Session Law
AN ACT
SB 392
Relating to death penalty;
creating new provisions; amending ORS 40.015, 137.463, 137.707, 138.510,
138.590, 144.122, 144.126 and 163.150; and repealing ORS 138.685 and 138.687.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 163.150 is amended to read:
163.150. (1)(a) Upon a finding that the defendant is guilty of
aggravated murder, the court, except as otherwise provided in subsection (3) of
this section, shall conduct a separate sentencing proceeding to determine
whether the defendant shall be sentenced to life imprisonment, as described in
ORS 163.105 (1)(c), life imprisonment without the possibility of release or
parole, as described in ORS 163.105 (1)(b), or death. The proceeding shall be
conducted in the trial court before the trial jury as soon as practicable. If a
juror for any reason is unable to perform the function of a juror, the juror
shall be dismissed from the sentencing proceeding. The court shall cause to be
drawn the name of one of the alternate jurors, who shall then become a member
of the jury for the sentencing proceeding notwithstanding the fact that the
alternate juror did not deliberate on the issue of guilt. The substitution of
an alternate juror shall be allowed only if the jury has not begun to
deliberate on the issue of the sentence. If the defendant has pleaded guilty,
the sentencing proceeding shall be conducted before a jury impaneled for that
purpose. In the proceeding, evidence may be presented as to any matter that the
court deems relevant to sentence including, but not limited to, victim impact
evidence relating to the personal characteristics of the victim or the impact
of the crime on the victim's family and any aggravating or mitigating evidence
relevant to the issue in paragraph (b)(D) of this subsection; however, neither
the state nor the defendant shall be allowed to introduce repetitive evidence
that has previously been offered and received during the trial on the issue of
guilt. The court shall instruct the jury that all evidence previously offered
and received may be considered for purposes of the sentencing hearing. This
subsection shall not be construed to authorize the introduction of any evidence
secured in violation of the Constitution of the United States or of the State
of Oregon. The state and the defendant or the counsel of the defendant shall be
permitted to present arguments for or against a sentence of death and for or
against a sentence of life imprisonment with or without the possibility of
release or parole.
(b) Upon the conclusion of the presentation of the evidence,
the court shall submit the following issues to the jury:
(A) Whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable expectation
that death of the deceased or another would result;
(B) Whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to
society;
(C) If raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased; and
(D) Whether the defendant should receive a death sentence.
(c)(A) The court shall instruct the jury to consider, in
determining the issues in paragraph (b) of this subsection, any mitigating
circumstances offered in evidence, including but not limited to the defendant's
age, the extent and severity of the defendant's prior criminal conduct and the
extent of the mental and emotional pressure under which the defendant was
acting at the time the offense was committed.
(B) The court shall instruct the jury to answer the question in
paragraph (b)(D) of this subsection "no" if, after considering any
aggravating evidence and any mitigating evidence concerning any aspect of the
defendant's character or background, or any circumstances of the offense and
any victim impact evidence as described in subsection (1)(a) of this section,
one or more of the jurors believe that the defendant should not receive a death
sentence.
(d) The state must prove each issue submitted under paragraph
(b)(A) to (C) of this subsection beyond a reasonable doubt, and the jury shall
return a special verdict of "yes" or "no" on each issue
considered.
(e) The court shall charge the jury that it may not answer any
issue "yes," under paragraph (b) of this subsection unless it agrees
unanimously.
(f) If the jury returns an affirmative finding on each issue
considered under paragraph (b) of this subsection, the trial judge shall
sentence the defendant to death.
[(g) The judgment of
conviction and sentence of death shall be subject to automatic and direct
review by the Supreme Court. The review by the Supreme Court shall have
priority over all other cases, and shall be heard in accordance with rules
promulgated by the Supreme Court. A sentence of death shall be automatically
stayed if the defendant seeks review by the United States Supreme Court on a
direct appeal. The stay shall remain in effect until:]
[(A) The defendant's time
for filing a petition for certiorari or an appeal expires;]
[(B) The United States
Supreme Court acts to decline to consider the case further; or]
[(C) The United States
Supreme Court resolves the case on the merits.]
