State v. Davis

10 Citing cases

  1. State v. Gildersleeve

    215 P.3d 117 (Or. Ct. App. 2009)   Cited 2 times

    Alluding to another case in which we limited the Turner rule, the state asserts that, in resentencing, the trial court had to apply the sentencing guidelines and Measure 11, so, "[f]or all practical purposes * * * the trial court had no discretion when imposing sentence, other than to determine the portion of the sentence which was to be consecutive to the federal sentence defendant was already serving." See State v. Davis, 216 Or App 456, 470, 174 P3d 1022 (2007), rev den, 344 Or 401 (2008) ( Turner principle does not apply to resentencing when new sentence is legislatively mandated and trial court has no discretion). Alternatively, the state asserts, the sentence imposed on remand is not clearly more onerous than the original sentence.

  2. State v. Partain

    228 Or. App. 329 (Or. Ct. App. 2009)   Cited 4 times

    It therefore held that, under ORS 138.020, "[a]fter an appeal or post-conviction proceeding has resulted in the ordering of a retrial for errors other than an erroneous sentence, * * * and the defendant has again been convicted, no harsher sentence can be given than that initially imposed." Id. See also State v. Davis, 216 Or App 456, 469, 174 P3d 1022 (2007), rev den, 344 Or 401 (2008) (noting that, in Turner, the Supreme Court purported to construe ORS 138.020, even though its construction was not based on the text or legislative history of that provision).

  3. State v. Ambill

    282 Or. App. 821 (Or. Ct. App. 2016)   Cited 3 times

    Id . at 427, 974 P.2d 727. The legislature acted promptly to correct the deficiency identified in McLain . Or. Laws 1999, ch. 782, § 2; State v. Davis , 216 Or.App. 456, 464, 174 P.3d 1022 (2007), rev. den. , 344 Or. 401, 182 P.3d 200 (2008) (describing the legislature's response to our decision in McLain ). As amended—and as applicable to defendant—the statute continues to provide that the sentence for murder is an indeterminate life sentence, and directs that the sentencing court "shall order that the defendant shall be confined for a minimum of 25 years without possibility of parole" or any other form of release.

  4. State v. Thompson

    217 P.3d 697 (Or. Ct. App. 2009)   Cited 5 times
    In State v. Thompson, 231 Or. App. 193, 217 P.3d 697 (2009), we considered and rejected the defendant's argument that, on remand for resentencing in these circumstances, the court is prohibited from imposing a greater restitution award than originally imposed.

    Subsequently, we have identified two circumstances in which the general rule from Turner does not apply: (1) when the imposition of the sentence on remand does not involve the exercise of judicial discretion, and (2) when the sentence originally imposed was unlawful. State v. Partain, 228 Or App 329, 333, 208 P3d 526 (2009) (citing State v. Davis, 216 Or App 456, 470, 174 P3d 1022 (2007), rev den, 344 Or 401 (2008), and State v. Alvarez, 168 Or App 393, 396, 7 P3d 616, rev den, 331 Or 244 (2000)). Specifically, we have observed that "[n]othing in any case applying Turner purports to compel a trial court not to impose a legislatively mandated sentence, as opposed to a sentence permitted within a range of discretion."

  5. State v. Muyingo

    200 P.3d 601 (Or. Ct. App. 2009)   Cited 5 times

    Further, and contrary to defendant's contention, the commonsense construction of "case" that we endorse does not conflict with any constitutional constraints pertaining to resentencing on remand. To the extent that defendant's position in that regard rests on Turner, it fails for the reasons that we explained in State v. Davis, 216 Or App 456, 466-71, 174 P3d 1022 (2007), rev den, 344 Or 401 (2008). See id. at 469 ("Thus, the principle announced in Turner is, at least by its own terms, ultimately `statutory' and not constitutional.").

  6. State v. Davis

    182 P.3d 200 (Or. 2008)

    April 16, 2008. Appeal from the ( 216 Or App 456). Petitions for Review Denied.

  7. State v. Hubbard

    290 Or. App. 640 (Or. Ct. App. 2018)   Cited 2 times
    In Hubbard, the defendant argued, as in this case, that his life sentence for murder was unconstitutional under McLain, and therefore "erroneous."

