452 P.3d 1041
Or. Ct. App.2019Background
- Defendant convicted at first trial (Feb 2007) and sentenced to consecutive Measure 11 terms totaling 485 months; he filed a timely appeal in July 2007.
- At the time of appeal filing, State v. Turner (247 Or 301) barred imposition of a harsher sentence on retrial after a successful appeal.
- While Worth’s appeal was pending, the Oregon Supreme Court granted review in Partain, explicitly asking whether Turner should be disavowed; Partain was argued while Worth’s appeal was under advisement.
- In September 2010 the Oregon Supreme Court overruled Turner in State v. Partain and adopted the Pearce standard (requiring affirmative reasons based on facts unknown to the original sentencing judge to justify an increased resentencing).
- After retrial under Partain, Worth received substantially harsher dangerous-offender sentences (effectively far longer terms); subsequent appeals produced resentencing and this (third) appeal raising Ex Post Facto (Oregon Const. art. I, § 21) and due-process/fair-warning (U.S. Const. XIV) challenges to applying Partain retroactively.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Worth) | Held |
|---|---|---|---|
| Whether applying Partain violates Oregon's Ex Post Facto Clause (Art. I, § 21) | Ex post facto clause limits legislature, not judicial reinterpretation; Partain is a judicial decision and therefore not barred. | Applying Partain retroactively increased punishment after the fact and so violates the state ex post facto prohibition. | The state ex post facto clause generally applies to legislative action; Partain was judicial, so no violation. |
| Whether applying Partain violates Due Process/fair-warning (U.S. Const. XIV) | Partain was not unexpected or unforeseeable here: Worth’s appellate counsel (OPDS) litigated the viability of Turner in Partain contemporaneously; Partain is defensible based on intervening legislative changes. | Worth relied on Turner when filing his appeal and had no notice of the risk of a harsher sentence; retroactive application violated notice and fair-warning. | No due process violation: appeals are ongoing processes (not a fixed risk point), counsel knew the Turner issue was being litigated, and Partain was defensible by reference to statutory developments. |
Key Cases Cited
- State v. Partain, 349 Or 10 (2010) (Oregon Supreme Court disavowed Turner; adopts Pearce standard for resentencing)
- State v. Turner, 247 Or 301 (1967) (rule that resentencing after retrial could not impose a harsher sentence)
- North Carolina v. Pearce, 395 U.S. 711 (1969) (due-process limit on vindictive resentencing; requires recorded reasons based on new facts)
- Rogers v. Tennessee, 532 U.S. 451 (2001) (Ex Post Facto Clause does not constrain judicial decisionmaking; sets framework for unexpected/indefensible retroactive changes)
- Bouie v. City of Columbia, 378 U.S. 347 (1964) (retroactive judicial change violates due process when unexpected and indefensible by prior law)
- State v. Cookman, 324 Or 19 (1996) (Oregon treats its ex post facto clause congruently with the federal provision)