Wells v. Peterson

826 P.2d 13, 111 Or. App. 171, 1992 Ore. App. LEXIS 349

• Court: Court of Appeals of Oregon
• Decided: February 12, 1992
• Docket: 87C-10345 CA A64435
• Status: Published

Opinions

JOSEPH, C. J.

Petitioner, a remanded juvenile, ORS 419.533(1), pled guilty to murder and was sentenced under ORS 163.115(3)(a)¹ to life imprisonment with a 10-year minimum sentence under ORS 163.115(3)(b)² and an additional 10-year minimum under ORS 163.115(3)(c).³ No objection was made to the sentence at trial, and no appeal was taken.

In this post-conviction proceeding, petitioner claims that his trial counsel was ineffective and that, in any event, his minimum sentences were not authorized by law. The trial court found that he had received effective assistance in connection with the plea agreement and that his minimum sentences do not violate ORS 161.620.⁴ We affirm with respect to the effective assistance of counsel.

In State v. Noble, 94 Or App 123, 764 P2d 949 (1988) rev dismissed 307 Or 506 (1989), we interpreted ORS 161.620 to permit imposition of any minimum term that a trial judge has the discretion to impose or not and to preclude only any minimum sentence that a judge is required by statute to impose in every instance. We now conclude that case was wrongly decided, and it is overruled in its entirety.

ORS 161.620 is by no means as clear and unambiguous as Noble treats it. The state argues that, even though the legislative history is not compelling,⁵ if that history is considered together with a deep linguistic and logical analysis that it proffers, Noble should not be overruled. The argument is unpersuasive, if only because it does not convincingly explain why the legislature would at the same time forbid imposition of one kind of “minimum” sentence that is otherwise imposed on all murderers and allow the imposition of a longer sentence that is, at least unless and until overridden, “minimum” but is imposed only selectively — that is, in the exercise of discretion. We hold that ORS 161.620 prohibits the imposition of any minimum prison term on a remanded juvenile, except if the conviction is under ORS 163.105.

Reversed and remanded for proceedings not inconsistent with this opinion.

1 ORS 163.115(3)(a) provides:

“A person convicted of murder shall be punished by imprisonment for life.”

2 ORS 163.115(3)(b) provides:

‘ ‘When a defendant is convicted of murder under this section, the court shall order that the defendant shall be confined for a minimum of 10 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.”

3 ORS 163.115(3)(c) provides:

“When a defendant is convicted of murder under this section, the court, in addition to the minimum required by paragraph (b) of this subsection, may order that the defendant shall be confined for a minimum term of up to an additional 15 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.”

4 ORS 161.620 provides:

“Notwithstanding any other provision of law, a sentence imposed upon any person remanded from the juvenile court under ORS 419.533 shall not include any sentence of death or life imprisonment without the possibility of release or parole nor imposition of any mandatory minimum sentence except that a mandatory minimum sentence under ORS 163.105(1)(c) shall be imposed where the person was 17 years of age at the time of the offense.”

The parties persist in talking only about a “twenty-year minimum sentence.” The judgment recites that defendant was sentenced to “LIFE with a 20-year minimum.” The only way that that sentence could even arguably have been lawfully imposed is by combining 10 years under ORS 163.115(3)(b) with 10 years under ORS 163.115(3)(c). The record of the sentencing hearing is not in the record of this post-conviction proceeding, but we assume that the sentence reflected that combination of mínimums.

5 The state quotes what it characterizes as “[t]he only discussion * * * in the legislative history that might shed any light on the issue” between a committee member and a witness in a hearing on a proposed amendment to the bill. It characterizes that discussion as “distinctly inconclusive.”