FLOWERS v. STATE ( 2016 )

ORDER REVERSING DENIAL OF REQUEST FOR DNA TESTING AND REMANDING FOR FURTHER PROCEEDINGS

¶ 1 Petitioner has appealed to this Court from a March 24, 2016, order of the District Court of Comanche County, denying his application for post-conviction relief requesting DNA testing in Case No. CRF-1993-241. In that case, Petitioner was tried by a jury, convicted and sentenced. Petitioner filed a direct appeal of his conviction, which was affirmed by this Court. See Flowers v. State, No. F-1994-1320 (May 1, 1996) (Not For Publication).

¶ 2 The Postconviction DNA Act went into effect on November 1, 2013. See 22 O.S.Supp. 2013, § 1373. This is Petitioner’s second post-conviction application since the effective date of this Act. On February 26, 2014, Petitioner filed a previous application for post-conviction relief in the District Court that did not contain a request for DNA testing, said application for post-conviction relief was denied by the District Court on April 1, 2014. This Court affirmed the District Court’s denial of relief. See Flowers v. State, No. PC-2014-333 (July 18, 2014) (Not For Publication). Petitioner’s current application for post-conviction relief, filed in the District Court on December 5, 2014, is the first he has filed requesting DNA testing in Case No. CRF-1993-241.

¶ 3 In an order filed in the District Court on March 24, 2016, the Honorable Gerald F. Neuwirth, District Judge, denied Petitioner’s application for post-conviction relief requesting DNA testing. Judge Neuwirth ruled Petitioner’s request was barred because he could have made the request in his previous application for post-conviction relief. Citing Watson v. State, 2015 OK CR 3, 343 P.3d 1282, Judge Neuwirth held any request for DNA testing must be made in the first post-conviction application filed following the enactment of the Postconviction DNA Act, We disagree.

¶ 4 In Watson, this Court held that based on 22 O.S.Supp.2013, §§ 1373.7 “the procedure for any appeal under the Postconviction DNA Act is the same as an appeal to this Court under the Uniform Post-Conviction Act.” Watson, 2015 OK CR 3, ¶ 3, 343 P.3d at 1283 (citing State ex rel. Smith v. Neuwirth, 2014 OK CR 16, ¶ 11, 337 P.3d 763, 765-66). Moreover, the Postconviction DNA Act clearly provides that “notwithstanding any other provision of law concerning post-conviction relief’ a person may request DNA testing pursuant to the Act. See 22 O.S.Supp.2013, § 1373.2(A).

¶ 5 Watson is distinguishable from the case presently before this Court. In Watson, it was the petitioner’s second request for DNA testing. Watson subjects a second request for DNA testing pursuant to the Postconviction DNA Act to a procedural bar like that found in Section 1086. Watson, 2015 OK CR 3, ¶ 5, 343 P.3d at 1283. Watson does not hold that requests for DNA testing are subject generally to the Uniform Post-Conviction Act. Id. This Court stated “[w]e find a procedural bar like the one found in Section 1086 of the Uniform Post-Conviction Act may be utilized by the courts on any second or subsequent application for post-conviction relief requesting DNA testing under the Postconviction DNA Act.” Id. This is not Petitioner’s second or subsequent application for post-conviction relief requesting DNA testing under the Postconviction DNA Act.

¶ 6 The Dissent in this case maintains the Postconviction DNA Act expands the list of six grounds for relief found in 22 O.S.2011, § 1080, of the Uniform Post-Conviction Procedure Act stating: “The Legislature added an additional ground for relief when it enacted the Postconviction DNA Act.” (Lumpkin, V.P. J,, dissenting.) The language used by the 54 Oklahoma Legislature in the Postconviction DNA Act makes it clear this Act is not subject to the provisions of the Uniform Post-Conviction Procedure Act. First the Legislature did not amend the Uniform Post-Conviction Procedure Act to include any mention of the Postconviction DNA Act, We conclude this indicates the Postconviction DNA Act is not an additional ground for relief pursuant to the Uniform Post-Conviction Procedure Act. This Court will not interpret the Postconviction DNA Act to unilaterally create a new provision of the Uniform Post-Conviction Procedure Act without authority from the Legislature. Second, the Legislature made it clear its intent was the opposite when the only two references to the Uniform Post-Conviction Procedure Act were stating twice that “notwithstanding any other provision of law concerning post-con-vietion relief’ a person may request DNA testing pursuant to the Act. 22 O.S.Supp. 2013, §§ 1373.2(A), 1373.6(B).

