*1 29; Mаy En Banc November resubmitted Argued and submitted 17, 1999 February resentencing; affirmed otherwise remanded for OREGON, STATE OF Respondent, v. MCLAIN,
MICHAEL STEVEN Appellant. A97042) (96CR0572F; CA P2d 727 *2 Deputy argued Barton, Jesse Wm. Defender, Public appellant. Sally cause for Public Defender. With him on the Avera, brief was L. Timothy Sylwester, Attorney A. General, Assistant argued respondent. the cause for With him on the brief were Hardy Myers, Attorney Reynolds, General, and Michael D. Solicitor General. Judge, Deits,
Bеfore Chief and Warren, Edmonds, Armstrong, De Muniz, Landau, Haselton, Wollheim, and Judges.
DE MUNIZ, J. dissenting.
Warren, J.,
421 MUNIZ, J. DE 163.115, murder, ORS
Defendant was convicted man life with a his sentence of appeals argues He years. minimum sentence of datory for a vari is unconstitutional ex rel Caleb v. rejected reasons that have been State ety of (1997), ex rel 83, P2d 724 and State Beesley, 326 Or P2d cert den Sawyer, Huddleston v. (1997). L 2d 399 He also _ US _, 557, 139 118 S Ct Ed is unconstitu the sentence of life imprisonment argues I, under Artiсle section tionally disproportional deci the Caleb and Huddleston Constitution. Given discus sions, defendant’s first without reject argument we agree we argument, sion. On defendant’s second 163.115(5)(a) facially of ORS provision resentencing. and thus remand for unconstitutional 163.115(5)(a) “A convicted provides: at the time of com murder, age who was at least 15 murder, by imprisonment shall be mitting punished I, Constitution, pro of the Oregon life.” Article sectiоn *3 vides that “all shall be offense.” penalties proportioned are no that, statutory pro Defendant because there argues imprisonment a sentenced to life paroling person visions for 163.115(5)(a), is a sen effectively under ORS such a sentence of possibility parole tence of life without imprisonment unconstitutionally disproportional and that that sentence is of life with imprisonment to an murder sentence aggravated reasons, following agree For the we parole. of possibility with defendant. Article interpreted Court has Oregon Supreme Constitution, mean that a stat
I,
16, of the
Oregon
section
for a lesser-
utory
greater penalty
scheme that
a
provides
State v.
provision.
included offense violates the constitutional
(1981);
v. Glad
P2d 796
Cannon
Shumway,
Or
(1955).
that,
Defendant
den,
argues
years. petitioner However, Id. received a life for the crime of assault with intent to rape. commit Id. at 631. The court it declared “unthinkable” subject that a convicted of the lesser offense could be greater to the sentence. Id. at 632-33. The court went on to penalty that, note when enacted the of life imprisonment rape, “undoubtedly for assault to commit it did rape not in have mind” that carried a lesser sentence. “Other- absurdity.” wise, it not would have created such an Id. at 633. imprisonment portion The court declared the life ute “null аnd void”but of the stat- upheld sentencing pro- an alternative up years vision allowed for a sentence of to 20 for the rape. crime of assault with intent to commit Id. problem Shumway.
The court faced a similar
At
Shumway
decided,
time
was
the crime of
possible
murder carried
a
sentences
with
possibility
parole
years, depending
after 15 to 20
on the
However,
circumstances
crime.
the lesser-included
offense of murder carried a sentence of life
possibility
parole
years.
