State v. Worth

• Decision Date: 16 October 2019
• Docket Number: A165894
• Citation: 452 P.3d 1041,300 Or.App. 138
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Joseph WORTH, Jr., Defendant-Appellant.
• Court: Oregon Court of Appeals

300 Or.App. 138
452 P.3d 1041

STATE of Oregon, Plaintiff-Respondent,
v.
Joseph WORTH, Jr., Defendant-Appellant.

A165894

Court of Appeals of Oregon.

Argued and submitted January 17, 2019.
October 16, 2019

Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

Before Powers, Presiding Judge, and Egan, Chief Judge, and James, Judge.

JAMES, J.

300 Or.App. 140

This is the third time this case has been before us on appeal. In this decision (Worth III ), we must confront an issue left unresolved in State v. Worth , 274 Or. App. 1, 360 P.3d 536 (2015), rev. den. , 359 Or. 667, 379 P.3d 528 (2016) (Worth II ). Specifically, defendant argues (as he did in Worth II ) that application of State v. Partain , 349 Or. 10, 239 P.3d 232 (2010) —which permits, subject to certain limitations, the imposition of a harsher sentence on remand following an appeal than that which was originally imposed—to his case would violate Article I, section 21, of the Oregon Constitution, which states that "[n]o ex-post facto law * * * shall ever be passed." Alternatively, defendant argues that application of Partain in this instance would violate principles of notice, foreseeability, and fair warning guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We affirm.

An understanding of the issues present in this appeal requires a detailed recitation of the procedural timing of the life of this case. Defendant’s first trial occurred in February 2007. A jury found defendant guilty of multiple sexual crimes. The court sentenced defendant to consecutive Measure 11 sentences of imprisonment: 90 months on Count 1; 75 months each on Counts 4, 5, and 6; 100 months on Count 7; and 70 months on Count 8, for a total of 485 months in prison. Defendant chose to appeal that judgment of conviction, filing his notice of appeal in July 2007. He was represented in that appeal by the Oregon Office of Public Defense Services (OPDS). At that time, pursuant to State v. Turner , a defendant considering the costs and benefits of prosecuting an appeal understood that "[a]fter an appeal or post-conviction proceeding has resulted in the ordering of a retrial for errors other than an erroneous sentence *** and the defendant has again been convicted, no harsher sentence can be given than that initially imposed." 247 Or. 301, 313, 429 P.2d 565 (1967). We took the appeal under advisement on March 31, 2009.

452 P.3d 1043

While we had defendant’s appeal under advisement, the state petitioned for review by the Supreme Court of our decision applying the Turner rule in

300 Or.App. 141

State v. Partain , 228 Or. App. 329, 208 P.3d 526 (2009). In that petition, the state explicitly asked the Supreme Court to disavow the Turner rule and hold that a defendant could receive a harsher sentence on retrial, following a successful appeal. The defendant in Partain , also represented by OPDS, filed a response to the state’s petition for review arguing that Turner should not be overruled.

In State v. Worth , 231 Or. App. 69, 72, 218 P.3d 166 (2009), rev. den. , 347 Or. 718, 226 P.3d 709 (2010) (Worth I ), we reversed defendant’s conviction and remanded for a new trial. Our opinion issued September 30, 2009. Approximately one week later, the Supreme Court granted the state’s petition for review in Partain .

After the Supreme Court granted the petition for review in Partain , the state petitioned for review of our decision in Worth I . Although the Supreme Court ultimately denied that petition, that process delayed issuance of the appellate judgment until April 2010. By that time, oral arguments in Partain had been held before the Supreme Court. And although the Supreme Court’s opinion had not yet issued in Partain , the petition, the response to the petition, the competing merits briefs, and the oral argument all clearly indicated—at a minimum to the attorneys involved in the litigation, if not the wider bar—that the continued applicability of Turner was being challenged.

On September 10, 2010, the Supreme Court disavowed Turner in Partain , holding that a defendant can receive a harsher sentence following an appellate remand, subject only to the federal constitutional limits proscribed by North Carolina v. Pearce , 395 U.S. 711, 719, 89 S. Ct. 2072, 23 L.Ed. 2d 656 (1969) :

"We therefore decline to posit anything other than the Pearce standard, as modified by the Court in the manner noted, as the applicable standard in cases of resentencing in Oregon: If an Oregon trial judge believes that an offender whom the judge is about to resentence should receive a more severe sentence than the one originally imposed, the judge’s reasons must affirmatively appear on the record. Those reasons must be based on identified facts of which the first sentencing judge was unaware, and

300 Or.App. 142

must be such as to satisfy a reviewing court that the length of the sentence imposed is not a product of vindictiveness toward the offender. Absent such facts and reasons, an unexplained or inadequately explained increased sentence will be presumed to be based on vindictive motives, and will be reversed."

Partain , 349 Or. at 25-26, 239 P.3d 232.

Defendant’s second trial began 11 days later, on September 21, 2010. But there, unlike in the first trial, the state alleged defendant to be a dangerous offender, subject to sentencing requirements pursuant to ORS 161.725. The jury found defendant guilty of the same charges, various sentencing enhancement facts, and dangerous-offender criteria on each charge. The trial court sentenced defendant as a dangerous offender and imposed consecutive 30-year indeterminate sentences on each conviction, for a total of 120 years (1,440 months) in prison. The trial court imposed consecutive determinate sentences of 240 months on Count 1; 90 months on Count 4; 144 months on Count 7; and 120 months on Count 8, resulting in a minimum incarceration term of 594 months. The court merged Counts 2, 5, and 6. Defendant appealed.

In Worth II...