State v. Tate, 111616 ORCA, A155551

Docket Nº:A155551
Opinion Judge:TOOKEY, J.
Party Name:STATE OF OREGON, Plaintiff-Respondent, v. WENDELL KENNETH TATE, Defendant-Appellant.
Attorney:Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attor...
Judge Panel:Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.
Case Date:November 16, 2016
Court:Court of Appeals of Oregon

282 Or.App. 320 (2016)

STATE OF OREGON, Plaintiff-Respondent,

v.

WENDELL KENNETH TATE, Defendant-Appellant.

A155551

Court of Appeals of Oregon

November 16, 2016

Argued and submitted September 28, 2015.

Clackamas County Circuit Court CR0700655 Jeffrey S. Jones, Judge. [*]

Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

Case Summary: Defendant appeals a judgment of conviction for aggravated murder. Defendant raises four assignments of error concerning the original penalty-phase proceeding of his trial and the sentence of life without parole that was imposed following the Court of Appeal's remand in State v. Tate, 254 Or.App. 509, 295 P.3d 683, rev den, 353 Or 562 (2013). In his first assignment, defendant argues that the trial court erred by "denying defendant's request for a new sentencing proceeding wherein he could present further evidence and argument, * * * ignor[ing] this court's remand order[, ] and deny[ing] defendant his statutory right to a new sentencing proceeding under ORS 138.222(5)." Held: ORS 138.222(5)(a) applies and, as a result, the trial court erred when it concluded that the Court of Appeal's remand order would not allow it to consider defendant's arguments pertaining to the true life sentence being imposed at the resentencing proceeding.

Remanded for resentencing; otherwise affirmed.

TOOKEY, J.

We consider this case for the second time on appeal after we remanded the case in State v. Tate, 254 Or.App. 509, 295 P.3d 683, rev den, 353 Or 562 (2013). Defendant raises four assignments of error concerning the penalty-phase proceeding of his trial and the sentence of life without parole imposed on remand. For the reasons that follow, we remand for resentencing and otherwise affirm.

The pertinent facts are mostly procedural and, for our purposes, undisputed. Defendant was indicted on one count of aggravated murder, ORS 163.095 (Count 1), one count of murder, ORS 163.115 (Count 2); and one count of burglary in the first degree, ORS 164.225 (Count 3). At the conclusion of the guilt phase of the trial, the jury found defendant guilty on all of the counts. In a separate penalty-phase proceeding, conducted pursuant to ORS 163.150, the state presented improper closing arguments, defendant objected, and the court sustained the objections and instructed the jury to disregard the prosecutor's comments. Defendant twice moved for a mistrial due to the prosecutor's improper rebuttal arguments. The trial court admonished the prosecutor for attempting to reargue the state's case instead of tying his arguments to defendant's closing arguments about the mitigating circumstances that justified a sentence of life with the possibility of parole. Ultimately, the trial court denied defendant's motions, stating that the prosecutor's "ineptness and inexperience is not a basis for a mistrial."

At the conclusion of the penalty-phase proceeding, the jury returned a special verdict rejecting the imposition of the death penalty or a sentence of life with the possibility of release or parole.1 Accordingly, as required by ORS 163.105(1)(a) and ORS 163.150(2)(a), the trial court imposed a sentence of life imprisonment without the possibility of release or parole (true life).

Following the entry of the judgment, defendant filed a motion in arrest of judgment arguing that "a defendant who enters a person's dwelling to kill him and personally and intentionally kills the person is guilty of a homicide and a burglary but not aggravated murder or felony murder under the felony merger doctrine." The trial court granted the motion in arrest of judgment and vacated the original judgment of conviction for aggravated murder (Count 1) and the true life sentence. The court issued an amended judgment dismissing the charge of aggravated murder, and it imposed a mandatory 300 month sentence without the possibility of parole for murder (Count 2) under ORS 137.700. The state appealed, asserting that, in light of our decision in State v. Dasa, 234 Or.App. 219, 227 P.3d 228, rev den, 349 Or 173 (2010), the trial court erred in granting defendant's motion in arrest of judgment and in vacating the original judgment with the aggravated murder conviction and sentence of true life. Tate, 254 Or.App. at 510.2 Defendant cross-appealed, raising seven assignments of error regarding the guilt phase of his trial. Id. In a per curiam opinion, we agreed with the state that Dasa controlled and rejected all of defendant's assignments of error on cross-appeal without discussion. Id. After we issued our opinion and the Supreme Court denied review, we issued our appellate judgment. The terms of the judgment were identical to the disposition of our opinion: "On appeal, order arresting judgment on Count 1 reversed and remanded, amended judgment vacated and remanded with instructions to reinstate conviction for aggravated murder, and for resentencing; on cross-appeal, affirmed." Id.

