Norris v. CuppNorris v. Cupp
- Reporters:
- ,
- Before:
- Richardson
In this petition for post-conviction relief,
Petitioner was convicted of two counts of aggravated murder and one charge of attempted murder.
2
The murders meet the definition of “aggravated murder,” because there were two victims.
“Nothwithstanding the provisions of ORS chapter 144,ORS 421.165 and 421.450 to 421.490:
((* * * * *
“(2) When a defendant is convicted of murder defined as aggravated murder pursuant to subsection (2) ofORS 163.095 , the court shall order that the defendant shall be confined for a minimum of 20 years without possibility of parole, release on work release, temporary leave or employment at a forest or work camp.
“(3) At any time after 20 years from the date of imposition of a minimum period of confinement pursuant to subsection (1) of this section, or at any time after 15 years from the date of imposition of a minimum period of confinement pursuant to subsection (2) of this section, the State Board of Parole, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time. * * *
a* * * * *
“(4) If, upon hearing all the evidence, the board finds that the prisoner is capable of rehabilitation and that the *396 terms of his confinement should be changed to life imprisonment with the possibility of parole, or work release, it shall enter an order to that effect. Otherwise, the board shall deny the relief sought in the petition.
“(5) Not less than two years after the denial of the relief sought in a petition under this section, the prisoner may petition again for a change in the terms of his confinement. Further petitions for a change may be filed at intervals of not less than two years thereafter.”ORS 163.105. 4
The minimum sentences were mandatory, and there is no possibility of parole for at least the first 15 years of each. Petitioner argues that the mandatory minimum sentence statute violates Article I, § 15, of the Oregon Constitution:
“Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice.”
Citing the specially concurring opinion of Judge Tanzer in
State v. Shumway,
291 Or 153, 169, 630 P2d 796 (1981), petitioner contends that
In
State v. Lippert,
53 Or App 358, 632 P2d 28,
rev den
291 Or 893 (1981), and
State v. Warner,
52 Or App 987, 630 P2d 385,
rev den
291 Or 662 (1981), we considered the same arguments with respect to
“We interpret Art I, § 15, of the Oregon Bill of Rights to command and require that Oregon sentencing laws have as their object reformation and not retaliation, but they do not require that reformation be sought at substantial risk to the people of the state.” 234 Or at 6.
In Lippert we said:
*397 “The court [in Tuel\ concluded that the Habitual Criminal Act was based on the belief that a person who had been convicted of three prior felonies had demonstrated he is a menace to the community and in need of confinement for the protection of society. The obligation to protect society overrides considerations of reformation when the criminal character of the individual demonstrates reformation is unlikely.
“The rationale expressed in Tuel is applicable in analyzing the minimum sentence provided byORS 161.610. Although vindictive justice is prohibited by Article I, § 15, other penologic objectives are not. In enacting penal statutes the legislature is legitimately concerned with public safety and deterrence. Minimum sentences are not necessarily retaliatory but may simply be a reflection of the legislative concern for public safety and deterrence. Logically, a person who commits a felony by the use of a firearm constitutes a greater danger to the community than does a criminal who is unarmed. The enhanced penalty provision ofORS 161.610 is a recognition of that premise and, in addition, sends a message to persons bent on criminal activity that they risk a greater penalty if they use a firearm, in the perhaps vain hope it will deter at least the use of firearms. Article I, § 15, does not prevent the legislature from classifying certain criminal conduct as particularly dangerous and designating heavier penalties for that class of conduct to protect society and deter such conduct in the future. We conclude the sentence authorized and imposed pursuant toORS 161.610 does not offend the principles of Article I, § 15.” 53 Or App at 362.
Petitioner argues:
“Like the penalty condemned in State v. Shumway, the 20 year minimum sentence for aggravated murder does not distinguish, for example, between a cold-blooded mass murderer, and a man, like the petitioner, who claims that he shot people who he thought were a threat to his wife, and his friend. * * *”
As we implied in Lippert, Article I, § 15, does not require that a sentencing statute provide that all of the circumstances of the *398 individual and the crime be taken into account. As we stated there, the legislature may designate a heavier penalty for certain classes of criminal conduct. The potential differences defendant points out between different murderers with multiple victims also could arise between different individual habitual offenders subject to the statute at issue in Tuel or between different offenders using firearms subject to the statute at issue in Lippert and Warner. 5
We conclude that the statute under which defendant was sentenced does not violate Article I, § 15, of the Oregon Constitution.
Affirmed.
Notes
See State v. Norris, 40 Or App 505, 595 P2d 1261, 595 P2d 1377, rev den 287 Or 355 (1979).
The attempted murder charge is not involved in this appeal.
The statute was amended by Or Laws 1981, ch 873, § 1.
The statute was amended by Or Laws 1981, ch 873, § 4.
Petitioner argues that the statute considered in
Lippert,