317 P.3d 298
Or. Ct. App.2013Background
- Defendant, a juvenile at the time, participated with four friends in a crime spree that included stealing a car and murdering its owner to conceal the robbery.
- He was convicted after a bench trial of aggravated murder (Counts 1–5), conspiracy to commit aggravated murder (Counts 6–10), attempted murder (Counts 11–12), assault in the second degree (Count 13), kidnapping (Count 14), robbery in the first degree (Counts 15–17), burglary in the first degree (Counts 18–20), and theft in the first degree (Counts 21–22).
- At sentencing, the court imposed a true life sentence on Count 1, merged several counts for sentencing purposes, and imposed concurrent or parallel terms on other counts.
- In a prior appeal (Link I), this court held that Counts 2–5 should merge into Count 1 for aggravated murder and Counts 6–12 and Counts 19–20 should merge as directed, vacating others and remanding for merger and resentencing.
- The Supreme Court reversed in part, holding Counts 1–3 should be acquitted and directing remand for merger on remaining counts; on remand, the trial court entered an amended judgment acquitting Counts 1–3 and merged other counts for sentencing purposes without a new sentencing proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand required resentencing with new proceedings | Link contends resentencing necessary under ORS 138.222(5)(b) for a remand after reversal. | Link argues resentencing was optional or unnecessary to present new evidence. | Resentencing required; defendant entitled to present evidence and arguments. |
| Whether counts must be merged and resentenced on remand | State concedes error in failure to merge aggravated murder and burglary counts as remanded. | Link argues remand should implement mergers rather than new sentences. | Remand for merger of guilty verdicts into single aggravated murder and single burglary convictions; resentencing required. |
Key Cases Cited
- State v. Link, 346 Or 187 (2009) (reversed several merger rulings and remanded for merger and resentencing)
- State v. Herring, 239 Or App 416 (2010) (felony defendant right to be present and allocution at sentencing)
- State v. White, 346 Or 275 (2009) (anti-merger statute applies to guilty verdicts, not sentences)
- State v. ColmenaresChavez, 244 Or App 339 (2011) (sentences, not convictions, merge or not depending on statute)
- Miller v. Alabama, 132 S. Ct 2455 (2012) (requires consideration of juveniles' differences in life-without-parole cases; mandates resentencing considerations)