138

Argued and submitted January 17, affirmed October 16, 2019

STATE OF OREGON, Plaintiff-Respondent, v. JOSEPH WORTH, JR., Defendant-Appellant. Multnomah County Circuit Court 060532697; A165894

This case is before the Court of Appeals for a third time. When defendant filed his initial notice of appeal, no harsher sentence could be imposed on remand than that initially imposed at trial, pursuant to State v. Turner,

,

(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,

,

(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 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 unex- pected 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. Affirmed.

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, Office 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. Cite as

(2019) 139

Before Powers, Presiding Judge, and Egan, Chief Judge, and James, Judge. JAMES, J. Affirmed. 140 State v. Worth

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,

,

(2015), rev den,

(2016) (Worth II). Specifically, defendant argues (as he did in Worth II) that application of State v. Partain,

,

(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 vio- late 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 consecu- tive 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 sen- tence can be given than that initially imposed.”

,

(1967). We took the appeal under advise- ment 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 Cite as

(2019)

,

(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 sen- tence on retrial, following a successful appeal. The defen- dant 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,

,

(2009), rev den,

(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 Supreme Court granted the state’s petition for review in Partain. After the Supreme Court granted the petition for review in Partain, the state petitioned for review of our deci- sion in Worth I. Although the Supreme Court ultimately denied that petition, that process delayed issuance of the appellate judgment until April 2010. By that time, oral arguments in Partain had been held before the Supreme Court. And although the Supreme Court’s opinion had not yet issued in Partain, the petition, the response to the peti- tion, the competing merits briefs, and the oral argument all clearly indicated—at a minimum to the attorneys involved in the litigation, if not the wider bar—that the continued applicability of Turner was being challenged. On September 10, 2010, the Supreme Court disavowed Turner in Partain, holding that a defendant can receive a harsher sentence following an appellate remand, subject only to the federal constitutional limits proscribed by North Carolina v. Pearce,

,

,

(1969): “We therefore decline to posit anything other than the Pearce standard, as modified by the Court in the manner noted, as the applicable standard in cases of resentenc- ing in Oregon: If an Oregon trial judge believes that an offender whom the judge is about to resentence should receive a more severe sentence than the one originally imposed, the judge’s reasons must affirmatively appear on the record. Those reasons must be based on identified facts of which the first sentencing judge was unaware, and 142 State v. Worth

must be such as to satisfy a reviewing court that the length of the sentence imposed is not a product of vindictiveness toward the offender. Absent such facts and reasons, an unexplained or inadequately explained increased sentence will be presumed to be based on vindictive motives, and will be reversed.”

Partain,

.

Defendant’s second trial began 11 days later, on September 21, 2010. But there, unlike in the first trial, the state alleged defendant to be a dangerous offender, subject to sentencing requirements pursuant to ORS 161.725. The jury found defendant guilty of the same charges, various sentencing enhancement facts, and dangerous-offender cri- teria on each charge. The trial court sentenced defendant as a dangerous offender and imposed consecutive 30-year inde- terminate sentences on each conviction, for a total of 120 years (1,440 months) in prison. The trial court imposed con- secutive determinate sentences of 240 months on Count 1; 90 months on Count 4; 144 months on Count 7; and 120 months on Count 8, resulting in a minimum incarceration term of 594 months. The court merged Counts 2, 5, and 6. Defendant appealed.

In Worth II, this court vacated defendant’s sentence and remanded for resentencing after concluding that the trial court erred in failing to apply the 400 percent rule to limit the determinate component of the dangerous-offender sentences.

. In light of our disposition, we explicitly declined to reach defendant’s due process and ex post facto challenges to the trial court’s increased sen- tence.

.

On resentencing following Worth II, the trial court resentenced defendant as a dangerous offender pursuant to ORS 161.725 and imposed consecutive 30-year indetermi- nate dangerous offender sentences on each conviction, for a total of 120 years (1,440 months). The trial court imposed consecutive determinate sentences of 240 months on Count 1, 36 months on Count 4, 72 months on Count 7, and 72 months on Count 8, resulting in a minimum incarceration term of 420 months. This appeal followed. Cite as

(2019) 143

Turning now to the merits, we review whether the application of a change in the law violates the state consti- tutional prohibition on ex post facto laws for errors of law. See State v. Grimes,

,

(1999). Similarly, whether a defendant has been denied due process of law under the Fourteenth Amendment is reviewed for errors of law. See State v. Weller,

,

(2011). We begin, as is proper, with the state constitu- tional claim. State v. Kennedy,

,

(1983) (considering state constitutional claims before federal claims); Sterling v. Cupp,

,

(1981) (same). Article I, section 21, states that “[n]o ex post facto law * * * shall ever be passed.” The Supreme Court has his- torically interpreted Article I, section 21, congruently with the ex post facto provision contained in Article I, section 10, of the United States Constitution “on the assumption that that provision’s scope is similar to the scope of Article I, section 21.” State v. Cookman,

,

(1996); see also Mannelin v. DMV,

,

(2001) (“The Oregon courts have concluded that the state ex post facto clause was intended to have the same histori- cal scope as its federal counterpart in Article I, section 10, of the federal constitution.”). In Cookman, the Supreme Court, in analyzing the meaning of Article I, section 21, observed that the decision in Calder v. Bull,

,

(1798), which expressed the “classic formulation of the ex post facto prohi- bition,” influenced the intent of the framers of the Oregon Constitution and set out Calder’s four categories: “ ‘1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testi- mony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.’ ” 144 State v. Worth

Cookman,

(quoting Calder,

). Defen- dant argues that the change from Turner to Partain falls into the “catchall” category of Calder—a “similar” change in the law that is “manifestly unjust and oppressive.” We disagree.

