STATE OF OREGON, Plaintiff-Appellant, v. MICHAEL JOHN WOLFE, Defendant-Respondent.
(CC 19CR34514) (SC S067623)
STATE OF OREGON
May 6, 2021
368 Or 38 | 486 P3d 748
Cynthia L. Easterday, Judge.
Argued and submitted November 17, 2020; order of circuit court reversed, and case remanded to circuit court for further proceedings May 6, 2021
Defendant moved to dismiss a charge of aggravated murder, arguing that changes made to capital sentencing by Senate Bill (SB) 1013, a law enacted after the crime was alleged to have been committed, violated the ex post facto clauses of the state and federal constitutions. The trial court granted the motion to dismiss, and the state appealed. Held: (1) SB 1013 does not bar the state from charging defendant with aggravated murder; (2) the change made by SB 1013 to the elements of the charged theory of aggravated murder was not an unconstitutional ex post facto law, as the change was ameliorative; and (3) the appropriate remedy for an ex post facto violation from SB 1013‘s changes to capital sentencing is for defendant to be sentenced under the sentencing provisions in place at the time of the offense, not the dismissal of the aggravated murder charge.
The order of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
En Banc
On appeal from an order of the Yamhill County Circuit Court under
Patrick M. Ebbett, Assistant Attorney General, Salem, argued the cause and filed the briefs for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent.
Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, and Richard L. Wolf, Richard L. Wolf PC, Portland, filed the brief for amicus curiae Oregon Capital Resource Center.
WALTERS, C. J.
The order of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
WALTERS, C. J.
In
I. BACKGROUND
In June 2019, defendant was charged by indictment with three counts of aggravated murder and two counts of first-degree kidnapping,
Before defendant‘s trial occurred, the legislature passed SB 1013. The Governor signed the bill, and the law took effect on September 29, 2019. As noted, that bill made changes to the definition of aggravated murder and the statute governing capital sentencing. We will describe those changes in more detail below. In October 2019, the state responded to the passage of SB 1013 by obtaining an amended indictment, alleging only one count of aggravated murder. The state alleged that defendant “unlawfully, intentionally, and with premeditation cause[d] the death of [WF], a human being under the age of fourteen years.” (Emphasis added.) The state also charged defendant with four counts of first-degree murder and two counts of first-degree kidnapping. All of those offenses were alleged to have taken place “on or about May 13, 2019 to May 15, 2019.”
Defendant filed a motion to dismiss the amended aggravated murder charge, arguing that applying the new definition of aggravated murder to him violated the ex post facto clauses of the state and federal constitutions. Defendant reasoned that, because SB 1013 had changed the elements of aggravated murder after his crime had occurred, the amended statute could not constitutionally be applied to him.
The state responded with an argument that the conduct that defendant was charged with—the unlawful, intentional, and premeditated killing of a child under 14 years old—had been punishable as aggravated murder at the time of defendant‘s crimes. The state contended that, because the only pertinent change to the elements of the crime—the addition of the requirement that the murder be premeditated—was ameliorative, the ex post facto clauses did not prevent it from being applied to defendant.
The trial court agreed with the state and denied defendant‘s motion.
Defendant then filed a motion for reconsideration. In that motion, he made a different ex post facto argument based on SB 1013‘s change to the capital sentencing process. Before the enactment of SB 1013, Oregon law had required that four questions be submitted to the jury in the penalty phase of a death penalty trial. For the death sentence to be imposed, the state had needed to convince a jury, beyond a reasonable doubt, that the answer to each of the first three questions was “yes.”
In his motion for reconsideration, defendant argued that, by removing the “continuing threat” question, SB 1013 had lessened the burden of proof that the state needed to carry before a death sentence could be imposed. He contended that the elimination of the “continuing threat” question, when applied to crimes committed before SB 1013 was enacted, was an ex post facto law under both the state and federal constitutions. Defendant argued that, as a result, he could not be charged with aggravated murder under
In response, the state conceded that, “[a]bsent defendant‘s consent, *** it would be an ex post facto violation to subject him to sentencing pursuant to Senate Bill 1013.” However, the state argued that dismissal of the aggravated murder charge was not the appropriate remedy. Rather, the state argued, “[t]he remedy is to proceed with sentencing pursuant to the prior version of [
The trial court ruled for defendant and dismissed the aggravated murder charge.
