State v. Seay

180 February 19, 2026 No. 106

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOHN TROY SEAY,

Defendant-Appellant.

Lane County Circuit Court

108908937; A182561

Debra K. Vogt, Judge.

Submitted February 26, 2025.

Shawn A. Kollie and Kollie Law, P.C. filed the brief for

appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Robert M. Wilsey, Assistant Attorney

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Powers, Judge, and

Pagán, Judge.

SHORR, P. J.

Vacated and remanded.

Cite as 347 Or App 180 (2026) 181

SHORR, P. J.

Defendant appeals an order denying his motion to

set aside his 1990 conviction for abuse of corpse. We conclude

that the trial court erred in denying the motion on the stated

bases and vacate and remand for further consideration.

In 1990, defendant pleaded guilty and was convicted

of a single count of abuse of corpse, based on his involve-

ment in a homicide and subsequent abuse of the decedent’s

body, during which defendant engaged in sexual acts with

the body and removed several fingers. In 2023, defendant

filed a motion under ORS 137.225 to set aside his conviction.

The state opposed the motion. A hearing was held and the

trial court concluded that defendant’s conviction for abuse

of corpse did not qualify for set aside.1 The court reasoned

that the crime defendant committed currently constituted

a Class B person felony, and therefore was not eligible to be

set aside pursuant to ORS 137.225(5)(a), despite the crime

of abuse of corpse having been classified as a Class C felony

at the time defendant committed it. The court further rea-

soned that the crime defendant committed constituted a sex

crime and therefore was ineligible to be set aside pursuant

to ORS 137.225(6)(f). The court therefore denied the motion

with respect to his conviction for abuse of corpse. Defendant

appealed.

We begin with the court’s rationale that the crime

defendant committed is now considered to be a Class B per-

son felony, and therefore ineligible for set aside. Defendant

asserts that the trial court erred because at the time he

was convicted in 1990, abuse of corpse was a Class C fel-

ony, which is eligible for set aside. Citing State v. Soreng,

208 Or App 259, 145 P3d 195 (2006), defendant asserts that

use of the subsequent reclassification of the crime and ret-

roactive application would violate state and federal consti-

tutional prohibitions against ex post facto laws. The state

argues that using the revised classification for the limited

purpose of determining eligibility for set aside of the con-

viction does not implicate ex post facto problems. The state

1

Defendant was also convicted in 1990 of hindering prosecution and theft.

The court granted the motion to set aside those convictions, and that ruling is not

at issue in this appeal.

182 State v. Seay

further argues that there is no practical difference between

applying a new classification when considering a conviction’s

eligibility for set aside and revising the set aside statute to

make a particular crime ineligible for set aside that used to

be eligible, something that was approved in State v. Burke,

109 Or App 7, 818 P2d 511 (1991), rev den, 312 Or 589 (1992).

We conclude that Soreng is controlling in this situation, and

reverse and remand.

We begin with an overview of our case law concern-

ing changes in crime classification and eligibility for set

aside. In Burke, the defendant had been convicted of first-

degree sexual abuse, a Class C felony, at a time when the

set aside statute allowed for that conviction to be set aside.

109 Or App at 9. By the time he became otherwise eligible to

apply for set aside, the set aside statute had been amended to

exclude from eligibility conviction for various crimes against

children, including first-degree sexual abuse. Id. at 10. The

trial court granted the defendant’s application to set aside

his conviction, applying the version of ORS 137.225 that was

in effect at the time of his conviction. Id. at 9. We reversed,

concluding that the legislature had clearly expressed its

intent that intervening amendments to ORS 137.225 were

intended to apply to all existing and future convictions,

and to exclude child abuse convictions from eligibility. Id.

at 10-11. We further held that such an application of the set

aside statute was not a violation of state and federal prohibi-

tions against ex post facto laws because excluding the defen-

dant’s conviction from eligibility for set aside did not subject

him to any greater punishment; it was a collateral matter

that “does not change the primary effect of a conviction.” Id.

at 12-13.

Three years later, in State v. Blankenship, 129 Or

App 87, 877 P2d 674 (1994), we again considered whether

amendments to ORS 137.225 affected the eligibility for set

aside of a first-degree sexual abuse conviction. As in Burke,

the defendant in that case was convicted of first-degree sex-

ual abuse when it was a Class C felony and the set aside

statue allowed for such convictions to be set aside. 129 Or

App at 89. We again recounted the history of amendments

to ORS 137.225, including the 1989 amendments adding

Cite as 347 Or App 180 (2026) 183

child abuse convictions to the list of crimes ineligible for set

aside, and further discussed a 1991 bill that did three rel-

evant things: it reclassified first-degree sexual abuse from

a Class C to a Class B felony; it reclassified second-degree

sexual abuse from a Class A misdemeanor to a Class C fel-

ony; and it amended a reference in ORS 137.225 explicitly

excluding first-degree sexual abuse from eligibility to now

reference second-degree sexual abuse. Id. at 89. The effect

was to make first-degree sexual abuse ineligible for set aside

based on its classification as a Class B felony; and to make

second-degree sexual abuse ineligible for set aside based on

an explicit exemption from otherwise eligible Class C felo-

nies. Id.