(2)(a) Upon the conclusion of the presentation of the evidence,
the court shall also instruct the jury that if it reaches a negative finding on
any issue under subsection (1)(b) of this section, the trial court shall
sentence the defendant to life imprisonment without the possibility of release
or parole, as described in ORS 163.105 (1)(b), unless 10 or more members of the
jury further find that there are sufficient mitigating circumstances to warrant
life imprisonment, in which case the trial court shall sentence the defendant
to life imprisonment as described in ORS 163.105 (1)(c).
(b) If the jury returns a negative finding on any issue under
subsection (1)(b) of this section and further finds that there are sufficient
mitigating circumstances to warrant life imprisonment, the trial court shall
sentence the defendant to life imprisonment in the custody of the Department of
Corrections as provided in ORS 163.105 (1)(c).
(3)(a) When the defendant is found guilty of aggravated murder
[upon a plea of guilty or no contest
prior to the introduction of evidence before the trier of fact], and the
state advises the court on the record that the state declines to present
evidence for purposes of sentencing the defendant to death, the court:
(A) Shall not conduct a sentencing proceeding as described in
subsection (1) of this section, and a sentence of death shall not be ordered.
(B) Shall conduct a sentencing proceeding to determine whether
the defendant shall be sentenced to life imprisonment without the possibility
of release or parole as described in ORS 163.105 (1)(b) or life imprisonment as
described in ORS 163.105 (1)(c). If the defendant waives all rights to a jury
sentencing proceeding, the court shall conduct the sentencing proceeding as the
trier of fact. The procedure for the sentencing proceeding, whether before a
court or a jury, shall follow the procedure of subsection (1)(a) and subsection
(2) of this section, as modified by this subsection which prohibits a sentence
of death when the state declines to present evidence.
(b) Nothing in this subsection shall preclude the court from
sentencing the defendant to life imprisonment, as described in ORS 163.105
(1)(c), or life imprisonment without the possibility of release or parole, as
described in ORS 163.105 (1)(b), pursuant to a stipulation of sentence or
stipulation of sentencing facts agreed to and offered by both parties if the
defendant waives all rights to a jury sentencing proceeding.
(4) If any part of subsection (2) of this section is held invalid
and as a result thereof a defendant who has been sentenced to life imprisonment
without possibility of release or parole will instead be sentenced to life
imprisonment in the custody of the Department of Corrections as provided in ORS
163.105 (2), the defendant shall be confined for a minimum of 30 years without
possibility of parole, release on work release or any form of temporary leave
or employment at a forest or work camp. Subsection (2) of this section shall
apply only to trials commencing on or after July 19, 1989.
(5) Notwithstanding subsection (1)(a) of this section, [the following shall apply:]
[(a) If a reviewing court
finds prejudicial error in the sentencing proceeding only, the court may set
aside the sentence of death and remand the case to the trial court. No error in
the sentencing proceeding shall result in reversal of the defendant's conviction
for aggravated murder. Upon remand and at the election of the state, the trial
court shall either:]
[(A) Sentence the
defendant to imprisonment for life in the custody of the Department of
Corrections as provided in ORS 163.105 (1)(c); or]
[(B) Impanel a new
sentencing jury for the purpose of conducting a new sentencing proceeding to
determine if the defendant should be sentenced to:]
[(i) Death;]
[(ii) Imprisonment for
life without the possibility of release or parole as provided in ORS 163.105
(1)(b); or]
[(iii) Imprisonment for
life in the custody of the Department of Corrections as provided in ORS 163.105
(1)(c).]
[(b)] if the trial
court grants a mistrial during the sentencing proceeding, the trial court, at
the election of the state, shall either:
[(A)] (a) Sentence the defendant to
imprisonment for life in the custody of the Department of Corrections as
provided in ORS 163.105 (1)(c); or
[(B)] (b) Impanel a new sentencing jury for
the purpose of conducting a new sentencing proceeding to determine if the
defendant should be sentenced to:
[(i)] (A) Death;
[(ii)] (B) Imprisonment for life without the
possibility of release or parole as provided in ORS 163.105 (1)(b); or
[(iii)] (C) Imprisonment for life in the
custody of the Department of Corrections as provided in ORS 163.105 (1)(c).
