293 P.3d 1086
Or. Ct. App.2012Background
- Defendant murdered victim on August 26, 1999 and was charged with murder under ORS 163.115(5) and felon in possession of a firearm under ORS 166.270.
- Trial court resentenced after remands; murder sentence was life with parole eligibility after a 300-month minimum; felon-in-possession sentence concurrent at 18 months.
- McLain (1999) held the former true-life version of ORS 163.115(5)(a) was constitutionally flawed and required a 25-year minimum followed by life post-prison supervision under prior statutes.
- Haynes (2000) held amended ORS 163.115(5) was ameliorative and could be applied retroactively without ex post facto violation.
- Legislature amended ORS 163.115(5) on Oct. 23, 1999 to authorize life-with-possibility-of-parole; the amendment applies to offenses regardless of crime date.
- Defendant committed the offense during the McLain window and was convicted after the amendment; the question is whether applying the amended statute violates ex post facto protections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does applying the amended ORS 163.115(5) violate ex post facto? | State argues benchmark is McLain/true-life framework; amended law is ameliorative. | Giles contends 1999 amendment cannot retroactively apply; must compare to 300-month determinate plus life post-prison under McLain. | Ex post facto violation; remand to impose 300 months plus life post-prison supervision. |
| What is the proper benchmark for ex post facto analysis in this context? | State relies on Haynes and the pre-amendment true-life frame as in-force. | McLain provides the applicable sentence for his offense time frame. | McLain framework governs; amended statute cannot be applied to defendant without violating ex post facto. |
| Did the 1999 amendments render the old statute unconstitutional retroactively in practice for this defendant? | Amendment is ameliorative; retroactive application allowed. | Old statute's constitutional defect makes retroactive application impermissible here. | Amendment cannot be applied to defendant; remand for 300 months plus life post-prison supervision. |
| What is the remedy if ex post facto applies to the murder sentence? | Remand for imposition of life-with-parole sentence under amended statute is permissible. | Sentence must reflect the pre-amendment framework. | Remand for 300 months followed by life post-prison supervision; felon-in-possession affirmed. |
Key Cases Cited
- State v. McLain, 158 Or App 419 (1999) (true-life sentence unconstitutional; required 25-year minimum then life supervision)
- State v. Haynes, 168 Or App 565 (2000) (ameliorative amended statute retroactive; no ex post facto violation)
- State v. Grimes, 163 Or App 340 (1999) (ameliatory change; allowed retroactive application if not increasing punishment)
- Cannon v. Gladden, 203 Or 629 (1955) (unconstitutional sentencing provision void; cannot be applied)
- State v. Shumway, 291 Or 153 (1981) (unconstitutional provision invalid and cannot be applied)
- State v. Davis, 216 Or App 456 (2007) (discusses McLain window and timing of amendments)