CHAPEL, JUDGE:
¶ 1 Gregory Kyle Malone was tried by jury and convicted of Count I, First Degree Burglary in violation of 21 O.S. 1991 § 1431[ 21-1431]; Count II, First Degree Rape in violation of 21 O.S. 1991 § 1114[ 21-1114]; and Count III, Sexual Battery in violation of 21 O.S.Supp. 1999 § 1123[ 21-1123] (B), all after former conviction of two or more felonies, in the District Court of Tulsa County, Case No. CF-99-6051. In accordance with the jury's recommendation the Honorable J. Michael Gassett sentenced Malone to twenty (20) years imprisonment and a $10,000 fine on each of Counts I and III, and fifty (50) years imprisonment and a $10,000 fine on Count II. Malone appeals from these convictions and sentences.
¶ 2 Malone raises one proposition of error in support of his appeal:
I. Malone was denied a fair sentencing proceeding when the trial court precluded the admission of mitigating evidence relevant to the jury's exercise of discretion
¶ 3 In the second stage of this bifurcated felony trial, Malone intended to call his mother to discuss Malone's frequent juvenile hospitalizations and treatment for "mental health." The prosecutor objected to the defense material on relevance grounds. The prosecutor argued the evidence would not be relevant to the alleged prior convictions, but would amount to asking for sympathy for the defendant. Malone argued the information was relevant to sentencing.
¶ 4 Counsel made an offer of proof that Malone's mother would testify he had at least twelve hospitalizations for "mental health conditions" as a child, that she received a Social Security Disability pension as a result of his mental disability, and she believed he had two very different personalities. She would further testify she noticed Malone exhibiting those personality symptoms in the month preceding his arrest, and knew he was abusing drugs at that time. Counsel admitted Malone's medical records as part of the offer of proof.
¶ 5 The trial court sustained the State's objection without discussion or explanation. The jury was properly instructed on the ranges of punishment available for a conviction with no prior offenses, one prior offense, or two prior offenses.
¶ 6 Malone first claims the trial court abused its discretion because the evidence in mitigation was relevant to the sentencing procedure. He also claims the lack of an opportunity to present mitigating evidence during the sentencing stage violated his right to equal protection under the laws. We agree with Malone's claim that mitigating evidence is relevant to sentencing. However, we reject his claim that the trial court abused its discretion in his case. We also reject his equal protection argument.
¶ 7 Malone and the State agree that no Oklahoma statute gives a non-capital defendant the right to present evidence in mitigation during the sentencing stage of a bifurcated trial. Both parties also agree that statutes do provide for mitigation evidence to be considered in the second stage of capital trials, and (along with evidence in aggravation) in felony cases where a trial court determines punishment. The State argues that evidence in the second stage of a bifurcated trial is limited to proof of a defendant's prior convictions. Malone argues that relevant evidence is always admissible, and evidence in mitigation is always relevant to sentencing.
22 O.S.Supp. 1999 § 860.1[ 22-860.1] (2).
21 O.S. 1991 § 701.10[ 21-701.10].
21 O.S. 1991 § 973[ 21-973].
¶ 8 Malone is correct that the person imposing sentence should consider any relevant evidence presented in mitigation, but has misunderstood the time at which that consideration is appropriate. A defendant in every trial has the opportunity for allocution. Allocution is the court's formal inquiry as to whether a defendant can show any legal cause why judgment should not be pronounced or whether he wishes to make a statement on his own behalf or present information in mitigation. Oklahoma statutes provide an opportunity for allocution when a defendant appears for judgment. The right of allocution is thus reserved for the sentencing proceeding.
Black's Law Dictionary, 76 (6 th ed. 1990); Duckett v. State, 1995 OK CR 61, 919 P.2d 7, 20, cert. denied, 519 U.S. 1131, 117 S.Ct. 991, 136 L.Ed.2d 872 (1997); Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 289, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503. Rule 32(a) of the Federal Rules of Criminal Procedure explicitly grants both the right to speak and to present mitigating evidence.
22 O.S. 1991 § 970[ 22-970]: "When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him."
Smallwood v. State, 1995 OK CR 60, 907 P.2d 217, 234, cert. denied, 519 U.S. 980, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996); Mitchell v. State, 1994 OK CR 70, 884 P.2d 1186, 1205, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995); Freeman, 876 P.2d at 289.
¶ 9 This Court has rejected a defendant's claim that allocution before a trial court is meaningless where the jury recommends a sentence. The statute providing for jury recommendation of punishment notes that a trial court "shall render a judgment according to such verdict, except as hereinafter provided." Subsequently the Legislature provided that the trial court should fix a punishment where the jury did not recommend one, and provided for the right of allocution. Taken together, this statutory scheme requires the trial court to offer a defendant the opportunity to offer evidence on his behalf before imposing sentence. This requirement would be pointless without the corollary that the trial court must also seriously consider any statement or evidence presented in mitigation at the sentencing hearing. A sentencer has the discretion to consider "various factors relating to both offense and offender" in imposing punishment within statutory limits. This discretion includes not only evidence relating to the crime, but to any relevant personal characteristics of the defendant which may be important for sentencing considerations, in aggravation or mitigation. Under our Oklahoma statutory sentencing scheme, as discussed above, a trial court has the power and is authorized to reject a jury's recommended sentence and modify the sentence upwards or downwards if a defendant's mitigating evidence at allocution, or if the State's evidence in aggravation presented at sentencing, is persuasive enough to compel a different sentence. Any evidence presented at sentencing, must be considered, but the decision as to whether or not to modify or reject the jury's recommendation is strictly within the trial judge's discretion.