[(c) Nothing in this
subsection shall preclude the court from sentencing the defendant to life
imprisonment without the possibility of release or parole, as described in ORS
163.105 (1)(b), pursuant to a stipulation of sentence if the defendant waives
all rights to a jury sentencing proceeding.]
[(d) The new sentencing
proceeding shall be governed by the provisions of subsections (1) and (2) of
this section. A transcript of all testimony and all exhibits and other evidence
properly admitted in the prior trial and sentencing proceeding shall be
admissible in the new sentencing proceeding. Either party may recall any
witness who testified at the prior trial or sentencing proceeding and may
present additional relevant evidence.]
[(e) The provisions of
this section are procedural and shall apply to any defendant sentenced to death
after December 6, 1984.]
SECTION 2.
ORS 137.463 is amended to read:
137.463. (1) When a [judgment]
sentence of death is pronounced, [a warrant signed by the trial judge and
attested by the clerk of the court, with the seal of the court affixed, shall
be drawn and delivered] the clerk of
the court shall deliver a copy of the judgment of conviction and sentence of
death to the sheriff of the county. [The
warrant shall state the conviction and judgment and shall direct] The
sheriff [to] shall deliver the defendant within 20 days from the [time of] date the judgment [to the
Superintendent of the Oregon State Penitentiary] is entered to the correctional institution designated by the Director
of the Department of Corrections pending the determination of the automatic
and direct review by the Supreme Court
under section 5 of this 1999 Act.
(2) If the Supreme Court affirms the sentence of death, a death warrant[, signed by the trial judge of the court in which the judgment was
rendered and attested by the clerk of that court, shall be drawn and delivered
to the Superintendent of the Oregon State Penitentiary. The warrant shall
appoint a day on which the judgment is to be executed and shall authorize and
command the superintendent to execute the judgment of the court.] hearing shall take place in the court in
which the judgment was rendered within 30 days after the effective date of the
appellate judgment or, upon motion of the state, on a later date. The following
apply to a death warrant hearing under this subsection:
(a) The defendant must be
present; and
(b) The defendant may be
represented by counsel. If the defendant was represented by appointed counsel
on automatic and direct review, that counsel's appointment continues for
purposes of the death warrant hearing and any related matters. If that counsel
is unavailable, the court shall appoint counsel pursuant to the procedure in
ORS 135.050 and 135.055.
(3)(a) If the defendant
indicates the wish to waive the right to counsel for the purpose of the death
warrant hearing, the court shall inquire of the defendant on the record to
ensure that the waiver is competent, knowing and voluntary.
(b) If the court finds that
the waiver is competent, knowing and voluntary, the court shall discharge
counsel.
(c) If the court finds on
the record that the waiver of the right to counsel granted by this section is
not competent, knowing or voluntary, the court shall continue the appointment
of counsel.
(d) Notwithstanding the fact
that the court finds on the record that the defendant competently, knowingly
and voluntarily waives the right to counsel, the court may continue the
appointment of counsel as advisor only for the purposes of the death warrant
hearing.
(4) At the death warrant
hearing, the court:
(a) After appropriate
inquiry, shall make findings on the record whether the defendant suffers from a
mental condition that prevents the defendant from comprehending the reasons for
the death sentence or its implication. The defendant has the burden of proving
by a preponderance of the evidence that the defendant suffers from a mental
condition that prevents the defendant from comprehending the reasons for the
death sentence or its implication.
(b) Shall advise the
defendant that the defendant is entitled to counsel in any post-conviction
proceeding and that counsel will be appointed if the defendant is indigent.
(c) Shall determine whether
the defendant intends to pursue any challenges to the sentence or conviction.
If the defendant states on the record that the defendant does not intend to
challenge the sentence or conviction, the court after advising the defendant of
the consequences shall make a finding on the record whether the defendant
competently, knowingly and voluntarily waives the right to pursue:
(A) A petition for
certiorari to the United States Supreme Court;
(B) Post-conviction relief
under ORS 138.510 to 138.680; and
(C) Federal habeas corpus
review under 28 U.S.C. 2254.