    When the 1999 legislature granted the board that authority, the defect was cured. Id. ; Cf.State v. Davis , 216 Or. App. 456, 465, 174 P.3d 1022 (2007), rev. den. , 344 Or. 401, 182 P.3d 200 (2008) ("Thus, if—as in Haynes —defendant in this case had been sentenced before McLain to life imprisonment with a 25-year minimum and had appealed that sentence, and if we had decided that appeal after the effective date of the 1999 amendments, we would have sustained that sentence."). Therefore, defendant's life sentence under ORS 163.115(5) was not "erroneous" after the 1999 amendment was adopted, and the trial court lacked authority to delete it in 2015.

  8. State v. Giles

    254 Or. App. 345 (Or. Ct. App. 2012)   Cited 2 times

    We have referred to the time period between February 17, 1999, when this court held the “true life” version of ORS 163.115(5) to be unconstitutional, and October 23, 1999, when the amended, life-with-possibility-of-parole, version of the statute became effective, as the “McLain window.” See, e.g., State v. Davis, 216 Or.App. 456, 465, 174 P.3d 1022 (2007). Defendant committed his offense on August 26, 1999, during the McLain window.

  9. State v. Renner

    280 P.3d 1043 (Or. Ct. App. 2012)   Cited 1 times
    Holding that imposition of excessive term of post-prison supervision under ORS 144.103 was plain error

    Because that error requires the entire case to be remanded for resentencing, ORS 138.222(5)(a); State v. Angell, 200 Or.App. 244, 247, 113 P.3d 988 (2005), we need not address defendant's unpreserved argument that the trial court likewise erred in imposing sentence on his attempted first-degree sodomy conviction.See State v. Hollingquest, 241 Or.App. 1, 5, 250 P.3d 366 (2011) (“[W]e have held on numerous occasions that we need not address each and every assignment of error pertaining to sentencing on appeal if we conclude that one of the errors is an error that requires plenary resentencing under ORS 138.222(5).”); see, e.g., State v. Sauceda, 236 Or.App. 358, 362, 239 P.3d 996 (2010); State v. Cortes, 235 Or.App. 181, 230 P.3d 102 (2010); State v. Davis, 216 Or.App. 456, 474, 174 P.3d 1022 (2007), rev. den.,344 Or. 401, 182 P.3d 200 (2008); State v. Smitherman, 200 Or.App. 383, 114 P.3d 540 (2005); State v. Wilkins, 175 Or.App. 569, 587, 29 P.3d 1144,rev. den.,333 Or. 74, 36 P.3d 975 (2001). The state does not concede that the trial court erred in imposing sentence with respect to that conviction. Given our remand, the trial court will have an opportunity to address that issue in the first instance.

  10. State v. Hollingquest

    250 P.3d 366 (Or. Ct. App. 2011)   Cited 5 times

    Consistently with the holding in Edson, we have held on numerous occasions that we need not address each and every assignment of error pertaining to sentencing on appeal if we conclude that one of the errors is an error that requires plenary resentencing under ORS 138.222(5). See, e.g., State v. Sauceda, 236 Or. App. 358, 362, 239 P.3d 996 (2010) (after determining that error occurred that required resentencing, declining to review additional assignment of error concerning sentence as error apparent on the face of the record because "the trial court will have an opportunity [on remand for resentencing] to address that issue in the first instance"); State v. Cortes, 235 Or. App. 181, 230 P.3d 102 (2010) (same); State v. Davis, 216 Or. App. 456, 474, 174 P.3d 1022 (2007), rev den, 344 Or. 401 (2008) (determining that sentencing court had erred in failing to entertain the defendant's Blakely-based challenge to an upward departure sentence after a remand for resentencing pursuant to ORS 138.222(5)); State v. Smitherman, 200 Or. App. 383, 114 P.3d 540 (2005) (court did not consider asserted error concerning imposition of restitution, given the necessity of remanding pursuant to ORS 138.222(5) due to erroneously imposed departure sentence); State v. Wilkins, 175 Or. App. 569, 587, 29 P.3d 1144, rev den, 333 Or. 74 (2001) ("Given that the entire case must be remanded for resentencing, ORS 138.222(5), the court necessarily will have the opportunity to address defendant's [unpreserved] arguments as to the compensatory fine."). Those cases, as well as the plain wording of ORS 138.222(5), make the outcome in this case clear: After this court remanded for resentencing pursuant to ORS 138.222(5)(a), the entire case was before the trial court for resentencing —