State v. Bartol, CC 14C46903 (SC S064485)

• Court: Supreme Court of Oregon
• Writing for the Court: DUNCAN, J.
• Citation: 496 P.3d 1013,368 Or. 598
• Docket Number: CC 14C46903 (SC S064485)
• Decision Date: 07 October 2021
• Parties: STATE of Oregon, Plaintiff-Respondent, v. David Ray BARTOL, Defendant-Appellant.

368 Or. 598
496 P.3d 1013

STATE of Oregon, Plaintiff-Respondent,
v.
David Ray BARTOL, Defendant-Appellant.

CC 14C46903 (SC S064485)

Supreme Court of Oregon, En Banc.

Argued and submitted November 14, 2019.
October 7, 2021

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. Timothy A. Sylwester and Jordan R. Silk, Assistant Attorneys General filed the briefs. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, and Richard L. Wolf, Richard L. Wolf PC, Portland, filed the brief for amicus curiae Oregon Capital Resource Center.

DUNCAN, J.

496 P.3d 1015

368 Or. 600

This death penalty case is before this court on automatic and direct review. ORS 138.052(1). In the trial court, defendant was convicted of aggravated murder and sentenced to death. On review, defendant makes numerous challenges to both his conviction and sentence. We reject defendant's challenges to his conviction.¹ But we accept one of his challenges to his sentence. Specifically, we accept his challenge based on Article I, section 16, of the Oregon Constitution, which prohibits disproportionate punishments. As we explain below, after defendant was convicted and sentenced, the legislature enacted Senate Bill 1013 (2019), which, among other things, reclassified the criminal conduct that had constituted "aggravated murder," which can be punished by death, to "murder in the first degree," which cannot be punished by death. The enactment of SB 1013 reflects a legislative determination that, regardless of when it was committed, the conduct that had constituted "aggravated murder" does not fall within the narrow category of conduct for which the death penalty is appropriate. Given that determination, we conclude that, although the legislature did not make SB 1013 retroactive as to sentences imposed before its effective date, maintaining defendant's death sentence would violate Article I, section 16. Therefore, we affirm defendant's conviction but reverse his death sentence and remand the case for resentencing.

I. BACKGROUND

While in custody in the Marion County Jail awaiting trial, defendant killed another person who was also in custody. The state charged defendant with aggravated murder, which, at the time, was defined to include murder committed by a person who was "confined in a state, county or municipal penal or correctional facility or was otherwise in custody when the murder occurred." ORS 163.095(2)(b) (2013), amended by Or Laws 2019, ch. 635, § 1. Aggravated

368 Or. 601

murder is the only Oregon crime punishable by death. The state sought the death penalty, and, after a jury trial, defendant was convicted of aggravated murder and sentenced to death. This automatic and direct review followed.

After the parties filed their initial briefs on review, the 2019 Legislative Assembly enacted Senate Bill (SB) 1013 (2019), which substantially revised Oregon's death penalty statutes. Or Laws 2019, ch. 635.

A. SB 1013

Prior to the enactment of SB 1013 in 2019, Oregon had two categories of murder: "murder" and "aggravated murder." "Murder" was defined to include certain forms of criminal homicide, ORS 163.115(1) (2013), amended by Or Laws 2019, ch. 635, § 4, and "aggravated murder" was defined as " ‘murder’ * * * committed under, or accompanied by," any one of 12 enumerated aggravating circumstances, ORS 163.095 (2013), amended by Or Laws 2019, ch. 635, § 1. Thus, prior to SB 1013, murder committed under or accompanied by any one of 12 aggravating circumstances

496 P.3d 1016

could result in a death sentence. ORS 163.105(1)(a) (2013) ; Or Const, Art I, § 40.

SB 1013 changed that. It created a new category of murder, "murder in the first degree"; reclassified all the forms of murder that previously had been "aggravated murder" as "murder in the first degree"; and provided a maximum sentence of life imprisonment without the possibility of parole for "murder in the first degree." Or Laws 2019, ch. 635, §§ 1, 3(1), (2). Thus, SB 1013 eliminated the death penalty for all the forms of murder that had previously been eligible for it, including the form that defendant had committed—murder committed when confined to a penal or correctional facility or otherwise in custody.

