State v. Rogers
Decision Date | 12 November 2021 |
Docket Number | CC CR8800355, SC S063700 |
Citation | 499 P.3d 45,368 Or. 695 |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Dayton Leroy ROGERS, Defendant-Appellant. |
Court | Oregon Supreme Court |
Ryan T. O'Connor, O'Connor Weber LLC, Portland, and Richard L. Wolf, Richard Wolf PC, Portland, argued the cause and filed the briefs for appellant.
Dayton Leroy Rogers filed the supplemental brief pro se.
David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General.
Karen A. Steele, Salem, and Frank E. Stoller, Dundee, filed the brief for amicus curiae Marco Montez.
Karen A. Steele, Salem, filed the brief for amici curiae Randy Lee Guzek and Robert Paul Langley, Jr.
Bert Dupré and Kenneth A. Kreuscher, Portland, and Mark A. Larrañaga, Seattle, filed the brief for amicus curiae Michael Martin McDonnell.
Before Walters, Chief Justice, and Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices, and Durham, Senior Judge, Justice pro tempore.*
In 1989, defendant was found guilty of multiple counts of aggravated murder in six consolidated cases and sentenced to death. In his initial appeal, we affirmed his convictions but reversed his death sentences and remanded for resentencing. State v. Rogers , 313 Or. 356, 836 P.2d 1308 (1992) ( Rogers I ). We have reversed sentences of death in this case and remanded for resentencing on two subsequent occasions, most recently in 2012. See State v. Rogers , 330 Or. 282, 4 P.3d 1261 (2000) ( Rogers II ); State v. Rogers , 352 Or. 510, 288 P.3d 544 (2012) ( Rogers III ). In his fourth penalty-phase trial, in 2015, defendant again received a sentence of death in each of the consolidated cases. This is an automatic and direct review of those sentences. ORS 138.052(1). For the reasons set out below, we reverse defendant's sentences of death and remand this case to the trial court for resentencing.
We described much of the relevant factual and procedural background in one of the prior appeals:
Rogers II , 330 Or. at 284, 4 P.3d 1261 (footnote omitted). We explained the breakdown of those charges as follows:
Rogers II , 330 Or. at 284 n. 2, 4 P.3d 1261. As noted, those convictions were affirmed by this court in Rogers I . This appeal concerns the death sentences that were imposed in defendant's fourth penalty-phase trial in 2015.
On appeal to this court, defendant filed an opening brief challenging his death sentences on numerous grounds.1 While briefing in this case was ongoing, the legislature enacted Senate Bill (SB) 1013 (2019), which made significant changes to Oregon's death penalty statutes. After SB 1013 took effect, defendant filed a supplemental opening brief raising additional assignments of error relating to the effect of SB 1013 on this case. In part, defendant's supplemental brief incorporated by reference arguments about the effect of SB 1013 that were made in State v. Bartol , 368 Or. 598, 496 P.3d 1013 (2021). In its answering brief, the state incorporated by reference the arguments that it had made in its supplemental briefs in Bartol .
368 Or. at 601, 496 P.3d 1013. Although SB 1013 retained the death penalty for narrower classes of conduct, none of the narrowed definitions applied in Bartol . Id. at 625, 496 P.3d 1013.
SB 1013 had the same effect in this case. Defendant's convictions rest on three theories of aggravated murder. The first is that each murder "occurred in the course of or as a result of intentional maiming or torture of the victim." ORS 163.095(1)(e) (1987). The second and third theories were that defendant "personally and intentionally committed" the murders in the course of committing or attempting to commit kidnapping or first-degree sexual abuse. See ORS 163.095(2)(d) (1987) ; ORS 163.115(1)(b)(E), (F), (H) (1987). SB 1013 reclassified all of those theories of aggravated murder as first-degree murder. See Or Laws 2019, ch. 635, §§ 1, 3; ORS 163.107(1)(e), (j). The conduct that defendant was found guilty of committing is no longer classified as aggravated murder, and it is no longer punishable by death. See ORS 163.107(2)(b) ( ).
As we explained in Bartol , that circumstance gives rise to a violation of the requirement, found in Article I, section 16, of the Oregon Constitution, that "all penalties shall be proportioned to the offense."2 "The basic proportionality concept that the gravity of an offense should correspond to the severity of the punishment gives rise to special rules for the death penalty." Bartol , 368 Or. at 621, 496 P.3d 1013. That is because death is " ‘an unusually severe punishment, unusual in its pain, in its finality, and in its enormity.’ " Id. at 622, 496 P.3d 1013 (quoting Furman v. Georgia , 408 U.S. 238, 287, 92 S Ct 2726, 33 L Ed 2d 346 (1972) (Brennan, J., concurring)). As a result, the proportionality requirement of Article I, section 16, entails that "the death penalty must be reserved for the ‘worst of crimes,’ and that there must be a ‘fundamental, moral distinction’ between crimes that are punishable by death and those that are not." Bartol , 368 Or. at 623, 496 P.3d 1013 (quoting Kennedy v. Louisiana , 554 U.S. 407, 438, 446-47, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (internal citations omitted)).
368 Or. at 625, 496 P.3d 1013. We reached that conclusion because SB 1013 applies only to sentencings that occur after its effective date, regardless of when the crime was committed. Or Laws 2019, ch. 635, § 30. As we explained in Bartol , "[t]hat provision shows that the legislature did not regard conduct committed before the effective date as more culpable than conduct committed after it." 368 Or. at 624, 496 P.3d 1013.
Id. The result is that "whether a person who committed conduct that was previously classified as ‘aggravated murder’ but is now classified as ‘murder in the first degree’ can be sentenced to death depends on the person's sentencing date, not on the relative gravity of the...
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