More than 13 years ago, in March 1981, a jury found defendant guilty of two counts of murder. Under ORS 163.115(5) (1979),
1
the trial court imposed two concurrent life sentences with a 25-year mandatory minimum term. On appeal, the Court of Appeals vacated defendant’s sentence and remanded for resentencing on the basis of
State v. Shum-way,
On remand, the trial court sentenced defendant to two consecutive life sentences,
Four years later, in 1987, defendant filed a petition for post-conviction relief, arguing that he was denied adequate assistance of counsel because his lawyer on appeal from the resentencing did not challenge the imposition of the consecutive life sentences. The post-conviction court granted defendant a delayed appeal on that ground. Defendant filed the delayed appeal, arguing that the consecutive life sentences were unlawful. The Court of Appeals held that the post-conviction court should have vacated the sentences and that the post-conviction court had no authority to grant defendant another appeal.
State v. Macy,
On remand to the Court of Appeals, defendant argued that the trial court erred in imposing a more severe sentence on remand after appeal. Defendant argued that the two
consecutive
life sentences that the trial court imposed on resentencing were more severe than the original
concurrent
life sentences. The Court of Appeals held that the trial court did not err in sentencing defendant to consecutive life sentences, because both consecutive and concurrent life sentences are measured by defendant’s life; thus, the sentences imposed on remand were not more severe than the original ones.
State v. Macy,
Defendant again petitioned for review in this court, and we again allowed review. Defendant’s only assignment of error in this case is that the trial court improperly resen-tenced him to consecutive, rather than concurrent, life sentences. The error, according to defendant, is that the consecutive sentences are impermissibly more severe than his original, concurrent sentences. It was that question that prompted this court to allow review.
However, during briefing and oral argument in this court, both parties acknowledged that, in 1989, the State Board of Parole and Post-Prison Supervision, in calculating defendant’s term of imprisonment, “unsummed” the consecutive ranges for defendant’s life sentences for murder and treated the matrix ranges for the two sentences as if they were concurrent. See ORS 144.783(2) (“The duration of imprisonment pursuant to consecutive sentences may be less than the sum of the terms * * * if the board finds * * * that consecutive sentences are not appropriate penalties for the criminal offenses involved and that the combined terms of imprisonment are not necessary to protect community security.”). Having treated defendant’s sentences as if they were concurrent, the Board then applied aggravating and mitigating factors, and set his prison term at 216 months. See OAR 255-35-018 (when concurrent sentences exist, the board is to set a term of imprisonment based on the crime that provides the longest term).
The discovery of that event raises a preliminary question that we must answer. We must decide whether the question presented on review is moot. First, at the time that defendant committed the murders, the murder statute provided: “Except when a sentence of death is imposed * * *, a person convicted of murder shall be punished by imprisonment for life and shall be required to serve not less than 25 years before becoming eligible for parole.” ORS 163.115(5) (1979). In
State v. Shumway, supra,
this court struck down the mandatory minimum part of the sentence but held that the “statutory provision requiring a life sentence is valid.”
Secondly, this court has held that “[cjases that are otherwise justiciable, but in which a court’s decision no longer will have a practical effect on or concerning the rights of the parties, will be dismissed as moot.”
Brumnett v. PSRB,
Moreover, there presently is no mechanism in place for the State Board of Parole and Post-Prison Supervision to “resum” the range of terms of imprisonment. Defendant argues that the Board could promulgate a new rule, giving itself the power to “resum” terms of imprisonment and that, if it were to do so, it could reset defendant’s term of imprisonment under the matrix for consecutive sentences.
We decline to decide this case on the mere possibility that the Board can and will assume that authority and then will exercise it in defendant’s case.
See Hay v. Dept. of
Transportation,
No matter how this case would be decided on the merits, our decision would have no practical effect. Accordingly, this case does not present a justiciable controversy. Because the events that rendered this case moot occurred before the Court of Appeals disposed of the case, this case was moot before that court as well.
The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals with instructions to dismiss the appeal.
Notes
ORS 163.115(5) (1979) provided, in part:
“Except when a sentence of death is imposed * * *, a person convicted of murder shall be punished by imprisonment for life and shall be required to serve not less than 25 years before becoming eligible for parole.”
Article I, section 16, provides, in part:
“Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”