The state filed an interlocutory appeal pursuant to
In his answering brief, defendant takes a different approach to the issue. He devotes most of his brief to an argument that, by its own terms, SB 1013 does not permit him to be prosecuted for the crime of aggravated murder. He contends that, read in context, SB 1013 does not intend the new definition of aggravated murder to apply to crimes committed before its effective date and, instead, permits those crimes to be prosecuted only as first-degree murder.
Although defendant maintains that the trial court‘s decision should also be sustained on ex post facto grounds, that issue is briefed primarily by amicus curiae Oregon Capital Resource Center. Amicus presses both of the arguments raised by defendant in the trial court: that the change to the elements of aggravated murder make application of the current definition to defendant an ex post facto violation and that dismissal of the charge is the appropriate remedy for the ex post facto violation caused by the change in the questions posed to jurors in capital sentencing proceedings.
II. ANALYSIS
Because the arguments in this court are different than those presented in the trial court, we find it most useful to conduct our analysis by considering each of the arguments in support of affirmance. We take up defendant‘s statutory argument before considering his constitutional challenges, in accordance with our ordinary “first-things-first” approach. State v. Algeo, 354 Or 236, 242-43, 311 P3d 865 (2013). To provide full context for that statutory argument, we set out the content of SB 1013 in greater detail than we did above.
A. Statutory Background
In Oregon, aggravated murder is punishable by “death, life imprisonment without the possibility of release or parole or life imprisonment.”
SB 1013 restructured Oregon‘s murder statutes, limiting the circumstances in which the death penalty would be an available punishment. That restructuring took place in two steps. First, SB 1013 deleted the definitions of aggravated murder from
First-degree murder, unlike aggravated murder, is not punishable by death. It is instead punishable by life without parole or life with the possibility of parole after 30 years, the two other penalties available for aggravated murder.
that previously could be prosecuted as aggravated murder can now be prosecuted as first-degree murder, and a more limited set of conduct now constitutes aggravated murder. Thus, the intentional killing of a person under the age of 14, which previously could be prosecuted as aggravated murder, can now be prosecuted as first-degree murder. Such a killing may now be prosecuted as aggravated murder only when it is premeditated.
As mentioned, in addition to restricting the criminal conduct punishable by death, SB 1013 made changes to the questions posed to jurors in the capital sentencing process. Previously,
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
“(D) Whether the defendant should receive a death sentence.”
A death sentence would be imposed only if the jury unanimously answered “yes” to each of the four questions.
Section 5 of SB 1013 eliminated the second question—the requirement that the jury find a probability that the defendant would be a “continuing threat to society.” Or Laws 2019, ch 635, § 5;
B. Defendant‘s Statutory Argument
Defendant‘s primary argument supporting affirmance of the trial court‘s order is that, in enacting SB 1013, the legislature did not intend to permit him to be prosecuted for the crime of aggravated murder as that crime is defined in SB 1013.
Though defendant argues that his statutory argument was preserved, we disagree. In the trial court, defendant relied on the text of SB 1013 only in support of an argument about the appropriate remedy for the conceded ex post facto violation. In this court, his argument is that, entirely apart
“The applicability of an amended statute to a pending criminal proceeding is a matter within the legislature‘s control, subject to ex post facto or other constitutional restraints.” State v. McDonnell, 329 Or 375, 383, 987 P2d 486 (1999). “[D]etermining whether a particular statute was meant to apply prospectively or retrospectively is a matter of ascertaining the intent of the legislature.” Perkins v. Willamette Industries, 273 Or 566, 570, 542 P2d 473 (1975). In section 30 of SB 1013, the legislature addressed that question expressly:
“Section 3 of this 2019 Act and the amendments to
ORS 40.355 ,133.705 ,136.450 ,137.635 ,137.700 ,137.707 ,144.079 ,144.085 ,144.110 ,161.005 ,161.405 ,161.535 ,163.095 ,163.098 ,163.103 ,163.115 ,163.135 ,163.150 ,163.707 ,342.143 ,419A.260 ,419C.349 ,419C.352 ,419C.501 ,421.121 ,443.004 and671.610 by sections 1 and 4 to 29 of this 2019 Act apply to crimes committed before, on or after the effective date of this 2019 Act that are the subject of sentencing proceedings occurring on or after the effective date of this 2019 Act.”
