State v. Bowen

Entry of a corrected judgment on remand does not trigger the alternative sentencing procedures provided in ORS 138.012(2)(a).

On review from an aggravated murder conviction and sentence of death from the Curry County Circuit Court. This appeal derived from an initial appeal in 2006 where the Oregon Supreme Court affirmed Defendant’s convictions, but held the trial court erred by not merging the aggravated and intentional murder verdicts together. On remand from the trial court, the Defendant asserted the trial court erred by denying three separate motions: 1) by not following ORS 138.012, which required a sentence of life with parole or a new sentencing proceeding; 2) asserting the trial court committed plain error by requiring the Defendant to wear a stun device at trial; and 3) the trial court erred in rejecting Defendant’s motion to dismiss because of a lack of speedy sentencing. The Oregon Supreme Court held that ORS 138.012 did not apply to the remand proceedings because the trial court merely inserted a corrected judgment. However, the trial court did not correctly enumerate and separate each factor as required. The Court directly entered a new corrected judgment. Secondly, the stun device issue was not plain error and Defendant could not relitigate the issue. Finally, the two years that elapsed between the first appellate judgment and the resentencing did not violate speedy trial rights because remand was limited to a corrected judgment. Corrected judgment reversed and remanded to merge murder convictions and separate enumerated aggravating factors. Conviction and sentence of death are affirmed.