Mitchell, 884 P.2d at 1205.
22 O.S. 1991 § 926[ 22-926].
22 O.S. 1991 § 927[ 22-927]; 22 O.S. 1991 § 970[ 22-970]. Sections 971 and 972 discuss grounds the defendant may offer, which may include insanity or `good cause" in arrest of judgment or for a new trial.
Legislative intent controls statutory interpretation. "Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each." Keating v. Edmondson, 2001 OK CR 110, ¶ 8. This Court will give effect to all portions of a statute or section as read together, presuming the Legislature will not do a vain thing. Huskey v. State, 1999 OK CR 3, 989 P.2d 1, 6; Reupert v. State, 1997 OK CR 65, 947 P.2d 198, 201.
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2358, 147 L.Ed.2d 435 (2000).
This conclusion is supported by several statutory provisions. A trial court may modify a sentence by directing imposition of another penalty at any time within twelve months after the sentence is imposed. 22 O.S. 1991 § 982a[ 22-982a]. To aid in its sentencing determination, a trial court must require a presentence investigation upon conviction of certain violent felonies. 22 O.S.Supp. 2000 § 982.[ 22-982]. Where the trial court hears extra evidence in the case of a plea, or determines punishment, the trial court may schedule a hearing on evidence of aggravation or mitigation of punishment. 22 O.S. 1991 § 973[ 22-973].
¶ 10 Malone claims his right to equal protection under the laws is violated by his inability to present mitigating evidence during the second stage of trial. He asserts that the right to present evidence in mitigation is fundamental, and the State's differing treatment of defendants requires strict scrutiny. This claim is also based on the state statutes requiring provision for mitigating evidence in the second stage of death penalty cases and allowing presentation of mitigating evidence in non-capital felony trials where punishment is determined by the trial court. Malone argues that the State has extended the right of individualized sentencing in these cases, placing at a disadvantage only those non-capital felony defendants, like himself, who exercise their right to jury sentencing.
Statutes affecting a fundamental interest or suspect classification are subject to strict scrutiny, while other categories require only that the statute have a rational relation to a legitimate state interest.
We agree with the State that state and federal death penalty cases clearly show non-capital defendants are not similarly situated to capital defendants for purposes of equal protection comparison.
¶ 11 We do not find that the ability to present mitigating evidence amounts to a fundamental right requiring strict scrutiny. Malone suggests this is part of the implicit right to fairness fundamental in all criminal trials. He claims the state statutes explicitly providing for this evidence in some, but not all, felony cases amounts to unfairness of constitutional magnitude. Beyond this Malone offers no suggestion that the presentation of mitigating evidence itself is fundamental on a par with, for instance, the rights to vote, procreate, or testify on one's own behalf. In Harmelin v. Michigan, a plurality opinion, the United States Supreme Court has indicated there is no Eighth Amendment constitutional requirement for individualized sentencing in non-capital cases. This would suggest the right to present mitigating evidence is not, itself, a fundamental right. Fundamental status is also not conferred simply by the explicit inclusion of the ability to present mitigating evidence in some state statutes. Malone has not shown that the disparity in state statutory provisions amounts to a fundamental right. Absent a specific federal or constitutional right, the United States Supreme Court has been reluctant to strike down state procedural laws based on a general "fairness" approach. We therefore review the alleged statutory disparity to determine whether the legislative classifications are reasonable, with a fair and substantial relation to the object of the legislation. Malone cannot prevail using this test. Our conclusion above, that mitigating evidence may be admitted and must be considered when presented to the trial court at sentencing, vitiates his argument. All defendants in felony trials have the same opportunity to present relevant evidence in mitigation to the trial court at sentencing. Thus, persons similarly situated are treated alike. There is no equal protection violation.
501 U.S. 957, 995-96, 111 S.Ct. 2680, 2701-02, 115 L.Ed.2d 836 (1991).
See, e.g., Parke v. Raley, 506 U.S. 20, 27, 113 S.Ct. 517, 522, 121 L.Ed.2d 391 (1992); Spencer v. Texas, 385 U.S. 554, 565, 87 S.Ct. 648, 654, 17 L.Ed.2d 606 (1966).
Dodd v. State, 1999 OK CR 20, 982 P.2d 1086, 1088; Clayton v. State, 1995 OK CR 3, 892 P.2d 646, 654, cert. denied, 516 U.S. 846, 116 S.Ct. 137, 133 L.Ed.2d 84 (1995).
This conclusion also disposes of Malone's claim that he was forced to relinquish his equal protection right to fundamental fairness in order to exercise his statutory right to have the jury assess punishment.
¶ 12 Every defendant has the right to present evidence in mitigation at allocution, along with any evidence in aggravation presented by the State, and to have that evidence considered before sentence is imposed. Malone complains he was not afforded the opportunity to present mitigating evidence to the jury in the second stage of his bifurcated trial. This was not the proper time for that request. The trial court did not err in refusing to admit the proffered evidence in mitigation. This proposition is denied.
Decision
¶ 13 The Judgments and Sentences of the District Court are AFFIRMED.
OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
JOHNSON, V.P.J.: CONCUR
STRUBHAR, J.: CONCUR
LILE, J.: CONCUR