Although SB 1013 eliminated the death penalty for all the forms of murder that previously had been eligible for it, SB 1013 did not eliminate the death penalty entirely. It redefined "aggravated murder" to include different forms of murder, most of which are more serious forms of murder than those previously been classified as "aggravated murder." Or

368 Or. 602

Laws 2019, ch. 635, § 1; ORS 163.095.² The forms of murder that constitute "aggravated murder" under the new definition can be punished by death. ORS 163.105(1)(a).³

The legislative history of SB 1013 shows that the legislature's purpose in narrowing the definition of "aggravated murder" was to ensure that Oregon's death penalty statutes do not violate the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishments, including disproportionate punishments. The United States Supreme Court has held that the Eighth Amendment requires that the death penalty be "limited to

368 Or. 603

those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ " Roper v. Simmons , 543 U.S. 551, 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (quoting Atkins v. Virginia , 536 U.S. 304, 319, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) ). Testifying in support of SB 1013, former Oregon Chief Justice Paul J. De Muniz told legislators that the "definition of aggravated murder in SB 1013 narrows the cohort of murderers eligible to be put to death by the state, to the ‘worst of the worst,’ consistent with the requirements of the Eighth Amendment to the United States [Constitution]." Testimony, Senate Committee

496 P.3d 1017

on Judiciary, SB 1013, Apr. 1, 2019, Ex 24 (statement of Paul J. De Muniz). Likewise, Stephen Kanter, former Dean of Lewis & Clark Law School, testified that "[w]hat SB 1013 does finally is reduce aggravated murder in Oregon to that very close[,] narrow category demanded by the US Supreme Court." Testimony, Senate Committee on Judiciary, SB 1013, Apr. 1, 2019, Ex 3 (statement of Stephen Kanter).

Opponents of SB 1013 understood that passage of the bill would reflect a new assessment of the gravity of the criminal conduct that was classified as "aggravated murder" at the time. In written testimony, Marion County Deputy District Attorney Katie Suver stated that the bill would change the "entire definition of Aggravated Murder" and, thereby, "repeal what the voters knew to be Aggravated Murder in 1984," when they enacted the death penalty statute that SB 1013 would amend. Testimony, House Committee on Rules, SB 1013, June 5, 2019, Ex 14 (statement of Katie Suver). Lane County District Attorney Patricia Perlow argued that the legislature should not reclassify the conduct that was classified as "aggravated murder" at the time because the 12 aggravating circumstances in the definition were "truly * * * aggravated circumstances, worthy of whatever our most severe punishment is going to be." Video Recording, Senate Committee on Judiciary, SB 1013, June 5, 2019, at 1:22 (testimony of Patricia Perlow), https://olis.oregonlegislature.gov (accessed Sept. 23, 2021).

When SB 1013 was presented on the floor of each legislative chamber, legislators told their colleagues that SB 1013 would narrow the definition of "aggravated murder"

368 Or. 604

so that it would apply only to the "worst of the worst," in order to comply with constitutional requirements. Senator Prozanski carried the bill on the Senate floor, explaining:

"What Senate Bill 1013 will do is the following. It will narrow the number of circumstances that qualif[y] for aggravated murder. Specifically, premeditated and intentional killing of two or more individuals carrying out a terrorist act would be a qualifier. Also, committing murder while the individual is incarcerated in a corrections facility and has already been previously convicted of any type of homicide. Third, for the intentional and premeditated murder of a victim under the age of 14[.]"

Video Recording, Senate Committee on Judiciary, SB 1013, May 21, 2019, at 38:00 (statement of Sen. Floyd Prozanski), https://olis.oregonlegislature.gov (accessed Sept. 23, 2021). After discussing the history of the death penalty in Oregon, Senator Prozanski discussed the constitutional concerns that motivated the bill:

"Currently, aggravated

...