State v. Worth

                                      138

         Argued and submitted January 17, affirmed October 16, 2019


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      JOSEPH WORTH, JR.,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                        060532697; A165894
                                  

     This case is before the Court of Appeals for a third time. When defendant
filed his initial notice of appeal, no harsher sentence could be imposed on remand
than that initially imposed at trial, pursuant to State v. Turner, 

, 

 (1967). Defendant’s appeal was successful, and the Court of Appeals
remanded the case for a new trial. While defendant awaited his remanded trial,
the Supreme Court disavowed Turner in State v. Partain, 

, 

 (2010), allowing a trial court to impose a harsher sentence on remand than
that originally imposed at trial. Defendant was retried and, indeed, received a
harsher sentence than his first. Another appeal, remand, and trial followed, and
defendant again received a sentence harsher than his first. In the current appeal,
defendant asserts that application of Partain violates the Ex Post Facto Clause
of Article I, section 21, of the Oregon Constitution and the Due Process Clause
of the Fourteenth Amendment to the United States Constitution. Held: The
Ex Post Facto Clause of Article I, section 21, of the Oregon Constitution generally
applies to only legislative action, not to judicial decision-making. The change
from Turner to Partain was not a legislative action. Further, applying Partain to
defendant’s case did not violate principles of due process because it was not unexpected as the same attorneys litigated both his case and Partain simultaneously.
Additionally, Partain could not be construed as indefensible by reference to the
law expressed prior to its announcement.
    Affirmed.



    Thomas M. Ryan, Judge.
   Laura A. Frikert, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Frederick
M. Boss, Deputy Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

 (2019)                       139

  Before Powers, Presiding Judge, and Egan, Chief Judge,
and James, Judge.
  JAMES, J.
  Affirmed.
140                                             State v. Worth

        JAMES, J.
         This is the third time this case has been before us
on appeal. In this decision (Worth III), we must confront an
issue left unresolved in State v. Worth, 

, 

 (2015), rev den, 

 (2016) (Worth II). Specifically,
defendant argues (as he did in Worth II) that application
of State v. Partain, 

, 

 (2010)—which
permits, subject to certain limitations, the imposition of
a harsher sentence on remand following an appeal than
that which was originally imposed—to his case would violate Article I, section 21, of the Oregon Constitution, which
states that “[n]o ex-post facto law … shall ever be passed.”
Alternatively, defendant argues that application of Partain
in this instance would violate principles of notice, foreseeability, and fair warning guaranteed by the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution. We affirm.
         An understanding of the issues present in this appeal
requires a detailed recitation of the procedural timing of
the life of this case. Defendant’s first trial occurred in
February 2007. A jury found defendant guilty of multiple
sexual crimes. The court sentenced defendant to consecutive Measure 11 sentences of imprisonment: 90 months on
Count 1; 75 months each on Counts 4, 5, and 6; 100 months
on Count 7; and 70 months on Count 8, for a total of 485
months in prison. Defendant chose to appeal that judgment
of conviction, filing his notice of appeal in July 2007. He was
represented in that appeal by the Oregon Office of Public
Defense Services (OPDS). At that time, pursuant to State
v. Turner, a defendant considering the costs and benefits of
prosecuting an appeal understood that “[a]fter an appeal or
post-conviction proceeding has resulted in the ordering of a
retrial for errors other than an erroneous sentence … and
the defendant has again been convicted, no harsher sentence can be given than that initially imposed.” 

, 

 (1967). We took the appeal under advisement on March 31, 2009.
        While we had defendant’s appeal under advisement,
the state petitioned for review by the Supreme Court of our
decision applying the Turner rule in State v. Partain, 228
Cite as 

 (2019)                               

, 

 (2009). In that petition, the state
explicitly asked the Supreme Court to disavow the Turner
rule and hold that a defendant could receive a harsher sentence on retrial, following a successful appeal. The defendant in Partain, also represented by OPDS, filed a response
to the state’s petition for review arguing that Turner should
not be overruled.
         In State v. Worth, 

, 

(2009), rev den, 

 (2010) (Worth I), we reversed
defendant’s conviction and remanded for a new trial. Our
opinion issued September 30, 2009. Approximately one
week later, the Supreme Court granted the state’s petition
for review in Partain.
         After the Supreme Court granted the petition for
review in Partain, the state petitioned for review of our decision in Worth I. Although the Supreme Court ultimately
denied that petition, that process delayed issuance of the
appellate judgment until April 2010. By that time, oral
arguments in Partain had been held before the Supreme
Court. And although the Supreme Court’s opinion had not
yet issued in Partain, the petition, the response to the petition, the competing merits briefs, and the oral argument all
clearly indicated—at a minimum to the attorneys involved
in the litigation, if not the wider bar—that the continued
applicability of Turner was being challenged.
         On September 10, 2010, the Supreme Court disavowed
Turner in Partain, holding that a defendant can receive a
harsher sentence following an appellate remand, subject
only to the federal constitutional limits proscribed by North
Carolina v. Pearce, 

