State v. Pinnell

• Decision Date: 04 October 1994
• Docket Number: Nos. CC,s. CC
• Citation: 877 P.2d 635,319 Or. 438
• Parties: STATE of Oregon, Respondent, v. Mark Allen PINNELL, Appellant. C88-00-26CR; SC S39190.
• Court: Oregon Supreme Court

Page 635

877 P.2d 635

319 Or. 438

STATE of Oregon, Respondent, v. Mark Allen PINNELL, Appellant.

Nos. CC C88-00-26CR; SC S39190.

Supreme Court of Oregon In Banc.

Argued and Submitted May 11, 1994.

Resubmitted and Reassigned June 3, 1994.

Decided Aug. 4, 1994.

Petition for Review Denied Oct. 4, 1994.

[319 Or. 439] Walter J. Todd, Salem, argued the cause and filed the brief for appellant.

Brenda JP Rocklin, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GRABER, Judge.

Defendant was convicted of aggravated murder and sentenced to death in 1988. This court affirmed that conviction but vacated the sentence of death and remanded the case to the trial court for a new penalty-phase proceeding. State v. Pinnell, 311 Or. 98, 806 P.2d 110 (1991).

On remand, the trial court conducted a new penalty-phase proceeding, and defendant again received a death sentence. The case comes before us on automatic and direct appeal from the sentence of death following remand. ORS 163.150(1)(g). In this appeal, defendant asks that his death sentence be vacated or, in the alternative, that his sentence be reduced to life in prison with the possibility of parole. ¹ We affirm.

STATUTORY SPEEDY TRIAL CLAIM

In his first assignment of error, defendant contends that the trial court erred in denying his motion to dismiss the penalty-phase proceeding on remand. That motion was based on the claim that the penalty-phase proceeding on remand did not begin in a timely manner under the speedy trial statutes, which are set out below.

The appellate judgment in State v. Pinnell, supra, became effective on April 19, 1991. On April 28, 1991, defendant sent to the district attorney a notice

"requesting the district attorney to bring the defendant to trial upon sentencing on the above encaptioned criminal matter pursuant to ORS 135.760(1) and pursuant to ORS 135.760(2) [and] advises the district attorney that the defendant is currently incarcerated in the Oregon State Penitentiary serving a twenty-year sentence, and further advises the district attorney that pursuant to ORS 135.763(1) the defendant demands such trial to occur within 90 days of the district attorney's receipt of this notice and further, that the defendant does not consent to any continuance herein pursuant to ORS 135.763(2)."

The district attorney received that notice on or about May 1, 1991.

On or about August 15, 1991, defendant filed a pro se motion to dismiss "all trial proceedings" with prejudice in this "criminal sentencing matter" on "the grounds that the defendant has not been brought to a sentencing trial by the district attorney within 90 days, pursuant to ORS 135.763(1)." The trial court considered the issue on more than one occasion and eventually denied the motion on December 20, 1991. The penalty-phase proceeding on remand commenced on March 9, 1992.

ORS 135.760 provides:

"(1) Any inmate in the custody of the Department of Corrections against whom there is pending at the time of commitment or against whom there is filed at any time during imprisonment, in any court of this state, an indictment, information or criminal complaint charging the inmate with the commission of a crime, may give written notice to the district attorney of the county in which the inmate is so charged requesting the district attorney to prosecute and bring the inmate to trial on the charge forthwith.

"(2) The notice provided for in subsection (1) of this section shall be signed by the inmate and set forth the place and term of imprisonment. A copy of the notice shall be sent to the court in which the inmate has been charged by indictment, information or complaint."

ORS 135.763(1) provides:

"The district attorney, after receiving a notice requesting trial under ORS 135.760, ORS 135.765(1) provides:

shall, within 90 days of receipt of the notice, bring the inmate to trial upon the pending charge."

"On motion of the defendant or the counsel of the defendant, or on its own motion, the court shall dismiss any criminal proceeding not brought to trial in accordance with ORS 135.763." ²

Defendant argues that "[t]he resentencing proceeding[, that is, the penalty-phase proceeding] is a trial," because it involves an "unresolved criminal proceeding, based on an indictment, that is procedurally exactly like a trial." As a result, defendant argues, ORS 135.760 through 135.765 apply to his penalty-phase proceeding. The state counters that "[t]he 90-day speedy trial statutes do not govern sentencing or resentencing proceedings," because, after a defendant has been convicted of a charge, the "indictment, information, or criminal complaint" against the defendant no longer is "pending at the time of commitment," as required by ORS 135.760(1).

