text:
    2004 OK CR 9
    The STATE of Oklahoma, ex rel., W.A. Drew EDMONDSON, Attorney General, State of Oklahoma, Petitioner, v. The Honorable Tammy BASS-JONES, District Judge, Seventh Judicial District, Respondent.
    No. PR-2003-1006.
    Court of Criminal Appeals of Oklahoma.
    Feb. 12, 2004.
   ORDER DENYING RELIEF

¶ 1 Petitioner filed an application requesting this Court to assume jurisdiction and issue an extraordinary writ of prohibition in Oklahoma County District Court Case No. CF-2003-2026.

¶ 2 Petitioner argued Respondent's order granting a preliminary hearing to the defendants in the aforementioned District Court case is not supported by legal authority. Petitioner made such argument on the fact that the felony charges in the District Court case were brought by an Indictment issued by the Multi-County Grand Jury of Oklahoma, not upon the filing of an Information by the District Attorney. Thus, Petitioner claimed the defendants do not have a state constitutional right to receive a preliminary hearing because such right is conferred by statute, and the defendants did not comply with the statutory requirements, thereby forfeiting their right to a preliminary hearing.

¶ 3 This Court directed a Response from Respondent on November 18, 2008. Responses were filed on December 3, 2008. After a review of the pleadings filed in this case, 22 0.8.2001, § 524 and Stone v. Hope, 1971 OK CR 302, 488 P.2d 616, we find the statutory language is clear and unambiguous and specifically requires a written notice be filed in accordance with the statute prior to a defendant being eligible for a preliminary hearing on an indictment. A review of Stone and the jurisprudence set out in the Petitioner's Reply Brief reveal the Court in Stone was not addressing the ten (10) day written notice requirement of the statute, but the judicial problem of that time regarding magistrate shopping in preliminary hearings. Therefore, the judge in this case should not have automatically set a preliminary hearing conference, or a preliminary hearing. The judge's authority to set a preliminary hearing on a grand jury indictment is based solely on the statutory authorization. Absent the filing of the written request for a preliminary hearing, the judge should set an indictment for trial. However, based on the judge's actions, and the failure of the State to object, we find the doctrine of estoppel applies. The defendant has now filed a written request for preliminary hearing, outside the ten (10) day period. The failure to timely file is attributable to the action of the judge and the failure of the State to object. As such, the petition for extraordinary relief is DENIED. The stay of proceedings previously entered by this Court is hereby LIFTED, and the preliminary hearing on the indict, ment may proceed.

¶ 4 IT IS SO ORDERED.

¶ 5 Witness our hands and the Seal of this Court the 12th day of February, 2004.

Is) Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s) Steve Lile STEVE LILE, Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge, concurs and dissents in part.

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge, concurs in result only.

CHAPEL, J.,

Concurring in Part and Dissenting in Part.

¶ 1 I concur in the decision to deny the Application for a Writ of Prohibition. However, I cannot agree with the majority's conclusion that a defendant indicted by a grand jury must request a preliminary hearing in writing within ten days. This decision is another of the majority's attempts to diminish a defendant's right to a preliminary hearing. We have long held that preliminary hearing is a critical stage of criminal proceedings. By judicially enacting this writing requirement and time limit, the majority is unnecessarily building error into future cases. Every time an attorney fails to timely file a written request for preliminary hearing after her client is indicted, the client will have a claim of error against the attorney. I do not believe this either protects a defendant's rights or promotes judicial efficiency.

¶ 2 In concluding that the statutory language clearly and unambiguously contains these requirements, the majority fails to apply rules of grammar. The majority relies on the portion of the statute which states:

Upon the return and filing of an indictment for a felony, the defendant so charged and arrested thereon, or the state, upon filing a request in writing, shall be entitled to have a copy of said indictment, certified by the court clerk, filed with a district, superior, common pleas or county judge, to be designated by the judge presiding over the grand jury, and the defendant shall have a preliminary hearing thereon, before such designated judge, as a magistrate, as though said charge had been originally filed by verified information, with such magistrate, and under the law applying to the institution and conduct of prosecutions by information filed by the state. Any such request must be filed within ten (10) days after the filing of such indictment with the court clerk, or within ten (10) days after the defendant charged under said indictment has been arrested thereon, whichever is later.

¶ 3 This statute does two things. First, it sets forth the procedure by which an indicted defendant may request that a copy of her indictment be filed with a court. The relevant language here is the clause in the first sentence, "upon filing a request in writing". The second sentence, which contains the time limits so persuasive to the majority, refers to "[alny such request." This phrase can only modify the language allowing a defendant to request a copy of her indictment be filed with a court. This is the only "request" mentioned in the statute.

¶ 4 Second, the statute provides that an indicted defendant may have a preliminary hearing. This provision, although contained within the same sentence, is neither dependent on nor modified by the language discussing a defendant's request to file a copy of her indictment with a court. This interpretation is consistent with this Court's previous case law. Although this Court has had the opportunity to do so, we have never imposed either a time limit or a requirement for a written request before an indicted defendant may have a preliminary hearing. In Stone v. Hope we explicitly noted that indictment and prosecution by Information are "concurrent remedies", and stated that "[pJrosecution by Indictment likewise entitles accused to a preliminary hearing." I disagree with the majority's imposition of filing requirements where the Legislature imposed none.

      . Norton v. State, 2002 OK CR 10, 43 P.3d 404, held that denial of counsel at this critical stage is subject to harmless-error review, overruling Cleek v. State, 1987 OK CR 278, 748 P.2d 39. I dissented to that ruling.

      . Stone v. Hope, 1971 OK CR 302, 488 P.2d 616, 619. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

      . 22 0.98.2001, § 524.

      . 488 P.2d at 618.


source: Caselaw Access Project

license: Public Domain

text:
    2004 OK CR 10
    Rocky Dale SNOW, Appellant, v. STATE of Oklahoma, Appellee.
    No. PCD 2002-979.
    Court of Criminal Appeals of Oklahoma.
    Feb. 19, 2004.
   ORDER REMANDING TO THE DISTRICT COURT FOR JURY DETERMINATION ON THE ISSUE OF MENTAL RETARDATION

1 Appellant, Rocky Dale Snow was tried by jury and convicted of Unauthorized Use of a Motor Vehicle, Assault and Battery With Intent to Kill and Murder in the First Degree, after former conviction of two or more felonies, in Pontotoc County District Court, Case No. CRF-88-210. The trial court sentenced Petitioner, in accordance with the jury verdict, to sentences of twenty (20) years, ninety-nine (99) years, and death respectively.

¶ 2 This Court affirmed Petitioner's convie-tions and sentences in Snow v. State, 1994 OK CR 39, 876 P.2d 291, and subsequently denied his petition for rehearing. The United States Supreme Court denied Petitioner's petition for writ of certiorari on February 21, 1995. Snow v. Oklahoma, 513 U.S. 1179, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995). On November 10, 1999, this Court affirmed the district courts denial of Snow's initial application for post-conviction relief. (Court of Criminal Appeals Case No. PCD-1997-1850). This Court denied, in part, his second application for post-conviction relief and remanded the case for an evidentiary hearing on his claim of mental retardation under the current styled case.

¶ 3 Petitioner's evidentiary hearing was held on November 5, 2008 in the District Court of Pontotoc County, before the Honorable Gary Snow, District Judge. On December 1, 2003, Judge Snow submitted findings of fact to this Court. Thereafter, the parties filed a brief outlining their positions on this issue.

¶ 4 In Murphy v. State, 2002 OK CR 32, ¶ 31, 54 P.3d 556, 567-68 (Murphy I) this Court set forth a three-prong definition of mental retardation. Along that line we instructed the District Court to determine whether Petitioner had raised "sufficient evidence at trial, on appeal, or at the evidentia-ry hearing of his mental retardation for the issue of mental retardation to be decided as a question of fact by a jury trial at a resentenc-ing hearing." Id., 2002 OK CR 82, 139, 54 P.3d at 570.

¶ 5 As Murphy explained, sufficient evidence means enough evidence to create a fact question on the issue of whether Petitioner is mentally retarded according to Murphy's definition. 2002 OK CR 32, ¶ 39, 54 P.3d at 570, n. 27. Furthermore, as Murphy II, 2003 OK CR 6, ¶ 12, 66 P.3d 456, 458, explained:

"[Slufficient evidence" is essentially the legal equivalent of a defendant making a prima facie showing of mental retardation with his or her evidence. Prima facie evidence has been defined as "[e}vidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient."

With these understandings, we now turn to the instant case.