In Blankenship, when the defendant applied for set

aside in 1992, the trial court denied the application. Id. at

89-90. On appeal, the defendant argued that at the time of

conviction, his crime was a Class C felony, and the current

set aside statute did not include first-degree sexual abuse in

the list of Class C felonies ineligible for set aside. Id. at 90.

Examining the text and context of the set aside statute, we

concluded that the allowance of set aside for “a conviction of

a Class C felony” meant “a conviction for an offense that is

currently classified as a class C felony.” Id. at 91. We noted

that the various subsections of ORS 137.225 expressed the

legislature’s choice to bar the setting aside of convictions

for child-related sexual abuse in the first, second, or third

degrees. Id. We stated, “Notwithstanding its original ‘class

C’ classification, [the] defendant’s conviction, which would

currently be classified as a class B felony, is such a convic-

tion,” and accordingly was not eligible for set aside. Id.

We next addressed this issue in 2006 in Soreng.

There, the defendant was convicted of criminally negligent

homicide in 1990, when it was a Class C felony. 208 Or App

at 261. In 2003, the legislature amended the criminally neg-

ligent homicide statue, reclassifying it as a Class B felony.

Id. In 2004, the defendant applied to have the conviction set

aside, and the trial court denied the motion because ORS

137.225 at the time did not allow for set aside of Class B

felonies. Id. at 262. We reversed, noting that the text of ORS

137.225 at the time included a list of crimes for which set

184 State v. Seay

aside “shall” be granted if the individual was otherwise eli-

gible, including criminally negligent homicide. Id. We con-

cluded that the purpose of the reclassification of that crime

from a Class C to Class B felony was to allow for the impo-

sition of 36 months of post-prison supervision, and that “[n]

othing in the text or context of the bill, or in its legislative

history, suggests that the legislature intended to transform

all then-existing convictions for criminally negligent homi-

cide into convictions for Class B felonies.” Id. at 263. Nothing

in the amendment to the classification suggested that the

legislature intended to make existing convictions for crimi-

nally negligent homicide ineligible to be set aside. Id.

We further noted that to read the reclassification

as functioning to retroactively treat all existing criminally

negligent homicide convictions as Class B felonies that

were ineligible for set aside would result in two problematic

issues: first, it would render meaningless the provision of

ORS 137.225 explicitly referencing criminal negligent homi-

cide convictions as eligible for set aside; and second, it would

“create serious questions as to the constitutionality of the

provision, as its retroactive application likely would violate

the state and federal constitutional prohibitions against

ex post facto laws.” Id. at 264. We explained:

“Although it is true that simply removing a crime from the

list of those crimes convictions that may be set aside is not

an ex post facto violation, State v. Burke, 109 Or App 7, 818

P2d 511 (1991), changing an existing conviction from one

for a Class C felony to one for a Class B felony has much

broader ramifications—including increasing the maximum

sentence that could be imposed. See, e.g., ORS 161.605 (set-

ting out maximum prison terms for different classes of fel-

onies). A law that retroactively increases the punishment

for a crime is a classic example of a law that violates the

state and federal ex post facto prohibitions. See, e.g., State

v. Upton, 339 Or 673, 682, 125 P3d 713 (2005) (‘Generally,

the ex post facto clauses of both constitutions prohibit ret-

roactive legislation that makes actions criminal after the

fact, or increase the punishment for previously committed

acts.’).”

Id. at 264-65. We therefore concluded that the legislature

did not intend to make pre-2003 convictions for criminally

Cite as 347 Or App 180 (2026) 185

negligent homicide ineligible to be set aside under ORS

137.225, and held that the defendant’s conviction was for a

Class C felony that was eligible to be set aside. Id. at 265. We

distinguished the situation from Blankenship, noting that

the statutory amendments in Blankenship affected both the

set aside statute and the classification of the crime at issue,

and demonstrated the legislature’s clear intent to maintain

the specific crime’s ineligibility for set aside. Id. at 265-66.

In contrast, in amending the statutes at issue in Soreng,

“the legislature did nothing to ORS 137.225 to suggest

that pre-2003 convictions for criminally negligent homi-

cide would no longer be subject to being set aside. Rather, it

simply made the more general change to the classification

of the crime, without expressing any intent to apply the

change retroactively or any intent otherwise to prevent a

conviction for that crime from being set aside.”

