52 P.3d 874

#### STATE of Idaho, Plaintiff-Respondent, v. Donald Kenneth FETTERLY, Defendant-Appellant. Donald Kenneth Fetterly, Petitioner-Appellant, v. State of Idaho, Respondent.

Nos. 26563, 27180.

Supreme Court of Idaho, Boise,

March 2002 Term.

Aug. 6, 2002.

Rehearing Denied Aug. 22, 2002.

Molly J. Huskey, Interim State Appellate Public Defender, Boise, for appellant. Rolf M. Kehne and Mark James Ackley argued.

Hon. Alan G. Lance, Attorney General, Boise, for respondent. T. Paul Krueger II argued.

SCHROEDER, Justice.

This is a consolidated appeal in a death penalty case. Donald Patrick Fetterly (Fetterly) appeals from a sentence of death for murder and from the summary dismissal of his petition for post-conviction relief.

I.

FACTS AND PROCEDURAL HISTORY

The crimes in this case are described in *State v. Fetterly,*109 Idaho 766, 710 P.2d *7301202 (1985) *(Fetterly I).*On September 7, 1983, Sterling Grammer (Grammer) was stabbed to death in Caldwell. Fetterly and Karla Windsor (Windsor) were arrested five days later after being seen driving Grammer’s vehicle in Canyon County. Following their arrest, Fetterly and Windsor provided the police with a joint statement. Windsor stated that she taped Grammer with duct tape. Grammer struggled and Fetterly panicked. Fetterly said he could not remember the act, but that he remembered standing in the bathroom, shaking uncontrollably, and holding a knife. The duct tape was placed so securely over Grammer’s mouth and nose that he would have died of asphyxiation if not for the stabbing.

Fetterly and Windsor were tried separately. Both were convicted of murder and sentenced to death. This Court reversed the sentencing in Windsor’s case, holding that the death penalty was excessive. *State v. Windsor,*110 Idaho 410, 423, 716 P.2d 1182, 1195 (1986).

Following his first state court appeal, Fetterly filed a habeas corpus proceeding in Federal district court which, with Idaho’s acquiescence, ordered that Fetterly be resentenced. The state district court sentenced Fetterly to death. Fetterly appeals his death sentence. Fetterly also filed a petition for post conviction relief which the district court dismissed. Fetterly appeals.

II.

THE DECISION OF THE UNITED STATES SUPREME COURT IN *RING V. ARIZONA*REQUIRES REMAND FOR FURTHER PROCEEDINGS IN THE DISTRICT COURT

Subsequent to the decision in the district court and the appeal to this Court the United States Supreme Court decided *Ring v. Arizona,*- U.S. -, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) which appears to invalidate the death penalty scheme in Idaho which to this time has allowed the sentencing judge to make factual findings of the aggravating factors necessary to the imposition of a death sentence. *Ring*requires those factual findings to be made by a jury. In light of that decision it is necessary to remand this case for further consideration by the district court. There are a number of other issues raised in the appeal and petition for post conviction review. Whether those issues will remain following resentencing in this district court is problematic and speculative. Consequently, the Court will not determine them at this time.

III.

CONCLUSION

The death sentence is vacated and the case remanded for sentencing.

Chief Justice TROUT, Justices WALTERS, KIDWELL and EISMANN concur.