, 

, 

 (1969):
   “We therefore decline to posit anything other than the
   Pearce standard, as modified by the Court in the manner
   noted, as the applicable standard in cases of resentencing in Oregon: If an Oregon trial judge believes that an
   offender whom the judge is about to resentence should
   receive a more severe sentence than the one originally
   imposed, the judge’s reasons must affirmatively appear
   on the record. Those reasons must be based on identified
   facts of which the first sentencing judge was unaware, and
142                                              State v. Worth

   must be such as to satisfy a reviewing court that the length
   of the sentence imposed is not a product of vindictiveness
   toward the offender. Absent such facts and reasons, an
   unexplained or inadequately explained increased sentence
   will be presumed to be based on vindictive motives, and
   will be reversed.”

Partain, 

.

         Defendant’s second trial began 11 days later, on
September 21, 2010. But there, unlike in the first trial, the
state alleged defendant to be a dangerous offender, subject
to sentencing requirements pursuant to ORS 161.725. The
jury found defendant guilty of the same charges, various
sentencing enhancement facts, and dangerous-offender criteria on each charge. The trial court sentenced defendant as
a dangerous offender and imposed consecutive 30-year indeterminate sentences on each conviction, for a total of 120
years (1,440 months) in prison. The trial court imposed consecutive determinate sentences of 240 months on Count 1;
90 months on Count 4; 144 months on Count 7; and 120
months on Count 8, resulting in a minimum incarceration
term of 594 months. The court merged Counts 2, 5, and 6.
Defendant appealed.

         In Worth II, this court vacated defendant’s sentence
and remanded for resentencing after concluding that the
trial court erred in failing to apply the 400 percent rule to
limit the determinate component of the dangerous-offender
sentences. 

. In light of our disposition,
we explicitly declined to reach defendant’s due process and
ex post facto challenges to the trial court’s increased sentence. 

.

         On resentencing following Worth II, the trial court
resentenced defendant as a dangerous offender pursuant to
ORS 161.725 and imposed consecutive 30-year indeterminate dangerous offender sentences on each conviction, for a
total of 120 years (1,440 months). The trial court imposed
consecutive determinate sentences of 240 months on Count 1,
36 months on Count 4, 72 months on Count 7, and 72 months
on Count 8, resulting in a minimum incarceration term of
420 months. This appeal followed.
Cite as 

 (2019)                                   143

         Turning now to the merits, we review whether the
application of a change in the law violates the state constitutional prohibition on ex post facto laws for errors of law.
See State v. Grimes, 

, 

 (1999).
Similarly, whether a defendant has been denied due process
of law under the Fourteenth Amendment is reviewed for
errors of law. See State v. Weller, 

, 

 (2011). We begin, as is proper, with the state constitutional claim. State v. Kennedy, 

, 

 (1983) (considering state constitutional claims before
federal claims); Sterling v. Cupp, 

, 

 (1981) (same).
         Article I, section 21, states that “[n]o ex post facto
law … shall ever be passed.” The Supreme Court has historically interpreted Article I, section 21, congruently with
the ex post facto provision contained in Article I, section 10,
of the United States Constitution “on the assumption that
that provision’s scope is similar to the scope of Article I,
section 21.” State v. Cookman, 

, 

(1996); see also Mannelin v. DMV, 

, 

 (2001) (“The Oregon courts have concluded that the state
ex post facto clause was intended to have the same historical scope as its federal counterpart in Article I, section 10,
of the federal constitution.”).
          In Cookman, the Supreme Court, in analyzing the
meaning of Article I, section 21, observed that the decision
in Calder v. Bull, 

, 

 (1798), which
expressed the “classic formulation of the ex post facto prohibition,” influenced the intent of the framers of the Oregon
Constitution and set out Calder’s four categories:
   “ ‘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
   legal 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.’ ”
144                                           State v. Worth

Cookman, 

 (quoting Calder, 

). Defendant argues that the change from Turner to Partain falls
into the “catchall” category of Calder—a “similar” change
in the law that is “manifestly unjust and oppressive.” We
disagree.

         The Ex Post Facto Clause of Article I, section 10,
of the United States Constitution has been held to apply to
only legislative action. “[T]he Ex Post Facto Clause does not
apply to judicial decision making.” Rogers v. Tennessee, 

, 

, 

 (2001). “As the
text of the Clause makes clear, it ‘is a limitation upon the
powers of the Legislature, and does not of its own force apply
to the Judicial Branch of government.’ ” 

 (quoting Marks v. United States, 

, 

,

 (1977) (citation omitted)). It is undisputed
that, in this case, that change from Turner to Partain came
about through judicial interpretation, not direct legislative
action.