Or Laws 2019, ch 635, § 30. Because section 30 specifies the cases to which SB 1013‘s changes apply, section 30 is the primary guide to the legislature‘s intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).
We begin by observing that all the changes to existing law discussed above are listed in section 30. The offense of first-degree murder, now codified at
Thus, current law, as changed by SB 1013, applies “to crimes committed before, on or after the effective date” of that Act—September 29, 2019—that are the subject of sentencing proceedings occurring on or after the effective date of that Act. In this case, if convicted of any crimes, defendant will be sentenced after the effective date of SB 1013. Thus, the question before us is whether defendant is charged with “crimes” that were “committed before, on or after the effective date of” SB 1013. If we consider defendant‘s crimes to be the acts that he allegedly committed, which were criminal when they occurred as well as under current law, the answer to that question is not a difficult one: The criminal conduct that defendant is charged with—the killing of a child under 14—was certainly committed “before, on or after” the effective date of SB 1013.
As we understand defendant‘s primary textual argument, he views the term “crimes” as referring not to conduct but to statutory definitions of the elements of “crimes.” Defendant contends that, in May 2019, before the effective date of SB 1013, he could not have committed the “crime” of aggravated murder, as that crime is now defined—the intentional premeditated killing of a child under 14—because that crime, with those defined elements, did not exist until after SB 1013 took effect. Instead, he could only have committed the “crime” of aggravated murder, as that crime was then set out—the intentional killing of a child under 14—because only that crime with those defined elements existed at that time. And, defendant
Thus, defendant‘s position is not that none of SB 1013‘s changes apply to him—if SB 1013 did not apply to defendant, then former
The problem with defendant‘s argument is that the retroactivity section of SB 1013, section 30, is not written to permit that mixing and matching. Under the retroactivity clause, either all of SB 1013‘s changes to
Defendant acknowledges that that is the most straightforward reading of the text of SB 1013. Rather than providing a contrary textual analysis, defendant rests his argument primarily on a contention that it would be anomalous for the legislature to give retrospective effect to the new definitions of aggravated murder because, constitutionally, the legislature would not be able to apply its amended capital sentencing provisions to those offenses. Defendant argues that defendants who committed crimes prior to the effective date of SB 1013 could raise ex post facto clause objections to statutory changes that would affect their sentencings and thus would be entitled to have their sentencings proceed under prior law. A mix of new provisions at the guilt phase and old provisions at the penalty phase would, defendant posits, be so unacceptable to the legislature that it would prefer not to have individuals in that position prosecuted for capital crimes at all.
Defendant is correct that decisions about how and whether SB 1013‘s changes should apply to defendants who committed crimes before its enactment required practical and moral judgments by the legislature. The legislature could have balanced the various considerations in a variety of ways, including by adopting the policy for which defendant advocates. But defendant‘s interpretive argument has force only if we are persuaded that the legislature did share defendant‘s policy preferences. And defendant points to nothing in the bill‘s context or legislative history that counters its text or otherwise supports defendant‘s position.
Defendant‘s argument based on comparisons between how SB 1013 operates in his case and how it would apply in other, hypothetical scenarios is no closer to the
For much the same reason, we reject defendant‘s argument that we should hold that SB 1013‘s new definitions of aggravated murder cannot be applied to him in order to avoid the constitutional questions that we would otherwise have to answer. Although “a court will give a statute such an interpretation as will avoid constitutional invalidity,” State v. Stoneman, 323 Or 536, 540 n 5, 920 P2d 535 (1996), that canon is applicable only when the statute is ambiguous, and not where the “saving construction cannot be attributed to the legislature with reasonable fidelity to the legislature‘s words and apparent intent,” State v. Robertson, 293 Or 402, 411, 649 P2d 569 (1982). Here, section 30 of SB 1013 expressly and unambiguously makes the substantive changes discussed above applicable to defendant‘s case.
C. Ex Post Facto Challenge to the Changed Definition of Aggravated Murder
Having rejected defendant‘s statutory argument, we take up his ex post facto clause challenges. We begin with defendant‘s initial argument in the trial court, pressed on appeal by amicus, that, because SB 1013 altered the elements of aggravated murder, prosecuting defendant for that crime would violate the ex post facto clauses of the state and federal constitutions.
