State v. Moon

No. 199                March 12, 2025                    545

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 MEDERO PRINCE MOON,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                     000937205; A178630

   David F. Rees, Judge.
   Argued and submitted February 26, 2024.
   Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, Powers, Judge, and
Pagán, Judge.
   ORTEGA, P. J.
   Affirmed.
546   State v. Moon
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           ORTEGA, P. J.
          In 2003, defendant was convicted of aggravated
murder (Count 1), ORS 163.095 (1999), and first-degree kidnapping (Count 12), ORS 163.235 (1999), and we affirmed
that judgment on direct appeal. State v. Moon, 

, 

, rev den, 

 (2006). In 2016, a federal district court granted defendant habeas relief, vacating
his first-degree kidnapping conviction. In 2020, defendant
moved to modify the original judgment to reflect the district
court’s order and asked the circuit court to enter a conviction for first-degree murder on Count 1 pursuant to Senate
Bill (SB) 1013 (2019).1 After a hearing in 2022, the trial
court entered an amended judgment dismissing defendant’s
first-degree kidnapping conviction, and it denied defendant’s motion to modify his aggravated murder conviction
on Count 1.
         On appeal from that amended judgment, defendant
raises a single assignment of error contending that the trial
court erred in refusing to enter a conviction for first-degree
murder instead of aggravated murder on Count 1 because,
in his view, Count 1 was “the subject of sentencing proceedings” to which SB 1013 applies. Because defendant did not
argue below that the federal district court’s order entitled
him to resentencing on Count 1, and because defendant
has identified no other source of authority entitling him to
resentencing such that SB 1013 would apply, we conclude
that the trial court was not required to enter a conviction for
first-degree murder on Count 1 and therefore affirm.
          The relevant facts are procedural. In 2002, defendant pleaded guilty to first-degree kidnapping and to aggravated murder on allegations that, in the course of committing
first-degree robbery, he personally and intentionally caused
the death of another human being who was not a participant
in the robbery. In 2003, the trial court sentenced defendant
to life imprisonment with a 30-year minimum sentence for
aggravated murder and to a consecutive 230-month sentence

    1
      Enacted into law as Or Laws 2019, ch 635, SB 1013 “significantly changed
Oregon’s death penalty statutes.” Thompson v. Fhuere, 

, 

 (2024). For ease of reference, we refer to the enabling legislation throughout
this opinion.
548                                                         State v. Moon

for first-degree kidnapping, and it entered the original judgment of conviction and sentence.
         Defendant later sought habeas corpus relief in
federal court. The district court initially denied relief, but
the Ninth Circuit Court of Appeals reversed in part and
remanded. The court held that the district court “erred
in holding that … Moon could not overcome procedural
default under Schlup v. Delo, 

, 

, 

 (1995), by showing that he is actually
innocent of kidnap[p]ing.” Moon v. Coursey, 

 (9th Cir 2015). The court remanded to the district court
to allow defendant to “attempt to prove that he is actually
innocent of kidnap[p]ing under State v. Wolleat, 

,

 (2005),” and to allow the state to “present any
admissible evidence of Moon’s guilt” in rebuttal. Id. at 698
(internal quotation and citation omitted).2
         On remand, the district court concluded that defendant had “made a gateway showing of actual innocence of
Kidnapping sufficient to overcome his procedural default”
and that his “freestanding claim of actual innocence is cognizable and warrants federal habeas relief because Petitioner
has demonstrated he is factually innocent of Kidnapping in
light of an intervening change in the law.” Moon v. Coursey,
3:10-CV-00616-BR, 

, at *9, 11 (D Or July
28, 2016). The court began by emphasizing that “[i]n this
proceeding Petitioner is not challenging his conviction for
Aggravated Murder in the Course of a Robbery.” Id. at *5. The
court also noted that the state “stipulates the only evidence
that it intends to rely on to establish Petitioner committed
the crime of Kidnapping is the state records filed in this proceeding” and in his co-defendant’s pending habeas proceeding. Id. at *5 n 3. The court then concluded that defendant
was “factually innocent of Kidnapping” and emphasized
that “its recognition of a freestanding claim of actual innocence is premised on the unique circumstances of this case,”
including the state’s stipulation. Id. at *11-12. The court concluded as follows: “For these reasons, the Court GRANTS
Petitioner’s Amended Habeas Corpus Petition (ECF No. 13)