(5) Following the death
warrant hearing, a death warrant, signed by the trial judge of the court in
which the judgment was rendered and attested by the clerk of that court, shall
be drawn and delivered to the superintendent of the correctional institution
designated by the Director of the Department of Corrections. The death warrant
shall specify a day on which the sentence of death is to be executed and shall
authorize and command the superintendent to execute the judgment of the court.
The trial court shall specify the date of execution of the sentence, taking
into consideration the needs of the Department of Corrections. The trial court
shall specify a date not less than 90 days nor more than 120 days following the
effective date of the appellate judgment.
(6)(a) Notwithstanding any
other provision in this section, if the court finds that the defendant suffers
from a mental condition that prevents the defendant from comprehending the
reasons for the sentence of death or its implications, the court may not issue
a death warrant until such time as the court, after appropriate inquiries,
finds that the defendant is able to comprehend the reasons for the sentence of
death and its implications.
(b)(A) If the court does not
issue a death warrant because it finds that the defendant suffers from a mental
condition that prevents the defendant from comprehending the reasons for the
sentence of death or its implications, the court shall conduct subsequent
hearings on the issue on motion of the district attorney or the defendant's
counsel or on the court's own motion, upon a showing that there is substantial
reason to believe that the defendant's condition has changed.
(B) The court may hold a
hearing under this paragraph no more frequently than once every six months.
(C) The state and the
defendant may obtain an independent medical, psychiatric or psychological
examination of the defendant in connection with a hearing under this paragraph.
(D) In a hearing under this
paragraph, the defendant has the burden of proving by a preponderance of the
evidence that the defendant continues to suffer from a mental condition that
prevents the defendant from comprehending the reasons for the sentence of death
or its implications.
(7) If for any reason a
sentence of death is not executed on the date appointed in the death warrant,
and the sentence of death remains in force and is not stayed under section 6 of
this 1999 Act or otherwise by a court of competent jurisdiction, the court that
issued the initial death warrant, on motion of the state and without further
hearing, shall issue a new death warrant specifying a new date on which the
sentence is to be executed. The court shall specify a date for execution of the
sentence, taking into consideration the needs of the Department of Corrections.
The court shall specify a date not more than 20 days after the date on which
the state's motion was filed.
(8) No appeal may be taken
from an order issued pursuant to this section.
SECTION 3. (1)(a) At the death warrant hearing under
ORS 137.463, the court shall order that the Mental Health and Developmental
Disability Services Division or its designee perform an assessment of the
defendant's mental capacity to engage in reasoned choices of legal strategies
and options if:
(A) The defendant indicates
the wish to waive the right to counsel; and
(B) The court has
substantial reason to believe that, due to mental incapacity, the defendant
cannot engage in reasoned choices of legal strategies and options.
(b) The court also shall
order an assessment described in paragraph (a) of this subsection upon motion
by the state.
(2) If the requirements of
subsection (1) of this section are met, the court may order the defendant to be
committed to a state mental hospital designated by the Mental Health and
Developmental Disability Services Division for a period not exceeding 30 days
for the purpose of assessing the defendant's mental capacity. The report of any
competency assessment performed under this section must include, but need not
be limited to, the following:
(a) A description of the
nature of the assessment;
(b) A statement of the
mental condition of the defendant; and
(c) A statement regarding
the defendant's mental capacity to engage in reasoned choices of legal
strategies and options.
(3) If the competency
assessment cannot be conducted because the defendant is unwilling to
participate, the report must so state and must include, if possible, an opinion
as to whether the unwillingness of the defendant is the result of a mental
condition affecting the defendant's mental capacity to engage in reasoned
choices of legal strategies and options.
(4) The Mental Health and
Developmental Disability Services Division shall file three copies of the
report of the competency assessment with the clerk of the court, who shall
cause copies to be delivered to the district attorney and to counsel for the
defendant.
SECTION 4. (1) If the court has ordered the Mental
Health and Developmental Disability Services Division to perform a competency
assessment of the defendant under section 3 of this 1999 Act and the assessment
has been completed, the court shall determine the issue of the defendant's
mental capacity to engage in reasoned choices of legal strategies and options.