To interpret the speedy trial statutes, we look for the legislative intent.

"In interpreting a statute, the court's task is to discern the intent of the legislature. To do that, the court examines both the text and context of the statute. That is the first level of our analysis.

"In this first level of analysis, the text of the statutory provision itself is the starting point for interpretation and is the best evidence of the legislature's intent. * * *

"Also at the first level of analysis, the court considers the context of the statutory provision at issue, which includes other provisions of the same statute and other related statutes. * * *

"If the legislature's intent is clear from the above-described inquiry into text and context, further inquiry is unnecessary."

PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993) (citations omitted).

The text of ORS 135.760(1) demonstrates that the statute applies to proceedings to determine a defendant's guilt. First, the statute refers to an inmate against whom an accusatory instrument is "pending" or "filed," "charging the inmate with the commission of a crime." That wording assumes that the inmate has not yet been adjudged guilty of committing the charged crime. Second, the statute provides for a notice asking the district attorney to "prosecute and bring the inmate to trial forthwith." The wording of the statute presupposes that no trial concerning the charged crime has yet begun; by contrast, an inmate who, after a trial, has been adjudged guilty of committing the charged crime already has been "prosecuted" for the commission of that crime. And, an inmate who has been found guilty after a trial no longer simply is "charg[ed] with the commission of a crime"; at that point, the inmate has, in the eyes of the law, committed the crime.

The text of ORS 135.763(1) is to a similar effect. It requires a district attorney who has received a speedy trial notice under ORS 135.760 to "bring the inmate to trial upon the pending charge." Under that wording, the charge must be "pending." In a penalty-phase proceeding following a trial at which a defendant has been found guilty, there no longer is a "pending" charge.

The text makes the legislative intent clear. ORS 135.760, 135.763, and 135.765 do not apply to proceedings in a capital case that occur after this court has vacated the defendant's sentence and has remanded the case to the trial court for a new penalty-phase proceeding. ³ The trial court did not err in denying defendant's motion, based on those statutes, to dismiss the penalty-phase proceeding on remand.

"TRUE LIFE" SENTENCING OPTION

A. "Motion to Dismiss/Demurrer"

During his penalty-phase proceeding on remand, defendant filed a motion to dismiss that proceeding and a demurrer to the underlying indictment. In his "Motion to Dismiss/Demurrer," defendant argued, among other things, that the application to him of the "true life" sentencing option ⁴ amounted to imposition of an ex post facto law in violation of Article I, section 21, of the Oregon Constitution, ⁵ and Article I, section 10, of the Constitution of the United States. ⁶ The trial court overruled the "Motion to Dismiss/Demurrer," reasoning (as pertinent here) that "true life" was a permissible sentencing option in defendant's case. In defendant's second assignment of error, he argues that the trial court erred in so doing.

In State v. Langley, 318 Or. 28, 861 P.2d 1012 (1993), and State v. Wille, 317 Or. 487, 501-05, 858 P.2d 128 (1993), this court held that the amendment adding the sentencing option of "true life" to the aggravated murder penalty statute does not apply to defendants who committed their crimes before July 19, 1989, the effective date of the amendment. In this case, defendant murdered the victim on September 19, 1985. Accordingly, the trial court erred in concluding that "true life" was a sentencing option applicable to defendant.

Nevertheless, the trial court did not err in overruling the "Motion to Dismiss/Demurrer." First, a demurrer to an indictment must be based on defects appearing on "the face" of the accusatory instrument. ORS 135.630; 135.640. The possible application of a "true life" sentence to defendant did not appear on the face of the indictment. Neither is the possible application of that sentence among the other grounds provided in ORS 135.630 for demurrers. ⁷

Second, the relief of dismissal requested by defendant in the "Motion to Dismiss/Demurrer" does not follow logically from defendant's argument. If there properly were two sentencing options, rather than three, defendant was entitled to jury instructions presenting those two options, rather than three. See State v. Langley, supra, 318 Or. at 30-31, 861 P.2d 1012 (jury instruction The trial court did not err in overruling the "motion to Dismiss/Demurrer" on the ground argued by defendant.

advising jurors that life imprisonment without possibility of parole was the presumptive sentence when death was not supported by the jury's findings was erroneous, because the application of that sentence to the defendant...