As we discussed above, the charged offense occurred in May 2019. At that time, it was aggravated murder to commit “murder as defined in
That change is a limited one. The base crime—denominated “murder” under the old law and “second-degree murder” under the new law—is the same. SB 1013 did not amend the definition of murder in
Defendant, joined by amicus, argues that this change makes the current definition, as applied to him, an ex post facto law, prohibited by both the state and federal constitutions. We begin our analysis with the Oregon Constitution.3
Article I, section 21, of the Oregon Constitution, provides that “No ex-post facto law *** shall ever be passed[.]” “Despite Article I, section 21‘s seemingly broad scope, this court has restricted that provision‘s prohibition to criminal laws, and, further, to only certain kinds of criminal laws[.]” State v. Cookman, 324 Or 19, 26, 920 P2d 1086 (1996) (internal citation omitted). We have stated that, “[g]enerally speaking, ex post facto laws punish acts that were legal at the time they occurred, change the punishment for those acts, or deprive the defendant of a defense for those acts.” State v. Gallant, 307 Or 152, 155, 764 P2d 920 (1988).
This court‘s most substantial discussion of the meaning of the ex post facto clause came in Cookman. In that decision, we addressed the materials that would have informed the understanding of ex post facto laws when the Oregon Constitution was ratified. We paid particular attention to the explanation given by Justice Chase in the case of Calder v. Bull, 3 US 386, 1 L Ed 648 (1798):
“I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. *** The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light as I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of government.”
Cookman, 324 Or at 30-31 (quoting Calder, 3 US at 390-91 (seriatim opinion; alteration in Cookman)). We stated in Cookman that,
“[w]hatever the merits of Justice Chase‘s formulation with regard to the federal constitution, as with Blackstone‘s Commentaries and The Federalist, Chase‘s opinion was available to the framers of the Oregon Constitution. Perhaps more importantly, it also was cited by the Indiana Supreme Court in Strong [v. The State, 1 Blackf 193, 196 (Ind 1822)], a decision that was available to the framers of the Oregon Constitution when they decided to adopt the Indiana ex post facto provision in our state constitution.”
324 Or at 31. In Cookman, relying in part on Calder, we summarized the general scope of the guarantee against ex post facto laws as prohibiting: “(1) laws that punish acts that were legal before the enactment of those laws; (2) laws that impose greater or additional punishment than that available before the enactments of those laws; and (3) laws that deprive the defendant of a defense.” Id. That formulation omitted the fourth Calder category, but in State v. Fugate, 332 Or 195, 214, 26 P3d 802 (2001), we concluded that “all four categories identified in Calder are applicable in applying Article I, section 21,” holding that the ex post facto laws clause barred one-sided retroactive changes to the laws of evidence.
The change at issue here—the addition of a requirement that the state prove that the murder was premeditated in order to obtain a conviction for aggravated murder on the charged theory—does not fall into any of those traditional prohibitions. First, the conduct that defendant is charged with, the premeditated, intentional murder of a child under the age of 14, was not legal in May 2019, when the offense is alleged to have occurred. That conduct, whether premeditated or not, violated
Second, SB 1013‘s change to the definition of aggravated murder did not subject defendant to any greater punishment. In May 2019, before the enactment of SB 1013, the intentional murder of a child under the age of 14 was punishable by life with the possibility of parole after 30 years, life without parole, or death. Defendant faces those same penalties should he be convicted of aggravated murder under the changed definition.
Third, requiring the state to prove the additional element of premeditation did not deny defendant any defense that was available to him in May 2019. To the contrary, by adding an element that the state must prove, SB 1013 effectively gave defendant an additional defense—that the state must and cannot prove that the homicide was premeditated. And, fourth, adding the element of premeditation did not alter the rules of evidence applicable to defendant‘s case.
Amicus does not dispute that the change at issue here—the addition of an element—does not fall within the Calder formulation. Amicus argues instead that the Calder categories are not exclusive, and that a law may violate the ex post facto clause even if it does not fall within those categories. More specifically, amicus contends that we already have held that any change to a crime‘s elements is an ex post facto law that cannot constitutionally be applied to a defendant who acted before the change was effective.
