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Oregon Supreme Court Overturns Ban on Harsher Sentences after Successful Appeals

The en banc Oregon Supreme Court has overturned its 43-year-old prohibition on increased punishment in criminal cases when a defendant is successful on appeal and is resentenced. Oregon law now adheres to U.S. Supreme Court precedent.

In 1967 the Oregon Supreme Court announced a “prophylactic rule” which held that “after an appeal or post-conviction proceeding has resulted in ... 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.” See: State v. Turner, 247 Or. 301, 429 P.2d 197 (Or. 1967).

While recognizing there may be some circumstances when a harsher sentence might be rational and justified, the Turner ruling expressly prohibited courts from trying to differentiate between legitimate and vindictive harsher sentences.

Two years after Turner, the U.S. Supreme Court held in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969) that increasing a defendant’s punishment following a successful appeal violates the Due Process Clause of the 14th Amendment unless “objective information concerning identifiable conduct ... of the defendant occurring after ... the original sentencing” warrants an increase in punishment and such information is made part of the record.

Over the years, the Oregon Supreme Court repeatedly cited Turner as established law and state courts faithfully applied Turner rather than Pearce.

In 2003, Richard Dale Partain was convicted of multiple sex crimes and sentenced to a total of 420 months in prison. The state conceded on appeal that he had been sentenced incorrectly, and the Oregon Court of Appeals granted a joint motion to vacate the erroneous sentences and remand for resentencing.

Despite sentencing Partain on four fewer convictions, the trial court imposed a 600-month prison term but “did not state any reasons for imposing the lengthier overall sentence.”

Following another appeal, the Oregon Court of Appeals held the trial court had violated the Turner rule by imposing a greater total sentence on remand. See: State v. Partain, 228 Or.App. 329, 208 P.3d 526 (Or.App. 2009).

The en banc Supreme Court accepted the state’s invitation to overturn Turner, concluding “that the Turner rationale has been overtaken by the passage of time and by legislation.” Finding that Turner was not a constitutional rule and that Oregon does not have a due process clause, the Court found “no persuasive argument” that the reasoning in Turner was required by the Oregon Constitution.

The Oregon Supreme Court then turned to Pearce, noting that the rule established in that case is based on the Due Process Clause of the 14th Amendment to the U.S. Constitution.

“The foregoing federal constitutional rule is one that the Oregon courts must follow with respect to resentencing offenders to longer sentences,” the Court held.

“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,” explained the Supreme Court. “Those reasons must be based on identified facts of which the first sentencing judge was unaware, and 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.”

As the trial court had not stated its reasons for Partain’s increased sentence, the Supreme Court remanded the case for the lower court to clarify its reasons for the longer sentence or to impose a sentence not to exceed Partain’s original 420-month prison term. See: State v. Partain, 349 Or. 10, 239 P.3d 232 (Or. 2010).

The Partain ruling quickly netted another violent sex offender a post-appeal sentencing increase of almost triple his original sentence.

In 2007 a jury convicted Joseph Worth, Jr., 49, of sexually assaulting, cutting and beating a 17-year-old girl in a portable toilet, and he was sentenced to over 40 years in prison.

Worth’s conviction was vacated in 2009, however, because the prosecutor had improperly told jurors during closing arguments that Worth was no longer “presumed innocent.” See: State v. Worth, 231 Or.App. 69, 218 P.3d 166 (Or.App. 2009), review denied. He was re-tried and again convicted in September 2010.

As he strolled into court for his October 29, 2010 resentencing, Worth appeared cocky. “All you people are here for me?” he asked, smiling at his victim and her family.

His façade quickly crumbled, however, when Multnomah County Circuit Court Judge Janice Wilson denied his request for a continuance and proceeded with sentencing.

The prosecutor asked the court to impose a 120-year sentence – nearly triple the original prison term – in part because on his way out of the courtroom in 2007 after his first sentencing hearing, Worth said he “should have just killed” the girl. “I would have gotten less time,” he shouted.

Judge Wilson said she considered giving Worth a chance to be released before he died as an incentive for him to behave in prison, but ultimately sentenced him to 120 years with release eligibility after 49½ years, because she believed he would not change. Worth will be eligible for release when he is around 100 years old.

So long as the trial court articulates its reason for the increased sentence on the record, and that reason is based on information not available during the first sentencing hearing (such as Worth’s parting comment after his initial sentencing that he should have killed the victim), then a more severe prison term on resentencing will be upheld under the rule established in Partain.

On November 9, 2011, the Oregon Court of Appeals applied Partain in a case where the defendant, Christopher E. Young, was resentenced to a lesser prison term after being granted post-conviction relief.

The appellate court noted that the ruling in Partain had “abandoned the per se prohibition on an increased sentence following a defendant’s successful appeal. In its place, the Supreme Court announced a rule that a judge’s reasons for an increased sentence must appear in the record, and the reasons must be based on identified facts of which the original sentencing judge was unaware. That information also must satisfy a reviewing court that the increased sentence was not a product of vindictiveness.”

Upon resentencing, Young had his four consecutive sentences reduced from 26 months on each count to 24 months, but was ordered to pay an additional $375 for attorney fees incurred at the resentencing hearing. The appellate court found that the original trial judge could not have known that additional costs would be incurred in a future resentencing hearing, and “[h]aving reviewed the record, we are satisfied that the additional $375 was not the product of vindictiveness toward [the] defendant.” The trial court’s resentencing order, including the additional fee, was accordingly affirmed. See: State v. Young, 246 Or.App. 469, 266 P.3d 135 (Or.App. 2011).

Additional source: The Oregonian

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Related legal cases

State v. Young

State v. Partain

State v. Partain

State v. Worth

State v. Turner