State v. Nobles

                                      1

               Submitted March 6, 2019, affirmed August 19, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                         LARRY NOBLES,
                        aka Henry Jackson,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                        930936079; A165834
                                 

    Defendant appeals from a judgment that resentenced him for a murder he
committed in August 1993. Defendant argues that the trial court erred in imposing lifetime post-prison supervision (PPS), instead of the three years of PPS
provided under the guidelines. Held: The Oregon Supreme Court has construed
the sentencing law applicable to defendant’s conviction for the 1993 murder to
require the imposition of lifetime PPS, which is binding here.
   Affirmed.



   Julie E. Frantz, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
   Before Ortega, Presiding Judge, and Powers, Judge, and
Kistler, Senior Judge.
   ORTEGA, P. J.
   Affirmed.
2                                                         State v. Nobles

         ORTEGA, P. J.
         Challenging his sentence for a murder committed
in August 1993, defendant assigns error to the trial court’s
imposition of lifetime post-prison supervision (PPS). We
review the application of sentencing law for legal error. State
v. Ambill, 

, 

 (2016), rev den,

 (2017). Because the Oregon Supreme Court has
construed the sentencing law applicable at the time of this
murder to require the imposition of lifetime PPS, and we are
bound by that conclusion, we affirm.
         This case has been before us before, and we take
most of the relevant facts, which are procedural and undisputed, from our prior decision:
       “In 1994, defendant pleaded no contest to a murder
    charge and was sentenced to 144 months in prison followed
    by a life term of [PPS]. Defendant moved the trial court to
    reduce the PPS term to three years; the court granted that
    motion and entered an amended judgment so providing.
    Two days later, the trial court, acting sua sponte and with
    no notice to either party, issued another amended judgment
    [the second amended judgment], reversing its decision to
    reduce defendant’s PPS term to three years and reinstating the lifetime PPS term of the original judgment.”
State v. Nobles, 

, 

 (2014)
(footnote omitted).
         Appealing from that second amended judgment,
defendant assigned error to the trial court’s failure to provide him with proper notice before reinstating the lifetime
PPS term. 

 He also contended that, “as a matter of state
sentencing law, three years was the appropriate term of
PPS for his conviction.” 

 We vacated the second amended
judgment and remanded based on the first issue regarding
the notice requirement and did not reach the second issue
regarding the proper PPS term for defendant’s murder conviction. 

.
         The issue regarding the proper PPS term is now
before us, because, on remand, the trial court again imposed
a lifetime PPS term. In a third amended judgment,1 the
   1
     The judgment was titled “Resentencing Amended Judgment of Conviction
and Sentence *(PPS Only)*.” For ease of reference, we refer to it as the third
amended judgment.
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court recited that defendant’s conviction fell within grid
block 11-C of the Oregon Felony Sentencing Guidelines and
that his term of imprisonment was a downward durational
departure sentence of 144 months—determinations that
the original sentencing court had made and that remained
unchanged and were not under reconsideration. As for
defendant’s term of PPS, the trial court ordered that it be
for “LIFE, unless the Board of Parole and Post-Prison
Supervision [(BPPPS)] finds a shorter term appropriate. [PPS] term shall not be less than a period of 3
years.” (Boldface and underscoring in original.) The court
imposed that term in reliance on State v. Morgan, 

, 

 (1993).
         On appeal, defendant contends that Morgan is inapposite, because the defendant in that case had received an
indeterminate life sentence under ORS 163.115(3)(a) (1989),
which compelled the imposition of a life term of PPS. By
contrast here, defendant argues, he received a determinate
sentence of imprisonment under the sentencing guidelines
and, pursuant to former OAR 253-05-002(2)(c) (1989), the
PPS term corresponding to his Crime Category 11 offense
was three years.2 The state counters that Morgan squarely
controls the present case and requires the imposition of lifetime PPS.
         Because defendant’s murder conviction is subject to
the sentencing law in effect when he committed the offense
in August 1993, we begin by setting out the pertinent statute. ORS 163.115 defines the crime of, and provides the sentence for murder, and the version of that statute applicable
to defendant’s conviction states:

   2
       Former OAR 253-05-002 (1989) provides:
       “(1) A term of community supervision shall be imposed as part of the
   sentence of any offender who is sentenced to prison as provided by these rules
   or as a departure. This term of community supervision shall be described as
   post-prison supervision.
       “(2) The duration of post-prison supervision shall be determined by the
   crime seriousness category of the most serious current crime of conviction:
         “(a) one year for Crime Categories 1-3;
         “(b) two years for Crime Categories 4-6; and
         “(c) three years for Crime Categories 7-11.”
4                                                  State v. Nobles