¶ 7 This Court recently held:

A fundamental principle of statutory construction requires this Court to determine and give effect to the intention of the Legislature. State v. Iven, 2014 OK CR 8, ¶ 13, 335 P.3d 264, 268. Legislative intent is determined first by the plain and ordinary language of the statute. Johnson v. State, 2013 OK CR 12, ¶ 10, 308 P.3d 1053, 1055. “A statute should be given a construction according to the fair import of its words taken in their usual sense, in conjunction with the context, and with reference to the purpose of the provision.” Id. (citation omitted). When language of a statute is unambiguous, resort to additional rules of construction is unnecessary. Barnard v. State, 2005 OK CR 13, ¶ 7, 119 P.3d 203, 205-06. We must hold a statute to mean what it plainly expresses and cannot resold to interpretive devices to create a different meaning. Johnson, 2013 OK CR 12, ¶ 10, 308 P.3d at 1055.

Newlun v. State, 2015 OK CR 7, ¶ 8, 348 P.3d 209, 211. As noted by this Court in State v. Iven, 2014 OK CR 8, ¶ 14, 335 P.3d 264, 269, to be sure, we must presume the Legislature was aware of the Uniform Post-Conviction Procedure Act and our decisions and contemplated them in enacting the Posteonvietion DNA Act. The Legislature did not include the Posteonvietion DNA Act within the Uniform Post-Conviction Procedure Act and we will not read into a statute a requirement that is not there. See Id. More significantly, to do so would rely on nonexistent language while ignoring what the Legislature specifically stated. See 22 O.S.Supp.2013, § 1373.2(A).

¶ 8 As the foregoing discussion shows, today’s decision does not rely upon notions of equity or some other creative approach to statutory interpretation to reach a desired result. Rather, we faithfully recognize and apply the Legislature’s clear intent to establish a new statutory regime facilitating orderly DNA testing for eligible inmates— even when they have already filed a prior application for post-conviction relief challenging judgment and sentence under 22 O.S.2011, § 1080. In so doing, the Legislature has “devise[d] new procedures and new remedies to meet felt needs.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991). The Legislature’s effort in this area is no surprise considering the nationwide movement by States and the federal government “to ensure the fair and effective use of [DNA] testing within the existing criminal justice framework.” District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 62, 129 S.Ct. 2308, 2316, 174 L.Ed.2d 38 (2009). Today’s decision reflects our solemn obligation to carry out this legislative mandate.

¶ 9 As this is Petitioner’s first application for post-conviction relief requesting DNA testing in this case, this Court’s decision in Watson does not procedurally bar Petitioner from seeking relief under the Posteonvietion DNA Act. The order of the District Court of Comanche County in Case No. CRF-1993-241, denying Petitioner’s request for DNA testing as procedurally barred is REVERSED and this matter is REMANDED to the District Court of Comanche County, the Honorable Gerald F. Neuwirth, District Judge, for further proceedings to consider Petitioner’s application for DNA testing.

¶ 10 Pursuant to Rule 3.15, Pules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

¶ 11 IT IS SO ORDERED.

/s/ Clancy Smith CLANCY SMITH, Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge, Dissents

/s/ Arlene Johnson ARLENE JOHNSON, Judge

/s/ David B. Lewis DAVID B, LEWIS, Judge, Dissenting

/s/ Robert L. Hudson ROBERT L. HUDSON, Judge