Argued and Submitted May 1, 2014.
CC 02CR0019. On automatic and direct review of judgment of conviction and sentence of death imposed by the Curry County Circuit Court following remand from this court. Jesse C. Margolis, Judge.
Robin A. Jones, Senior Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
[355 Or. 471] LINDER, J.
This is a capital case on automatic and direct review to this court for the third time following a remand to the trial court. See State v. Bowen, 352 Or. 109, 119, 121, 282 P.3d 807 (2012) (ordering remand). The principal issue that defendant raises is whether, on remand, the trial court erred in denying defendant's motion for resentencing on his non-capital felony convictions. As we will explain, we conclude that the trial court did not err, and we therefore affirm.
In 2002, defendant assaulted his ex-girlfriend and, in a different incident the same day, killed a friend and committed theft from that victim. Defendant was charged with two alternative counts of aggravated felony murder and one count of intentional murder, along with 15 other felony and misdemeanor
charges. Defendant pleaded guilty to the several charges that arose from his assault of his ex-girlfriend. The remaining charges, which arose from the murder of the friend, went to a jury trial. The jury found defendant guilty on all those charges (two counts of aggravated murder, one count of intentional murder, three counts of first-degree theft, and one count of second-degree theft). Based on the aggravated murder verdicts, the trial court held a penalty-phase proceeding. In that proceeding, the jury made findings to support the imposition of a death sentence on the two aggravated murder charges. The trial court subsequently imposed a sentence of death on each of the two aggravated murder convictions and also sentenced defendant on the intentional murder conviction, as well as each of the other felony and misdemeanor charges.
The case then came before us on automatic and direct review in State v. Bowen, 340 Or. 487, 135 P.3d 272 (2006) ( Bowen I ). We concluded that the trial court should have merged the two aggravated murder and the intentional murder convictions into a single aggravated murder conviction, should have enumerated separately each aggravating factor in the merged aggravated murder conviction, and should have imposed a single sentence of death. Id. at 295, 297. We therefore remanded " for entry of a corrected judgment of conviction, reflecting defendant's guilt on the charge of aggravated murder, based upon alternative aggravating [355 Or. 472] factors, and intentional murder, and imposing one sentence of death." Id. at 297. We rejected all other claims of error that defendant advanced on review.
On remand, the trial court merged the convictions as we had directed, but it failed to enumerate the aggravating factors. The case came before us a second time on automatic and direct review. Bowen, 352 Or. 109, 282 P.3d 807 ( Bowen II. ) In Bowen II, defendant argued that, under ORS 138.012(2)(a), the trial court on remand should have resentenced him on the murder convictions, rather than simply enter a corrected judgment. We rejected defendant's claim of error. In doing so, we acknowledged some ambiguity in our analysis of the merger issues in Bowen I. Bowen II, 352 Or. at 115. We determined, however, that the trial court correctly had understood that " this court's intended disposition in Bowen I was to remand solely for entry of a corrected judgment." Id. at 115-16, 118. Consequently, we concluded that the trial court had not erred in failing to conduct a resentencing proceeding. Id. at 118. On our own, however, we noted that the form of the judgment that the trial court entered on remand in Bowen I was not consistent with our remand instruction because it did not enumerate the aggravating factors underlying the merged aggravated murder convictions. Id. at 118-19. We therefore remanded the case to the trial court a second time, expressly directing the trial court to " enter a new corrected judgment" that enumerated those aggravating factors. Id. at 119, 121. After we issued our decision and the time ran for either party to seek reconsideration, we issued our appellate judgment. The terms of our judgment were identical to the so-called " tagline" of our opinion:
" The corrected judgment is reversed and remanded with instructions to again merge the aggravated murder and intentional murder convictions, and to separately enumerate the aggravating factors underlying the merged aggravated murder convictions. The conviction and the sentence of death are otherwise affirmed."
[355 Or. 473] On remand in Bowen II, defendant argued to the trial court that it should resentence defendant on " the whole case," in addition to correcting the form of the judgment in a way that was consistent with what this court had directed. The trial court declined defendant's invitation to go beyond the terms of our ...