a with
after 25
vision in ORS the defendant to serve becoming eligible not less than 25 invalid and cannot be before applied defendant; the statu- *4 tory provisionrequiring Shumway, a life sentenceis valid.” 291Or at 164. (1959) Gladden,
See also Merrill v. P2d 774 (penalty assessable for the lesser-included crime of assault provided greater an than rob cannot be with intent to robbery). accomplished undisputable principles cases are from these
Two parties undisputed First, in this cаse. indeed, are and, greater penalty provides a statutory a scheme a greater offense violates than for offense lesser-included Oregon Second, mur Constitution. I, Article section Proper aggravated murder. offense of a lesser-included der is application present principles case, and to the of those two statutory sentencing present for murder and scheme aggravated a defendant conclusion that murder, lead to the subject may be to a harsher the crime of murder convicted penalty aggravated greater ofthe crime than one convicted may aggravated murderer be murder. That is so because serving paroled sentence. See after (2) (certain 163.105(l)(c) people to life sentenced may murder be for the crime of serving years). parole However, under after considered for provisions statutory present are no for ever scheme, there paroling person murder committed after convicted for a 1989, who is sentenced to life November 163.115(5)(a). under ORS about, one must con- how this came To understand sentencing history under law and of murder sider the relationship Parole and of the Board of to the its Post Prison Supervision. code, criminal mur- Under the 1971 sentenсe, but was an indeterminate life der carried available point, at the discretion of the Board after a certain Shumway held that an above, the court in ofParole. As noted availability parole that restricted initiated amendment until the offender thus, unconstitutional; had served 25 was although constitutional, the itself was the when the offender could be considered restriction on parole legislature subsequently enacted other not. The was of murder could be when a convicted restrictions on paroled, disproportional in relation to the were not which legisla- sentencing scheme. provided sentencing guidelines, which ture enacted including felonies, for a number of standardized sentences guidelines never sentenced under murder. Offenders parole system; part from rather, on release become *5 424
prison, they subject periods post-prison supervi- are to set sion. See OAR 213-005-0002; OAR 213-005-0004. although legislature
However,
the
enacted the new
guidelines sentencing system,
provision
repeal
it did not
the
requiring
of ORS 163.115
a life sentence
In
for murder.
State
(1993),
Morgan,
553,
v.
316 Or
In initiativе, Measure requiring mandatory years minimum sentences 25 required mandatory murder. Measure 11 also mum mini- anyone applied age be to over the of 15 con- implement changes, victed of In murder. order to those legislature including 163.115, 1995 amended ORS the “life portion sentence” of that statute that the court had held in Morgan impliedly repealed by guidelines. to be v. State App Francis, P2d den 962 rev 327 Or 554 (1998), legislature’s we held amendment to the life effectively sentencing provision it reenacted that deter- and guidelines Morgan minate under sentences were no (Under longer possible light of the amendments. the cur- guidelines, greatest possible departure rent sentence for guidelines years, certain of murder is offenders convicted mandatory which be with the cannot reconciled 11.) by required sentence of Measure post-1989 pre-Measure 11 Thus, murderers but Morgan, receive “determinate” sentences under followed post-prison supervision; parole system impli- is never legislature’s cated. The resurrection of the life sentence problem: however, for murder created the current under ORS a murderer sentenced after happens What 163.115(5)(a) required 25-year has served sentence, has given her life that the Board minimum of his or her for authority pаrole? no consider him or to the Board’s generally ORS 144.050 limits to offenses were committed inmates those whose than Felonies other to November 1989. prior are sentenc subject that date murder committed after carry mandatory periods pre-established ing guidelines and the Board lacks discretion supervision, post-prison has provided an offender released. when *6 no rule the has this that Board exceрtion general one to were to offenders whose offenses committed authority parole 1,1989. 1989, chapter Laws sec Oregon after November governing that of provides parole tion the statutes of a crime commit only inmates to offenders convicted “apply 1, 1989, and ted to November to offenders convicted prior Thus, of the date of crime.” regardless murder to law, authority parole under current the Board has offend serving pre-1989 ers who are indeterminate sentences for murderers; to lacks crimes and Board parole offenders, as authority parole any to other such murderers 163.115(5)(a) sentenced ORS to “imprisonment under life.” is that of imprison-