The state responds by arguing that adding a new element to an existing offense cannot be an ex post facto violation because the change is, from defendant‘s perspective, ameliorative. Because the change does not disadvantage defendant in any way, the state posits, the ex post facto laws clause does not prevent the change from being applied to defendant.
We have recognized before that
“the categories described in Calder are general ones, used to summarize the types of ex post facto laws that the federal constitutional provision then prohibited. Justice Chase made that clear in his opinion by stating that the laws described in those categories and ‘[a]ll *** similar laws are manifestly unjust and oppressive.‘”
State v. Guzek, 336 Or 424, 435, 86 P3d 1106 (2004), vac‘d and rem‘d, 546 US 517, 126 S Ct 1226, 163 L Ed 2d 1112 (2006), and modified, 342 Or 345, 153 P3d 101 (2007) (quoting Calder, 3 US at 390-91 (emphasis in Guzek)). The Calder formulation is a guide to the proper interpretation of the ex post facto clause, but not necessarily an exhaustive one. We have consistently held, however, that not every change in the law, applied retroactively, is an ex post facto law within the meaning of the constitutional provision. Cookman, 324 Or at 26. At minimum, to constitute an ex post facto law, the change must be one that disadvantages defendants. That principle, which is supported both by the Calder formulation and by the rationale underpinning Article I, section 21, was affirmed by this court in State v. Upton, 339 Or 673, 125 P3d 713 (2005).
The ex post facto challenge at issue in Upton arose after the legislature made changes to Oregon sentencing procedures in order to bring them into compliance with Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). When the defendant had committed his offense, sentencing enhancement factors had to be proven to the court by a preponderance of evidence. SB 528 (2005) changed that process by requiring the state to prove certain facts to a jury beyond a reasonable doubt, “unless a defendant waives a jury determination of that fact.” Upton, 339 Or at 677.
This court approached the question of whether the retroactive application of those changes violated Article I, section 21, by examining the effect of the changes to determine whether they were detrimental to defendants. We noted that the change of factfinder was not detrimental to defendants
“[t]o the extent that SB 528 changes the quantum of proof required under the sentencing guidelines, it inures to defendant‘s advantage to require the state to prove any enhancing factors beyond a reasonable doubt. For a statute to violate state or federal ex post facto clauses, the statute must at least effect some kind of disadvantageous change upon a defendant.”
Upton, 339 Or at 683 (emphasis added).
The principle that a change must be adverse to criminal defendants to constitute an ex post facto law is consonant with the traditional categories of ex post facto laws that we have recognized—all of which involve changes harmful to defendants. Neither defendant nor amicus advances any argument for why the ex post facto laws clause should bar the legislature from making retroactive changes beneficial to criminal defendants or points to historical evidence that additions to the state‘s burden of proof were viewed as ex post facto laws;4 such changes are hardly the “manifestly unjust and oppressive” laws that the ex post facto clause was adopted to bar. Calder, 3 US at 390-91. Here, no argument is made that the addition of a requirement that the state prove that defendant‘s conduct was premeditated is detrimental to him, or to any other defendant.5
Amicus does not quarrel with that conclusion, but, relying on a single quotation from State v. Wille, 317 Or
487, 502, 858 P2d 128 (1993), insists that we already have held that any change to the elements of a crime violates the ex post facto clause. In making that argument, however, amicus takes its quote out of context. In summarizing the ex post facto principles that we would apply, we quoted first our general statement in Gallant that, “““ex post facto laws punish acts that were legal at the time they occurred, [increase] the punishment for [criminal] acts, or deprive the defendant of a defense for those acts.“” Wille, 317 Or at 502 (quoting Gallant, 307 Or at 155 (alterations in Wille)). We then quoted portions of the Supreme Court‘s recent decision in Collins v. Youngblood, 497 US 37, 110 S Ct 2715, 111 L Ed 2d 30 (1990), including the Court‘s summary that,
2. Ex Post Facto Clause of the United States Constitution
Defendant‘s argument under the federal ex post facto clause fails for the same reason. The Supreme Court has held that “[i]t is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” Dobbert v. Florida, 432 US 282, 294, 97 S Ct 2290, 53 L Ed 2d 344 (1977); see also Collins, 497 US at 41 (“Although the Latin phrase ‘ex post facto’ literally encompasses any law passed ‘after the fact,’ it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.“). Moreover, the Court has made clear that the scope of the federal ex post facto clause is limited to the specific categories recognized by the Calder formulation, which does not encompass changes that narrow a statute‘s elements. Collins, 497 US at 42-43; Carmell v. Texas, 529 US 513, 525, 120 S Ct 1620, 146 L Ed 2d 577 (2000). The addition of a premeditation element is not an ex post facto law within the meaning of the federal constitution.