        “(3)(a) A person convicted of murder shall be punished
    by imprisonment for life.
        “(b) When a defendant is convicted of murder under
    this section, the court shall order that the defendant shall
    be confined for a minimum of 10 years without possibility
    of parole, release on work release or any form of temporary
    leave or employment at a forest or work camp.
        “(c) When a defendant is convicted of murder under
    this section, the court, in addition to the minimum required
    by paragraph (b) of this subsection, may order that the
    defendant shall be confined for a minimum term of up to an
    additional 15 years without possibility of parole, release on
    work release or any form of temporary leave or employment
    at a forest or work camp.”
ORS 163.115(3) (1989) (emphasis added). Thus, the statute
provided that the sentence for murder was an “indeterminate” life sentence—which represented the maximum possible term of incarceration, subject to the board of parole’s
determination, based on a matrix system, of how long a
given offender’s actual term of incarceration would be—with
a 10- to 25-year mandatory minimum term of incarceration.
         In 1989, however, the Oregon legislature had
enacted “determinate” sentencing guidelines, under which
the sentence imposed by the sentencing court represents
“the time an offender will actually serve, subject only to any
reduction authorized by law.” OAR 213-002-0001(3)(b); see
also State ex rel Engweiler v. Cook, 

, 

 (2006) (describing enactment of guidelines sentencing
scheme). “In enacting the guidelines, the legislature did
not explicitly repeal the indeterminate life sentence then
specified in ORS 163.115(3)(a) (1989), or otherwise address
expressly how an offender convicted for murder should be
sentenced for that offense.” Ambill, 

.
Ostensibly, then, there existed a tension between the former
indeterminate matrix scheme and the latter determinate
guidelines scheme as pertains to murder sentences.
        In Morgan, the Oregon Supreme Court addressed
the notion of any tension, concluding that “[n]either the
Criminal Justice Council nor the legislature saw any inconsistency between the guidelines and ORS 163.115(3). Nor do
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we.” 

. The court held that the legislature’s enactment of the sentencing guidelines had impliedly repealed
the indeterminate sentence of lifetime imprisonment set out
in ORS 163.115(3)(a) (1989). 

. If “imprisonment
for life” pursuant to ORS 163.115(3)(a) may be imposed at
all under the guidelines, the court suggested without deciding, it would have to be as an upward departure sentence.

. That conclusion contradicts defendant’s contention here that Morgan is distinguishable for the reason that
the Morgan defendant had received an indeterminate life
sentence; in fact, according to Morgan, no such sentence had
been available.
         Furthermore, the court recognized the “likely legislative intention” expressed by former OAR 253-05-004(1)
(1989), which provides:
      “The term of post-prison supervision for an offender
   serving a life sentence pursuant to ORS 163.105 or ORS
   163.115 shall be for the remainder of the offender’s life,
   unless the Board finds a shorter term appropriate. In no
   case shall the term of supervision be less than three years.”
The court understood that rule to express “[t]he likely legislative intention … that the period of [PPS] for persons
convicted of murder remains as before, with the exception
that the [BPPPS] could, if it finds a shorter term of [PPS]
appropriate, shorten the term of supervision to not less than
three years.” 

 (internal quotation marks omitted).
Consequently, the court remanded the case for entry of a
corrected judgment providing for the fixed terms specified
in ORS 163.115(3)(b) and (c), “but delet[ing] the sentence of
imprisonment for life and provid[ing] for post-prison supervision for the remainder of the defendant’s life, unless the
Board of Parole and Post-Prison Supervision finds a shorter
term appropriate.” 

 (emphasis added).
         Defendant maintains that Morgan does not control
the outcome of this case, because the Morgan defendant was
sentenced under ORS 163.115(3)(a) (1989), whereas defendant here was sentenced pursuant to the sentencing guidelines. But under Oregon case law, that is a distinction without a difference. On the same day that the Oregon Supreme
Court issued Morgan, the court issued its companion case:
6                                               State v. Nobles

State v. Bellek, 

, 

 (1993). For his murder conviction, the defendant in Bellek had received a sentence of life imprisonment with a 121-month minimum that
was the presumptive sentence corresponding to his guidelines grid block. State v. Bellek, 

, 

, adh’d to as modified on recons, 

,

 (1992), aff’d, 

, 

 (1993).
Despite the ostensible change in the sentencing authority
(from ORS 163.115 to the guidelines), the court resolved
Bellek in the same manner as it did Morgan: “For the reasons stated in [Morgan],” it remanded the case to the trial
court with directions to “delete the sentence of ‘imprisonment for life’ and impose, instead, a judgment that provides
for [PPS] ‘for the remainder of the [defendant’s] life, unless
the Board finds a shorter term appropriate.’ ” Bellek, 