    2
      The court affirmed the district court’s denial of defendant’s ineffective
assistance of counsel claim.
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and VACATES Petitioner’s conviction for Kidnapping in the
First Degree entered in State of Oregon v. Moon, Multnomah
Circuit Court Case No. 00–09–37205.” Id. at *12.
         The state informed defendant’s habeas counsel that
it would not appeal that decision and that it had “taken the
necessary action to comply with the unconditional writ”
by forwarding the district court’s judgment to the Oregon
Department of Corrections (DOC) with instructions to “satisfy the judgment” by noting that the kidnapping conviction
was vacated and recalculating defendant’s sentence.
          No further action was taken in this case until 2020,
when defendant filed a pro se motion to correct the original judgment in the circuit court. ORS 137.172.3 Defendant
asserted that an amended judgment had never been entered
after his first-degree kidnapping conviction was vacated,
that he was entitled to “removing the charge of Aggravated
Murder under ORS 163.095 and correcting it with Murder
[in the first-degree] under ORS 163.115 … since the aggravating factor of the aggravated murder charge was vacated”
by the federal district court, and that his aggravated murder
sentence was “an error that requires re-sentencing” because
“[t]he current sentence imposed is not a lawful sentence without aggravating factors to support the conviction/sentence.”
Defendant requested that the court “schedule a re-sentencing
hearing and enter a second judgment reducing” his aggravated murder conviction on Count 1 to first-degree murder
“by correcting the language regarding the specific intent of
the [federal] courts for defendant to receive the appropriate
sentence of a 300 month mandatory minimum sentence”
under ORS 163.115 and ORS 137.700(2)(a)(A).4

    3
      ORS 137.172 provides, in relevant part:
    “(1) The trial court retains authority after entry of judgment of conviction
or a supplemental judgment, including during the pendency of an appeal, to
modify the judgment, including the sentence, to correct any arithmetic or clerical errors or to delete or modify any erroneous term in the judgment.”
    4
      Under current law, criminal homicide constitutes murder in the second
degree when it is committed by a person who commits robbery in the first degree
and, in the course of and in furtherance of that crime, the person causes the
death of a person other than one of the participants in the crime. ORS 163.115(1)
(b)(G). However, ORS 163.107(1)(j) provides that second-degree murder under
ORS 163.115(1)(b) constitutes first-degree murder when the defendant personally
and intentionally committed the homicide under those circumstances.
550                                                      State v. Moon

         In 2022, defendant appeared with counsel at a
hearing in the circuit court. Through counsel, defendant
first explained that he was “requesting [a] new judgment
after the Kidnapping charge … was dismissed, leaving the
sole count of Count 1, which is Aggravated Murder.” Defense
counsel acknowledged that “it has been corrected in the
records of the Department of Corrections, but what’s never
been done is that a new judgment has not issued” and that
the state was “in agreement that we do need to do a new
judgment at this point.”
         Defense counsel then turned to defendant’s motion
to modify the judgment and asked the court to “address that
motion as well so there’s not a motion kind of floating out
there when this judgment enters, hopefully, that the Court
puts in.” Defense counsel did not advance the precise argument defendant had made in his pro se motion and instead
asserted that “we are here for sentencing” and asked “under
the change in the law” wrought by SB 1013 that the court
“enter a judgment for Murder in the First Degree, as opposed
to the Aggravated Murder charge that was originally …
entered as a plea[.]” The court clarified that defendant was
seeking only a change in the name of the conviction and not
any change to the sentence:
      “THE COURT: So, substantively, you’re not asking for
   a change in the sentence that was imposed on Count 1, just
   the title of the count?
       “[DEFENSE COUNSEL:]             Yes.”
         The state objected and argued that, pursuant to the
federal district court’s order, the only action the court should
take was to enter a judgment reflecting that the first-degree
kidnapping conviction had been vacated “because, pursuant to [the district court’s] order, it doesn’t exist.” The state
acknowledged that the vacation of the first-degree kidnapping conviction had already been reflected “in front of DOC
and the Board of Parole” but that it had not been reflected
at “the Circuit Court level” and needed to be. But in the

