and submitted January 5, 2017
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
Simrin argued the cause for respondent. With him on the brief
was Andy Simrin PC.
DeVore, Presiding Judge, and Garrett, Judge, and Powers,
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ORS 138.083(1)(a), repealed by Or Laws 2017, ch 529, §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.
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).
Or.App. 641] GARRETT, J.
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),  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.
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.).
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" as required by ORS 163.115(5)
(1995). 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.
same time, ORS 163.105(2) (1995) 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."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).
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, § 4. The amendment expressly
applied "to offenders convicted of * * * murder