¶ 6 The District Court's findings with respect to Petitioner's evidentiary hearing and claim of mental retardation are thorough and well explained. It is clear the trial court sifted through the evidence and made well-reasoned legal and factual determinations regarding the evidence presented and the three Murphy prongs. The trial court expresses frustration over the bright line rule that there must be evidence of a contemporary LQ. test resulting in a score of 70 or below. This number was established based on definitions of mental retardation established by the American Association of Mental Retardation (AAMR) and the American Psychiatric Association (APA), and language in the Atkins opinion. See Murphy I, 54 P.3d at 567-68. The threshold barrier was expressed in Murphy I as,

no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.

Murphy, 54 P.3d at 568 [footnote omitted]. We defined contemporary as "the intelligent quotient test registering seventy or below was administered some time after the capital crime was committed or is one [a test] that may be understood by contemporary standards." Id. at n. 21. The trial court expresses a lack of understanding of this later phrase and indicates that there is no test registering seventy or below after the commission of the crime. Therefore, the trial court concludes that Petitioner is not eligible for a jury trial on the issue of mental retardation.

¶ 7 The definition of contemporary simply means that a defendant must have an LQ. test resulting in a score of seventy or less or an LQ. test that meets an equivalent standard under contemporary scientific methods.

¶ 8 In this case, Petitioner has an I.Q. test resulting in a score of 68, taken as a group test, when he was in the third grade. This test was a group test, and the trial court states, "[this test score does not meet the Murphy v. State, supra definition of contemporary I.Q. test in that it was not administered sometime after the capital crime was committed." The trial court also found that based on the other prongs, a jury could find,

"that Snow functions at a significantly sub-average intellectual level that substantially limited his ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand reactions of others."

The trial court also found that jury could find that his sub-average intellectual level manifested itself before the age of 18 and his sub-average intellectual level is accompanied by significant limitations in adaptive functioning in all the levels identified in Murphy.

¶ 9 Regardless of the trial court's conclusion that Petitioner has not raised sufficient evidence of his mental retardation, we do not determine whether the record supports the conclusion.

[Wle simply ask whether or not a fact question has been raised regarding the issue of mental retardation under this ree-ord. Or, stated differently, has Petitioner made a prima facie showing of mental retardation with his evidence-such a showing that, if not rebutted, would establish his claim.
We recognize that trial courts have been struggling to a certain degree to understand their role in these remanded eviden-tiary hearings. Accordingly, we want to be clear that the focal question in these remanded evidentiary hearings on mental retardation does not require adjudication to the extent provided by the District Court's meticulous findings. The Murphy remanded evidentiary hearing is a fact-finding mission, not a mini-trial. It is an opportunity ... to bring all their evidence together, and to supplement it where nee-essary. Where a fact question is found, a jury then steps in to determine the issue at hand.

Martinez v. State, 2003 OK CR 25, ¶¶ 9-10, 80 P.3d 142, 144. That is the case here. We find sufficient admissible evidence exists in the record to create a fact question regarding all three prongs of the Murphy definition. Accordingly, this matter must be remanded to the District Court of Pontotoc County for a jury determination on the issue of mental retardation.

¶ 10 Regarding the remanded jury determination of the issue of mental retardation, the parties are hereby instructed to follow the procedures outlined by this Court in Lambert v. State, 2003 OK CR 11, 71 P.3d 30 and Salazar v. State, 2004 OK CR 4, 84 P.3d 764, 75 OBJ 405 (Jan. 29, 2004).

¶ 11 This case is therefore REMANDED to the District Court of Pontotoc County for a jury trial, unless waived, on the issue of Petitioner's claim of mental retardation, in accordance with those procedures outlined in Lambert. The trial shall be held within one hundred twenty (120) days of this Order. The trial court shall file findings of fact and conclusions of law, including the jury's determination and any sentencing disposition, in this Court within thirty (80) days from the date the jury's verdict is entered. The court reporter shall prepare and file the tran-seripts of the hearings within thirty (80) days from the date of the jury hearing. The Clerk of the District Court shall prepare and file the district court record, including the transcripts with in forty-five (45) days from the date of the jury hearing. Thereafter, the parties may file a supplemental brief in response to the determination on mental retardation, not to exceed twenty pages, concerning the issue of mental retardation within twenty (20) days from the filing of the trial court's findings of fact and conclusions of law or the filing of the transcripts of the hearing, whichever is later.

¶ 12 IT IS SO ORDERED.

¶ 13 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 19th day of February, 2004.

/s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s/ Steve Lile STEVE LILE, Vice Presiding Judge

/s) Gary L, Lumpkin GARY L. LUMPKIN, Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

      . Rehearing denied in Snow v. State, 1994 OK CR 50, 879 P.2d 150.

      . Judge Snow, District Judge of Seminole County was presiding by special appointment. It was noted that he is not related to Appellant.


text:
    2004 OK CR 14
    The STATE of Oklahoma, ex rel. C. Wesley LANE II, District Attorney, Appellant v. Jerry D. BASS, District Judge of the Seventh Judicial District Oklahoma County, Oklahoma, Appellee.
    No. PR-2003-946.
    Court of Criminal Appeals of Oklahoma.
    March 9, 2004.
   ORDER GRANTING WRIT OF PROHLI-BITION AND REMANDING TO THE DISTRICT COURT OF OKLAHOMA COUNTY WITH INSTRUCTIONS; ORDER ESTABLISHING PROCEDURE FOR PRETRIAL DETERMINATION OF MENTAL RETARDATION AND ESTABLISHING PROCEDURE FOR APPEAL

¶ 1 On August 25, 2003, Petitioner, the State of Oklahoma, by and through C. Wesley Lane II, District Attorney, Aaron Balch and Fern Smith, Assistant District Attorneys, filed a Petition for Writ of Prohibition, or in the alternative, Petition for Writ of Mandamus, requesting this Court prohibit the District Court of Oklahoma County from conducting a separate jury trial on the issue of mental retardation in Case No. CF-99-6416, The State of Oklahoma v. Richard Virgo Blonner.

¶ 2 Blonner is charged with First Degree Murder (and other additional charges). The State of Oklahoma filed a Bill of Particulars alleging the existence of aggravating cireum-stances warranting imposition of the death penalty. The State alleges in its application that Respondent, the District Court of Oklahoma County, the Honorable Jerry D. Bass, District Judge, exercised judicial authority unauthorized by law by granting Defendant Richard Blonner's request for a separate jury trial on the issue of mental retardation prior to conducting Blonner's trial for the charged offense. The mental retardation jury trial was scheduled to begin Monday, September 29, 2008. Alternatively, the State alleges that Judge Bass erred when he refused to conduct a separate evidentiary hearing on the issue of mental retardation. Specifically, the State argues that the defendant is required to make a prima facie showing of his mental retardation at an evidentiary hearing held for that purpose before allowing submission of the issue to a jury. The State cites our recent decisions in Murphy v. State, 2003 OK CR 6, 66 P.3d 456 [hereafter Murphy II], Lambert v. State, 2003 OK CR 11, 71 P.3d 30, and Pickens v. State, 2003 OK CR 16, 74 P.3d 601.

¶ 3 On September 10, 2008, we directed Respondent to file a response to the State's application. That response was filed on September 22, 2008, by designated representatives of the Oklahoma Indigent Defense System (OIDS), by and through counsel Mary Bruehl, Debbie Maddox and Janet Chesley.

¶ 4 In its response, OIDS alleges there is no legal authority directing the District Court to order an evidentiary hearing requiring an accused to present prima facie evidence sufficient to raise a question of fact on the issue of mental retardation before being able to bring his mental retardation claim before a jury. OIDS claims that the prima facie standard argued by the State, and the procedures set forth in this Court's decisions in Murphy II, Lambert, and Pickens apply only in post-conviction death cases. OIDS submits that an accused bears the burden of proving he is death ineligible by a preponderance of the evidence, and that the trial court properly ordered a separate jury trial on the issue of mental retardation prior to any trial upon the merits.

¶5 For a writ of prohibition, Petitioner must establish (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 (8) 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. (2003). For a writ of mandamus a petitioner has the burden of establishing (1) he has a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (8) the adequacy of mandamus and the inadequacy of other relief. See Woolen v. Coffman, 1984 OK CR 53, ¶ 6, 676 P.2d 1375, 1377; Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008).