    Under current law, the mandatory minimum sentence for second-degree
murder, ORS 163.115, is 300 months, ORS 137.700(2)(a)(A), and the mandatory
minimum sentence for first-degree murder, ORS 163.107, is 360 months, ORS
137.700(2)(a)(B).
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state’s view, the federal district court’s order “doesn’t change
the sentence,” the hearing was “not a resentencing hearing,”
and the court had “no jurisdiction” over “relabeling convictions or changing convictions or anything else.”
       The trial court agreed with the state and declined
to amend the judgment as to Count 1:
       “THE COURT: I don’t think the Court has any authority at this point over count 1. I don’t think I have the ability
   to reach into that [ ]count and make any amendment to it.
   It’s a final judgment that all post-judgment matters have
   been exhausted. I just don’t think this Court can reach into
   that and change anything at this point. So I’m not inclined
   to do that.”
The court entered an order denying defendant’s motion as
to Count 1 and an amended judgment that reflected that
the first-degree kidnapping conviction on Count 12 was dismissed. This appeal followed.
         On appeal, defendant first contends that the trial
court “was required to change the crime of conviction on
Count 1 from aggravated murder to first-degree murder
pursuant to SB 1013.” Defendant points out that, under current law, his conduct underlying Count 1 now constitutes
first-degree murder under ORS 163.107(1)(j), and that the
legislature intended SB 1013 to apply retroactively, viz., “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 (effective Sept 29, 2019) (emphasis added).
In defendant’s view, “because defendant was resentenced”
at the hearing on his motion to modify the judgment, which
was held after the effective date of SB 1013, current law
applies and his judgment of conviction should reflect that.
Alternatively, defendant argues that we should remand to
the trial court to reconsider its decision on the motion to
modify the judgment because, in his view, the court erroneously concluded that it lacked authority to modify Count 1
under ORS 137.172.
        As it did below, the state disputes that defendant
was resentenced or that he was entitled to resentencing
under the federal district court’s order. In the state’s view,
552                                                           State v. Moon

SB 1013 therefore does not apply to defendant and cannot
be triggered simply by filing a motion to amend under ORS
137.172.
         The Supreme Court has explained that “the legislature did not make SB 1013 retroactive as to sentences
imposed before its effective date.” State v. Bartol, 

, 

 (2021). “Thus, SB 1013 itself d[oes]
not provide an entitlement to a resentencing.” Thompson v.
Fhuere, 

, 

 (2024). “Instead, that
entitlement [to resentencing] must be found elsewhere.”

 Accordingly, the dispositive question in this appeal is
whether defendant has identified a source of law that entitled him to resentencing on Count 1. We conclude that he
has not.
         We begin with the federal habeas judgment. A court
with jurisdiction to review or to entertain a collateral attack
on a criminal judgment may order such relief within its
authority to reverse, vacate, or modify a judgment, including the sentence. See generally 

 - 2255 (governing habeas corpus); ORS 138.510 - 138.686 (governing
post-conviction relief); ORS 138.005 - 138.504 (governing
direct appeals). And we have explained that the trial court’s
authority on remand is circumscribed by the scope of the
specific relief ordered under the reviewing court’s relevant
governing authority. See, e.g., State v. Muyingo, 

, 

, rev den, 

 (2009) (“[W]hen
we have determined that there is a reversible error with
respect to fewer than all of the convictions or sentences
reflected in the judgment, we are required to ‘remand the
case to the trial court for resentencing on the affirmed count
or counts.’ [Former] ORS 138.222(5)(b).”)5; State v. Young,

, 

 (2011) (“We have held
in several cases that a remand for correction of a sentencing error after post-conviction relief does not allow the court
    5
      The legislature overhauled ORS chapter 138 in 2017. See State v. Colgrove,

, 

 (2022) (describing SB 896 (2017) as “a comprehensive bill addressing the procedural law governing criminal appeals that was submitted to the legislature by the Oregon Law Commission”). Among other things,
the legislature repealed former ORS 138.222 (2017), repealed by Or Laws 2017,
ch 529, § 26. Under current law, when an appellate court remands a case on direct
appeal, “the trial court, after issuance of the appellate judgment, may impose a
new sentence for any conviction.” ORS 138.257(4)(b).
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to fashion a completely new sentence” because “the post-conviction court is limited under ORS 138.520 to ordering
correction of the established error, and a remand to the trial
court for correction of the error does not give the trial court
carte blanche to formulate a new sentence.” (Footnote omitted.)); State v. Curry, 

