326 P.3d 1162
Or.2014Background
- This is a capital case on automatic and direct review for the third time following remand to the trial court.
- Defendant challenges the trial court’s denial of resentencing on non-capital felony convictions on remand.
- In 2002, defendant assaulted his ex-girlfriend, killed a friend, and committed theft; he pleaded guilty to assault-related charges and was tried on murder and theft charges.
- The jury convicted on two aggravated murder counts, one intentional murder, and theft counts; death sentences were imposed for the aggravated murders after a penalty phase.
- This court previously remanded in Bowen I to merge convictions and impose a single death sentence with enumerated aggravating factors; remand was followed by Bowen II, which addressed resentencing versus corrected judgment and enumeration of factors.
- On third review, defendant asserts error in not resentencing on non-capital felony convictions; the court affirms denial of resentencing and addresses procedural timing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand required resentencing on non-capital felonies | Bowen II mandated resentencing on remand for the felonies | The court should have resentenced on the whole case under ORS 138.012/138.222 | No resentencing required; remand followed directives |
| Whether defendant properly challenged Bowen II on the remand | Defendant cannot challenge Bowen II now | Court erred in not ordering resentencing on remand | Not properly before us; defense waived by not raising timely on direct/reconsideration |
| Applicability of ORS 138.222(5)(b) to remand for resentencing | Statutory remand required resentencing on the entire case | Remand did not reverse murder convictions; no entire-case resentencing required | Question not reached; argument procedurally improper |
| Entitlement to personal presence at hearing | Resentencing rights imply presence | Presence required if resentencing is required | Rejected without discussion; no resentencing occurred |
Key Cases Cited
- Bowen v. State, 340 Or. 487 (2006) (remand for merger and single death sentence; enumerate aggravating factors)
- Bowen v. State, 352 Or. 109 (2012) (address resentencing versus corrected judgment; enforcement of remand instructions)
- State v. Pratt, 316 Or. 561 (1993) (trial court not to relitigate issues resolved on appeal; law of the case)