State v. Turner

• Decision Date: 21 June 1967
• Citation: 247 Or. 301,429 P.2d 565
• Parties: STATE of Oregon, Respondent, v. Leo TURNER, Jr., Appellant.
• Court: Oregon Supreme Court

Page 565

429 P.2d 565

247 Or. 301

STATE of Oregon, Respondent, v. Leo TURNER, Jr., Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 4, 1967.

Decided June 21, 1967.

Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed a brief for appellant.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.

DENECKE, Justice.

The defendant was convicted of assault with intent to rob and was sentenced to five years' imprisonment. He appealed and his conviction was reversed for constitutional error committed at his trial. State v. Turner, 241 Or. 105, 404 P.2d 187 (1965). He was retried before a different judge, convicted and sentenced to seven years' imprisonment with credit allowed for two years already served on the former sentence.

Defendant appeals solely upon the ground that the second trial court could not constitutionally impose a sentence longer than one amounting to five years' imprisonment with credit for the two years served.

State v. Froembling, 237 Or. 616, 391 P.2d 390, cert. den. 379 U.S. 937, 85 S.Ct. 339, 13 L.Ed.2d 347 (1964), and Froembling v. Gladden, 244 Or. 314, 417 P.2d 1020 (1966), concern this general problem. In February, 1958, Froembling was sentenced to life and to three terms of ten years each. All sentences were to run concurrently. On post-conviction the life sentence was held void. In May, 1963, Froembling was resentenced to 15 years, such period to commence after the three 10-year concurrent sentences were served. No credit on the 15-year sentence was given for the five years served.

The same judge imposed both sentences. The trial court stated that if it had known at the original sentencing that a life sentence could not be imposed it would have ordered that the sentences would run consecutively.

The essence of our decision is: 'Here the error in the original proceeding consisted of imposing the wrong sentence for the crime charged. When that is the case the trial judge must change the sentence to correct the error and he must exercise his discretion anew in arriving at what he considers an appropriate sentence.' 237 Or. at 619, 391 P.2d at 391.

We observed, however: 'We recognize that there are circumstances in which it would be mandatory upon the trial court in resentencing to give credit for time served, but this is not such a case.' 237 Or. at 619, 391 P.2d at 391.

In the post-conviction proceeding Froembling contended that the resentencing violated his right not to be placed in double jeopardy. We held: 'When, on resentencing, defendant receives no greater sentence than he could have been subjected to had there been no error in the original sentence, he has not been placed in double jeopardy.' 244 Or. at ---, 417 P.2d at 1021--1022.

The Froembling cases are distinguishable both upon their facts and their rationale. The sentencing court upon resentencing did not reassess the nature of the sentence appropriate for the case. It remained of the mind that a life sentence was appropriate; however, when it found that life was unauthorized, the court gave as long a sentence as was authorized.

Froembling was not prejudiced by his post-conviction petition or appeals. As a result of such proceedings he reduced the time he must serve to a total of 25 years rather than life. Forty-five years is apparently what the trial court would have originally sentenced if it had known that a life sentence was unauthorized.

Likewise, our early decision in State v. Steeves, 29 Or. 85, 43 P. 947 (1896), concerned a problem similar to the present question but not the precise question. There, the defendant was indicted for first-degree murder and found guilty of manslaughter. We held: '(A) conviction of a lower degree necessarily included within an indictment charging the commission of a greater crime, operates as an acquittal of all the degrees above it; and that a new trial, in the absence of a statute declaring the effect of a reversal of the judgment, must be confined to a retrial of the charge upon which the accused was convicted, or of a lower degree.' 29 Or. at 111, 43 P. at 954.

The discussion in that case commences with the quotation of Oregon's constitutional provision prohibiting double jeopardy (29 Or. at 107, 43 P. 947), but it is uncertain whether the decision is based upon constitutional grounds or establishes a rule of criminal practice. The above quotation states the rule, 'in the absence of a statute.' That latter phrase indicates the basis of the decision is not constitutional.

Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d

1119 (1957), was an appeal from a federal conviction and, in essence, applied the same principle as this court did in State v. Steeves, supra, 29 Or. 85, 43 P. 947. Green v. United States, supra, however, was decided squarely upon the federal constitutional prohibition of double jeopardy.

These two later decisions, as we above stated, are not controlling as their rationale is based upon two offenses, carrying two different maximum punishments, whereas, the present problem relates to only one offense with two different sentences imposed.

We are also of the opinion that the decisions from other jurisdictions in which a defendant was convicted of murder, given life, granted a new trial, again convicted, and then sentenced to death, are also not completely analogous. Oregon has not had a case involving such facts. People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963), does have such facts.

The California court held the defendant could not be sentenced to death upon retrial because such procedure would be in violation of California's constitutional prohibition of double jeopardy. The court believed the reasoning of Green v. United States, supra, was applicable and persuasive. Mr. Justice Traynor stated: 'It is immaterial to the basic purpose of the constitutional provision against double jeopardy whether the Legislature divides a crime into different degrees carrying different punishments or allows the court or jury to fix different punishments for the same crime.' 35 Cal.Rptr. at 86, 386 P.2d at 686.

The California court further reasoned: 'A defendant's right to appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.' 35 Cal.Rptr. at 86, 386 P.2d at 686.

The dissent points out that a majority of the jurisdictions deciding this question has held to the contrary. 35 Cal.Rptr. 77, 386 P.2d at 686. Annotation, 12 A.L.R.3d 978, 'Propriety of Increased Punishment on New Trial for Same Offense' (1967).

The application of the principle of double jeopardy to the circumstances present in People v. Henderson, supra, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677, appears to us to be questionable. ¹

The recent decision of Cichos v. State of Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966), seems to have determined in a non-capital case that a second harsher sentence is not a violation of the double jeopardy provision of the federal constitution.

In that case the defendant was initially convicted under a two-count affidavit charging reckless homicide and involuntary manslaughter. The verdict recited only that the defendant was found guilty of reckless homicide. The defendant was sentenced to one to five years and a $500 fine. The State Supreme Court reversed and granted a new trial. The defendant was retried on both counts and the jury returned the same form of verdict as it had on the first trial. The defendant was sentenced again to one to five years but was only assessed a $100 fine.

Under Indiana law both reckless homicide and involuntary manslaughter require the same elements of proof. The penalty for the former is one to five years and for the latter, two to twenty-one years. A conviction for one bars a prosecution for the other. The jury is instructed that the defendant can be found guilty on only one court. Reckless homicide is not a lesser included offense of involuntary manslaughter. This is a situation of one offense with two different penalties. Under Indiana law the jury's silence on the involuntary manslaughter count is not considered an acquittal on such count; rather is is the jury's determination that the defendant should be assessed the lesser penalty.

The majority held that this procedure did not place the defendant twice in jeopardy. The majority does not discuss the question of lack of prejudice.

The crux of the decision is that the defendant could be retried on both counts. The inescapable inference seems to be that the defendant could be found guilty at the second trial and given the maximum of 21 years and that this would not violate the double jeopardy provision of the federal constitution.

The majority does not discuss the effect of the procedure upon one's right to appeal. The dissent opined that the procedure violated the Due Process Clause by imposing an unreasonable limitation upon the right of appeal.

A numerical majority of the decisions from other jurisdictions supports the state's position in this case that upon resentencing the sentencing court can assess any sentence it believes appropriate within the maximum set by statute and the previous sentence is no limitation upon that authority. Annotation, 12 A.L.R.3d 978, 980, supra.

The cornerstone decision so holding is Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), holding that such procedure does not violate the federal constitutional ban on double jeopardy. The court approved a death sentence in a federal prosecution,...