386 P.3d 182
Or. Ct. App.2016Background
- Defendant was convicted of aggravated murder, murder, and first-degree burglary; jury returned a penalty-phase special verdict rejecting death and a life-with-parole option, leading to a true-life sentence (life without parole).
- After judgment, defendant successfully moved in arrest of judgment on aggravated murder; trial court vacated aggravated murder conviction and true-life sentence and imposed a 300-month mandatory murder sentence; the state appealed.
- This court reversed the arrest-of-judgment, ordered reinstatement of the aggravated murder conviction, and remanded for resentencing.
- On remand, defendant sought a new sentencing proceeding under ORS 138.222(5) to present additional arguments (including prosecutorial misconduct at the penalty phase and constitutional challenges to ORS 163.150); the trial court declined, treating the remand as limited to reinstating the original true-life sentence.
- The court of appeals held the trial court erred: the remand required plenary resentencing under ORS 138.222(5)(a), and defendant was entitled to present argument pertinent to resentencing; the matter is remanded for resentencing, and other issues were otherwise affirmed or not reached.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Tate) | Held |
|---|---|---|---|
| Scope of remand/authority to hold new sentencing proceedings | Remand reinstated jury verdict and true-life sentence; trial court lacked authority to impanel new jury or hold new penalty-phase | Remand required resentencing under ORS 138.222(5); defendant should be allowed to present new argument/evidence relevant to true-life sentence | Remand under ORS 138.222(5)(a) requires plenary resentencing; defendant entitled to present argument at resentencing; trial court erred in refusing to consider those arguments |
| Entitlement to present new argument/evidence on resentencing | Remand did not implicitly authorize a new penalty-phase; appellate order did not direct a new hearing | Defendant may present argument/evidence relevant to the sentence when appellate remand orders resentencing | When appellate court remands for resentencing, defendant has right to present evidence/argument relevant to resentencing (citing Link and ORS 138.222(5)) |
| Effect of trial court’s arrest of judgment (merger question) | Dasa controls; original arrest of judgment was erroneous — aggravated-murder conviction should be reinstated | Argued felony-merger doctrine barred aggravated murder conviction | This court had already held Dasa controlled; reinstatement required and plenary resentencing needed to merge predicate counts into aggravated murder as appropriate |
| Penalty-phase prosecutorial misconduct and other constitutional claims | Trial court had sustained objections during penalty-phase and instructed jury; state did not concede error requiring resentencing | Defendant argued improper victim-impact comparative argument, improper closings, and that ORS 163.150 is facially and as-applied unconstitutional | Court remanded for resentencing, which allows defendant to present these sentencing-related arguments; some assignments not reached or rejected (one assignment rejected without discussion) |
Key Cases Cited
- State v. Dasa, 234 Or. App. 219 (2010) (predicate felony intent distinct from personal and intentional killing; no double-dipping)
- State v. Edson, 329 Or. 127 (1999) (ORS 138.222(5)(a) applies to errors for which review is authorized by subsections (3) and (4))
- State v. Link, 260 Or. App. 211 (2013) (defendant entitled to present evidence pertaining to resentencing when appellate court orders resentencing)
- State v. Zolotoff, 275 Or. App. 384 (2015) (when remand for resentencing is ordered without limitation, trial court must resentence on each surviving conviction and may change lawful terms)