D. Ex Post Facto Challenge to Penalty-Phase Changes
We now turn to the basis for the trial court‘s ruling: SB 1013‘s change to penalty-phase procedures in capital sentencing by eliminating the “continuing threat” question posed to the jury. As discussed above, the trial court concluded that, because that change was an ex post facto law, defendant could not be sentenced to death, and the court was required to dismiss the aggravated murder charge against defendant.
The issue before this court is somewhat more limited. The state conceded in the trial court that the elimination of the continuing threat question was an ex post facto law. On appeal, the state, as appellant, has not challenged the trial court‘s determination of that issue, and the parties have not meaningfully briefed that question. In the posture of this appeal, therefore, we assume that the challenged portion of SB 1013 cannot constitutionally be applied to defendant over his objection and decide whether the consequence of that determination is, as the trial court concluded, that the state cannot seek the death penalty.
1. Article I, section 21
We begin with the Ex Post Facto Clause of the Oregon Constitution. The state argues that the appropriate remedy for ex post facto clause violations under the state constitution “is to apply the law in place at the time the offense occurred.” The state argues that that approach would be consistent with two prior decisions of this court, State v. Langley, 318 Or 28, 31-32, 861 P2d 1012 (1993), and Guzek, 336 Or at 438. The state also argues that defendant retains the option of waiving his ex post facto rights and being sentenced under SB 1013.
Defendant makes no independent argument in support of the trial court‘s reasoning, relying entirely on the arguments made by amicus. Amicus, although apparently not disputing the state‘s contention that the ordinary remedy for an ex post facto law is to apply the law that was in place at the time that the offense was committed, advances two arguments that that course would be inappropriate here. First, amicus argues that the unamended penalty phase statutes were unconstitutional, so the state‘s remedy would leave defendant to choose between two unconstitutional alternatives. Second, amicus argues that a severability analysis is appropriate, and the solution is to sever the portions
We agree with the state that the appropriate course, when a defendant successfully challenges the application of a change in the law on ex post facto grounds, is that the prosecution should proceed under the law as it was at the time of the offense. We have confronted analogous questions before, beginning with Wille, 317 Or at 505.
In Wille, we considered the effect of a statute that had expanded the sentencing options for aggravated murder to include not only the death penalty or life with the possibility of parole, but also the possibility of life without the possibility of parole. Id. at 504. We held that that statute was unconstitutional when applied to defendants found guilty of crimes occurring before its enactment. Specifically, we concluded that “[r]etroactive imposition of that punishment violated Article I, section 21, of the Oregon Constitution, and Article I, section 10, of the Constitution of the United States.” Id at 505. In Wille, the jury had done just that; it had not imposed the death penalty but had sentenced the defendant to life without parole. Id. at 489. We determined that the appropriate remedy, in that posture, was to remand for imposition of a sentence of life with the possibility of parole, the only remaining permissible sentence. Id. at 505.
Our disposition in Wille is consistent with the state‘s position that, in fashioning a remedy for an ex post facto violation, we look to the law in existence at the time the crime was committed. And it is inconsistent with the position, advanced by defendant in the trial court, that an ex post facto change to penalty phase proceedings precludes prosecution of an aggravated murder charge at all. But the remedy in Wille was shaped by the particular posture of that case, including the sentencing determination that the jury had already made, so it does not completely answer the question posed here.
A second case, State v. Langley, 314 Or 247, 839 P2d 692 (1992), adh‘d to on recons, 318 Or 28, 861 P2d 1012 (1993), is more directly on point. In our initial decision in that case, which was issued before Wille, we affirmed the defendant‘s aggravated murder convictions, but we reversed his death sentence because of an error in jury instructions and remanded for resentencing. Id. at 272. Because the defendant also had raised arguments relating to the true-life sentencing option, we stated in a footnote that
“[w]e need not address defendant‘s arguments because the ‘life without parole’ option was added to the statutory scheme in 1989; in any new penalty phase proceeding, defendant will be sentenced under the statutory scheme in force in 1987 or 1988, when the crime was committed.”