¶6 Both parties have confused the issues addressed by the trial court in its ruling authorizing a separate jury trial on the issue of mental retardation, and have also misconstrued this Court's various post-conviction decisions addressing the mental retardation issue. We understand the confusion created by this Court's creation of procedures dealing with mental retardation in post-conviction proceedings and in trial proceedings and take this opportunity to further clarify our prior opinions and procedures in pending and future capital trials. We appreciate Judge Bass's efforts to give meaning to all the language in Murphy II and his efforts to protect the rights of the defendant. Still, we find that the State is entitled to the relief requested, as neither Murphy II, Lambert, nor Pickens require or authorize the District Court to empanel a separate jury trial on the issue of mental retardation before a defendant has been brought to trial on the capital offense.

¶7 In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the United States Supreme Court held that imposition of the death penalty upon those who are mentally retarded violates the Eighth Amendment to the United States Constitution. The Court left it to individual States to define mental retardation and to develop appropriate procedures to enforce this constitutional restriction. Atkins, 536 U.S. at 317, 122 S.Ct. at 2250. Following Aifkins, in a capital post-conviction proceeding, Murphy v. State, 2002 OK CR 32, 54 P.3d 556 [hereinafter Murphy I1, this Court anticipated the difficulties and confusion which would arise in future capital cases wherein the defendant claimed he or she was death penalty ineligible because of mental retardation. Recognizing that there was no current Oklahoma legislative enactment addressing this issue, this Court adopted a definition of mental retardation for use in capital trials which applies to individuals alleging that they are- not death penalty eligible. Murphy, 2002 OK CR 32, ¶ 31, 54 P.3d at 566-567.

¶8 We stated in Murphy I that this definitional standard was to be used in all future and pending capital trials where the issue of mental retardation is raised at the trial court level pending enactment of suitable legislation replacing this procedure. Id. At trial, it is the defendant's burden to prove he or she is mentally retarded by a preponderance of the evidence. "Unless the issue of mental retardation is resolved prior to trial, the issue of mental retardation shall be decided in the sentencing stage of a capital murder trial, pursuant to the instruction set forth in Appendix A." Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 567. If a jury determines a defendant is not mentally retarded, the defendant's intellectual functioning may still be considered as a mitigating factor in the sentencing stage. If the jury finds the defendant has shown by a preponderance of the evidence that he or she is mentally retarded, the defendant is not eligi-bie for the death penalty. Murphy, 2002 OK CR 32, ¶ 33, 54 P.3d at 567.

¶ 9 In resolving the request for a separate jury trial on the issue of mental retardation, Judge Bass correctly recited the procedures and guidelines from Murphy I He then stated:

"In the Murphy I case the jury hears all of the evidence. They hear all of the evidence about the facts of the murder and then they hear the aggravators and the mitigators and the evidence on mental retardation. They hear the whole ball of wax.
But in this Lambert case-and I am fully aware that it is post-conviction. I understand that. But in this Lambert case the Oklahoma Court of Criminal Appeals has decided that in the Lambert case that Lambert is not to be remanded for a sentencing stage, but is to be remanded on the sole issue of mental retardation. They are not-the jury is not to be death qualified because they are only hearing the issue of mental retardation....
So in Murphy I the jury gets to hear everything; in Lambert the jury doesn't hear everything.
And this leaves me in a quandary because if I proceed with Blonner and they hear everything and the Oklahoma Court of Criminal Appeals says, no, we should have had a hearing on the sole issue of mental retardation and then proceed to trial and then the mental retardation issue has been resolved.
Whereas, if I follow Lambert and we have like a competency trial that is similar on this determination of mental retardation, then we never get to that and we don't have a capital trial. And if I don't-if I don't follow Lambert and the case is appealed then there is no telling how many trials that this court, as well as other courts in this courthouse and other courthouses around the State, and we could try several and then have to turn around and have to re-try those on the issue of mental retardation....
Because of the magnitude of the Court's [Lambert] decision, I'm going to order a jury trial on the issue of mental retardation only and order that the jury is not to hear the facts of the case except narrowly under the Lambert decision, if there is some narrow exceptions on the issue of mental retardation. And then if that jury makes a finding that he is mentally retarded then the State cannot proceed on the capital murder."

¶ 10 We understand the District Court's concern for following this Court's directives and erring on the side of caution to avoid the need to potentially retry a capital case. However, as properly noted by Judge Bass, Lambert is a post-conviction ruling. It did not overrule, abrogate or modify the procedures established in Murphy I as they relate to pending and future capital cases where the defendant claims he or she is mentally retarded. "Unless the issue of mental retardation is resolved prior to trial," Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 567, the proper procedure to be used was that recited by Judge Bass from the decision in Murphy I and the mental retardation issue is to be addressed only after a finding of guilt in a capital trial.

¶ 11 Unfortunately in Murphy I this Court did not elaborate on how the issue of mental retardation could be resolved prior to trial and only discussed the procedure to be followed when the issue was not resolved prior to trial. Here, we take the opportunity to further clarify how the issue of mental retardation can be resolved prior to trial, as contemplated by the language in Murphy I.

¶ 12 In all pending and future cases, a defendant shall be required to file his or her Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty within sixty (60) days from the date the State of Oklahoma files its Bill of Particulars or from the date of arraignment, whichever is later. To that extent, Murphy, 2002 OK CR 32, ¶ 32, 54 P.3d at 567, is hereby modified.

¶13 After the State files its Bill of Particulars and after the defendant files Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty, the defendant may file a Motion to Quash Bill of Particulars due to Mental Retardation and request an evidentiary hearing if the defendant wants to resolve the issue of mental retardation prior to trial. By filing such a Motion, the defendant waives his right to jury determination on the issue of mental retardation.

¶ 14 The trial court shall set the matter for evidentiary hearing within sixty (60) days. At the evidentiary hearing, the defendant shall personally and affirmatively waive his or her right to jury determination of the issue of mental retardation on the record. The hearing shall be conducted after complete discovery is afforded both parties under the Oklahoma Criminal Discovery Code. Because the defendant has the burden of proof, he or she shall open the case first, present evidence first, and have the opportunity to present the first and last closing arguments to the trial court. Each party may have the defendant examined by an expert, and may present that expert testimony in support of the claim that the defendant is or is not mentally retarded by a preponderance of the evidence. At the conclusion of the hearing, the trial court shall determine whether the Defendant has shown by a preponderance of the evidence that he or she is mentally retarded. If the trial court finds the defendant has not met his burden of proving mental retardation, the defendant's intellectual fune-tioning may still be considered as a mitigating factor in the sentencing stage of the capital trial. The decision of the trial court shall be made in open court and memorialized thereafter by an order setting forth Findings of Fact and Conclusions of Law.

¶ 15 Either party may file an appeal from the trial court's order granting or denying a Motion to Quash Bill of Particulars on grounds of mental retardation. This Court will apply the preponderance of the evidence standard on appeal and conduct a de novo review of the trial court's factual findings.

¶ 16 The party seeking to appeal shall file a notice of intent to appeal and designation of record with the trial court clerk within five (5) days from the date the judge's ruling is pronounced in open court. The filing of the notice of intent to appeal in the district court is jurisdictional and failure to timely file constitutes waiver of the right to appeal. The party seeking to appeal shall file the notice of intent to appeal, together with a copy of the trial court's written order being appealed, with the Clerk of this Court within ten (10) days from the date the notice is filed in the district court. See Rule 2.5 and 13.4, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008)

¶ 17 To perfect the appeal, the Petition in Error, certified copy of the original record, transcript of proceedings and brief shall be filed with the Clerk of this Court within sixty (60) days from the date the trial court enters an order granting or denying the Motion to Quash Bill of Particulars.

¶ 18 The court reporter shall be required to expedite preparation of the record. Requests for extensions of time shall be considered in accordance with Rule 3.2(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003) To ensure the appeal is perfected within sixty (60) days, the record and transcripts shall be completed and filed with the district court clerk, and immediately transmitted to the Clerk of the Court of Criminal Appeals and appellate counsel within forty (40) days of the entry of the trial court's order. If the record is not complete within forty (40) days of the trial court's order, a Notice of Non-Completion of Record shall be sent to the Clerk of the Court of Criminal Appeals, explaining the cause for delay. A show cause hearing in this Court may be scheduled.

¶ 19 The district court clerk shall prepare and file three (8) certified copies of all pleadings, instruments, and transcripts designated for inclusion in the appeal record within forty (40) days from the date of the order appealed from in the same manner provided for the preparation of a regular appeal and as set forth in Rules 2.2, 2.3 and 24, however the due dates set forth herein shall control. The original transcript and one (1) certified copy of the record designated shall be filed with the Clerk of this Court; one (1) certified copy of the record and transcript shall be provided to the district attorney; and, one (1) certified copy of the record and transeript to either the Oklahoma Indigent Defense System, pursuant to Section 1862 of Title 22, or to the retained or other appointed counsel of record on appeal.