Id. at 266.

The final case relevant to our assessment is State v.

Beck, 254 Or App 609, 295 P3d 169 (2013). The defendant in

that case was convicted of negligent homicide in 1961, when

the crime was punishable as a felony or a misdemeanor,

and prior to the 1971 enactment of the Criminal Code and

the creation of classes of crimes. 254 Or App at 610, 614. In

1971, with the adoption of the Criminal Code, the legisla-

ture repealed the negligent homicide statute under which

the defendant had been convicted, and created the crime

of criminally negligent homicide, ORS 163.145, which was

intended to “encompass” the former negligent homicide stat-

ute. Id. at 610-11. The new criminally negligent homicide

crime was initially a Class C felony and was later reclas-

sified in 2003 as a class B felony. Id. at 611. The defendant

applied for set aside in 2010, at which point the effective

version of ORS 137.225 allowed for set aside of Class C felo-

nies, and with respect to offenses committed prior to 1972,

offenses that would have been Class C felonies if committed

after that date. Id. at 611-12. However, the statute excluded

from set aside convictions for “criminally negligent homi-

cide under ORS 163.145, when that offense was punishable

as a Class C felony.” Id. at 612. Following the trial court’s

denial of his motion to set aside, on appeal the defendant

asserted that his conviction was eligible for set aside and

186 State v. Seay

that the exclusion did not apply. He argued that the exclu-

sion specifically referred to ORS 163.145, which was not the

statute under which he was convicted, and that his crime

was not punishable as a Class C felony because such clas-

sifications did not exist at the time he was convicted. Id. at

614. We rejected the defendant’s argument and concurred

with the state’s rationale that the context of ORS 137.225

and the legislative history of the criminally negligent homi-

cide statute established that “the legislature intended the

crime of criminally negligent homicide to encompass the

crime of negligent homicide” and that “the legislature has

clearly demonstrated its intent to prevent convictions for

criminally negligent homicide from being set aside.” Id. We

distinguished the situation from that in Soreng, noting the

differences in the demonstrated legislative intent in Beck

versus the lack of any such intent in Soreng. Id. at 616-19.

With that background in mind, we turn to the pro-

gression of the laws applicable to this case. In 1990, when

defendant was convicted, the Criminal code included a sin-

gle crime of abuse of corpse, ORS 166.085 (1989), amended

by Or Laws 1993, ch 294, § 1:

“(1) A person commits the crime of abuse of corpse

if, except as otherwise authorized by law, the person

intentionally:

“(a) Abuses a corpse; or

“(b) Disinters, removes or carries away a corpse.

“(2) Abuse of corpse is a Class C felony.”

“Abuse” as used in that section meant “to deface, damage,

defile or otherwise physically mistreat in a manner likely to

outrage public sensibilities.” ORS 166.075(2).

In 1993, the legislature amended ORS 166.085 to

designate the included actions as abuse of corpse in the

second degree, and created a new crime of abuse of corpse

in the first degree, a Class B felony, which included engag-

ing in sexual activity with a corpse or involving a corpse,

or dismembering, mutilating, cutting, or striking a corpse.

Or Laws 1993, ch 294, §§ 1-2. The bill was in response to

a gruesome and horrific incident that occurred in a Salem

Cite as 347 Or App 180 (2026) 187

cemetery, and was aimed both at increasing the available

punishment for such heinous acts and clearly designating the

families of the deceased as “victims” for purposes of access

to victims assistance resources and compensation. Tape

Recording, House Committee on Judiciary, Subcommittee

on Crime and Corrections, HB 2368, Apr 22, 1993, Tape 86,

Side A (statements of Rep Kevin Mannix; Director of Victim

Assistance Program Marion County Karylinn Huntting-

Echols; Marion County District Attorney Dale Penn); Tape

Recording, Senate Committee on Judiciary, HB 2368, June

11, 1993, Tape 189, Side A (statements of Sen Catherine

Webber; David Factor, Criminal Justice Council). There was

no mention of making the newly created crime retroactive,

and there was no concurrent discussion of or amendment to

ORS 137.225 in relation to abuse of corpse.2

We conclude that this scenario is most similar to

Soreng. As with the reclassification of negligent homicide at

issue in Soreng, the creation of a new crime and the desig-

nation of degrees of abuse of corpse was done for the purpose

of addressing sentencing for the more serious crime in the

future. There is nothing in the text or legislative history

of HB 2368 that indicates that the legislature intended to

impact then-existing convictions for the only version of abuse

of corpse that existed at the time. In discussing Soreng in

Beck, we noted that it was worth emphasizing that

“the legislature cannot increase the classification of a

crime retroactively without creating serious constitutional

questions; as a result, the later reclassification of a crime

from a Class C felony to a Class B felony, does not—in and

of itself—preclude the setting aside of a conviction for the

crime as a Class C felony.”

