ranging from 70 to 77, he had significant deficits in communication capabilities and social/interpersonal skills, and he was placed in Educable Mentally Handicapped classes in school. Also included is an affidavit from Leatha Brannon, a correctional teacher at the Jackie Brannon Correctional Center, wherein she states that while Petitioner was incarcerated at the center he struggled to learn and that she did not have any problems with Petitioner.

1 2 The evidence set forth above is not the quantum of evidence presented in Lambert¹ which warranted a remand for a jury determination on the question of mental retardation. The information provided to this Court at this point is not sufficient to create a question of fact on Petitioner's mental retardation. It is sufficient only to warrant remanding this case to the trial judge for an evidentiary hearing on the issue of mental retardation. While we remanded the case for that purpose, such an evidentiary hearing has not been held in this case due to the stay subsequently entered by this Court. To hold such a hearing at this juncture provides both parties the opportunity to fully present evidence in an adversarial proceeding as to whether Petitioner has raised sufficient evi-denee (at trial, on appeal, or at the evidentia-ry hearing) of his mental retardation, in accordance with the definition set forth in

Murphy. If sufficient evidence is presented, then the issue of mental retardation can be decided as a question of fact by a jury at a trial, While the evidence presented may ultimately warrant a jury determination of the issue of Petitioner's mental retardation and the appropriateness of his sentence, this Court needs to review written findings of fact and conclusions of law prepared by the trial judge to make that decision and not merely the scant information provided by Petitioner in this second application for post-conviction relief. Accordingly, I dissent.

1 . Lambert v. State, 2003 OK CR 11, 71 P.3d 30.