holding that statutory sen- tencing scheme violated Article I, section 16, by permitting a lesser minimum sentence for defendants convicted of a more aggravated form of the same conduct
How later courts described this case
- holding that statutory sen- tencing scheme violated Article I, section 16, by permitting a lesser minimum sentence for defendants convicted of a more aggravated form of the same conduct
- comparing statutorily prescribed minimum sentences to be imposed by a trial court for, respectively, murder under ORS 163.115 and aggravated murder under ORS 163.095; determining that greater statutory minimum for murder was disproportionate to lesser statutory mínimums for aggravated murder; in making determination, court neither mentioned nor considered effect of board’s authority to release offenders on parole after service of minimum term
- applying vertical proportionality to conclude that the portion of a sentence that required the defendant to serve a minimum of 25 years before being eligible for parole was invalid under Article I, section 16, because it required a lesser minimum sentence for aggravated intentional homicide than “unaggravated” intentional homicide
- penalty assessable for the lesser-included crime of assault with intent to rob cannot be greater than that provided for an accomplished robbery
Written by the judges who cited it.
The opinion
*167 LENT, J.,
concurring in part and otherwise concurring in the result.
I concur in those parts of the opinion authored by Chief Justice Denecke concerning the instruction on self-defense, the questioning of prospective jurors, and the issue of severability.
I cannot concur in the opinion of the Chief Justice concerning the constitutionality of ORS 163.115 under Or Const Art I, § 16, or the separate opinion concerning the constitutionality of the statute under Or Const Art I, § 15, because I am convinced neither question is now properly before the court.
Prior to the enactment of the “aggravated murder” statutes, Or Laws 1977, ch 370, and continuing until the effective date of Ballot Measure 8, Or Laws 1979, ch 2, the punishment for murder was specified in ORS 163.115(5) as follows:
“A person convicted of murder shall be punished by imprisonment for life.”
By Or Laws 1977, ch 370, § 1, the legislature prescribed the crime of “aggravated murder” and defined that term. By Or Laws 1977, ch 370, § 2, the legislature provided for sentencing one convicted of aggravated murder and for consideration of that person for parole. Those two sections of ch 370 were codified as ORS 163.095 and 163.105, respectively. ORS 163.105 imposes upon the sentencing court the obligation to fix a statutorily prescribed minimum sentence:
“(1) When a defendant is convicted of murder defined as aggravated murder pursuant to subsection (1) of ORS 163.095, the court shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole, release on work release, temporary leave or employment at a forest or work camp.
“(2) When a defendant is convicted of murder defined as aggravated murder pursuant to subsection (2) of ORS 163.095, the court shall order that the defendant shall be confined for a minimum of 20 years without possibility of parole, release on work release, temporary leave or employment at a forest or work camp.” (Emphasis added.)
The statute requires the court to order confinement for a minimum term without possibility of parole or other *168 early relaxation of custody. When the court has carried out the sentencing duty thus imposed, the court has nothing further to do under those code sections. ORS 163.105(3), (4) and (5) speak to release earlier than the specified minimum terms, but those subsections are concerned with duties and powers of the State Board of Parole.
The statutory scheme for punishing one found guilty of non-aggravated murder under ORS 163.115 is significantly different. By passage of Ballot Measure 8 the people amended ORS 163.115(5) to its present form:
“Except when a sentence of death is imposed pursuant to ORS 163.116, a person convicted of murder shall be punished by imprisonment for life and shall be required to serve not less than 25 years before becoming eligible for parole.”
The difference between this subsection and ORS 163.015(1) and (2) is striking. ORS 163.115 is absolutely silent as to any duty of the sentencing court to impose any minimum sentence. Rather, the subsection deals with minimum time to be served by prescribing eligibility for parole, a matter for the cognizance of the State Board of Parole.
The pertinent part of the trial court’s judgment was as follows:
“WHEREFORE, IT IS HEREBY ORDERED that the defendant, Douglas Linn Shumway, be sentenced to the legal and physical custody and control of the Corrections Division of the State of Oregon for the rest of his natural life.”
That judgment does not set any minimum sentence, nor does it contain any mention of any aspect of the defendant’s eligibility for parole.
It is from that judgment that defendant has appealed. He made various assignments of error with respect to the trial court’s instructions to the jury and questioning of the members of the jury panel; we have decided those matters adversely to the defendant. His remaining assignment of error does not attack the sentence which was imposed.
As the case now stands, therefore, he has been duly convicted, and a sentence has been pronounced, which he *169 does not question. The judgment and sentence which have been given are exactly that which would have been the result of defendant’s conviction of the crime of murder had Ballot Measure 8 died aborning.
Article I, sections 15 and 16, of the Oregon Constitution may have some application to issues that some day may arise with respect to this defendant’s eligibility for parole should there come a time when no reasonable person could question the defendant’s reformation in fact or should there come a time when he might be eligible for parole had he committed aggravated murder but is not eligible because he committed a non-aggravated murder. 1
In summary, it is my position that the discussions by the Chief Justice and in the other separate opinion of the constitutional questions are dicta. There is nothing in the record of this case to the present time to occasion any decision by any court as to the constitutionality of the statute in fixing a minimum period of confinement before the defendant is eligible for parole. There is no error of the trial court to be found and corrected. Defendant had the fair trial to which he was entitled and has been sentenced to life imprisonment.
I concur in the result that the conviction and sentence to imprisonment for defendant’s natural life must be affirmed.
There may be any number of issues which may arise in the future that I have not discussed. I do not pretend to be able to foresee all possible settings in which he may timely assert his constitutional arguments.