38
Argued and submitted November 17, 2020; order of circuit court reversed, and
case remanded to circuit court for further proceedings May 6, 2021
STATE OF OREGON,
Plaintiff-Appellant,
v.
MICHAEL JOHN WOLFE,
Defendant-Respondent.
(CC 19CR34514) (SC S067623)
486 P3d 748
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 ORS 138.045(2) and ORAP 12.07.*
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,
______________
* Cynthia L. Easterday, Judge.
Cite as 368 Or 38 (2021) 39
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.
40 State v. Wolfe
WALTERS, C. J.
In Oregon, the crime of aggravated murder can be
punished by death. In 2019, the state charged defendant with
aggravated murder as that crime was then defined. Later
in 2019, the legislature passed Senate Bill (SB) 1013, narrowing the definition of aggravated murder and amending
the statute governing death penalty sentences. See Or Laws
2019, ch 635 (session law of enacted version of SB 1013). The
state filed an amended indictment charging defendant with
aggravated murder as redefined by SB 1013. Defendant
sought dismissal of the aggravated murder charge based on
the ex post facto clauses of the Oregon and United States
Constitutions. The trial court granted defendant’s motion,
and the state filed this direct, interlocutory appeal. We conclude that the trial court erred; we reverse the order of dismissal and remand the case to the trial court for further
proceedings.
I. BACKGROUND
In June 2019, defendant was charged by indictment
with three counts of aggravated murder and two counts of
first-degree kidnapping, all alleged to have been committed
on or about May 13, 2019. The first charge of aggravated
murder alleged that defendant had “unlawfully and intentionally cause[d] the death of [WF], a human being under
the age of fourteen years.” The second and third aggravated
murder charges alleged that defendant had killed two victims, WF and KF, in the same criminal episode. At that time,
the crime of aggravated murder was defined to include both
charged aggravating circumstances. See ORS 163.095(1)(f)
(2017) (intentional homicide of a person under the age of 14);
ORS 163.095(1)(d) (2017) (homicide of more than one victim
in same criminal episode).
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.
Cite as 368 Or 38 (2021) 41
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.” ORS 163.150(1)(d) (2017). One
of those first three questions had asked “[w]hether there
42 State v. Wolfe
is a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat
to society.” ORS 163.150(1)(b)(B) (2017). The fourth question
had asked the jury whether the defendant should receive
a death sentence. ORS 163.150(1)(b)(D) (2017). No specific
burden of proof had been attached to that final question.
SB 1013 altered those questions in two ways. First, it eliminated the “continuing threat” question. See Or Laws 2019,
ch 635, § 5; ORS 163.150(1)(b). Second, it attached a “beyond
a reasonable doubt” standard to the final question. See Or
Laws 2019, ch 635, § 5; ORS 163.150(1)(d).
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 SB 1013, and, therefore, that that charge should be
dismissed.
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 [ORS 163.150(1)(b)],
the statute in effect at the time the defendant committed
Aggravated Murder.”
The trial court ruled for defendant and dismissed
the aggravated murder charge.
The state filed an interlocutory appeal pursuant to
ORS 138.045(1)(a), which permits the state to appeal from
“[a]n order made prior to trial dismissing or setting aside
one or more counts in the accusatory instrument.” Because
this is a murder case, the appeal came directly to this court.
ORS 138.045(2).
Cite as 368 Or 38 (2021) 43
The state’s opening brief addresses the ex post facto
argument that defendant made in his motion for reconsideration. As in the trial court, the state does not dispute that
eliminating the “continuing threat” question is an ex post
facto violation if applied to defendant without his consent.
The state argues that the appropriate remedy for the violation is for defendant to be sentenced under the law that
was in effect at the time of his offense. In the alternative,
the state argues that, even if this court agrees with defendant that the ex post facto clauses preclude defendant from
being sentenced to death at all, the trial court still erred in
dismissing the aggravated murder charge, because even if
defendant cannot be sentenced to death, he still can be convicted of aggravated murder.
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.
44 State v. Wolfe
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.” ORS 163.105(1)(a). Before
the enactment of SB 1013, aggravated murder was defined
as “murder” that is “committed under, or accompanied
by,” any of the statutory aggravating circumstances. ORS
163.095 (2017).1 Those aggravating circumstances, numbering around a dozen in total, included that “[t]he victim
of the intentional homicide was a person under the age of
14 years.” ORS 163.095(1)(f) (2017).