Langley, 314 Or at 254 n 5. The state petitioned for reconsideration, challenging that aspect of our disposition. In our opinion on reconsideration, we provided further elaboration by citing to our opinion in Wille, which had been issued between our initial opinion and our opinion on reconsideration:
“Pursuant to Wille, defendant constitutionally could not have been sentenced under the life imprisonment without possibility of parole sentencing option, and the trial court incorrectly instructed the jury on that option. Therefore, footnote 5 of State v. Langley correctly states that defendant must be sentenced on remand under the sentencing provisions in force at the time that the murder was committed.”
Langley, 318 Or at 31-32. Thus, in Langley, we decided that it was unconstitutional to apply a change in the law to the defendant‘s case and that the appropriate remedy was to apply the law in effect at the time of the offense.
In State v. Guzek, 336 Or at 438, we followed the same path. The ex post facto question in that case involved a change to a statutory fourth question asked in capital sentencing proceedings—whether the defendant should be put to death. In answering that question, defendants had been permitted “to introduce general mitigating evidence that militated against imposition of the
“[t]he trial court is precluded from retroactively applying the ‘any aggravating evidence’ provisions of the 1995 and 1997 amendments to
ORS 163.150(1)(a) and (c)(B). Any determination of the relevance of the state‘s aggravating evidence against defendant therefore must be in relation to the first three statutory questions set out inORS 163.150(1)(b)(A) to (C) or in relation to rebuttal of any particular mitigating evidence offered by defendant.”
Langley and Guzek establish that, when the legislature makes an unconstitutional retroactive change to capital sentencing procedures, Article I, section 21, does not preclude the defendant from facing capital sentencing proceedings altogether. Rather, it precludes only the change in the law from being applied retroactively to the defendant‘s case without the defendant‘s consent. Following that rubric, then, the ex post facto clause, when invoked, would preclude SB 1013‘s elimination of the continuing threat question from being applied, retroactively, in defendant‘s case. In other words, Article I, section 21, invalidates the legislature‘s statutory directive, in section 30 of SB 1013, that that application occur in defendant‘s case.
Amicus does not agree, relying on principles of severability. Citing
“it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:
“(1) The statute provides otherwise;
“(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or
“(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.”
Here, the portion of SB 1013 that, in the posture of this case, we assume to be unconstitutional is the retroactive elimination of the continuing threat question. Neither amicus nor defendant argues that any other part of SB 1013 is “so essentially and inseparably connected with and dependent upon the unconstitutional part,”
In addition, amicus asserts that the capital sentencing procedures in place at the time of defendant‘s crime were constitutionally defective and that defendant cannot be forced to choose between an unconstitutional sentencing procedure and an ex post facto law. Amicus cites legislative history that it argues evidences a concern about the constitutionality of the third question, but neither amicus nor defendant advances a substantive argument to persuade us that we must conclude that the death penalty procedures in place before SB 1013 were unconstitutional. In any event,
the question before this court is
2. Ex Post Facto Clause of the United States Constitution
Under the federal constitution, we reach the same conclusion. Assuming that SB 1013‘s elimination of the “continuing threat” question violates the Ex Post Facto Clause of the United States Constitution, the United States Supreme Court has outlined the appropriate remedy for such a violation in the same manner that this court has under Article I, section 21:
“The proper relief upon a conclusion that a state prisoner is being treated under an ex post facto law is to remand to permit the state court to apply, if possible, the law in place when his crime occurred. In remanding for this relief, we note that only the ex post facto portion of the new law is void as to petitioner, and therefore any severable provisions which are not ex post facto may still be applied to him.”
Weaver v. Graham, 450 US 24, 36 n 22, 101 S Ct 960, 67 L Ed 2d 17 (1981) (citations omitted). Under that rule, the ex post facto change in the law cannot be applied to defendant, but he can be prosecuted for aggravated murder and the state is entitled to seek the death penalty.
III. CONCLUSION
For the reasons that we have given, we conclude that the trial court erred in dismissing the charge of aggravated murder. We therefore reverse that order and remand the case to the trial court for further proceedings.
The order of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.