State v. Bowen

Defendant should have sought reconsideration of the disposition of the Supreme Court rather than waiting for the order to be issued to the trial court and then assigning error to the trial court's compliance with those terms.

On automatic and direct review by the Court for the third time following remand to the trial court, Defendant raised principle issue asking whether on remand the trial court erred in denying his motion for resentencing on his non-capital felony convictions. Defendant assaulted his ex-girlfriend and, in a different incident the same day, killed a friend and committed theft from that victim. Defendant plead guilty to the assault of his girlfriend. The murder of the friend went to a jury trial. The jury found Defendant guilty on all charges. On the aggravated murder verdict, the trial court held a penalty phase proceeding. The jury made findings to support the imposition of a death sentence on the two aggravated murder charges. The trial court subsequently imposed a sentence of death on each of the two aggravated murder convictions and sentenced Defendant on the intentional murder convictions, as well as the other felony and misdemeanor charges. In Bowen I, the Court concluded the trial court should have merged the two aggravated murder and the intentional murder convictions into a single aggravated murder conviction, should have enumerated separately each aggravating factor in the merged aggravated murder convictions, and should have imposed a single sentence of death. The Court remanded for "entry of a corrected judgment of conviction, reflecting defendant's guilt on the charge of aggravated murder, based upon alternative aggravating factors, and intentional murder, and imposing one sentence of death." On remand, the trial court merged the convictions but failed to enumerate the aggravating factors. During the second time on automatic review, Bowen II, the Court concluded the lower court was permitted to correct the judgment, rather than resentence Defendant, but the lower court failed to enumerate the aggravating factors. The Court remanded to the lower court to enter a corrected judgment. On this review, Defendant asserted the trial court erred in not resentencing him on his non-capital felony convictions, arguing under ORS 138.222(5)(b), the Court was statutorily required to remand for resentencing. Defendant asserted this error based on an order from this Court. Defendant cannot assign error to the acts of a trial court based on an order from this Court. Defendant should have asked whether this Court legally erred in Bowen II; however, he did not raise that question in a timely and procedurally proper way. The judgment of conviction and sentence of death were affirmed.