¶ 20 The Petition in Error shall be filed within sixty (60) days from the date the judge's ruling is pronounced in open court to invoke the jurisdiction of this Court. The Petition in Error must contain the following information:

(1) The type of appeal and the date the State filed its Bill of Particulars;
(2) The date the defendant gave Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty;
(3) The date the Motion to Quash Bill of Particulars due to Mental Retardation was filed in the district court;
(4) The case number and the court from which the appeal is lodged;
(5) The date on which the court order was entered and the name of the judge; and,
(6) The nature of relief being sought.

¶ 21 The Brief of Appellant shall be filed with the Petition in Error and shall be served on the adverse party within five (5) days from the date on which the Brief is filed and must contain a certificate of service. See Rules 1.9(B) and 8.4(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008).

¶ 22 The Answer Brief shall be filed within twenty (20) days from the date the Appellant's brief is filed.

¶ 23 The content of the briefs of the parties shall be in compliance with Rule 8.5, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), except that the briefs shall not exceed twenty (20) typewritten pages in length.

¶ 24 Because an appeal from a trial court's decision on a Motion to Quash Bill of Particulars on grounds of Mental Retardation is an interlocutory appeal and time is of the essence, this Court will expedite its handling of these cases.

¶25 We are mindful of the concern that the issue of mental retardation might be overshadowed by the facts of a particular capital case and/or in spite of a showing of mental retardation when the issue is decided by a jury at trial Accordingly, the above procedure provides the defendant with an alternative method to having the issue decided prior to trial. If the trial court denies the Motion to Quash Bill of Particulars on grounds of Mental Retardation, and if that decision is appealed and is affirmed on appeal, the defendant's intellectual functioning may still be considered as a mitigating factor in the sentencing stage of the capital murder trial.

¶26 If the defendant opts for jury determination of the mental retardation issue and does not seek resolution of the issue prior to trial, the procedures outlined in Murphy I for a postjudgment Atkins hearing are intended to provide another level of review. In cases where the issue of mental retardation is properly raised and the jury finds the defendant is not mentally retarded and imposes the death penalty, the trial court shall, upon the defendant's request, hold a post-judgment Atkins hearing for the purpose of determining if the jury's decision on the issue of mental retardation resulted in an excessive sentence (a sentence imposing the death penalty on a defendant who meets the Murphy I definition of mentally retarded). Murphy, 2002 OK CR 32, ¶ 34, 54 P.3d at 567. The trial judge's duty at a post-judgment Atkins hearing is to determine whether or not the factual determinations relating to the issue of mental retardation were imposed by the jury under the influence of passion, prejudice or any other arbitrary factor. The trial judge shall conduct a de novo review of the evidence presented at trial and determine whether or not the defendant is mentally retarded, as defined in Murphy I, using a preponderance of the evidence standard. Murphy, 2002 OK CR 32, ¶ 35, 54 P.3d at 568.

¶27 We must also address the State's contention that "it is incumbent upon a defendant to present sufficient evidence, at an evidentiary hearing before the trial court, that he is mentally retarded so as to raise a question of fact to be resolved by a jury." The post-conviction cases relied upon by the State for that contention, Lambert and Pick-ens, do not require a defendant to present prima facie evidence of mental retardation before being entitled to raise the matter at trial; Lambert and Pickens are instructive for post-conviction matters. No pretrial evi-dentiary procedure was established by Murphy I. Prima facie evidence of mental retardation does not need to be shown prior to trial. However, as with other claims and defenses raised at trial, the defendant must present prima facie evidence at the jury trial on the issue of mental retardation sufficient to warrant the instruction on mental retardation.

¶ 28 The State's Application for Writ of Prohibition is GRANTED. This matter is remanded to the District Court of Oklahoma County with instructions to vacate its order granting Defendant Blonner's request for a separate jury trial on the issue of mental retardation. The District Court is directed to proceed with Blonner's trial in accordance with the procedures outlined in this Order.

¶ 29 IT IS SO ORDERED.

¶ 30 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 9th day of March, 2004.

/s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge.

/s/ Steve Lile STEVE LILE, Viee Presiding Judge.

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge.

/s) Reta M. Strubhbar RETA M. STRUBHAR, Judge.

GARY L. LUMPKIN, J., Concur in part/Dissent in part.

LUMPKIN, J.;:

Concur in Part/Dissent in Part.

¶ 1 I concur in the Court's decision to grant the Writ of Prohibition in this case. However, I must dissent to the Court creating a procedure that not only further delays a trial on the merits in a capital murder case, but is totally unnecessary.

¶ 2 While I recognize the Court is vested with the authority to create procedures of this type, I believe the first question to ask is whether the procedure is necessary. This Court has already developed a procedure through its decisions in Murphy v. State, 2002 OK CR 32, 54 P.3d 556; Lambert v. State, 2003 OK CR 11, 71 P.3d 30; and Pickens v. State, 2003 OK CR 16, 74 P.3d 601. Simply put, in a capital murder trial the jury is instructed regarding the law relating to mental retardation and directed to determine if the defendant is mentally retarded under those instructions in the penalty phase of the trial. If the jury finds the defendant mentally retarded, the instructions advise the death penalty cannot be applied. If the jury determines the defendant is not mentally retarded, they are instructed to consider the evidence relating to mental retardation as part of the mitigation evidence in the case. Upon assessment of the death penalty, in a case where mental retardation is raised as an issue, a post trial hearing, upon the request of the defendant, is required to have the trial judge determine "if the jury's decision on the issue of mental retardation has resulted in an excessive sentence, i.e., a sentence that imposed the death penalty upon a defendant who is mentally retarded, as herein defined." Murphy, 2002 OK CR 32, ¶ 34, 54 P.3d at 568-69. This Court would then review all allegations of error in the trial during the direct appeal and mandatory sentence review.

¶ 3 The procedure for raising the issue of mental retardation for the first time as a part of a post-conviction application is just as simple and efficient. Simply put, an appellant must first make a showing either in the original or subsequent application for post-conviction relief, pursuant to Rule 8.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2003), that there is clear and convincing evidence of the issue of mental retardation to warrant a remand to the District Court for an evidentiary hearing. If remanded, the District Court will hold an evidentiary hearing to determine if there is sufficient evidence regarding whether the defendant is mentally retarded, as defined in Atkins and Murphy, to require a jury trial on the issue. If there is sufficient evidence and a jury trial on the issue of mental retardation is ordered, the sole issue for that jury is whether the defendant is mentally retarded. The procedure does not require a retrial on the issue of guilt. It goes without saying, any and all evidence relating to the issue of mental retardation, whether it arose during the original trial on the merits or was subsequently developed, would be admissible.

¶ 4 Here, the record reveals the District Court was aware of the separate procedures for the original trial on the merits and a hearing on post-conviction remand, but the judge was hesitant to follow the procedure. As a result, it appears the judge combined the two separate procedures into one. A part of this misconception is attributable to the final language in the Murphy decision. This type of problem was anticipated in the original language drafted in Murphy, ie. "unless the parties enter into a stipulation on this issue at trial or prior to trial ...". However, due to the group dynamics often present in the writing of appellate opinions, the language was changed to "unless the issue of mental retardation is resolved prior to trial, ...". Murphy, 2002 OK CR 32, 132, 54 P.3d at 568. Had the original language been left in place, the current confusion would likely not have occurred. I firmly believe defense attorneys and prosecutors would readily recognize those cases where mental retardation is clear and a stipulation should be entered. In those cases raising a question of fact, the issue should and would be determined by a jury, unless waived.

1 5 Instead of merely clarifying and applying the procedure already established, the Court elects to add time, hearings, and appeal to an already elongated process. In doing so, I believe the Court misuses the provisions of 22 0.8.2001, § 1053 to create an interlocutory appeal of an issue that will ultimately require review by this Court during the direct appeal of the case, should a verdict of guilt be entered. I cannot find support for that type of appeal created within the statute. The only sub-provision even remotely applicable is § 1053(5). However, that provision deals with suppressing or excluding evidence, not the determination of an issue on the merits, ie. mental retardation. We have previously held the quashing of a Bill of Particulars is an error to be addressed in a regular appeal. See Matthews v. State, 2002 OK CR 16, 45 P.3d 907, 924. Why create an interlocutory appeal on an issue that will ultimately also have to be adjudicated as a part of the direct appeal upon conviction? Further, our case law is replete with this Court firmly denying the use of an interlocutory appeal in the progress of a case. See, Nguyen v. State, 1989 OK CR 6, 772 P.2d 401, 403; Hardin v. State, 1982 OK CR 124, 649 P.2d 799, 804; State v. Lemmon, 1978 OK CR 10, 574 P.2d 1057, 1059; Jones v. Dillard, 1976 OK CR 9, 545 P.2d 209, 210.