The Ex Post Facto Clause of Article I, section 10, of the United States Constitution has been held to apply to only legislative action. “[T]he Ex Post Facto Clause does not apply to judicial decision making.” Rogers v. Tennessee,

,

,

(2001). “As the text of the Clause makes clear, it ‘is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.’ ”

(quot- ing Marks v. United States,

,

,

(1977) (citation omitted)). It is undisputed that, in this case, that change from Turner to Partain came about through judicial interpretation, not direct legislative action.

We acknowledge that simply because a provision of the Oregon Constitution has historically been interpreted congruently to a similar provision in the federal constitu- tion does not foreclose a more divergent interpretation in the future. Cookman, 324 at 27 n 7 (“This court also has explained that its past reliance on the Supreme Court’s pro- nouncements when construing Oregon’s law do not imply that the meaning of Oregon’s law is forever fixed to the federal courts’ understanding of analogous federal law.” (Citation omitted.)). However, here, defendant has presented no compelling argument why the change from Turner to Partain compels an extension of Article I, section 21, juris- prudence to encompass judicial, as opposed to legislative, action.

Turning to defendant’s federal constitutional argu- ment, “a judicial alteration of a common law doctrine of crim- inal law violates the [due process] principle of fair warning, and hence must not be given retroactive effect, only where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” Rogers,

(quoting Bouie v. City of Columbia, 378 Cite as

(2019)

,

,

(1964) (citations omitted)). As we explain, we are unpersuaded that Partain’s change to the Turner doctrine was either unexpected in defendant’s case, or indefensible by reference to how the law had changed since Turner.

In advancing his due process argument, defendant states, “Defendant’s 2007 decision to appeal his convictions was made at a time when the Turner rule was in force and he faced no risk of increased punishment following a suc- cessful appeal. Partain did not exist and its existence could not have been anticipated by defendant or his counsel given Turner’s pedigree and the absence of any clear legislative actions in response to Turner.”

We disagree with defendant’s characterization in two respects. First, defendant appears to conceptualize an appeal as a discrete point in time, fixed at the time when the notice of appeal is filed. Implicitly, defendant appears to assert that the cost-benefit calculation of the risks of appeal occurs at that point, and no other. We disagree. An appeal is a process—often a lengthy one. During the pendency of an appeal legal landscapes may shift and, accordingly, the benefits and risks of prosecuting an appeal may change. Up until the issuance of the appellate judgment, a defendant retains the power to move to dismiss his or her appeal if an undesirable risk, unforeseeable at the time of filing the notice of appeal, comes into existence.

Second, we disagree that Partain’s “existence could not have been anticipated.” In this case, the office of attor- neys handling defendant’s appeal, OPDS, was the very same office that simultaneously was engaged in Supreme Court litigation where the state was questioning the continued via- bility of Turner. While the “unanticipated” prong of Rogers and Bouie is often analyzed in broader contexts—looking to the development of the law generally—in this case, regard- less of whether the wider legal community might have antic- ipated the Supreme Court disavowing Turner, defendant’s attorneys actually knew that the Turner doctrine might be altered, because they were the same attorneys litigating 146 State v. Worth

that issue before the court at the same time as they handled defendant’s case.1 Even if Partain could be construed to be unexpected in defendant’s case, Partain was not “indefensible by refer- ence to the law which had been expressed prior to the con- duct at issue.” Bouie,

(citing Jerome Hall, General Principles of Criminal Law 61 (2d ed 1960)). Partain disavowed Turner based on the legislature’s amendments to the relevant sentencing statutes enacted after Turner: “We have suggested that the Turner decision rested on an unexamined elaboration on the right of appeal guaran- teed by ORS 138.020—i.e., that the right of appeal neces- sarily includes the right to have the length of any resen- tence limited to the sentence originally imposed. We have assumed, without actually deciding, that that reading of ORS 138.020 had some basis in the law when Turner was decided. But, based on changes in the law pertaining to criminal sentencing and criminal appeals since Turner was decided, as well as the legislature’s rejection of the ‘rule of lenity,’ it now is clear that the Turner court’s expan- sive reading of the right to appeal in ORS 138.020 no longer is viable, if it ever was. Put differently: The legal landscape surrounding the right of criminal defendants to appeal has changed in a way that undermines the essential premise for the holding in Turner.” Partain,

. Thus, far from being “indefensible” in relation to the law prior, Partain explains that legislative enactments had rendered Turner indefensible. Accordingly, the imposition of the sentence after Worth II neither violated the Ex Post Facto Clause of Article I, section 21, of the Oregon Constitution, nor the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Affirmed.

1 Petitioner has not alleged that his appellate attorneys were ineffective in failing to communicate to him their knowledge that the potential risks of appeal had changed once the continued viability of Turner became a subject of Oregon Supreme Court litigation.