State v. Bivens

Mar 23, 1994
91CR1989FE; CA A75540
Reporters:
, ,
Before:
De Muniz
*85 De MUNIZ, J.

Defendant was convicted of intentional murder with a firearm and burglary in the first degree with a firearm after he killed his estranged wife, ORS ‍​‌​‌​​​​‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌​​​‌‌‌​‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌‌‌‌‌​​​‌​​‌​‌​‌​​​‌​​​‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌‍163.115; ORS 164.225; ORS 161.610. Defendant claimed that he acted in self-defense after she stabbed him.

Defendant assigns error to the admission of statements that he made to a detective in a hospital room. He contends that “[t]he type of warnings contemplated by Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966),” were required ‍​‌​‌​​​​‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌​​​‌‌‌​‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌‌‌‌‌​​​‌​​‌​‌​‌​​​‌​​​‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌‍because the circumstances were “compelling,” and he was in “full custody.” He argues that the statements, which were made without warnings, undermined his claim of self-defense. The error, if any, was harmless. The evidence against defendant was overwhelming. Excluding the statements would not likely have changed the outcome of the trial. See State ‍​‌​‌​​​​‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌​​​‌‌‌​‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌‌‌‌‌​​​‌​​‌​‌​‌​​​‌​​​‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌‍v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987).

On the murder conviction, the trial court imposed a life sentence with a 25-year minimum term pursuant to ORS 163.115. Defendant objected, arguing that the sentence should be imposed under the sentencing guidelines. The state concedes that the trial court erred in imposing a life sentence, State v. ‍​‌​‌​​​​‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌​​​‌‌‌​‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌‌‌‌‌​​​‌​​‌​‌​‌​​​‌​​​‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌‍Morgan, 316 Or 553, 856 P2d 612 (1993), but contends that only a corrected judgment, not resentencing is required. We agree that defendant need not be present for the entry of an amended judgment. See State v. Lyons, 124 Or App 598, 612 n 16, 863 P2d 1303 (1993). We remand for entry of a corrected judgment deleting the ‍​‌​‌​​​​‌​‌‌​‌​​​‌‌‌‌​​​‌​‌‌​​​‌‌‌​‌‌‌​​​‌​​​​‌‌‌‌​‌​​‌‌‌‌‌​​​‌​​‌​‌​‌​​​‌​​​‌‌‌‌‌‌​‌​‌‌‌​​​‌​‌‌‍fife sentence and imposing post-prison supervision for the remainder of defendant’s fife under OAR 253-05-004. The 25-year minimum term is lawful.

Convictions affirmed; remanded for entry of corrected judgment.