If neither the state nor counsel for the defendant contests the finding of the
report filed under section 3 of this 1999 Act, the court may make the determination
of the defendant's mental capacity to engage in reasoned choices of legal
strategies and options on the basis of the report. If the finding is contested,
the court shall hold a hearing on the issue. If the report is received in
evidence at the hearing, the party contesting the finding has the right to
summon and to cross-examine the psychiatrist or psychologist who submitted the
report and to offer evidence on the issue. Either party may introduce other
evidence regarding the defendant's mental capacity to engage in reasoned
choices of legal strategies and options.
(2) If the court determines
that, due to mental incapacity, the defendant cannot engage in reasoned choices
of legal strategies and options, the court shall continue the appointment of
counsel provided under ORS 137.463.
(3) No appeal may be taken
from an order issued pursuant to this section.
SECTION 5. (1) The judgment of conviction and sentence
of death entered under ORS 163.150 (1)(f) is subject to automatic and direct
review by the Supreme Court. The review by the Supreme Court has priority over
all other cases and shall be heard in accordance with rules adopted by the
Supreme Court.
(2) Notwithstanding ORS
163.150 (1)(a), after automatic and direct review of a conviction and sentence
of death the following apply:
(a) If a reviewing court
finds prejudicial error in the sentencing proceeding only, the court may set
aside the sentence of death and remand the case to the trial court. No error in
the sentencing proceeding results in reversal of the defendant's conviction for
aggravated murder. Upon remand and at the election of the state, the trial
court shall either:
(A) Sentence the defendant
to imprisonment for life in the custody of the Department of Corrections as
provided in ORS 163.105 (1)(c); or
(B) Impanel a new sentencing
jury for the purpose of conducting a new sentencing proceeding to determine if
the defendant should be sentenced to:
(i) Death;
(ii) Imprisonment for life
without the possibility of release or parole as provided in ORS 163.105 (1)(b);
or
(iii) Imprisonment for life
in the custody of the Department of Corrections as provided in ORS 163.105
(1)(c).
(b) The new sentencing
proceeding is governed by the provisions of ORS 163.150 (1), (2), (3)(b) and
(5). A transcript of all testimony and all exhibits and other evidence properly
admitted in the prior trial and sentencing proceeding are admissible in the new
sentencing proceeding. Either party may recall any witness who testified at the
prior trial or sentencing proceeding and may present additional relevant
evidence.
(c) The provisions of this
subsection are procedural and apply to any defendant sentenced to death after
December 6, 1984.
SECTION 6. (1) The execution of a sentence of death is
automatically stayed for 90 days following the effective date of an appellate
judgment affirming the sentence of death on automatic and direct review.
(2) If the defendant files a
petition for certiorari seeking United States Supreme Court review of the
sentence of death within 90 days after the effective date of the appellate
judgment or within such other time as allowed by the United States Supreme Court,
execution of the sentence of death is automatically stayed until the United
States Supreme Court denies the petition or grants the petition and resolves
the merits.
(3) Upon final resolution of
a petition for certiorari to the United States Supreme Court, execution of the
sentence of death is automatically stayed for 30 days after the date the
petition is resolved to allow the defendant to file a notice in the circuit
court of the county in which the defendant is imprisoned attesting to the
defendant's intent to file a petition for post-conviction relief. If the
defendant files a first petition for post-conviction relief within 90 days
after the notice provided for in this subsection, the execution of the sentence
of death is stayed until the post-conviction petition is finally resolved. If a
first petition for post-conviction relief is not filed within 90 days after the
notice provided for in this subsection, the defendant may apply to the circuit
court in which the notice was filed to extend the stay. The circuit court shall
extend the stay for a reasonable time upon the defendant's showing that
progress is being made in the preparation of the petition and that it will be
filed within a reasonable time.
(4) If the defendant does
not file a petition for certiorari seeking United States Supreme Court review
of the sentence of death but does file a first petition for post-conviction
relief within 90 days after the date upon which the appellate judgment becomes
effective, execution of the sentence of death is stayed until the petition for
post-conviction relief is finally resolved.