¶ 6 Furthermore, the procedure created for this pre-trial hearing and interlocutory appeal itself creates potential problems. The Order says, "By filing such a Motion, the defendant waives his right to jury determination on the issue of mental retardation." Order at T 18. But then, the Order says, "At the evidentiary hearing, the defendant shall personally and affirmatively waive his or her right to jury determination of the issue of mental retardation on the record." Order at 14. Will this then require a determination of competency to be able to enter the waiver? How about a jury trial on competency prior to the evidentiary hearing? Remember, the issue a judge of the District Court is being asked to determine is if the defendant is mentally retarded. What happens if the defendant fails to enter a waiver on the record, does the Motion to Quash control or is the matter set for trial pursuant to Murphy ? These are the type of problems that can arise when courts seek to complicate otherwise simple procedures to try to answer a question that has already been answered.

¶ 7 Furthermore, creating a waiver of a Constitutional right and a new interlocutory appeal seems unusually "legislative" to me, especially where we do not have a better statutory basis than we do here. House Bill 2635, the original bill passed by our Legislature in 2002 prior to gubernatorial veto and the U.S. Supreme Court's decision in Atkins v. Virginia, did not provide for such a pretrial ruling, did not require a personal waiver, and did not create an interlocutory appeal. Currently, House Bill 2710 is pending in the 2004 session of the Legislature and it too is mute on these issues. I would be extremely hesitant to take the position this Court has now taken knowing the Oklahoma Legislature's only pronouncement concerning these issues addresses the issue of mental retardation in the context of a trial, consistent with our decision in Murphy. Does the Court truly believe it is saving "time and expense" by creating a new right of appeal before trial even begins? Does the Court really want to foree a criminal defendant into the Hobson's choice of waiving his or her right to have a jury decide the issue of mental retardation in order to obtain this pretrial determination? How will that waiver impact his or her ability to present the issue of mental retardation at sentencing, if the pretrial proceedings do not result in the desired results? Will this Court then abandon the legal principle of res judicata, forget the ruling on the interlocutory appeal because "death is different", and allow a defendant to have another bite at the apple? I highly doubt our Legislature will agree with this approach. However, that is a choice they will ultimately have to make.

¶8 The clear and simple way to address this Application for Writ of Prohibition is to say the question asked was answered in Murphy. Pursuant to the procedure and instructions adopted in Murphy the issue of mental retardation is tried to the jury during the penalty phase of a capital murder case. The duty of the trial judge at a post-trial "Atkins hearing is to determine whether or not the factual determinations relating to the issue of mental retardation were imposed by the jury under the influence of passion, prejudice, or any other arbitrary factor". See Murphy, 2002 OK CR 32, ¶ 35, 54 P.3d at 569. This Court then reviews all issues at one time as a part of the direct appeal.

¶ 9 Appellate courts are tasked with the dual responsibility to adjudicate cases and manage the appellate system to ensure fair, objective, speedy and efficient disposition of cases. The court should be a part of the solution and not the problem in maintaining an efficient, responsive judicial system. In Murphy this Court ensured a defendant's right to due process was preserved and a jury, having received all relevant evidence both prior to and during the commission of the crime, was afforded the responsibility to determine the issue of mental retardation. The procedure adopted today appears to distrust the ability of a jury in capital cases to make that important decision. Rather, it seeks to provide the judges of this Court, under the guise of de movo review, the power to decide who shall be eligible for the death penalty. I have more faith in the men and women who perform the valuable service of jurors. I believe they follow their oaths and the instructions of the court in making those hard decisions. We should honor that service. Members of this Court are ill equipped to serve as a fact finder on these issues. Our job is to determine if the evidence supports the decision of the fact finder.

¶10 As previously stated, I acknowledge the authority of the Court to establish the pre-trial procedure. I find no authority to create an interlocutory appeal. And, I believe this procedure will create more issues than it resolves while denying a speedy and efficient determination of the trial on the merits before a jury.

      . For those pending district court capital cases, where sixty (60) days from arraignment or from the date the State filed its Bill of Particulars has already passed, the defendant shall file his Notice of Intent to raise Mental Retardation as a defense to the imposition of the death penalty within sixty (60) days from the date of this Order.

      . In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 2439-40, 153 L.Ed.2d 556 (2002), the United States Supreme Court held that a capital jury must make any factual findings bearing on capital punishment beyond a reasonable doubt. Without addressing whether Ring applies to the determination of mental retardation, we believe that a defendant's affirmative waiver of a jury determination on that issue is required.

      . 22 0.$.2001, § 2001 et. seq.

      . We recognize that currently there is a statutory method for the State to appeal from a motion to quash. See 22 0.$.2001, § 1053(1). However, by this Order and until further amendment to this Court's rules, we hereby establish the procedure for both parties to follow when seeking an interlocutory appeal from a trial court's order granting or denying a Motion to Quash Bill of Particulars on grounds of Mental Retardation. Because a trial court's finding that a defendant is not mentally retarded allows the capital proceedings to go forward, interlocutory review of this determination before the time and expense of the capital murder trial is warranted.

      . Lambert and Pickens were post-conviction cases that discussed only the scope of trial on remand for the issue of mental retardation. Those cases did not discuss or affect the procedure to be utilized when a defendant is initially on trial in a capital case.

      . The Court does not even consider the fact the State also has a right to a jury trial. As we have previously held in Crawford v. Brown, 1975 OK CR 114, 536 P.2d 988, "Accordingly, we do not find it unconstitutional to predicate the informed, intelligent waiver of such a right upon the consent of the State's attorney and the judge of the trial court. The refusal of either to consent will result in a trial by jury as guaranteed to the defendant by our Constitution (Article II, Sections 19 and 20). The State in our adversary criminal justice system, has a valid and legitimate interest in trying its case before that body which both history and the framers of our Constitutions have felt produced the fairest end result-the jury." Id. at 990. See also, Valega v. City of Oklahoma City, 1988 OK CR 101, 755 P.2d 118, 119.


author: LUMPKIN, J.

text:
    2004 OK CR 15
    Sherri Lynn GAINES, Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2002-1440.
    Court of Criminal Appeals of Oklahoma.
    March 12, 2004.
    Russell G. Bills, Marlow, Counsel for Appellant at trial.
    Jerry Herberger, Assistant District Attorney, Stephens County, Duncan, Counsel for the State at trial.
    Lisa Watson Lance, Pauls Valley, Counsel for Appellant on appeal

      W.A. Drew Edmondson, Attorney General of Oklahoma, Keeley L. Harris, Assistant Attorney General, Oklahoma City, Counsel for the State on appeal.
   SUMMARY OPINION

LUMPKIN, J.

¶ 1 Sherri Lyon Gaines was tried by jury in the District Court of Stephens County, Case Number CF-2002-72, and convicted of the following crimes: Attempted Manufacture of CDS (Count I), in violation of 63 ©.S$.2001, § 2-401(@); Conspiracy to Manufacture CDS (Count I1), in violation of 68 0.8.2001, § 2-408; and Child Endangerment (Count III), in violation of 21 0.8.2001, § 852.1(A). The jury set punishment at life in prison and a $50,000.00 fine on each of Counts I and II, and four (4) years imprisonment and a $4,000.00 fine on Count III. The trial judge sentenced Appellant accordingly, ordering Counts I and II to be served concurrently, but consecutive to Count IIL.

¶ 2 Appellant raised eight proposition of error in her brief. She also filed an amended motion to supplement and request for evidentiary hearing with attached affidavit. Therein, Appellant raised numerous claims relating to ineffective assistance of counsel, actual conflict of interest, and mutually antagonistic defenses between she and her jointly represented co-defendants.

¶ 3 On November 3, 2003, we remanded the case to the District Court of Stephens County on certain points raised in Appellant's brief, motion to supplement, and request for evidentiary hearing. Pursuant to Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001), we found the record and attachments in support of the Rule 3.11 motion were sufficient to warrant a remand for evidentia-ry hearing on the issue of ineffective assistance of trial counsel. ©

¶ 4 Before the evidentiary hearing was held, the parties apparently met in an effort to reach an agreed resolution of the case. On December 15, 2008, Appellant's appellate counsel and the Stephens County District Attorney's Office filed a joint motion for modification of sentence, or, in the alternative, to allow Appellant to withdraw her appeal "with an Order vesting jurisdiction with the District Court to modify Appellant's sentence." Should both requests be denied, Appellant requested additional time to conduct the evidentiary hearing.

