State of Or. v. PARTAIN, CC 03P3038

• Decision Date: 10 September 2010
• Docket Number: CA A132336,SC S057581,CC 03P3038
• Citation: 349 Or. 10,239 P.3d 232
• Parties: STATE of Oregon, Petitioner on Review, v. Richard Dale PARTAIN, Respondent on Review.
• Court: Oregon Supreme Court

349 Or. 10

239 P.3d 232

STATE of Oregon, Petitioner on Review, v. Richard Dale PARTAIN, Respondent on Review.

(CC 03P3038; CA A132336; SC S057581).

Supreme Court of Oregon,En Banc.

Argued and Submitted March 2, 2010.

Decided Sept. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

On review from the Court of Appeals. ^*

Susan G. Howe, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Ernest G. Lannet, Chief Deputy Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

GILLETTE, J.

This case concerns the propriety of a 600-month prison sentence imposed on a defendant in a sex abuse case, after the Court of Appeals had vacated the 420-month sentence that the trial court originally had imposed. On defendant's appeal from the second sentence, the Court of Appeals reversed, holding that the trial court had violated the rule announced by this court in State v. Turner, 247 Or. 301, 313, 429 P.2d 565 (1967)-that, when a defendant is retried after a successful appeal of his or her conviction, the court in the second proceeding may not impose a harsher sentence than had been imposed in the original proceeding. State v. Partain, 228 Or.App. 329, 208 P.3d 526 (2009). Before this court, the state argues that the rule from Turner either does not apply to the circumstances of this case or, in any event, should be abandoned in favor of a rule that permits imposition of a longer sentence on remand if the trial court is able to justify that sentence on nonvindictive grounds. We agree with the state that Turner should be abandoned. We also accept a version of the test that the state proposes, but we conclude that the question whether that test has been met requires further development of the record. We therefore affirm the decision of the Court of Appeals to remand the case to the trial court.

In 2003, defendant was convicted of multiple sex crimes-12 in all-in a single proceeding.

At sentencing, the trial court imposed various sentences and ordered that certain of the sentences be served consecutively to others. Altogether, the sentences required defendant to serve 420 months in prison. The judgment stated, with respect to each sentence, that defendant would not be eligible for any sentence reduction program.

Defendant appealed, arguing (1) that the trial court had erred in requiring that defendant serve the sentences imposed on four of the convictions consecutively to certain other sentences, and (2) that, with respect to the same four sentences, the trial court had erred in denying defendant eligibility for sentence reduction programs without making certain findings in open court that, under ORS 137.750, are required when sentences are so limited. At some point in the appeal, the state conceded error with respect to defendant'ssecond argument, and joined with defendant in a motion to vacate the erroneous sentences and to remand the entire case for resentencing. The Court of Appeals granted the motion.

On remand, no new evidence or information was placed on the record. In entering its sentence on remand, the trial court discharged the four sentences that had been the focus of defendant's appeal, but structured the remaining sentences in a way that resulted in an overall term of 600 months in prison. The court did not state any reasons for imposing the lengthier overall sentence.

Defendant appealed again, this time arguing that, because the total sentence imposed on remand was longer than the total sentence imposed in the original proceeding, the sentence violated the “no harsher sentence” rule of Turner (described more fully below, 349 Or. at 15-16, 239 P.3d at 236). Because Turner was a case involving a retrial rather than a resentencing, defendant also relied on a Court of Appeals decision- State v. Stockman, 43 Or.App. 235, 603 P.2d 363 (1979)-that held that the Turner rule applied when a case was remanded after a successful appellate challenge to a sentence on grounds other than excessiveness. The state responded that the rules of Turner and Stockman have been legislatively superseded by a 1993 amendment to ORS 138.222(5)(a), which provides that, when a case is remanded because of a sentencing error, the sentencing court “may impose a new sentence for any conviction in the remanded case.” Or. Laws 1993, ch. 692, § 2(5). The state also suggested that Turner was directed only at sentences that are imposed by a court to punish a defendant for seeking appellate review and that, in this case, the new sentences were based solely on the abhorrent nature of the crimes.