SECTION 7.
ORS 138.510 is amended to read:
138.510. (1) Except as otherwise provided in ORS 138.540, any
person convicted of a crime under the laws of this state may file a petition
for post-conviction relief pursuant to ORS 138.510 to 138.680.
(2) A petition for
post-conviction relief may be filed by one person on behalf of another person
who has been convicted of aggravated murder and sentenced to death only if the
person filing the petition demonstrates by a preponderance of the evidence that:
(a) The person sentenced to
death is unable to file a petition on the person's own behalf due to mental
incapacity or because of a lack of access to the court; and
(b) The person filing the
petition has a significant relationship with the person sentenced to death and
will act in the best interest of the person on whose behalf the petition is
being filed.
[(2)] (3) A petition pursuant to ORS 138.510
to 138.680 must be filed within two years of the following, unless the court on
hearing a subsequent petition finds grounds for relief asserted which could not
reasonably have been raised in the original or amended petition:
(a) If no appeal is taken, the date the judgment or order on
the conviction was entered in the register.
(b) If an appeal is taken, the date the appeal is final in the
Oregon appellate courts.
[(3)] (4) A one-year filing period shall
apply retroactively to petitions filed by persons whose convictions and appeals
became final before August 5, 1989, and any such petitions must be filed within
one year after November 4, 1993. A person whose post-conviction petition was
dismissed prior to November 4, 1993, cannot file another post-conviction
petition involving the same case.
[(4)] (5) The remedy created by ORS 138.510
to 138.680 is available to persons convicted before May 26, 1959.
[(5)] (6) In any post-conviction proceeding
pending in the courts of this state on May 26, 1959, the person seeking relief
in such proceedings shall be allowed to amend the action and seek relief under
ORS 138.510 to 138.680. If such person does not choose to amend the action in
this manner, the law existing prior to May 26, 1959, shall govern the case.
SECTION 8.
ORS 138.590 is amended to read:
138.590. (1) Any petitioner who is unable to pay the expenses
of a proceeding pursuant to ORS 138.510 to 138.680 or to employ suitable
counsel possessing skills and experience commensurate with the nature of the
conviction and complexity of the case for such a proceeding may proceed as an
indigent person pursuant to this section upon order of the circuit court in
which the petition is filed.
(2) If the petitioner wishes to proceed as an indigent person,
the person shall file with the petition an affidavit stating inability to pay
the expenses of a proceeding pursuant to ORS 138.510 to 138.680, including, but
not limited to, the filing fee required by ORS 138.560, or to employ suitable
counsel for such a proceeding. The affidavit shall contain a brief statement of
the petitioner's assets and
liabilities and income during the previous year. If the circuit court is
satisfied that the petitioner is
unable to pay such expenses or to employ suitable counsel, it shall order that the petitioner proceed as an indigent
person. If the court finds that a
petitioner who has been sentenced to death is not competent to decide whether
to accept or reject the appointment of counsel, the court shall appoint counsel
to represent the petitioner. However, when the Circuit Court for Marion
County orders petitioner's case transferred to another circuit court as
provided in ORS 138.560 (4), the matter of petitioner's proceeding as an
indigent person shall be determined by the latter court.
(3) If a petitioner who
has been sentenced to death qualifies for the appointment of counsel under this
section but rejects the appointment, the court shall determine, after a hearing
if necessary, whether the petitioner rejected the offer of counsel and made the
decision with an understanding of its legal consequences. The court shall make
appropriate findings on the record.
[(3)] (4) In the order to proceed as an indigent
person, the circuit court shall appoint suitable counsel to represent
petitioner. Counsel so appointed shall represent petitioner throughout the
proceedings in the circuit court.