, 

(2006) (“[T]he proper distinction is between the correction of
errors requiring resentencing on remand after direct appeal,
which the legislature has determined requires resentencing
on all convictions in a case [under former ORS 138.222(5)],
and the correction of errors identified in a collateral proceeding—including post-conviction, state or federal habeas
corpus, or mandamus proceedings—which, in the absence of
a legislative directive to the contrary, logically involves correction by the lower tribunal of only the identified error.”).
          Here, we first observe that the district court’s grant
of relief was limited to vacating defendant’s first-degree kidnapping conviction, which rendered that conviction a legal
nullity. See, e.g., United States v. Uriarte, 

(7th Cir 2020) (“We vacated that sentence, rendering it a
nullity, and directed the district court to resentence [the
defendant].” (Citing Pepper v. United States, 

,

, 

 (2011) (Vacatur “wipe[s] the
slate clean.”).)). The court’s reasoning in its written decision
makes clear that habeas relief was limited to defendant’s
first-degree kidnapping conviction and was warranted due
to the “unique circumstances of this case”—including that
defendant was not challenging his aggravated murder conviction and that the state had stipulated that the only evidence it intended to rely on to establish defendant’s guilt for
first-degree kidnapping was in the record before the court.
         We next observe that defendant did not immediately seek to enforce the habeas judgment in circuit court,
but rather acted only after the legislature passed SB 1013.
Indeed, contemporaneous emails between Department
of Justice counsel and defendant’s habeas counsel, which
defendant attached to his motion to modify, suggest that
counsel understood that the habeas judgment was limited
to granting relief on the first-degree kidnapping conviction
and that, practically speaking, the relief granted did not
554                                                          State v. Moon

require further action by the circuit court, given that DOC
had already recalculated defendant’s sentence to remove the
first-degree kidnapping conviction.
          Ultimately, we need not decide whether the federal
district court’s order vacating defendant’s first-degree kidnapping conviction entitled him to resentencing because
defendant did not argue that the habeas judgment affected
his aggravated murder conviction or sentence in any way.6
He did not, for example, argue that the consecutive sentence
for first-degree kidnapping was part of a sentencing “package” that required the court to reconsider the sentence for
aggravated murder, which is governed by a special statutory sentencing scheme. See ORS 163.105 (1999). Rather,
defendant simply argued that the law had changed and that
SB 1013 applied to him. But SB 1013 is not self-executing.
Thompson, 

. And although defendant asserted at
the hearing that he was “there for sentencing,” he expressly
asked the court not to impose a new sentence on Count 1.
         Because defendant did not argue that the federal
district court’s order entitled him to resentencing on Count
1, and because defendant has identified no other source
of authority entitling him to resentencing such that SB
1013 would apply, we conclude that the trial court was not
required to enter a conviction for first-degree murder on
Count 1.
         Defendant’s alternative argument fails for similar
reasons. “ ‘Oregon subscribes to the common-law rule that,
once a valid sentence is executed—that is, once a defendant
begins serving it—the trial court loses jurisdiction over
the case and, thus, power to modify the sentence.’ ” State v.
Gilbert, 

, 

 (2012) (quoting
State v. Johnson, 

, 

, rev den,

 (2011)). The legislature created an exception to
the common-law rule in providing a mechanism “to modify a
judgment, including the sentence, to correct any arithmetic
    6
      Although defendant’s pro se motion argued that vacating his first-degree
kidnapping conviction removed the aggravating factor underlying Count 1, he
did not present that argument at the hearing in the circuit court and does not
renew that argument on appeal. In any event, the aggravating factor underlying defendant’s aggravated murder conviction is first-degree robbery, not first-degree kidnapping.
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or clerical errors or to delete or modify any erroneous term
in the judgment.” ORS 137.172(1); see also Gilbert, 

 (so stating with regard to the predecessor to ORS
137.172, former ORS 138.083, repealed by Or Laws 2017,
ch 529, § 26).
         On appeal, defendant contends that the trial court
abused its discretion in denying his motion to amend the
judgment as to Count 1 because, in his view, the trial court
incorrectly concluded that it had no authority to do so under
ORS 137.172. But that argument depends on the premise
that SB 1013 rendered his aggravated murder conviction or
sentence erroneous. Again, because “SB 1013 itself d[oes]
not provide an entitlement to a resentencing,” Thompson,

, and because defendant has not identified any
source of authority to trigger application of SB 1013 to his
case, there was no basis for the court to conclude that Count
1 of the judgment contains an “erroneous” term under the
law that applied at the time defendant was convicted and
sentenced for aggravated murder.
        Affirmed.