 (quoting OAR 253-05-004(1) (1989) (second brackets
in Bellek; emphasis added)).
          The identical dispositions in Morgan and Bellek
undercut defendant’s argument that the proper PPS term
is contingent on the sentencing scheme relied on by the
sentencing court. Rather, based on those two decisions,
we understand the Oregon Supreme Court to construe the
pertinent sentencing law to predicate the imposition of lifetime PPS on the murder conviction. See Morgan, 

 (“The likely legislative intention [was] that the period
of [PPS] for persons convicted of murder remains as before,
….” (Emphasis added.)). As we have previously described,
the Morgan court had concluded:
    “[A] court sentencing an offender for murder should determine the term of incarceration by comparing the length of
    the term required under the guidelines with the length of
    the minimum term of confinement that the court otherwise
    would impose under [ORS] 163.115(3)(b) and (c) (1989), and
    then impose whatever term was longer.”

Ambill, 

 (emphasis added). In other words,
according to Morgan, the significance of sentencing under
ORS 163.115 (1989) versus sentencing under the guidelines
only extends to the length of the term of incarceration, and
not to the length of the term of PPS. Because Morgan held
that, under former OAR 253-05-004(1) (1989), the length of
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the PPS term for a murder conviction is for life, we must
adhere to that conclusion here.
         Defendant also posits that the Morgan court
remanded to the trial court for the imposition of lifetime
PPS as a matter of circumstance rather than as a matter
of law. In defendant’s view, the Morgan court remanded
the case with specific orders for the imposition of lifetime
PPS only because the trial court had intended to impose a
life sentence. In light of that intent, he argues, the court
fashioned a remedy that would allow for the intended “life
sentence” result—by imposing the determinate components
of ORS 163.115(3)(b) and (c) (1989) and a life term of PPS.
Defendant distinguishes that, in this case, the trial court
never attempted to impose a “life sentence.”
         Although Morgan and a number of cases relying on
it to remand a murder sentence for the imposition of lifetime
PPS indeed involved the initial imposition of a “life sentence,”3 we disagree that the Morgan court had not imposed
the lifetime PPS term as a matter of law. In Morgan, the
court discerned from former OAR 253-05-004(1) (1989) that
the legislative intent, in enacting the guidelines, was that
“the period of [PPS] for persons convicted of murder remains
as before,” subject to an exception. 316 Or at 560 (emphasis added). That statement is somewhat confusing, however, because the concept of “post-prison supervision” did
not exist before enactment of the guidelines; therefore, how
can it “remain[ ] as before”? The prelude to the court’s statement regarding the legislative intent offers some insight.
The court prefaced its observation of the legislative intent
by quoting with implicit approval the following argument by
the state:
    “ ‘Formerly, it is true, the life sentence mandated by ORS
    163.115(3) was an indeterminate sentence that authorized
    the defendant’s continued incarceration for the remainder of his life …. Under the guidelines scheme, the ‘life
    sentence’ for murderers no longer operates … to require
    3
      See, e.g., Bellek, 

; State v. Cannon, 

, 

 (1995); State v. Zelinka, 

, 

 (1994), rev den, 

 (1995); State v. Hostetter, 

, 

 (1993), rev den, 

 (1994); State v. Stewart, 

, 

, rev den, 

(1993).
8                                              State v. Nobles

    continued incarceration beyond the minimum/determinate
    term imposed; it requires only that the defendant shall
    remain within the jurisdiction of the department for the
    remainder of his life once he is released on post-prison
    supervision after having served the minimum sentence
    imposed.’ ”
Id. at 559 (emphasis added). In essence, the state had
argued that, before and after enactment of the guidelines,
a defendant convicted of murder was subject to some form
of lifetime supervision by the state—either while serving
an indeterminate life sentence (pre-guidelines) or a determinate prison term followed by a lifetime PPS term (postguidelines). Because the Morgan court quoted the state’s
argument with implicit approval, we understand it to conclude that a person convicted of murder under ORS 163.115
(1989) and after enactment of the guidelines was subject to
lifetime PPS as a matter of law.
         Given Morgan’s construction of the applicable sentencing law, as discussed above, and that decision’s binding authority, we conclude that the trial court did not err
in imposing a lifetime PPS term on defendant’s murder
conviction, even though it imposed defendant’s prison term
under the sentencing guidelines and did not impose a “life
sentence.”
         Affirmed.