¶ 5 In the joint motion, Appellant's counsel and the Stephens County Assistant District Attorney represented that the parties had "reached an agreement regarding modification" of Appellant's sentence. The proposed modification was as follows: twenty five (25) years imprisonment and a $50,000 fine (plus costs) on each of Counts I and II; two (2) years imprisonment and a $4,000 fine (plus costs) on Count III; all sentences to run concurrently; and an understanding that Appellant would receive the benefit of earned credits accumulated since her incarceration.

¶ 6 Although signed by the attorneys, Appellant had not signed the order, acknowledged she had been fully advised regarding the consequences of her actions, or waived her rights to jury trial, appeal, and her claims of conflict. Furthermore, the Oklahoma Attorney General's Office had not filed any document indicating its position on this matter. We therefore ordered the record supplemented with evidence from those parties documenting their positions.

¶ 7 On January 16, 2004, the Oklahoma Attorney General's Office filed a Notice indicating it did not oppose the jointly proposed modification of sentence. The Attorney General's Office indicated its staff had been made aware of the joint proposal at the time it was being negotiated.

¶ 8 On January 26, 2004, this Court received a "Consent to Modification of Sentence" from Appellant, indicating: she has full knowledge of the contents of the Motion for Modification of Sentence filed on December 15, 2003; she is in full agreement with the proposed modification (set forth above); she is fully aware the modification, if granted, would bar her from reasserting a direct appeal of the sentences; she was given the opportunity to discuss the modification and consequences of accepting the same with her attorney; she is fully aware of potential conflicts of interest in being jointly represented by her counsel; she waived any potential conflicts of interest; she believes her attorney is acting in her best interests; and she desires her sentence to be modified as proposed.

¶ 9 Therefore, after thoroughly considering these matters and the entire record before us, including the original record, tran-seripts, and briefs of the parties, we find the joint motion and consent to modification of sentence resolves all issues pending on appeal, the motion should be granted, and we modify Appellant's sentences, as set forth below.

DECISION

¶ 10 The judgments and sentences on Counts I, II, and III are hereby AFFIRMED, but the sentences on each of Counts I and II are hereby MODIFIED to twenty-five (25) years imprisonment, a $50,000 fine, plus all costs. Furthermore, the sentence on Count III is hereby MODIFIED to two (2) years imprisonment, a $4,000 fine, plus all costs, and the three sentences shall run concurrently with each other. Furthermore, Appellant shall receive the benefit of all earned credits accumulated since her incarceration.

JOHNSON, P.J., LILE, V.P.J., and CHAPEL and STRUBHAR, JJ., concur.

      . Appellant claimed: trial counsel was ineffective; the granting of the State's motion to consolidate and the denial of her motion to withdraw violated 6th Amendment guarantees; the trial court erred by failing to conduct an in camera hearing as to the existence of a conspiracy and statements by alleged co-conspirators; trial counsel's admission of Appellant's guilt constituted reversible error; the evidence was insufficient to prove a conspiracy to manufacture CDS existed; the evidence was insufficient to prove Appellant attempted to manufacture CDS; Appellant's punishment shocks the conscience and is disproportionate; and the accumulation of error.

      . Curiously, on November 13, 2003, the Stephens County Assistant District Attorney filed a Motion to Compel Appellant's Counsel to Withdraw, due to alleged inherent conflicts of interest arising from this Court's order remanding for evidentiary hearing. Based on the agreed resolution of the issues on appeal, that motion is denied.


author: BAY MITCHELL, Presiding Judge.

text:
    2004 OK CIV APP 30
    Leslie Ellen DAVIS, Plaintiff/Appellant, v. Jimmy Ray DAVIS, Defendant/Appellee.
    No. 97,682.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Dec. 5, 2003.
    Rehearing Denied Jan. 9, 2004.
    Certiorari Denied March 22, 2004.

      Philip A. Hurtt, Lisa Connel-Hurtt, Hurtt, Roberts and Hurtt, P.C., Oklahoma City, OK, for Plaintiff/Appellant.
    Warren W. Henson, III, Oklahoma City, OK, for Defendant/Appellee.
   Opinion By

BAY MITCHELL, Presiding Judge.

¶ 1 After a trial on the merits, the trial court held the severance package Defendant/Appellee Jimmy Ray Davis (Husband) received upon being laid off by Seagate Technologies was not joint property subject to equitable division in the parties' divorce. Plaintiff/Appellant Leslie Ellen Davis (Wife) appeals. We affirm.

¶ 2 Husband's severance, called a "Special Separation Benefit" (SSB) is valued at $26,418.04 and is the second largest asset of the marital estate. Husband also had a Sea-gate 401(k) Retirement Plan worth over $33,000, which the trial court divided evenly between the parties. After the parties had separated and filed their petition for divorce but before the decree of divorcee issued, Sea-gate informed Husband it was eliminating his position due to downsizing and offered Husband the SSB. In order to receive any proceeds under the SSB, Husband had to sign a waiver and release of any legal, equitable, or other claims he may have had against Sea-gate, specifically claims under the Age Discrimination in Employment Act of 1967 and the Worker Adjustment and Retraining Notification Act (WARN Act). Seagate calculated the amount of Husband's SSB based on his twenty-two years of service with the company.

¶ 3 Because Seagate calculated the SSB based on Husband's twenty-two years of service, all of which took place during the marriage, Wife argues the SSB is marital property subject to equitable division. In addition, Wife claims the benefit is not of an income-replacing nature because Husband was permitted to, and did, draw unemployment compensation after his layoff, as permitted by the terms of the SSB agreement and waiver. Husband maintains the SSB is separate property not subject to equitable division because it is a non-vested benefit designed to replace the loss of those funds Husband would have earned had Seagate not terminated his employment. Husband further argues the funds he received were in consideration for his having waived any and all personal legal claims he may have asserted against Seagate as a result of his termination.

¶4 The trial court is vested with wide discretion in the division of marital estates, and the lower court's determination will not be disturbed on review unless it is contrary to law or the clear weight of the evidence, or an abuse of discretion is found. Carpenter v. Carpenter, 1983 OK 2, ¶ 24, 657 P.2d 646, 651; see also Randol v. Randol, 1993 OK CIV APP 41, T 6, 849 P.2d 1118, 1121.

¶5 In analyzing the nature of Husband's SSB, we follow the "replacement" approach, which holds if the proceeds in question replace wages earned during the marriage, the proceeds were marital property subject to equitable division. Christmas v. Christmas, 1990 OK 16, ¶¶ 6, 10, 787 P.2d 1267, 1268. Under this approach, we classify benefits not based on what they are called, but according to the nature of the assets they replace. Id. Indeed, replacement benefits may be in the form of disability plans, retirement pensions, workers compensation awards, or severance pay. Id., T5, 787 P.2d at 1268.

¶ 6 For example, in regard to workers compensation benefits, the Oklahoma Supreme Court has held:

[al workers' compensation disability award is marital property only to the extent that it recompenses for the couple's loss of income during the marriage. To the extent that it compensates for loss of post-divorce earnings by the injured party, it is separate property. Because a former spouse has no inherent right to the salary earned by his/her former marriage partner after the marriage is terminated, there is no right to a disability award which is intended to replace future wages.

Crocker v. Crocker, 1991 OK 130, ¶ 18, 824 P.2d 1117, 1122 (emphasis added).

¶7 A retirement pension, on the other hand, "is a valuable right which has been purchased through joint efforts of the spouses to the extent that it has been acquired or enhanced during the marriage, and as such becomes jointly acquired property during the marriage." Carpenter v. Carpenter, 1983 OK 2, ¶ 23, 657 P.2d 646, 651. A retirement pension "insures against superannuation, survival beyond retirement age" and functions "as a substitute for life savings." Christmas, ¶ 7, 787 P.2d at 1268.

¶ 8 That Husband was not ready to retire at the time Seagate laid him off is not in dispute. Indeed, but for the layoff, all indications are that he would have continued working at Seagate after the trial court entered the parties' divorce decree. It is likewise uncontroverted that during the course of both the marriage and Husband's employment with Seagate, Husband contributed to a 401(k) retirement plan. Proceeds from 401(k) plans are designed to function as life savings for use after retirement. According ly, the trial court treated the 401(k) as joint property and divided its value evenly between the parties.