Defendant correct his sentence 163.115(5)(a) effect, is, ment for life under ORS in a sentence of life parole, without possibility to state authority becausе has the him. The nobody parole not that this dispute presents does situation constitutional ever difficulty Shumway, authority under if Board lacks under ORS release those sentenced to 163.115(5)(a). however, The state that the statute argues, state need not be construed that manner. The argues 163.115(5)(a) “does release when the defen- preclude not or dant has of the minimum determinate completed service man- Thus, 25-year sеntence.” the state’s is that position sentence, a determinate after datory minimum sentence is which the offender is released rather than considered simply for life” suggests “imprisonment The state parole. only supervi- term “mandate lifetime should be construed to to reincarcerate authority sion after release with unlimited upon supervision.” violation of the conditions of The state interpretatiоn notes that this “varies little” from lifetime supervision post-prison guidelines required problem argument The sentences. simply ignores with the state’s is that it “imprisonment
the existence of the for life” 163.115(5)(a); language in ORS the state would have us read “imprisonment “imprisonment for life” to mean for a manda- tory by post-prison supervision minimum term followed life.”We are not free rewrite statutes such a manner. suggested
The state’s construction of the statutes is nearly overreaching though. not as that of the dissent, As suggests noted, the state that the statutes be construed to mandate the release of those convicted of murder after the 25-year mandatory service sentence, which require any would not the Board to exercise discretion in a placed limitations manner inconsistent with the on it chapter Laws dissent, section 28. The how- go give ever, wоuld much further and the Board consider a convicted of murder for after 25 presumably, deny parole and, allow or based on some App sort criteria. at 430. The Board no has statu- tory authority thing. to do such “imprisonment provision for life” of ORS 163.115(5)(a) constitutionally flawed, even state implicitly acknowledges given that if those words are their plain, ordinary meaning, natural and the statute would not *7 pass Shumway constitutional mustеr under and Cannon. gives “imprison- dissent, hand, The on the other the words plausible interpretation, unfortunately, but, ment for life” a permissible interpretation require its is because it not would something the to do Board that the Board is not authorized to try true, do. It is as the notes, dissent that we should to con- possible strue statutes to be it is constitutional if to do so. 158 App point, 429. however, Or at There comes where we must only way draw the linе. If the can a statute be construed as interpret “imprisonment constitutional is to such as words “imprisonment mandatory for life” mean to for minimum by post-prison supervision life,” for or followed to hold legislature implicitly that the agency an authorized administrative something legislature explicitly do
to that the agency give up do, declared that that could not then we must constitutional the statute to be attempt the construe the the problem. trust correct simply remains, though, proper The what is the question state’s and defendant’s Actually, in this case? the sentence sug that are far Defendant apart. not question answers that life be that the answer is his sentence should gests and that his sentence because it is unconstitutional vacated the minimum sentence 25-year mandatory should be lifetime by by post-prison Measure followed requirеd all murder required term of or supervision noted, state, The OAR murder convictions. 213-005-0004. that no the life sentence there is need to vacate suggests it is because should be construed to mean defendant he entitled to release after serves the by by post- Measure followed lifetime required sentence short, agree what supervision. parties both prison be, in The only actual sentence should terms. pragmatiс by is whether we should arrive at correct answer question 163.115(5)(a) by do so ORS unconstitutional or to holding it it way meaningless. in such as as to render interpreting We the 25- agree that sentence is proper required minimum sentence year mandatory 137.700(a)(A) 163.115(5)(b), followed by post-prison and ORS OAR life in accordance with 213-005-0004. supervision court, fact, man- properly imposed required The trial datory super- minimum sentence and the lifetime рost-prison refer- only judgment erroneous term in the is the vision. for life.” “imprisonment ence to otherwise affirmed. resentencing;
Remanded WARREN, J., dissenting. correctly history
The majority describes correctly why explains punishment relevant statutes and con- majority’s for murder would be unconstitutional if Because I of the statute were correct. believe struction is and that under construction incorrect majority’s that defendant received construction the sentence correct I murder, to the disproportionate not dissent.
