by Mark Wilson

The Oregon Court of Appeals held that the retroactive application of a new judicial decision allowing imposition of a harsher sentence after a successful appeal does not violate state or federal ex post facto prohibitions or the due process clause.

In 1967, the Oregon Supreme Court held that a criminal defendant who wins an appeal cannot be sentenced to a harsher sentence on remand than initially imposed. The Court found that imposition of a harsher sentence would effectively punish the defendant for prevailing on appeal. See: State v. Turner, 247 Or 301, 313, 429 P2d 565 (1967).

Turner remained controlling Oregon precedent for more than thirty years and at the time of Joseph Worth Jr.’s February 2007 criminal trial. At the conclusion of that trial, Worth was convicted of numerous sex crimes and sentenced to a 485-month prison term.

Worth appealed his conviction in July 2007. The appeal was later taken under advisement on March 31, 2009.

While Worth’s appeal was under advisement, the State sought Supreme Court review of the application of Turner in State v. Partain, 228 Or App 329, 208 P3d 526 (2009). In that appeal, the State requested that the Supreme Court disavow the Turner rule and hold that a defendant may be sentenced to a harsher sentence on remand after a successful appeal.

The Court of Appeals then reversed Worth’s convictions and remanded for a new trial on September 30, 2009. See: State v. Worth, 231 Or App 69, 72, 218 P3d 166 (2009)(Worth I). About one week later, the Oregon Supreme Court granted review in Partain. The State then sought Supreme Court review in Worth 1

The Supreme Court ultimately denied review in Worth I, but the petition delayed issuance of the Appellate Judgment and remand to the trial court until April 2010, after oral arguments had been held in Partain.

On September 10, 2010, the Oregon Supreme Court disavowed Turner in Partain, holding that a defendant may be sentenced to a harsher sentence on remand, subject only to the federal constitutional limits imposed by North Carolina v. Pearce, 395 US 711, 719, 89 S.Ct. 2072 (1969).

That is, “if an Oregon trial judge believes that an offender ... should receive a more severe sentence than the one originally imposed, the judge’s reasons must affirmatively appear on the record," Partain held. “Those reasons must be based on identified facts of which the first sentencing judge was unaware, and 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.”

Worth’s second trial began eleven days later, on September 21, 2010. Contrary to the position it took in the first trial, the prosecution alleged that Worth is a dangerous offender, subject to 30-year determinate sentences under ORS 161. 725. The jury found Worth guilty of all the same charges. The trial court then sentenced Worth to consecutive indeterminate 30-year sentences on each conviction, imposing a 120-year (1,440-month) prison term. The court also imposed a 594-month minimum sentence on four counts.

Worth again appealed, and the Court of Appeals vacated the sentence and remanded for resentencing. See: State v. Worth, 274 Or App 1, 360 P3d 536 (2015) (Worth II).

On resentencing, the trial court again resentenced Worth to an indeterminate 120-year (1,440-month) sentence. It then imposed a 420-month determinate minimum sentence on four counts.

Worth again appealed, arguing that the harsh sentences on remand under Partain, violate state and federal ex post facto prohibitions and deprive him of due process of law.

The Court of Appeals first denied Worth’s ex post facto argument, finding that Article I, § 10, of the United States Constitution has been held to apply only to legislative action, not the judicial branch of government. “It is undisputed that, in this case, that change from Turner to Partain came about through judicial interpretation, not direct legislative action,” the court observed. “Defendant has presented no compelling argument why the change from Turner to Partain compels an extension of Article I, section 21, jurisprudence to encompass judicial, as opposed to legislative, action.”

The court also rejected Worth’s argument that “a judicial alteration of a common law doctrine of criminal law violates the due process principle of fair warning,” prohibiting retroactive application thereof. The Court was “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."

“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,” the court observed. “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.”

The Court also disagreed “that Partain’s ‘existence could not have been anticipated.”‘ As such, Worth’s enhanced sentence under Partain did not deprive him of due process of law. See: State v. Worth, 300 Or App 138, _ P3d _ (Or App 2019).

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