¶ 9 We agree with the trial court that the SSB was not a life savings vehicle purchased through the parties' joint efforts during their marriage. Rather, it is designed to replace future wages Husband would have earned before reaching retirement age and after the divorcee had Seagate not laid him off. In addition, the fact that Husband would not have received any proceeds whatsoever under the SSB had he not signed the waiver and release of all legal claims shows Seagate paid the benefit in consideration for Husband's willingness to forgo litigation against the company. The right to sue Sea-gate for either age discrimination or a violation of the WARN Act was personal to Husband. See Spann v. Spann, 1992 OK CIV APP 150, ¶ 7, 852 P.2d 826, 828 (holding personal injury awards are separate property in a dissolution of marriage proceeding). Furthermore, any such litigation would have necessarily occurred after the divorce because the injury itself-the layoff-did not take place until after Wife filed her petition. For all of these reasons, the SSB was Husband's separate property not subject to equitable division as part of the parties' divorce.

¶ 10 Wife's reliance on Pavatt v. Pavatt, 1996 OK CIV APP 74, 920 P.2d 1074 and Kulscar v. Kulscar, 1995 OK CIV APP 64, 896 P.2d 1206 does not persuade us otherwise. Those cases involved husbands who received SSBs pursuant to federal statute when they voluntarily separated from active reserve duty in the military and transferred to the Individual Ready Reserve (IRR). As a condition of accepting the SSB payment, the men had to serve a minimum of three years in the IRR. 10 U.S.C. § 1174a. If they were later to reenlist in the active reserve and qualify for reserve retirement pay, the military would have recouped the SSB payments from the retirement benefits to which the men would have become entitled. Id. In both cases, we affirmed the trial court's finding that the SSB functioned as a retirement plan asset subject to equitable division.

¶ 11 The mere fact that the military retirement plan at issue in those cases is also called an SSB is insufficient to convince us we should treat Husband's SSB as joint property. As mandated by Christmas, ¶¶ 6, 10, 787 P.2d at 1268, we classify benefits not based on how they are termed, but according to the nature of the assets they replace. Unlike in Kulscar and Pavatt, Seagate did not offer Husband the SSB in leu of his other retirement savings. Rather, it rendered the proceeds to Husband in order to replace wages Husband would have earned after the marriage had Seagate not laid him off, and on the express condition he forgo his right to bring claims against Seagate in a court of law.

¶12 The fact that Seagate calculated the amount of the SSB using Husband's years of service does not alter our conclusion. Because long-term employees likely would receive greater damages through court action than short-term employees, Seagate had to make the SSB option more lucrative for employees like Husband. Furthermore, Husband would not have received the SSB proceeds but for the occurrence of two events, neither of which had anything to do with the parties' joint efforts during the marriage: (1) Seagate had to terminate Husband; and (2) Husband had to waive his right to sue Sea-gate.

¶13 In addition, Wife offers no case law in support of her claim that Husband's ability to receive unemployment compensation after his layoff means we cannot hold the SSB to be replacement wages. Wife's argument to this effect ignores the fact that unemployment benefits are of limited duration and Husband may not have planned to retire from Seagate for many years to come.

1 14 AFFIRMED.

HANSEN, J., and JONES, J., concur.

      . Per its terms, the SSB agreement and waiver had no affect on Husband's right to his retirement benefits.


author: JERRY L. GOODMAN, Presiding Judge:

text:
    2004 OK CIV APP 25
    Hilton and Ramona MELOT, Plaintiffs/Appellees, v. OKLAHOMA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant/Appellant.
    No. 98242.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Dec. 9, 2003.

      Reggie N. Whitten, Jason E. Roselius, Derrick L. Morton, Whitten, Nelson, McGuire, Wood, Terry, Roselius & Dittrich, Oklahoma City, OK and Terry W. West, Bradley C. West, The West Law Firm, Shawnee, OK and Michael W. Hinkle, Oklahoma City, OK, for Plaintiffs/Appellees Hilton and Ramona Melot.
    Burck Bailey, Eric S. Kissenstat, Jay P. Walters, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, OK, for Defendant/Appellant Oklahoma Farm Bureau Mutual Insurance Company.
   Opinion by

JERRY L. GOODMAN, Presiding Judge:

¶ 1 Defendant Oklahoma Farm Bureau Mutual Insurance Company (Insurer) appeals the trial court's order certifying a class action. Based upon our review of the facts and applicable law, we affirm.

FACTS

¶ 2 Plaintiffs Hilton and Ramona Melot (Plaintiffs) are policyholders with Insurer. Plaintiffs asserted their home was damaged by a storm on June 9, 2000. They filed a claim with Insurer. After several inspections by Insurer's adjustor and negotiations between the parties, Insurer offered and Plaintiffs accepted $8,751 for the claim. According to Plaintiffs, this figure did not include a 20 percent "overhead and profit" allowance routinely charged by general contractors whenever three or more trades were involved in repairing damage to a home.

¶ 3 Plaintiffs then sued Insurer, asserting that Insurer had a common practice of underpaying its policyholders' property damage claims by failing to include this 20 percent allowanee for overhead and profit. Plaintiffs asserted three theories of recovery: breach of contract, in that Insurer's common practice resulted in their receiving "less than full and fair indemnification"; bad faith, in that Insurer purposely followed this common practice of withholding the 20 percent, which was "at worst, an unlawful practice and, at best, extremely questionable"; and fraud, in that Insurer had failed to inform its insureds about the practice. Plaintiff's petition was filed individually and on behalf of others insured by Insurer "whose claims for covered damage to their dwellings were intentionally under-adjusted in that [Insurer] failed to include adequate and timely payments for contractor's profit and overhead."

¶ 4 In an order filed August 16, 2002, the trial court granted Plaintiffs' motion for class certification.. The trial court found that Insurer did not inform Plaintiffs about the 20 percent figure nor did it offer any such allowance. On October 31, 2002, the trial court modified the order to provide the following definition of the class:

All Oklahoma citizens who were or are Oklahoma Farm Bureau Mutual Insurance Company homeowner policyholders:
1. who suffered a covered loss to their home on or after June 8, 1999;
2. whose losses were adjusted on an actual cash value (ACV) or replacement cost (RC) basis;
3. whose Oklahoma Farm Bureau worksheets/estimates indicate the involvement of three trades or more; and
4. whose damage adjustments did not include adequately calculated and timely tendered compensation for general contractor's overhead and profit.
1 5 Insurer appeals.

STANDARD OF REVIEW

¶ 6 In an appeal from a trial court's certification of a class action, our standard of review is whether the trial court abused its discretion. Shores v. First City Bank Corp., 1984 OK 67, ¶ 4, 689 P.2d 299, 301. Class actions in Oklahoma are governed by 12 0.8. 2001, § 2028. The trial court abuses its discretion if the record fails to support the conclusion that each of the five prerequisites of the statute are met. Id. These prerequisites are set out in section 2028 as follows:

A. PREREQUISITES TO A CLASS ACTION. One or more members of a class may sue or be sued as representative parties on behalf of all only if:
1. The class is so numerous that join-der of all members is impracticable;
2. There are questions of law or fact common to the class;
3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
4. The representative parties will fairly and adequately protect the interests of the class.
B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A of this section are satisfied and in addition:
3. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
a. the interest of members of the class ~ in individually controlling the prose-ecution or defense of separate actions,
b. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class,
c. the desirability or undesirability of concentrating the litigation of the claims in the particular forum, and
d. the difficulties likely to be encountered in the management of a class action.

ANALYSIS

¶ 7 The parties have chosen to combine some of the statute's elements for purposes of argument. In the interest of clarity, we will discuss them separately.

Preliminary Matters

¶ 8 First, we disagree with Insurer's assertion that the trial court failed to certify an identifiable class, or that it erred because it did not identify the class until it issued its amended order. The amended order is final and reviewable. It adequately specifies who is a putative member of the class. While this does not automatically mean the requirements of a class action were met, it is clear that the class is sufficiently identifiable.

¶ 9 We also reject Insurer's argument that the class is too broad in that the contractual claims are subject to a one-year statute of limitations, meaning that the class should be limited to those suffering a loss no later than June 8, 2000, and not June 8, 1999, as the order indicates. The existence of individual statute of limitations defenses is not a factor that generally finds favor with courts considering certification. Shores, 1984 OK 67, ¶ 16, 689 P.2d at 304. The trial court can consider the matter as needed and limit the class in ways to conform to the statute of limitations, if it becomes necessary to do so. At this stage of the proceeding, the limitations issue is not a sufficient ground for denying certification.

Numerosity

¶ 10 The trial court accepted the testimony of Plaintiff's expert that 6,900 to 7,000 potential class members exist. This requirement was uncontested by Insurer.