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 ORS 163.095 and replaced them
with five narrower definitions of aggravated murder, including, as relevant to this case, the premeditated intentional
killing of a child under the age of 14. Or Laws 2019, ch 635,
§ 1. Second, SB 1013 created the new crime of first-degree
murder, and defined that crime using all the prior definitions of aggravated murder, which had been deleted from
ORS 163.095. Or Laws 2019, ch 635, § 3. For consistency,
SB 1013 also renamed “murder” to “second-degree murder,”
without changing its definition. Or Laws 2019, ch 635, § 4.
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. ORS 163.107(2). As a result, first-degree murder is a less serious offense than aggravated murder, but
a more serious offense than the unaggravated crime of
second-degree murder defined in ORS 163.115. All conduct
1
ORS 163.095 (2017) specifically referred to “murder as defined in ORS
163.115.” ORS 163.115(1)(a) (2017) defined murder to include “criminal homicide”
when it is committed intentionally.
Cite as 368 Or 38 (2021) 45
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, ORS 163.150(1)(b) (2017) provided that
the following four questions would be submitted to a capital
sentencing jury:
“(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. ORS
163.150(1)(e) - (f) (2017). The state bore the burden of proving
the answer to the first three questions beyond a reasonable
doubt. ORS 163.150(1)(d) (2017).
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; ORS 163.150(b)(B) (2017). As
amended by SB 1013, ORS 163.150(b) now requires the jury
to answer only three questions before a death sentence can
be imposed. At the same time, section 5 of SB 1013 amended
ORS 163.150(1)(d) to extend the “beyond a reasonable doubt”
46 State v. Wolfe
requirement, which previously had applied only to the other
questions, to the ultimate question of whether the defendant
should receive a death sentence. 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 from what the constitution requires, SB 1013’s new
definitions of aggravated murder do not apply to him, and
defendant did not raise that argument in the trial court.
That failing does not, however, bar defendant’s argument
in this case. Because the trial court ruled in defendant’s
favor, he can ask us to affirm the trial court on an alternative ground, provided that the appropriate prerequisites are
met. Outdoor Media Dimensions Inc. v. State of Oregon, 331
Or 634, 659-60,
20 P3d 180 (2001). Here, the issue is purely
one of law, and the state—which does not oppose our consideration of this issue—was not prejudiced by defendant’s failure to make this argument in the trial court. It is therefore
appropriate for us to consider defendant’s statutory argument as a basis for affirmance.
“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,
Cite as 368 Or 38 (2021) 47
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 and 671.610 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 ORS 163.107, was
created by section 3 of SB 1013. The new definition of aggravated murder is found in ORS 163.095, which was amended
by section 1 of SB 1013. The capital sentencing questions are
found in ORS 163.150, which was amended by section 5 of
SB 1013. Those amended statutes are listed in section 30 as
statutes whose amendments are subject to the retroactivity
provision; section 3 also is subject to the retroactivity provision even though it does not amend a statute.
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.”
48 State v. Wolfe
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 contends, because that aggravated
murder crime no longer exists, SB 1013 cannot be applied to
charge him with aggravated murder; SB 1013 can be applied
only to charge him with first-degree murder.
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 ORS 163.095 would apply and he
could be prosecuted for aggravated murder as that crime
was defined (without the premeditation element). And defendant’s position is not that all of SB 1013 applies to him—
if SB 1013 did apply to him in its entirety, then he could
be prosecuted for aggravated murder as that crime is now
defined (with the premeditation element). Rather, defendant
argues that SB 1013 should apply to prevent him from being
charged with aggravated murder under the former law but
not to permit him to be charged with that crime under the
new one.
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 ORS 163.095(1)(f)
apply—both its deletion of the old definitions of aggravated
murder and its addition of new definitions—or none of
them do; either former ORS 163.095 applies by its terms,
or amended ORS 163.095 applies by its. Section 30 does not
provide a middle ground. It expressly states that all of the
changes to ORS 163.095—including the addition of new definitions of aggravated murder—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.” In making those changes
in law applicable to defendant’s case, SB 1013 authorizes the
Cite as 368 Or 38 (2021) 49
state to charge defendant with aggravated murder under
current law, even though the law has changed since the
crime was committed.2
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.
