State v. Van Brumwell

• Decision Date: 31 March 2022
• Docket Number: CC 04C46225 (SC S068918)
• Citation: State v. Van Brumwell, 369 Or. 462, 507 P.3d 258 (Or. 2022)
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Jason Van BRUMWELL, Defendant-Respondent.
• Court: Oregon Supreme Court

369 Or. 462

507 P.3d 258

STATE of Oregon, Plaintiff-Appellant,

v.Jason Van BRUMWELL, Defendant-Respondent.

CC 04C46225 (SC S068918)

Supreme Court of Oregon.

March 31, 2022

Jennifer S. Lloyd, Assistant Attorney General, Salem, filed the motion for appellant. Also on the motion were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, filed the response to the motion for respondent.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices, and Nakamoto, Senior Judge, Justice pro tempore.^**

DUNCAN, J.

This criminal case is before us on the state's motion to determine whether it may appeal a trial court order that granted defendant's motion to preclude imposition of the death penalty and, if so, whether the appeal must be brought in this court or the Court of Appeals. For the reasons we explain below, we hold that the state may appeal the order and that the appeal must be brought in this court.

In this case, defendant was charged with two counts of aggravated murder. Following a jury trial, the trial court entered a judgment of conviction and sentence, imposing the death penalty. Defendant later brought a post-conviction relief action, and the post-conviction court ordered a new sentencing proceeding. Consequently, this case was reopened in the trial court, where—because of a law enacted while defendant's post-conviction case was on appeal, Senate Bill (SB) 1013 (2019)—the parties disagreed about whether defendant was subject to the death penalty. To provide necessary context for the parties’ arguments, we begin with a brief explanation of (1) the statutes that governed the death penalty when defendant was charged and convicted, (2) the indictment and judgment in defendant's case, and (3) how SB 1013 changed the statutes governing the death penalty.

Aggravated murder is the only Oregon crime subject to the death penalty. Prior to the enactment of SB 1013, Oregon had two categories of murder: "murder" and "aggravated murder." "Murder" was defined to include certain forms of criminal homicide, and "aggravated murder" was defined as "murder *** committed under, or accompanied by," any one of 12 enumerated aggravating circumstances. ORS 163.115(1) (2017), amended by Or. Laws 2019, ch. 635, § 4 (defining "murder"); ORS 163.095 (2017), amended by Or. Laws 2019, ch. 635, § 1 (defining "aggravated murder").

In 2003, while defendant was serving a prison sentence for the aggravated murder of a convenience store employee, defendant and another inmate killed a third inmate, DP. In 2004, a grand jury indicted defendant on two counts of aggravated murder for killing DP. Each count alleged a different aggravating circumstance:

"COUNT 1—The defendants, on or about 09/02/03 in Marion County, Oregon, did unlawfully and intentionally cause the death of [DP], another human being, defendant having been convicted previously of Aggravated Murder on 01/24/96 in Lane County Circuit Court of Oregon.

"COUNT 2—As part of the same act or transaction, as alleged in COUNT 1 above, the defendants on or about 09/02/03, in Marion County, Oregon, did unlawfully and intentionally, while defendant was confined in the Oregon State Penitentiary, a correctional facility , cause the death of [DP], another human being."

(Emphases added.) Thus, defendant was charged with two counts of aggravated murder for the same killing: one alleging that defendant had been convicted of aggravated murder previously and the other alleging that defendant had been confined in a correctional facility at the time of the charged killing.

Aggravated murder trials proceed in two phases: a guilt phase and a penalty phase. ORS 163.150. During the penalty phase, a jury must answer questions, prescribed by statute, including whether the defendant should be sentenced to death. Id. Defendant's case was tried to a jury and, at the conclusion of the guilt phase, the jury found defendant guilty of both counts of aggravated murder. The case proceeded to the penalty phase, at the conclusion of which the jury determined that defendant should be sentenced to death. Thereafter, the trial court entered a "Final Judgment and Sentencing Order" stating that defendant was "convicted of 2 Counts of AGGRAVATED MURDER as charged in Counts 1 and 2," which it set out in full. The judgment also stated that the counts "merge for the purpose of this sentencing order" and that defendant was "sentenced to death."

