State v. Wolfe, 486 P.3d 748

Background

In May 2019 defendant allegedly committed intentional homicide(s), including the killing of a child under 14; he was indicted in June 2019 for three counts of aggravated murder and related offenses.
In September 2019 the Oregon Legislature enacted SB 1013, which (a) narrowed aggravated murder definitions (adding a premeditation requirement for some theories), (b) created a noncapital first‑degree murder offense, and (c) revised capital‑sentencing jury questions (eliminating the “continuing threat” question and adding a beyond‑a‑reasonable‑doubt standard to the ultimate penalty question).
After SB 1013's enactment the state obtained an amended indictment charging aggravated murder under the new definition; defendant moved to dismiss, arguing SB 1013’s retroactive application violated state and federal ex post facto clauses.
The trial court granted dismissal; the state appealed directly to the Oregon Supreme Court.
The Oregon Supreme Court reversed: it held SB 1013’s retroactivity clause (section 30) unambiguously made the amendments applicable to crimes committed before its effective date, that adding premeditation was ameliorative (not an ex post facto violation), and that the remedy for any unconstitutional retroactive change to penalty‑phase procedure is sentencing under the law in effect at the time of the offense—not dismissal of the aggravated murder charge.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Does SB 1013 permit charging aggravated murder as redefined by the Act for crimes committed before its effective date?	Section 30 unambiguously makes SB 1013’s substantive changes applicable to crimes committed before the effective date if sentencing occurs on/after that date.	SB 1013 cannot be read to apply the new aggravated‑murder definition retroactively because that statutory crime did not exist when the conduct occurred; if retroactivity produces a conflict with constitutional limits, the legislature would not have intended it.	Section 30 is unambiguous; SB 1013 authorizes charging aggravated murder under the new definitions for pre‑effective‑date conduct.
Does adding a premeditation element to aggravated murder violate the ex post facto clauses?	The change is ameliorative (raises the state’s burden), so it does not disadvantage defendants and is not an ex post facto law.	Changing the elements of the offense after the fact unlawfully alters the crime and is prohibited by ex post facto principles.	Addition of the premeditation element is not an ex post facto violation under either the Oregon or federal clauses because it does not disadvantage defendants.
Is SB 1013’s elimination of the “continuing threat” penalty‑phase question an ex post facto violation, and if so what is the remedy?	The state conceded elimination of that question, if applied without the defendant’s consent, is an ex post facto violation; the appropriate remedy is to sentence under the sentencing law in effect at the time of the offense.	Defendant (and amicus) argued the retroactive penalty changes mean he cannot be prosecuted for aggravated murder (or urged severing SB 1013’s retroactivity so aggravated murder as redefined would not apply).	Assuming the elimination is unconstitutional as applied, the proper remedy is remedial (apply the penalty law in force at the time of the offense or obtain defendant’s waiver)—not dismissal of the aggravated murder charge; defendant may still be prosecuted.

Key Cases Cited

State v. Wille, 317 Or 487 (Or. 1993) (remedy for unconstitutional retroactive sentencing is to impose the sentence authorized at time of offense)
State v. Langley, 318 Or 28 (Or. 1993) (when retroactive sentencing changes are unconstitutional, resentencing occurs under law in force at time of crime)
State v. Guzek, 336 Or 424 (Or. 2004) (retroactive expansion of admissible aggravating evidence at penalty phase violates ex post facto; remedy limits use of new provisions)
State v. Upton, 339 Or 673 (Or. 2005) (a retroactive change that benefits defendants is not an ex post facto violation)
State v. Cookman, 324 Or 19 (Or. 1996) (survey of Oregon ex post facto principles and Calder formulation)
Calder v. Bull, 3 U.S. 386 (U.S. 1798) (classic formulation of ex post facto categories)
Collins v. Youngblood, 497 U.S. 37 (U.S. 1990) (federal ex post facto clause applies only to penal statutes that disadvantage the offender)
Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (proper relief for an ex post facto violation is to permit application of the law in place when the crime occurred, if possible)
Dobbert v. Florida, 432 U.S. 282 (U.S. 1977) (for federal ex post facto protection the new law must be more onerous)
Carmell v. Texas, 529 U.S. 513 (U.S. 2000) (scope of federal ex post facto clause; interpretive guidance)