2
Defendant relies heavily on a hypothetical to illustrate his point, involving
a bill that creates a new offense of “rocketcycling” while also reducing the penalties for other existing offenses. He contends that if that bill had a retroactivity
provision worded the same way as the one at issue here, the bill’s provisions prohibiting “rocketcycling” would not apply to conduct that occurred before the bill
took effect, but the bill’s provisions reducing the penalty for other offenses would
apply to all future prosecutions, regardless of when the conduct occurred. But
the hypothetical points to a different result only because of a legally significant
difference. In that example, “rocketcycling” was not a crime of any sort when the
conduct occurred, so, at least arguably, no “crime” was “committed” so as to trigger the retroactivity provision. Here, however, the charged conduct was a “crime”
at the time that it occurred.
50 State v. Wolfe
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 mark.
Defendant contends that the comparisons that he cites show
that the legislature would have preferred that he be prosecuted only for first-degree murder. Many of those arguments
invite us to pass on applications of SB 1013 that are not presented here, and which may raise difficult questions of their
own, questions that are not fully addressed in the briefing.
We decline to resolve more than is necessary to decide this
case. Section 30 of SB 1013 unambiguously makes all the
changes to ORS 163.095 applicable to defendant’s prosecution, and we are not free to substitute an unsupported
assumption about what the legislature would have wanted
to do for what it clearly did. Monaco v. U. S. Fidelity & Guar.,
275 Or 183, 188,
550 P2d 422 (1976) (“This court cannot correct clear and unambiguous language for the legislature so
as to better serve what the court feels was, or should have
been, the legislature’s intent.”).
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
Cite as 368 Or 38 (2021) 51
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 ORS 163.115 which is committed under, or accompanied by, any of the following circumstances,” including that “[t]he victim of the intentional
homicide was a person under the age of 14 years.” ORS
163.095(1)(f) (2017). As amended by SB 1013, ORS 163.095
contains an analogous, but not identical, definition of aggravated murder: “Murder in the second degree, as defined
in ORS 163.115, that is: … Premeditated and committed
intentionally against a person under 14 years of age.” ORS
163.095(2)(b).
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 ORS 163.115, it simply
renamed that crime “second-degree murder.” See Or Laws
2019, ch 635, § 4. And, under both versions of the law, homicide of a child under 14 qualified as aggravated murder only
if it was committed intentionally. ORS 163.095(1)(f) (2017);
ORS 163.095(2)(b). Under SB 1013, however, the homicide of
a child under 14 can only qualify as aggravated murder if
it was premeditated. ORS 163.095(2)(b). Thus, the crime of
aggravated murder now includes an additional element that
the former did not: the state must prove that the homicide
was premeditated.
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
3
While in some earlier ex post facto cases it was “our practice” to “construe
these particular state and federal provisions without distinguishing them,” State
v. Wille, 317 Or 487, 501-02,
858 P2d 128 (1993), in more recent cases “this court
did not defer to the federal ex post facto analysis, but instead relied on the formulation established in Priest v. Pearce,
314 Or 411,
840 P2d 65 (1992), to ascertain
the meaning of Article I, section 21,” State v. MacNab,
334 Or 469, 474,
51 P3d
1249 (2002). Our Article I, section 21, case law has diverged in places from the
Supreme Court’s application of the analogous provision. Thus, it is appropriate to
consider the two provisions separately.
52 State v. Wolfe
1. Article I, section 21
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,
Cite as
368 Or 38 (2021) 53
“[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 ORS 163.095(1)(f) (2017), which at the
time applied to any intentional murder of a child under 14.
Any defendant who committed aggravated murder as now
defined by ORS 163.095(2)(b) necessarily committed aggravated murder as previously defined by ORS 163.095(1)(f)
(2017).
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
54 State v. Wolfe
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.
Cite as
368 Or 38 (2021) 55
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 because “criminal defendants may choose, as they see
fit, either a jury or the court to serve as the factfinder for
the purpose of determining aggravating factors at sentencing.” Id. at 683. We also rejected the defendant’s argument
that SB 528 violates the ex post facto clause because it permits the introduction of additional, prejudicial evidence. We
again reasoned that the new law was not detrimental to the
defendant, saying that “SB 528 permits bifurcation of the
penalty phase from the guilt phase to avoid presenting prejudicial evidence to the jury when it determines guilt.”