The Court of Appeals rejected the state's contention that the legislature impliedly repealed Turner and Stockman when it later amended ORS 138.222(5)(a). Partain, 228 Or.App. at 335, 208 P.3d 526. The court also rejected the state's suggestion that Turner prohibits harsher sentences on remand only when the sentencing court's motivation was to punish the defendant for appealing: It observed that, in Turner, this court explicitly described the rule as a prophylactic one, adopted to avoid the difficult task of determining a trial court's motives.

Id. at 335-36, 208 P.3d 526 (quoting Turner, 247 Or. at 314, 429 P.2d 565). Ultimately, the Court of Appeals concluded that, under this court's decision in Turner and its own decision in Stockman, the trial court had erred in imposing a greater total sentence on remand. Id. at 336, 208 P.3d 526. We allowed the state's petition for review.

The state argues that the Court of Appeals erred on two grounds: (1) the court failed to recognize that the Turner “no harsher sentence” rule is limited to cases in which the defendant has been retried after successfully challenging his or her conviction, and does not apply when a defendant is before a trial court solely for resentencing after successfully challenging the lawfulness of the original sentence ; and (2) the court also failed to recognize that, in light of certain changes in Oregon's sentencing laws, the Turner rule is no longer viable. Both of those arguments call for a close examination of the Turner case, a task to which we now turn.

The defendant in Turner was convicted of assault and initially received a five-year sentence. He successfully appealed his conviction and the case was remanded for a newtrial. In the second trial, defendant was convicted again, but this time the trial judge sentenced him to seven years in prison-two years more than the original trial court had imposed. The defendant appealed, arguing that the trial court could not constitutionally impose a longer prison sentence than the one imposed in the original trial.

In its opinion in Turner, the court described its overall methodology for analyzing the issue in terms of “weigh[ing] the public interest in being protected from persons found guilty of crimes and the individual's interest in exercising rights guaranteed him by constitution, statute or judicial decision.” 247 Or. at 312, 429 P.2d 565. The court identified the individual defendant's interest in terms of the statutory right of appeal, and it concluded that permitting a trial court to impose a more severe sentence after a successful appeal would have a “chilling effect” on a defendant's exercise of that right. Id. at 313, 429 P.2d 565. The court did not, however, explain its reasoning or identify any source of law for the balancing approach that it adopted.

The court in Turner then considered the public interest at issue, i.e., an interest in allowing trial courts to imposewhatever lawful sentences they deemed to be appropriate, including a harsher sentence, when defendants are retried after successfully appealing from some aspect of their previous conviction. The court suggested that the public interest in such a scheme was relatively weak, rejecting, as contrary to logic and its own prior case law, most of the reasons that had been offered for upholding a harsher sentence imposed after retrial. ¹ It then announced the results of its balancing analysis, holding that

“the interest of the public and the individual can best be served by the following rule: After an appeal or post-conviction proceeding has resulted in the ordering of a retrial for errors other than an erroneous sentence, such as in [ State v. Froembling, 237 Or. 616, 391 P.2d 390 (1964) and Froembling v. Gladden, 244 Or. 314, 417 P.2d 1020 (1966) ], and the defendant has again been convicted, no harsher sentence can be given than that initially imposed.”

Id.

After stating that rule, the court acknowledged that there might be some circumstances in which a harsher sentence on remand might be rational and justified-for example, when the first sentence was too lenient or when evidence relevant to sentencing that was not available to the judge in the first trial is available to the judge in the second trial. The court concluded, however, that requiring reviewing courts to distinguish between those legitimate harsher sentences and sentences that were merely vindictive would cause difficulties in judicial administration. It further concluded that the possible advantages associated with permitting trial courts to impose harsher sentences when there were nonvindictive reasons to do so were outweighed by the judicial efficiency that would result from following the simple prophylactic rule that it was announcing. Turner, 247 Or. at 314-15, 429 P.2d 565.

The court concluded by discussing the legal source of its new rule:

“There also remains the issue of whether the rule proposed should be grounded upon the due process or double jeopardy provisions of the state or federal constitutions or whether it should be grounded upon the statutes or the common law.

“We do not find it necessary to decide the constitutional...