and submitted January 17, 2019.
Multnomah County Circuit Court 060532697 Thomas M. Ryan,
A. Frikert, Deputy Public Defender, argued the cause for
on the brief was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Offce of Public Defense Services.
Jonathan N. Schildt, Assistant Attorney General, argued the
cause for respondent.
on the brief were Frederick M. Boss, Deputy Attorney General,
and Benjamin Gutman, Solicitor General.
Powers, Presiding Judge, and Egan, Chief Judge, and James,
case is before the Court of Appeals for a third time. When
defendant fled his initial notice of appeal, no harsher
sentence could be imposed on remand than that initially
imposed at trial, pursuant to State v. Turner, 247
Or. 301, 429 P.2d 565 (1967). Defendant's appeal was
successful, and the Court of Appeals remanded the case for a
new trial. While defendant awaited his remanded trial, the
Supreme Court disavowed Turner in State v.
Partain, 349 Or. 10, 239 P.3d 232 (2010), allowing a
trial court to impose a harsher sentence on remand than that
originally imposed at trial. Defendant was retried and,
indeed, received a harsher sentence than his first. Another
appeal, remand, and trial followed, and defendant again
received a sentence harsher than his first. In the current
appeal, defendant asserts that application of
Partain violates the Ex Post Facto Clause of Article
I, section 21, of the Oregon Constitution and the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution. Held: The Ex Post Facto Clause of
Article I, section 21, of the Oregon Constitution generally
applies to only legislative action, not to judicial
decision-making. The [300 Or.App. 139] change from
Turner to Partain was not a legislative
action. Further, applying Partain to defendant's
case did not violate principles of due process because it was
not unexpected as the same attorneys litigated both his case
and Partain simultaneously. Additionally,
Partain could not be construed as indefensible by
reference to the law expressed prior to its announcement.
Or.App. 140] JAMES, J.
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 (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, foresee-ability, and fair
warning guaranteed by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. We
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.
we had defendant's appeal under advisement, the state
petitioned for review by the Supreme Court of our decision
applying the Turner rule in State v.
Partain, 228[300 Or.App. 141] 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.
State v. Worth,231 Or.App. 69, 72, 218 P.3d 166
(2009), rev den,347 Or. 718 (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 ...