Commonality

¶11 Commonality requires that there be questions of fact or law common to the class. The trial court concluded that a common question existed as to whether Insurer, in cases where it conceded that repairs involved three or more trades, was required to include an allowance for the general contractor's overhead and profit.

¶12 Insurer asserts that the trial court erred because individualized questions must be addressed concerning what is a "trade." While this might be better addressed as a predominance issue, the answer to this argument is that the trial court's class definition does not state that the class is composed of those with claims for repairs involving three or more trades, but rather those where in-swrer's own worksheets indicate the need for three or more trades. Under this definition, there would be no need for the trial court to make individualized determinations, because the determinations have already been made by Insurer. Also, it would be unnecessary for purposes of class certification analysis to consider which three trades were involved in any single claim. This is because Plaintiffs assert Insurer engaged in a certain actionable kind of conduct regardless of which trades were involved.

¶ 13 Insurer also asserts that inherent in Plaintiffs' tort claims are individualized issues of reliance, making a class action inappropriate. For example, in Bunch v. KMART Corp., 1995 OK CIV APP 41, 898 P.2d 170, the plaintiffs sought to certify a nationwide class of customers who alleged fraud concerning charges for automotive parts and services at K-Mart locations throughout the country. The Court of Civil Appeals held that the plaintiffs could not satisfy the commonality prerequisite as to common questions of fact, because each plaintiff would be required to prove reliance.

¶ 14 However, Bunch has been distinguished by the Oklahoma Supreme Court in Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, 969 P.2d 337. There, the defendants allegedly failed to account for slop oil in monthly accountings rendered to them by a specific class of oil producers. The court quoted Newberg on Class Actions for the principle that "[t]he need to show individualized reliance has not precluded class treatment in cases where standardized written misrepresentations have been made to class members." Id. at 130, 969 P.2d at 345.

¶ 15 In the instant case, while the alleged omissions of information may not have been written, they were standardized in that Plaintiffs have asserted that Insurer made the same omissions to all members of the class. Under this analysis, the commonality requirement has been met.

Typicality

¶16 The trial court concluded this requirement was met because all the class members' claims were based on the same alleged conduct by Insurer through its failure to include the 20 percent charge in paying claims to its homeowners for property damage. The typicality requirement is satisfied "[when it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented ... irrespective of varying fact patterns which underlie individual claims." Ammons v. Am. Family Mut. Ins. Co., 897 P.2d 860, 863 (Colo.Ct.App.1995), quoting Newberg on Class Actions. Clearly, Plaintiffs' legal theories of recovery arise from allegations of a common course of deceptive conduct equally affecting themselves and the putative class members. This requirement is therefore met.

Adequacy of Representation

¶17 Insurer asserts the two individual plaintiffs cannot adequately represent the class. Class representatives are required to have a "general understanding of their position as plaintiffs with respect to the cause of action and the alleged wrongdoing perpetrated against them by the defendants." Kalodner v. Michaels Stores, Inc., 172 F.R.D. 200, 209 (N.D.Tex.1997). At the core of this case are basic assertions regarding insurance information and payments that did not fully satisfy homeowners' claims. The record does not indicate Plaintiffs lack personal knowledge of the underlying cireumstances of the case or that they lack understanding of the basic, consumer-oriented issues involved. We reject Insurer's argument.

¶ 18 Insurer also asserts Plaintiffs' counsel faces a conflict of interest problem. Insurer points out that one of Plaintiffs' lawyers had served as Insurer's defense counsel, and that several of Plaintiffs' lawyers had a role in convincing Insurer to later begin including the 20 percent charge in settling claims. However, the record does not indicate Plaintiffs had any complaints about being represented by these lawyers. If Insurer felt a conflict of interest existed, it could have filed a motion to disqualify, but it did not do so. Furthermore, there is no assertion the attorneys are unqualified or inadequate. We find no error.

Predominance

¶ 19 As a prerequisite to a class action, the predominance factor requires the trial court to examine whether individual questions preclude the common questions of law or fact from being predominate. Mattoon v. City of Norman, 1981 OK 92, ¶ 20, 633 P.2d 735, 739. In rendering its decision, the trial court found that Plaintiffs sought "to remedy a common legal grievance. The alleged breaches of contract and/or fraud are the same or similar acts or omissions for each Class Member and common questions predominate, even though damage amounts may vary."

¶ 20 The gravamen of Plaintiffs' lawsuit is that Insurer failed to inform and compensate them concerning a 20 percent charge a general contractor allegedly routinely includes, above and beyond the cost of labor and materials, for overhead and profit. The trial court's definition includes Oklahoma policyholders of Insurer who suffered a "covered" loss to their homes on or after June 8, 1999. Before any policy holder could join the class, he or she would therefore have to show the loss was covered. In the context of insurance, this would seem to necessitate individualized inquiries into the type of coverage each policyholder had and individualized determinations into whether a loss was covered. An insured's loss might be exelud-ed under a particular policy, or because the loss failed to meet a particular deductible, or because the loss exceeded a particular limit of liability.

¶ 21 We do not view this as a problem here, however, because the class does not include all insureds with a claim, or even all those with an unresolved claim. It is limited to those with a "covered loss." The record indicates Insurer has already determined whether a loss was covered. This information is contained in its records for each claim. Therefore, there appears to be no need to determine individualized issues of coverage. Those whom Insurer has determined suffered a covered loss are included in the class. Those whose claims were rejected by Insurer are not included in the class. For the latter, individualized issues of coverage would exclude them from the class.

¶ 22 The trial court further defined the class as those whose damage adjustments by Insurer did not include "adequately calculated and timely tendered compensation" for general contractor's overhead and profit. The record discloses that Insurer's records reveal whether payments to an insured did or did not include the 20 percent. Those who were not paid that amount would be part of the class; those who were would not be in the class.

¶ 23 Again, on first blush, it would seem necessary to make individual inquiries-here, into what is "adequate." In this regard, Insurer asserts that determining whether damage adjustments were adequately caleu-lated depends on individualized questions of whether an insured was entitled to a payment for overhead and profit.

¶ 24 Significantly, Insurer never asserts- and the record does not indicate-that the question of whether the 20 percent charge should be included in settling a claim was resolved by Insurer after an individual assessment of each claim. To the contrary, Plaintiffs' theories of recovery are based on the concept that Insurer followed an across-the-board pattern of failing to pay the 20 percent when three or more trades were involved, and that they are entitled to knowledge of and compensation for the charge, regardless of whether the resulting repair costs included the 20 percent charge. This point is made clear by the following exchange during the class certification hearing between Plaintiffs' attorney and Insurer's vice president in claims:

Q. If Farm Bureau makes a decision that overhead and profit is a-is a proper part of the actual cash value adjustment and pays that and the insured says, "I can do better. I can get somebody to do it for ten," Farm Bureau is not going to ask for a refund of the difference, are they?
A. -Not likely.
Q. And if the insured says, "I believe that I can do that work myself and I will just keep that allowance," Farm Bureau is not going to go back and say, "Since you did the work yourself, we want the money.” ,
A. If that happened, we wouldn't go back to them for a refund.

¶25 We view the matter of whether Plaintiffs are entitled to the 20 percent charge as a question going to the merits of the lawsuit. Such an inquiry is inappropriate in deciding whether a class should be certified. Lobo Exploration v. Amoco Prod. Co., 1999 OK CIV APP 112, ¶ 14, 991 P.2d 1048, 1054. Put another way, a court cannot deny certification based on a belief that a plaintiff cannot prevail on the merits. Miller v. Mackey Intern., Inc., 452 F.2d 424, 427 (5th Cir.1971).

¶ 26 Recently, in analyzing predominance and commonality, the Oklahoma Supreme Court quoted Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.2001): "[Where the lawsuit challenges a ... practice or policy that affects all of the putative class members ... individual factual differences among the individual litigants or groups of litigants will not preclude a finding of commonality." Ysbrand v. DaimlerChrysler Corp., 2003 OK 17, ¶21, 81 P.3d 618. Under the facts of this case, we believe this requirement was met.

Superiority

¶ 27 Finally, Insurer asserts a class action is not superior to other available methods for the fair and efficient adjudication of the controversy. Insurer's argument is essentially a recasting of its previous arguments. The factors listed in the statute, when applied to the facts of the instant case, support the trial court's decision.

CONCLUSION

¶ 28 In affirming the trial court's decision, we express no opinion concerning whether what Insurer did-or in this case, did not do-amounted to breach of contract, bad faith, or fraud. We limit our decision to the issues before us, and hold that under the facts of this case, the trial court did not abuse it discretion in certifying a class action.

29 AFFIRMED.

REIF, J., and RAPP, J., concur.