Oregon Supreme Court 6-28-2012
by: Iahmad • June 28, 2012 • no comments
Child endangerment - authorizing minors' access
Failure to take action to prevent minors from remaining in a home where illegal drug activity is taking place does not "authorize or affirmatively make possible a minor's presence" under ORS 163.575(1)(b). Defendant moved into his friend's house to assist with a marijuana grow operation and act as caretaker of two minors living there. The owner had given the minors permission to stay in the house before defendant moved in. In the absence of actual authority to prohibit access to the home, defendant's failure to take action to prevent the teenagers from remaining in the home did not violate the statute. State v. McBride.
Capital Sentencing- Error Limited to the Form of a Judgment in Capital Cases Does Not Require Resentencing
An error limited to the form of the judgment issued by a trial court in a capital case does not limit the trial court to the sentencing options provided by ORS 138.012 on remand. The Supreme Court had previously affirmed defendant's convictions for aggravated murder and the imposition of the death penalty, but concluded that the trial court should have merged two aggravated murder verdicts and one intentional murder verdict into a single conviction set out in a single judgment. In addition, the final judgment should list the aggravating factors underlying the aggravated murder charges. On remand, the trial court entered the new single judgment but did not list the aggravating factors.
Defendant argued that under ORS 138.012, if a reviewing court finds a prejudicial error in the original sentencing, the trial court must either sentence defendant to life in prison without the possibility of parole or commence a new sentencing proceeding before a jury. The Court denies this argument, holding that the remand was limited to entry of a corrected judgment and did not involve a prejudicial error.
The defendant also argued that convictions should have been merged before sentencing to eliminate the possibility of inconsistent sentencing. However, because the jury imposed the death sentence for each of the convictions independently, there was no chance that the sentence would have been shorter had the convictions been merged before sentencing.
However, the final judgment still did not include a list of aggravating factors. Therefore the case is remanded to the trial court to enter these factors. State v. Bowen.