Id. at
683. Finally, and most explicitly, we noted that,
“[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
56 State v. Wolfe
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
4
Amicus points to certain recent Indiana decisions, which it argues support
its position. Tyson v. State, 51 NE3d 88 (Ind 2016); Stroud v. State,
809 NE2d 274
(Ind 2004); Abernathy v. Gulden,
46 NE3d 489 (Ind Ct App 2015); Minton v. State,
802 NE2d 929 (Ind Ct App 2004). In Cookman, recognizing that the Indiana
constitution was the basis for Article I, section 21, we surveyed the Indiana
ex post facto decisions that would have informed the understanding of ratifiers in
Oregon, though we found it “readily obvious that those Indiana decisions do not
add much to this court’s previously announced understanding of Article I, section
21.”
324 Or at 29. Moreover, even if more recent Indiana decisions had any special
probative value, none of the cited cases recognize an ex post facto clause violation
in the absence of harm to defendants.
5
In some circumstances, addition of an element, while formally increasing
the state’s burden of proof, could be disadvantageous to a defendant by opening
the door to the introduction of prejudicial evidence that otherwise would be irrelevant. The defendant made an argument along those lines in Upton, 339 Or at
682-83, though there we held that the bifurcation of guilt and penalty phases
in enhancement factor sentencing negated that possibility, and so we did not
need to decide whether such a change would violate the ex post facto clause. We
do not need to decide that question here, either. Neither defendant nor amicus
advances such an argument. That choice is understandable, because it is difficult
to conceive of any evidence relevant to the element of premeditation that would
not already be relevant to the element of intent or to proving that the defendant
committed the murder. The addition of the requirement that the state prove premeditation increases the state’s burden of proof without opening the door to the
introduction of previously irrelevant and prejudicial testimony.
Cite as
368 Or 38 (2021) 57
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, under
the federal ex post facto clause, “ ‘[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” Wille,
317 Or at 502 (quoting
Collins,
497 US at 42 (alteration in Wille)). But Collins, far
from holding that any change to a crime’s elements was an
ex post facto violation, expressly stated that “the constitutional prohibition on ex post facto laws applies only to penal
statutes which disadvantage the offender affected by them.”
Collins,
497 US at 41. (Emphasis added.) Our passing quotation of an ambiguous line from Collins can hardly be read
as a holding to the contrary.
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
58 State v. Wolfe
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
Cite as 368 Or 38 (2021) 59
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 of the statute that permit “the State to charge a
defendant with aggravated murder for acts committed prior
to the statute’s creation[.]”
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
60 State v. Wolfe
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 truelife 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
Cite as
368 Or 38 (2021) 61
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 death penalty.”
Guzek,
336 Or at 433. However, the penalty phase statutes
were amended to also permit “admission of ‘any aggravating evidence’ under the fourth question.”
Id. We held that
that change violated the ex post facto clause when applied
to defendants who had committed their crimes before the
change.
Id. at 438. We therefore held that, on remand,
“[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 in ORS 163.150
(1)(b)(A) to (C) or in relation to rebuttal of any particular
mitigating evidence offered by defendant.”
Id. at 438-39.
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 ORS 174.040, amicus argues that we should
“remov[e] the provision from the effective date clause that
allows the State to charge a defendant with aggravated
murder for acts committed prior to the statute’s creation.”
Amicus contends that this would lead to more consistent
treatment of defendants who committed capital offenses
before the enactment of SB 1013.
62 State v. Wolfe
But that severability statute is not a license to
rewrite SB 1013. ORS 174.040 provides that
“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,” ORS 174.040(2), that a
broader portion of the statute must be held inapplicable to
defendant as well.6
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,
6
The state takes the position that SB 1013’s change to the fourth capital
sentencing question can be applied to “any capital sentencing proceeding in
defendant’s case” without raising ex post facto concerns, and defendant does not
appear to disagree. Neither party argues that that change is not severable. In
any event, the question before us is whether the trial court erred in dismissing
the aggravated murder charge and, though our reasoning may have additional
implications for sentencing procedures in defendant’s case should he assert his
ex post facto rights, other questions that may be relevant to sentencing are not
before us at this time.
Cite as 368 Or 38 (2021) 63
the question before this court is whether SB 1013’s changes
to the death penalty preclude the state from charging defendant with aggravated murder and seeking the death penalty. Our resolution of that question does not preclude defendant from raising different constitutional challenges to the
death penalty in the trial court, but those questions are not
before us at this time.
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.
