State v. Wolfe
| Citation | 368 Or. 38,486 P.3d 748 |
| Decision Date | 06 May 2021 |
| Docket Number | CC 19CR34514 (SC S067623) |
| Parties | STATE of Oregon, Plaintiff-Appellant, v. Michael John WOLFE, Defendant-Respondent. |
| Court | Supreme Court of Oregon |
Patrick M. Ebbett, Assistant Attorney General, Salem, argued the cause and filed the briefs for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent.
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.
In Oregon, the crime of aggravated murder can be punished by death. In 2019, the state charged defendant with aggravated murder as that crime was then defined. Later in 2019, the legislature passed Senate Bill (SB) 1013, narrowing the definition of aggravated murder and amending the statute governing death penalty sentences. See Or. Laws 2019, ch. 635 (). The state filed an amended indictment charging defendant with aggravated murder as redefined by SB 1013. Defendant sought dismissal of the aggravated murder charge based on the ex post facto clauses of the Oregon and United States Constitutions. The trial court granted defendant's motion, and the state filed this direct, interlocutory appeal. We conclude that the trial court erred; we reverse the order of dismissal and remand the case to the trial court for further proceedings.
In June 2019, defendant was charged by indictment with three counts of aggravated murder and two counts of first-degree kidnapping, all alleged to have been committed on or about May 13, 2019. The first charge of aggravated murder alleged that defendant had "unlawfully and intentionally cause[d] the death of [WF], a human being under the age of fourteen years." The second and third aggravated murder charges alleged that defendant had killed two victims, WF and KF, in the same criminal episode. At that time, the crime of aggravated murder was defined to include both charged aggravating circumstances. See ORS 163.095(1)(f) (2017) (); ORS 163.095(1)(d) (2017) ().
Before defendant's trial occurred, the Legislative Assembly passed SB 1013. The Governor signed the bill, and the law took effect on September 29, 2019. As noted, that bill made changes to the definition of aggravated murder and the statute governing capital sentencing. We will describe those changes in more detail below.
In October 2019, the state responded to the passage of SB 1013 by obtaining an amended indictment, alleging only one count of aggravated murder. The state alleged that defendant "unlawfully, intentionally, and with premeditation cause[d] the death of [WF], a human being under the age of fourteen years." (Emphasis added.) The state also charged defendant with four counts of first-degree murder and two counts of first-degree kidnapping. All of those offenses were alleged to have taken place "on or about May 13, 2019 to May 15, 2019."
Defendant filed a motion to dismiss the amended aggravated murder charge, arguing that applying the new definition of aggravated murder to him violated the ex post facto clauses of the state and federal constitutions. Defendant reasoned that, because SB 1013 had changed the elements of aggravated murder after his crime had occurred, the amended statute could not constitutionally be applied to him.
The state responded with an argument that the conduct that defendant was charged with—the unlawful, intentional, and premeditated killing of a child under 14 years old—had been punishable as aggravated murder at the time of defendant's crimes. The state contended that, because the only pertinent change to the elements of the crime—the addition of the requirement that the murder be premeditated—was ameliorative, the ex post facto clauses did not prevent it from being applied to defendant.
The trial court agreed with the state and denied defendant's motion.
Defendant then filed a motion for reconsideration. In that motion, he made a different ex post facto argument based on SB 1013's change to the capital sentencing process. Before the enactment of SB 1013, Oregon law had required that four questions be submitted to the jury in the penalty phase of a death penalty trial. For the death sentence to be imposed, the state had needed to convince a jury, beyond a reasonable doubt, that the answer to each of the first three questions was "yes." ORS 163.150(1)(d) (2017). One of those first three questions had asked "[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." ORS 163.150(1)(b)(B) (2017). The fourth question had asked the jury whether the defendant should receive a death sentence. ORS 163.150(1)(b)(D) (2017). No specific burden of proof had been attached to that final question. SB 1013 altered those questions in two ways. First, it eliminated the "continuing threat" question. See Or. Laws 2019, ch. 635, § 5; ORS 163.150(1)(b). Second, it attached a "beyond a reasonable doubt" standard to the final question. See Or. Laws 2019, ch. 635, § 5; ORS 163.150(1)(d).