         We acknowledge that simply because a provision of
the Oregon Constitution has historically been interpreted
congruently to a similar provision in the federal constitution does not foreclose a more divergent interpretation in
the future. Cookman, 324 at 27 n 7 (“This court also has
explained that its past reliance on the Supreme Court’s pronouncements when construing Oregon’s law do not imply
that the meaning of Oregon’s law is forever fixed to the
federal courts’ understanding of analogous federal law.”
(Citation omitted.)). However, here, defendant has presented
no compelling argument why the change from Turner to
Partain compels an extension of Article I, section 21, jurisprudence to encompass judicial, as opposed to legislative,
action.

         Turning to defendant’s federal constitutional argument, “a judicial alteration of a common law doctrine of criminal law violates the [due process] principle of fair warning,
and hence must not be given retroactive effect, only where
it is ‘unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue.’ ”
Rogers, 

 (quoting Bouie v. City of Columbia, 378
Cite as 

 (2019)                                  

, 

, 

 (1964) (citations
omitted)). As we explain, we are unpersuaded that Partain’s
change to the Turner doctrine was either unexpected in
defendant’s case, or indefensible by reference to how the law
had changed since Turner.

          In advancing his due process argument, defendant
states,
      “Defendant’s 2007 decision to appeal his convictions
   was made at a time when the Turner rule was in force and
   he faced no risk of increased punishment following a successful appeal. Partain did not exist and its existence could
   not have been anticipated by defendant or his counsel given
   Turner’s pedigree and the absence of any clear legislative
   actions in response to Turner.”

         We disagree with defendant’s characterization in
two respects. First, defendant appears to conceptualize an
appeal as a discrete point in time, fixed at the time when
the notice of appeal is filed. Implicitly, defendant appears to
assert that the cost-benefit calculation of the risks of appeal
occurs at that point, and no other. We disagree. An appeal
is a process—often a lengthy one. During the pendency of
an appeal legal landscapes may shift and, accordingly, the
benefits and risks of prosecuting an appeal may change. Up
until the issuance of the appellate judgment, a defendant
retains the power to move to dismiss his or her appeal if
an undesirable risk, unforeseeable at the time of filing the
notice of appeal, comes into existence.

          Second, we disagree that Partain’s “existence could
not have been anticipated.” In this case, the office of attorneys handling defendant’s appeal, OPDS, was the very same
office that simultaneously was engaged in Supreme Court
litigation where the state was questioning the continued viability of Turner. While the “unanticipated” prong of Rogers
and Bouie is often analyzed in broader contexts—looking to
the development of the law generally—in this case, regardless of whether the wider legal community might have anticipated the Supreme Court disavowing Turner, defendant’s
attorneys actually knew that the Turner doctrine might be
altered, because they were the same attorneys litigating
146                                                          State v. Worth

that issue before the court at the same time as they handled
defendant’s case.1
         Even if Partain could be construed to be unexpected
in defendant’s case, Partain was not “indefensible by reference to the law which had been expressed prior to the conduct at issue.” Bouie, 

 (citing Jerome Hall,
General Principles of Criminal Law 61 (2d ed 1960)). Partain
disavowed Turner based on the legislature’s amendments to
the relevant sentencing statutes enacted after Turner:
        “We have suggested that the Turner decision rested on
    an unexamined elaboration on the right of appeal guaranteed by ORS 138.020—i.e., that the right of appeal necessarily includes the right to have the length of any resentence limited to the sentence originally imposed. We have
    assumed, without actually deciding, that that reading of
    ORS 138.020 had some basis in the law when Turner was
    decided. But, based on changes in the law pertaining to
    criminal sentencing and criminal appeals since Turner
    was decided, as well as the legislature’s rejection of the
    ‘rule of lenity,’ it now is clear that the Turner court’s expansive reading of the right to appeal in ORS 138.020 no longer
    is viable, if it ever was. Put differently: The legal landscape
    surrounding the right of criminal defendants to appeal has
    changed in a way that undermines the essential premise
    for the holding in Turner.”
Partain, 

. Thus, far from being “indefensible”
in relation to the law prior, Partain explains that legislative
enactments had rendered Turner indefensible.
         Accordingly, the imposition of the sentence after
Worth II neither violated the Ex Post Facto Clause of
Article I, section 21, of the Oregon Constitution, nor the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution.
           Affirmed.



     1
       Petitioner has not alleged that his appellate attorneys were ineffective in
failing to communicate to him their knowledge that the potential risks of appeal
had changed once the continued viability of Turner became a subject of Oregon
Supreme Court litigation.