Defendant was convicted of murder. In accordance with ORS 163.115(5)(a) and (b),
A. Legal Background
To provide context for the state's claim of sentencing error, and our resolution of it, we briefly review the history of sentencing law in Oregon, with a focus on the law applicable to sentencing for murder.
From 1977 until 1989, Oregon had what was known as the "indeterminate" matrix sentencing scheme. Under that scheme, the sentence imposed by a sentencing court represented the maximum amount of time that the offender would be incarcerated, and the board of parole would determine how much time a given offender actually remained incarcerated. See ORS 137.120(1);
ORS 163.115 defines the crime of murder and provides the sentence for it, and did so in 1989 at the time that the legislature replaced the indeterminate matrix sentencing scheme with the determinate guidelines sentencing scheme. Its relationship to the guidelines scheme has been litigated extensively, and has been altered by the legislature in the years following the adoption of the guidelines.
When the guidelines first went into effect in 1989, the sentence for murder was an indeterminate life sentence with a 10 to 25-year mandatory minimum term of incarceration:
ORS 163.115(3) (1989). In enacting the guidelines, the legislature did not explicitly repeal the indeterminate life sentence then specified in ORS 163.115(3)(a) (1989), or otherwise address expressly how an offender convicted for murder should be sentenced for that offense. As a result, it was not immediately clear how the legislature intended for murder sentences to operate and, in particular, whether the legislature intended to retain the indeterminate life sentence specified in ORS 163.115 (1989).
In Morgan, the Supreme Court resolved the issue. 316 Or. 553, 856 P.2d 612. It concluded that the enactment of the guidelines had impliedly repealed the indeterminate life sentence of imprisonment contained in ORS 163.115 (1989). Id. at 615-16;
The legislature later changed the sentence for murder. In 1995, it amended ORS 163.115 (1989), including the section providing for an indeterminate life sentence. Or. Laws 1995, ch. 421, § 3. As amended, ORS 163.115(5) (1995) stated that the sentence for murder — provided the offender was of a certain age — was an indeterminate life sentence with a 25-year minimum term of confinement:
In Francis, we addressed the legal effect of those amendments, concluding that they had "the effect of reviving and reenacting" the indeterminate life sentence of imprisonment for murder. 154 Or.App. at 491, 962 P.2d 45. As a result, the proper sentence for murder was no longer the one identified in Morgan. Instead, under ORS 163.115 (1995), the correct sentence for murder was an indeterminate life sentence of imprisonment with a mandatory minimum term of incarceration of 25 years. Id.
Except for a brief period of time in 1999, that sentence has continued to be the sentence today. In 1999, we held the sentence to be unconstitutional in
The legislature acted promptly to correct the deficiency identified in McLain. Or. Laws 1999, ch. 782, § 2;
ORS 163.115(5); see also Or. Laws 1999, ch. 782, § 4. At the same time that it amended ORS 163.115, the legislature also amended ORS 163.105, which governs the crime of aggravated murder, to increase the minimum amount of time an eligible offender convicted of aggravated murder must serve before being considered for parole from 25 years to 30 years. Or. Laws 1999, ch. 782, § 5. Thus, as a result of the 1999 amendments to ORS 163.115 and ORS 163.105, offenders convicted of murder must serve a minimum of 25 years before there is any possibility of parole, and offenders convicted of aggravated murder who are not sentenced to death or to a "true" life sentence without possibility of parole must serve a minimum of 30 years before there is any possibility of parole.
B. Factual background
In this case, the state sought to have the trial court sentence defendant to a mandatory minimum term of incarceration in excess of the 25 years specified in ORS 163.115(5)(b). To that end, the state pleaded several sentencing enhancement factors and proved them to the jury. The state then argued to the trial court that it should sentence defendant to the indeterminate life sentence required by ORS 163.115(5)(a) but, instead of the 25-year minimum required by ORS 163.115(5)(b), the court should sentence defendant to a minimum term of incarceration of 538 months, nearly 45 years. The state pointed out that, if computed under the guidelines, defendant's determinate sentence for murder could be as long as 538 months, if the court upwardly departed based on the sentencing enhancement factors found by the jury. Relying on ORS 137.637, the state argued that the court was required to impose the guidelines sentence for murder as defendant's minimum term of confinement before being eligible for parole, if the trial court determined that that sentence under the guidelines exceeded 25 years.
The trial court rejected that argument. It concluded that ORS 163.115 controls the imposition of a sentence for murder and that, in that statute, "the legislature has said what should happen when a judge sentences individuals following a murder conviction," and that the guidelines did not supply a mechanism for sentencing defendant to a minimum term of incarceration in excess of 25 years.