On remand, defendant sought a new sentencing proceeding under ORS 138.222(5), contending that he should be able to present arguments relating to the true life sentence being imposed.3 Defendant argued that (1) the state had improperly used victim impact evidence to argue the comparative worth of the victim and defendant; (2) the court erred when it allowed the prosecutor to make improper closing arguments during the penalty-phase proceeding; (3) ORS 163.150(2) is facially unconstitutional because it shifts the burden to the defendant to present sufficient mitigating circumstances to allow the jurors to make a further finding before imposing a life sentence with the possibility of release or parole; (4) ORS 163.150(2)(a) is facially unconstitutional due to vagueness; and (5) ORS 163.150 is unconstitutional as applied to defendant.[4]

The state responded that the trial court could impose only the true life sentence that it had originally imposed in accordance with the jury's special verdict on the aggravated murder charge under ORS 163.150(1)(b) and ORS 163.150(2)(a). The state further argued that if this court had intended for the defendant to receive a new penalty-phase proceeding on remand this court "would have made it explicit in [our] order to allow for a new hearing." The state also asserted that ORS 138.222 (5)(a) would not allow the trial court to hold a new sentencing proceeding on remand in this case because that statute requires us to "remand the entire case for resentencing" only if we determine that the trial court "in imposing a sentence in the case, committed an error that requires resentencing, " and, in this case, the true life sentence for aggravated murder had not been imposed.

The trial court ruled that it did not have the authority to hold a new penalty-phase proceeding or reach the other issues raised by defendant at the resentencing proceeding. The court concluded: " [T]he Court of Appeals returned this case to the Clackamas County Circuit Court for resentencing. And in this case, resentencing means reinstating the aggravated murder conviction and the sentence. The Court does not believe that this allows for a new sentencing hearing. It does not allow for the impaneling of a new jury to decide * * * the sentence. But instead, the jury that heard the trial in 2009 and the penalty-both phases of the trial in 2009, that that jury's decision should be reinstated and followed.

"So there are certain issues that have been raised by the defense, and those issues include the fact that there was an improper argument [during] the penalty-phase in which there was, as argued by the defense, improper victim impact evidence with a comparison of the victim's life with the defendant's; that there were improper closing arguments by the State; that there is essentially a shifting of the burden of proof to the defense to show that the defendant is entitled to a life sentence with the possibility of parole, and that the requirement of mitigating circumstances in order to reach such a sentence is vague.

"And then today additionally the argument has been made that a life sentence is unconstitutional as applied to Mr. Tate. And even if this court felt that there was authority to reach those issues, I don't believe that those are a sufficient basis to overturn the jury's decision that a true life sentence is appropriate.

"So to sum up, I do not believe this court has the authority to do anything other than reinstate the aggravated murder sentence. And accordingly, that will be the judgment in this case.

"So as to aggravated murder, the sentence will be a life sentence without the possibility of parole and the judgment can be prepared * * * to make clear that that is without the possibility of eligibility for alternative programs."

In his first assignment, defendant argues that the trial court erred by "denying defendant's request for a new sentencing proceeding wherein he could present further evidence and argument, *** ignor[ing] this court's remand order[, ] and deny[ing] defendant his statutory right to a new sentencing proceeding under ORS 138.222(5)." The state responds that "under this court's previous remand order and 'law of the case' principles, the trial court had no authority to vacate the jury's penalty-phase verdict and order a retrial of the penalty-phase." At oral argument before this court, defendant acknowledged that he was not "arguing that automatically it...

To continue reading

FREE SIGN UP