Oregon Supreme Ct - June 22, 2017
by: Sara Werboff • June 26, 2017 • no comments
Sentencing - Sentence Was Not Vindictive When Overall Sentence was Shorter
The court concludes that the trial court did not impose a vindictive sentence, as prohibited by State v. Partain, when, on remand, the trial court imposed an overall shorter sentence but imposed a longer sentence for an individual misdemeanor count. First, the court rejects the state’s argument that the court lacks jurisdiction to hear the case. The state argued that because defendant was only challenging a misdemeanor sentence, review was precluded. The court explains, after reviewing ORS 138.222, that ORS 138.222(7) allows the state or defendant to appeal a judgment containing one or more convictions for felonies, even if the judgment also contains misdemeanors.
On the merits, the court explains that in order to establish a sentencing is unconstitutionally vindictive, the defendant must show that the trial judge had an improper motive and imposed a more severe sentence. As to improper motive, the court rejects defendant’s argument that when the same judge imposes both the original and new sentences, any subsequent harsher sentence should be presumed vindictive because the judge will have a subconscious or unconscious bias. The court explains that although the effects of such biases can be profound, they lack the purpose or intention required for an improper motive and they conflict with the fundamental tenets of the justice system, that judges are presumed impartial. As to whether the sentence is more severe, the court rejects defendant’s proposed “remainder aggregate” approach which looks to whether for each remaining count, the sentence is lengthier. Instead, the court looks to the total aggregate sentence. Because defendant would serve overall fewer months, the sentence was not more severe.
State v. Febuary, 361 Or 544 (2017) (Balmer, C.J.)
State v. Keller, 361 Or 566 (2017) (Walters, J.)
State v. Ryan, 361 Or 602 (2017) (Brewer, J.) (Balmer, C.J., concurring)