In his motion for reconsideration, defendant argued that, by removing the "continuing threat" question, SB 1013 had lessened the burden of proof that the state needed to carry before a death sentence could be imposed. He contended that the elimination of the "continuing threat" question, when applied to crimes committed before SB 1013 was enacted, was an ex post facto law under both the state and federal constitutions. Defendant argued that, as a result, he could not be charged with aggravated murder under SB 1013, and, therefore, that that charge should be dismissed.
In response, the state conceded that, "[a]bsent defendant's consent, * * * it would be an ex post facto violation to subject him to sentencing pursuant to Senate Bill 1013." However, the state argued that dismissal of the aggravated murder charge was not the appropriate remedy. Rather, the state argued, "[t]he remedy is to proceed with sentencing pursuant to the prior version of [ ORS 163.150(1)(b) ], the statute in effect at the time the defendant committed Aggravated Murder."
The trial court ruled for defendant and dismissed the aggravated murder charge.
The state filed an interlocutory appeal pursuant to ORS 138.045(1)(a), which permits the state to appeal from "[a]n order made prior to trial dismissing or setting aside one or more counts in the accusatory instrument." Because this is a murder case, the appeal came directly to this court. ORS 138.045(2).
The state's opening brief addresses the ex post facto argument that defendant made in his motion for reconsideration. As in the trial court, the state does not dispute that eliminating the "continuing threat" question is an ex post facto violation if applied to defendant without his consent. The state argues that the appropriate remedy for the violation is for defendant to be sentenced under the law that was in effect at the time of his offense. In the alternative, the state argues that, even if this court agrees with defendant that the ex post facto clauses preclude defendant from being sentenced to death at all, the trial court still erred in dismissing the aggravated murder charge, because even if defendant cannot be sentenced to death, he still can be convicted of aggravated murder.
In his answering brief, defendant takes a different approach to the issue. He devotes most of his brief to an argument that, by its own terms, SB 1013 does not permit him to be prosecuted for the crime of aggravated murder. He contends that, read in context, SB 1013 does not intend the new definition of aggravated murder to apply to crimes committed before its effective date and, instead, permits those crimes to be prosecuted only as first-degree murder.
Although defendant maintains that the trial court's decision should also be sustained on ex post facto grounds, that issue is briefed primarily by amicus curiae Oregon Capital Resource Center. Amicus presses both of the arguments raised by defendant in the trial court: that the change to the elements of aggravated murder make application of the current definition to defendant an ex post facto violation and that dismissal of the charge is the appropriate remedy for the ex post facto violation caused by the change in the questions posed to jurors in capital sentencing proceedings.
Because the arguments in this court are different than those presented in the trial court, we find it most useful to conduct our analysis by considering each of the arguments in support of affirmance. We take up defendant's statutory argument before considering his constitutional challenges, in accordance with our ordinary "first-things-first" approach.
State v. Algeo , 354 Or. 236, 242-43, 311 P.3d 865 (2013). To provide full context for that statutory argument, we set out the content of SB 1013 in greater detail than we did above.
In Oregon, aggravated murder is punishable by "death, life imprisonment without the possibility of release or parole or life imprisonment." ORS 163.105(1)(a). Before the enactment of SB 1013, aggravated murder was defined as "murder" that is "committed under, or accompanied by," any of the statutory aggravating circumstances. ORS 163.095 (2017).1 Those aggravating circumstances, numbering around a dozen in total, included that "[t]he victim of the intentional homicide was a person under the age of 14 years." ORS 163.095(1)(f) (2017).
SB 1013 restructured Oregon's murder statutes, limiting the circumstances in which the death penalty would be an available punishment. That...
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