Before us, the state reiterates the argument that it presented to the trial court. The state observes that, in Morgan, the Supreme Court characterized the then-applicable minimum terms of confinement specified in ORS 163.115 as determinate sentences for purposes of ORS 137.637. The state then points out that ORS 137.637 provides that, "[w]hen a determinate sentence of imprisonment is required or authorized by statute, the sentence imposed shall be the determinate sentence or the sentence as provided by the rules of the Oregon Criminal Justice Commission, whichever is longer," and argues that that directive authorized the trial court to determine defendant's term of incarceration under the guidelines, compare that term
The state's reading of ORS 137.637 is not an implausible one, in view of the Supreme Court's holding in Morgan. However, our consideration of the text, context, and history of the pertinent provisions of ORS 163.115 — in particular, the legislative alterations to that statute after Morgan and McLain — persuade us that the legislature intended that ORS 163.115(5)(b) would supply the applicable minimum term of incarceration for an offender sentenced to an indeterminate life sentence for murder, and that the legislature did not intend for that minimum term to be computed under the guidelines. See
First, the text of ORS 163.115(5)(c) signals the legislature's intention that the applicable minimum term of confinement for an offender sentenced for murder be the 25-year term specified in ORS 163.115(5)(b). In explaining the parole process for such offenders, ORS 163.115(5)(c) provides that an offender may petition the board to determine whether the offender is eligible for parole "[a]t any time after completion of a minimum period of confinement pursuant to paragraph (b) of this subsection." ORS 163.115(5)(c) (emphasis added). The emphasized wording indicates that the legislature contemplated that such offenders would, in fact, be serving the 25-year minimum term of confinement imposed under ORS 163.115(5)(b), and not a different term of confinement imposed under the guidelines. If the legislature had contemplated that the guidelines (or some other source of law) would supply an alternative minimum term of confinement for an offender serving an indeterminate life sentence for murder, it would not have referred specifically to "a minimum period of confinement pursuant to paragraph (b)," but, instead, would have referred more generally to any minimum term of confinement imposed by the trial court, regardless of the source of authority for it.
Second, context and legislative history further confirm the legislature's intention that ORS 163.115(5)(b) supply the minimum term of incarceration for offenders sentenced to an indeterminate life sentence for murder. As noted, in 1999, the legislature amended the murder and aggravated murder statutes to solve a very specific problem: the constitutional deficiency identified in McLain. Davis, 216 Or.App. at 464, 174 P.3d 1022; see Exhibit R, House Judiciary Criminal Law Committee, HB 3586, Apr. 23, 1999 (memorandum of Rep. Lane Shetterly attaching the McLain decision and explaining the need for proposed amendments to sentencing scheme). That is, the legislature sought to ensure that the sentence for murder was not disproportionate to the sentence for aggravated murder in the manner identified by McLain. It did so by devising a parole process for offenders sentenced for murder that was not less favorable than the parole process for offenders sentenced for aggravated murder. Specifically, the legislature, among other things, (1) provided a process by which an offender could be considered for parole after completing the 25-year term of incarceration required by ORS 163.115(5)(b); and (2) amended the aggravated murder statute, ORS 163.105, to require eligible offenders sentenced for aggravated murder to serve a 30-year minimum term of incarceration before such offenders could be considered for parole, thereby eliminating the possibility that an offender sentenced for the more serious offense of aggravated murder would have the opportunity to be considered for parole at an earlier time than an offender sentenced for murder. Or. Laws 1999, ch. 782, § 5.
Implicit in the legislature's intention that the 1999 amendments solve the constitutional problem identified in McLain is a legislative determination that sentencing courts would be required to sentence an offender convicted of murder to a minimum term of incarceration pursuant to ORS 163.115(5)(b), and not pursuant to the guidelines or a different source of law. Otherwise, the 1999 amendments would not solve — at least not fully — the problem identified by McLain. The legislature
In addition, in view of McLain, the legislature was aware of the need to avoid treating offenders convicted of aggravated murder more favorably under the sentencing scheme than those convicted of murder. In particular, the legislature's amendment to the aggravated murder statute requiring an offender to complete a 30-year minimum term of incarceration without parole indicates that it intended to establish a scheme in which those convicted of aggravated murder would have to wait longer for parole consideration than those convicted of murder. That, too, favors the conclusion that the legislature intended that sentencing courts would impose the minimum term specified in ORS 163.115(5)(b), and would not impose a minimum under the guidelines or other source of law. If a sentencing court were authorized to impose a minimum term of confinement greater than the 25-year term in ORS 163.115(5)(b), the risk that those convicted of aggravated murder would be more favorably treated than those convicted of murder would remain. Again, in the light of the legislature's express objective to solve the particular problem identified by McLain, we decline to construe the statute so as to render that solution incomplete in the absence of any other textual or contextual indicators compelling such a conclusion.
For the foregoing reasons, we are persuaded from the text, context, and legislative history of ORS 163.115 that the legislature intended an offender convicted of murder to be sentenced to an indeterminate life sentence with the 25-year minimum term of incarceration specified in ORS 163.115(5)(b), and that the legislature did not intend for a sentencing court to impose a different minimum term of incarceration under the guidelines or any other source of law. We therefore affirm the judgment of the trial court.
Affirmed on appeal and cross-appeal.