On direct review, this court affirmed the trial court's judgment. State v. Brumwell , 350 Or. 93, 249 P.3d 965 (2011). Defendant then brought a post-conviction relief action, challenging both his convictions and his sentence. The post-conviction court rejected defendant's arguments regarding his convictions but accepted his argument that his trial counsel had failed to provide adequate representation in connection with his sentencing. Accordingly, in 2015, the post-conviction court entered a judgment denying defendant's request for a new guilt phase but granting his request for a new penalty phase.

Both parties in the post-conviction case appealed the judgment. The Court of Appeals affirmed, and this court denied review.

Brumwell v. Premo , 297 Or. App. 498, 501, 443 P.3d 661, rev. den. , 365 Or. 819, 453 P.3d 1287 (2019).

While the post-conviction case was on appeal, the legislature enacted SB 1013, which, among other things, revised Oregon's murder statutes to narrow the crimes that can be punished by death. Or. Laws 2019, ch. 635; see also State v. Bartol , 368 Or. 598, 602-05, 496 P.3d 1013 (2021) (reviewing the legislative history of SB 1013). SB 1013 reclassified the various forms of murder in three ways. First, it redefined "aggravated murder" in ORS 163.095 by deleting the list of forms of murder in the statute and replacing it with a shorter list consisting of forms of murder that the legislature regarded as the most serious. Or. Laws 2019, ch. 635, § 1; Bartol , 368 Or. at 623, 496 P.3d 1013. Second, it converted all the forms of murder that had previously constituted "aggravated murder" to a new, less serious crime: "murder in the first degree." Or. Laws 2019, ch. 635, §§ 1, 3. And, third, it converted all the forms of murder that had previously constituted "murder" to a new, less serious crime: "murder in the second degree." Or. Laws 2019, ch. 635, § 4.

As relevant here, under SB 1013, the form of murder alleged in Count 1 of defendant's indictment—that is, murder after having been convicted of aggravated murder previously—is now classified as "murder in the first degree," ORS 163.107(1)(c), and the form of murder alleged in Count 2—that is, murder committed while confined in a correctional facility—is also now classified as "murder in the first degree," ORS 163.107(1)(h).¹ But a murder committed with both of those aggravating circumstances is now classified as "aggravated murder." ORS 163.095(2)(a).²

The changes SB 1013 made to the definitions of the different forms of murder apply to "crimes committed before, on or after the effective date of [SB 1013, September 29, 2019,] that are the subject of sentencing proceedings occur-ring on or after" that date. Or. Laws 2019, ch. 635, §§ 30, 31. The parties agree that, because the post-conviction court ordered a new penalty-phase hearing that has yet to occur, SB 1013's changes to the definitions of the different forms of murder apply to this case. But the parties disagree about the effect of those changes.

Defendant's position is that, although he was charged with two counts of aggravated murder as the crime was defined at the time, the conduct he was charged with now constitutes first-degree murder. Consequently, when this case was reopened in the trial court, defendant filed a motion titled "Motion to Preclude Death Penalty," which asked the court for an order "setting this case for a sentencing hearing," as opposed to a penalty-phase proceeding with a jury, as would be required if defendant were subject to the death penalty. See ORS 163.150 (governing sentencing for aggravated murder). In his motion, defendant asserted that, as a result of the enactment of SB 1013, his convictions had been "reclassified as first-degree murder—crimes not subject to the death penalty." Therefore, he further asserted, "a sentence of death and all of the associated procedural necessities that go along with that, [was] no longer available."

Anticipating that the state would argue that his convictions "contain the necessary elements for one of the newly enacted crimes constituting aggravated murder," defendant argued that he had not been "charged in one count with what now constitutes aggravated murder"; instead, he had been charged with "two counts of what now constitutes first-degree murder." Defendant further argued that his case had been returned to the trial court "for only one function—resentencing," and, therefore, the state could not "seek to amend charges that have resulted in conviction[s] which have been affirmed."

The state opposed defendant's motion to preclude the death penalty. As defendant had anticipated, the state sought to amend the indictment. The state argued that, when the counts in the indictment were considered together, defendant had been convicted of aggravated murder as it is currently defined. Therefore, the state proffered a "proposed amended indictment" that would convert the two counts into a single count by deleting all of the second count except the portion describing the aggravating circumstance. As authority for its proposed amendment, the state invoked Article VII (Amended), section 5(6), of the Oregon Constitution, which allows a district attorney to file an amended indictment "whenever, by ruling of the court, an indictment *** is held to be defective in form." The state contended that its proposed amendment was permissible because it was merely one of "form."

In addition, the state argued that the...