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State v. Hubbard

Court of Appeals of Oregon

March 7, 2018

STATE OF OREGON, Plaintiff-Appellant,
v.
CANNON TERRELL HUBBARD, Defendant-Respondent.

          Argued and submitted January 5, 2017

         Clackamas County Circuit Court CR9700945 Eve L. Miller, Judge.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Andy Simrin argued the cause for respondent. With him on the brief was Andy Simrin PC.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Powers, Judge. [*]

         Case Summary: The state appeals a corrected judgment of conviction for murder by abuse, ORS 163.115 (1995), assigning error to the trial court's removal of the phrase "life in prison" from defendant's original 1998 sentence as an "erroneous term in the judgment" under former ORS 138.083(1)(a), repealed by Or Laws 2017, ch 529, § 26. Defendant argues that the trial court did not err because a constitutional defect in ORS 163.115(5) (1995) made his sentence "erroneous" when it was imposed. The state asserts that the trial court lacked authority to "correct" the 1998 judgment because, under State v. Haynes, 168 Or.App. 565, 7 P.3d 623, rev den, 331 Or. 283 (2000), defendant's life sentence became lawful in 1999 after the legislature amended ORS 163.115(5) to cure the constitutional defect.

         Held: The trial court lacked authority to "correct" the judgment. The reasoning in Haynes controlled, and, therefore, defendant's life sentence became lawful after the 1999 amendment to ORS 163.115(5).

         Reversed and remanded.

         [290 Or.App. 641] GARRETT, J.

         Defendant was convicted of murder by abuse, ORS l63.H5(1)(c), in 1998. In 2015, he moved the trial court to delete "life in prison" from his sentence as an "erroneous term in the judgment, " former ORS 138.083(1)(a) (2015), [1] arguing that the life sentence was unconstitutional at the time it was imposed. The trial court granted defendant's motion. The state appeals, arguing that the trial court lacked authority to "correct" the 1998 judgment because that judgment was valid under our reasoning in State v. Haynes, 168 Or.App. 565, 7 P.3d 623, rev den, 331 Or. 283 (2000). We agree with the state, and reverse and remand.

         We review whether a trial court has authority to correct a judgment under former ORS 138.083 for errors of law. See State v. Easton, 204 Or.App. 1, 5-6, 126 P.3d 1256, rev den, 340 Or. 673 (2006) (so reviewing the scope of the trial court's authority under former ORS 138.083.).

         The relevant facts are procedural and not in dispute. Defendant committed the crime underlying his conviction in February 1997. After being convicted in 1998, defendant was sentenced to "life in prison with a mandatory minimum of 25 years imprisonment"[2] as required by ORS 163.115(5) (1995).[3] At the time that defendant was sentenced, the Board [290 Or.App. 642] of Parole and Post-Prison Supervision lacked authority to parole persons convicted of murder under ORS 163.115. State v. McLain, 158 Or.App. 419, 425, 974 P.2d 727 (1999). Therefore, a life sentence under ORS l63.H5(5)(a) was, in effect, a "true life" sentence-that is, a life sentence without the possibility of parole. Id.

         At the same time, ORS 163.105(2) (1995)[4] authorized the board to parole persons convicted of aggravated murder, a more serious offense, once the offender had served a mandatory minimum term. Because a person convicted of aggravated murder could be paroled, but a person convicted of the lesser offense of murder under ORS 163.115 could not, we held in McLain that life sentences under ORS 163.115(5) were unconstitutionally disproportionate. 158 Or.App. at 425-27. We thus invalidated the provision of the judgment in McLain that sentenced the defendant to "imprisonment for life."[5]158 Or.App. at 427. As a result, the proper sentence for murder was a 25-year determinate term of incarceration, to be followed by lifetime post-prison supervision. State v. Ambill, 282 Or.App. 821, 827-28, 385 P.3d 1110 (2016), rev den, 361 Or. 524 (2017).

         The legislature in 1999 responded swiftly to our decision in McLain by amending ORS 163.115(5) to grant the board authority to parole persons with life sentences for murder. Or Laws 1999, ch 782, ยง 4. The amendment expressly applied "to offenders convicted of * * * murder ...


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