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State v. Worth

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSEPH WORTH, JR., Defendant-Appellant.

          Argued and submitted January 17, 2019.

          Multnomah County Circuit Court 060532697 Thomas M. Ryan, Judge.

          Laura A. Frikert, Deputy Public Defender, argued the cause for appellant.

          Also 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.

          Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

          Before Powers, Presiding Judge, and Egan, Chief Judge, and James, Judge.

         Case Summary:

         This 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.

         [300 Or.App. 140] JAMES, J.

         This is 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 affirm.

         An 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.

         While 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.

         In 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 ...


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