Beck, 254 Or App at 618. We acknowledge that in Blankenship

we said that the current classification of a crime should

be considered in determining eligibility for set aside, 129

Or App at 91, but that was in the context of whether the

2

In separate bills passed that same session, ORS 137.225 was amended

twice in ways that did not apply to a conviction for abuse of corpse: Or Laws 1993,

ch 546, § 98 (updating a cross-reference to the child abuse definitions); Or Laws

1993, ch 664, § 2 (adding the since-repealed section (11), designating 21 specific

crimes—not including abuse of corpse—that were explicitly eligible for set aside

unless the court made written findings by clear and convincing evidence that

granting the motion would not be in the best interests of justice).

188 State v. Seay

particular crime that the defendant was convicted of was

intended to be eligible for set aside. We do not read that

statement as a general blanket policy to evaluate every

crime based on its classification at the time of the set aside

motion, given the problems with that approach identified in

Soreng and Beck.

Although the facts underlying defendant’s guilty

plea would have qualified as first-degree abuse of corpse

had the statute existed at the time, he was in fact not con-

victed of that crime. Unlike in Beck, where the legislative

intent was clear that the newly-enacted statute encom-

passed the repealed statute under which the defendant was

convicted, 254 Or App at 614-15, the newly-enacted statute

in this scenario represented a carve-out of the most seri-

ous of facts previously covered by the statute of conviction,

and was not intended to apply retroactively. The crime of

conviction for defendant was abuse of corpse, ORS 163.085,

a Class C felony and the only version that existed at the

time. The act of creating a new crime, of a more serious fel-

ony class, under which defendant’s acts would have fallen

had the crime existed at the time of commission, does not

warrant treating defendant’s conviction as a Class B felony

ineligible for set aside. Based on our review, the legislature

did not express any intent to apply the change retroactively.

We therefore conclude that the trial court erred in relying

on that rationale.

We now turn to the trial court’s other rationale

for denying the motion, that the crime defendant commit-

ted constituted a sex crime and therefore was ineligible to

be set aside pursuant to ORS 137.225(6)(f). ORS 137.225(6)

(f) establishes that the set aside statute does not apply to

convictions for any sex crime, apart from a few limited

exceptions not applicable to this case. For purposes of ORS

137.225, “ ‘sex crime’ has the meaning given that term in

ORS 163A.005.” ORS 137.225(13)(c). ORS 163A.005(5) con-

tains a list of crimes that constitute “sex crimes” and at the

time of the trial court’s decision, and at the time briefing

was completed on this appeal, that list did not include abuse

of corpse. The parties therefore agree that the trial court

erred in denying the motion on that basis.

Cite as 347 Or App 180 (2026) 189

Effective January 1, 2025, however, “abuse of a

corpse in the first degree as described in ORS 166.087(1)(a)”

was added to the list of sex crimes in ORS 163A.005(5).

ORS 163A.005(5)(y); Or Laws 2024, ch 63, § 1. Therefore,

had defendant committed abuse of corpse in the first degree,

the court’s decision to deny the motion for set aside on the

grounds that defendant had committed a sex crime would be

correct. However, our discussion above noting the problem-

atic issues with retroactively treating defendant’s conviction

as one for first-degree abuse of corpse applies here as well.

Defendant was not convicted of first-degree abuse of corpse;

that crime did not exist at the time of his conviction. To now

consider defendant’s conviction to be for a Class B person

felony sex crime goes to the nature of the conviction and

extends far beyond just the collateral issue of his eligibility

for set aside. Such treatment would implicate the serious

questions of constitutionality noted in Burke, Soreng, and

Beck.

We therefore conclude that defendant’s motion to set

aside should be assessed based on his conviction under ORS

166.085, a Class C felony that is not a sex crime, and the

only abuse of corpse statute that existed at the time of his

conviction. Our conclusion does not require the trial court

on remand to grant defendant’s motion. When a person is

otherwise eligible for relief, the court shall grant the motion

“unless the court makes written findings, by clear and con-

vincing evidence, that the circumstances and behavior of

the person * * * do not warrant granting the motion due to

the circumstances and behavior creating a risk to public

safety.” ORS 137.225(3)(a). The trial court explicitly stated

that it was not reaching that issue due to its conclusion that

the crime of conviction was ineligible to be set aside. On

remand, the trial court may reach that issue based on the

evidence before it.

Vacated and remanded.