428 beginning point
The for this discussion is ORS 163.115(5), punishment which establishes the It murder. provides:
“(a) murder, A of person convicted who was at least 15 years murder, at age of the time committing of shall be punished by imprisonment for life. “(b) aWhen defendant is convicted murder of under section,
this the court shall order that defendant shall years be 25 possibility confined for minimum of without of parolе, on any temporary release work release or form of employment camp.” leave or at a or forest work adoption sentencing guidelines, Before the the sen- tence for murder was an indeterminate sentence of life imprisonment pos- with a minimum term there was a before 163.115(3) (1987). sibility parole. Morgan, ORS In State v. (1993), Supreme Or P2d 316 856 612 Court held that legislature impliedly repealed the tence when it enаcted the that indeterminate sen-
sentencing guidelines. In v. State (1998), App Francis, P2d that, we held 163.115(5) adopting reinstated imprisonment, an indeterminate sentence of with a min- 25-year post-prison supervision imum term and life, Francis, indeed, the sentence for murder. Our conclusion in directly statutory language: follows from the under subsec- (a) life, tion the sentence for murder is (b) prisoner while under subsection must serve 25 possibility easing before thеre will be a the terms of confinement. The requirement other or
only way express imprisonment for life can be consistent with equally express provision the life for a is for the to be an indefinite term. brief, his which he filed our before decision anticipated Francis, defendant that we conclusion would argued reach in case and that result be that that would argument unconstitutional. The his is the basis of assertion authority actually him that there is no to release after his expired, although minimum term has there release an murderer who received a minimum majority term under statutes. essentially accepts argument remedy and, as a for the requires unconstitutionality, resulting defendant be *9 subject post-prison supervision the end life, at released, to thereby majority 25-year The rein- the minimum term. of the 1995 amendment that existed before states making ineffective, adults, least for our 163.115, at to ORS actually in that the 1995 amendment had conclusion Francis changed the law. majority its not on the words of
The
bases
conclusion
authority
statutory
Parole
that the
ORS 163.115 but on the
adoption
sentencing guide-
Board has had since the
generally limits the
144.050, which
lines. It relies on ORS
authority
parole inmates to those offenses that
Board’s
to
guide-
they
1989,
1,
when the
committed before November
chapter
Laws
effect,
lines went into
and on
apply only
provides
that the
statutes
section which
persons
to
convicted either of felonies committed before
major-
1,1989,
murder.
November
ity ignores
or of
What
predate
adoption
is
both ofthose statutes
163.115(5),
explicitly
current ORS
which
estab-
1995 of
lished an indeterminate life sentence for murder and which
years
explicitly provided
“without
for a minimum
of 25
necessary implication
possibility
paroleü”
of that
of
The
majority
phrase,
question, is that after the
which the
does not
passed
possibility
parole.
25
have
there will be
majority apparently
legislature
The
concludes that the
failed
procedure
carrying
unquestioned
to
intent.
a
out its
establish
majority’s
directly
The
leads it
fur
conclusion
its
163.115(5)
ther conclusion that ORS
is unconstitutional as
modify
punishment
written and that we must
for murder
legislature
operate
created
order to make it
con
stitutionally.
only
That is a
reach
conclusion
we should
possible
so,
alternative;
when there is no
if it is
to do we con
College &
strue a statute to be constitutional. See Salem
(1985);
Academy,
Emp.
P2d
Div.,
Inc. v.
298 Or
25
Dept.
Res.,
Human
Planned Parenthood Assn. v.
(1984).
apparent
tell,
I
562,
of its terms. ORS 174.010. To to serve a impris- minimum term when the sentence meaning only way pris- onment can have if there is a for the oner obtain after release the minimum term is over but serving way before through parole. the full sentence. Before 1989 that came prisoner
the Board’s to release the on statutory The essential elements of the statement of the term of the basic sentence after they guidelines amendment are the same as before were adopted. provision minimum were terms is also sim- *10 legislature clearly ilar. The minimum intended that the meaning. pris- have some It must intended have that some might only might minimum, oners serve more. The serve while others
only meaning have statute can at present meaning guide- is the same that it had before prisoner eligible expiration lines: a becomes at I of the minimum tеrm. would hold that ORS therefore 163.115(5) implied exception creates an to ORS 144.050 and may parole person Board release on sentenced to person completes murder, once statutory would, thus, sentence.1 There be no con- majority’s contrary stitutional violation. I dissent from conclusion. joins
Edmonds, J., in this dissent. Because current sentence for murder is the result of actions of the majority legislature, controlling on 1989 statutes which the relies are not changes superseded to the that the 1995 extent them.