[(4)] (5) If counsel appointed by the circuit
court determines that the petition as filed by petitioner is defective, either
in form or in substance, or both, counsel may move to amend the petition within
15 days following counsel's appointment, or within such further period as the
court may allow. Such amendment shall be permitted as of right at any time
during this period. If appointed counsel believes that the original petition
cannot be construed to state a ground for relief under ORS 138.510 to 138.680,
and cannot be amended to state such a ground, counsel shall, in lieu of moving
to amend the petition, inform the petitioner and notify the circuit court of
such belief by filing an affidavit stating such belief and the reasons therefor
with the clerk of the circuit court. This affidavit shall not constitute a
ground for denying the petition prior to a hearing upon its sufficiency, but
the circuit court may consider such affidavit in deciding upon the sufficiency
of the petition at the hearing.
[(5)] (6) When a petitioner has been ordered
to proceed as an indigent person, the expenses which are necessary for the
proceedings upon the petition in the circuit court and the compensation to
appointed counsel for petitioner as provided in this subsection shall be paid
by the state from funds available for the purpose. At the conclusion of
proceedings on a petition pursuant to ORS 138.510 to 138.680, the circuit court
shall determine and allow, as provided in ORS 135.055, the amount of expenses
of petitioner and compensation for the services of appointed counsel in the
proceedings in the circuit court. The expenses and compensation determined by
the circuit court shall be certified to and paid by the state.
[(6)] (7) If appointed counsel is under
contract to provide services for the proceeding pursuant to ORS 151.460, the
court shall not allow compensation for that appointed counsel. In all other
cases, counsel shall be compensated as provided in this section.
[(7)(a)] (8)(a) When a petitioner has been
ordered to proceed as an indigent person, all court fees in the circuit court,
except for the filing fee required by ORS 138.560, are waived.
(b) When a petitioner is allowed to file a petition without
payment of the fee required by ORS 138.560 due to inability to pay, the fee is
not waived but may be drawn from, or charged against, the petitioner's trust
account if the petitioner is an inmate in a correctional facility.
(9) Notwithstanding any
other provision of this chapter, a court may not appoint as counsel for a
petitioner who has been sentenced to death a counsel who previously represented
the petitioner at trial or on automatic and direct review in the case resulting
in the death sentence unless the petitioner and the counsel expressly request
continued representation.
SECTION 9. (1) Notwithstanding any other law, a
licensed health care professional or a nonlicensed medically trained person may
assist the Department of Corrections in an execution carried out under ORS
137.473.
(2) Any assistance rendered
in an execution carried out under ORS 137.473 by a licensed health care
professional or a nonlicensed medically trained person is not cause for
disciplinary measures or regulatory oversight by any board, commission or
agency created by this state or governed by state law that oversees or
regulates the practice of health care professionals including, but not limited
to, the Board of Medical Examiners for the State of Oregon and the Oregon State
Board of Nursing.
(3) The infliction of the
punishment of death by the administration of the required lethal substances in
the manner required by ORS 137.473 may not be construed to be the practice of
medicine.
(4) As used in this section,
"licensed health care professional" includes, but is not limited to,
a physician, physician assistant, nurse practitioner, nurse and emergency
medical technician licensed by the Board of Medical Examiners of the State of
Oregon or the Oregon State Board of Nursing.
SECTION 10. Not later than 30 days after the execution
of a sentence of death under ORS 137.473, the superintendent of the
correctional institution where the sentence was executed shall return the death
warrant to the clerk of the trial court from which the warrant was issued with
the superintendent's return on the death warrant showing the time, place and
manner in which the death warrant was executed.
SECTION 11.
ORS 40.015 is amended to read:
40.015. (1) The Oregon Evidence Code applies to all courts in
this state except for:
(a) A tax court small claims procedure or a hearing or
mediation before a magistrate of the Oregon Tax Court as provided by ORS
305.501;
(b) The small claims department of a circuit court as provided
by ORS 46.415; and
(c) The small claims department of a justice court as provided
by ORS 55.080.
(2) The Oregon Evidence Code applies generally to civil
actions, suits and proceedings, criminal actions and proceedings and to
contempt proceedings except those in which the court may act summarily.
(3) ORS 40.225 to 40.295 relating to privileges apply at all
stages of all actions, suits and proceedings.
(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in
the following situations:
(a) The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by the court under
ORS 40.030.
(b) Proceedings before grand juries, except as required by ORS
132.320.
(c) Proceedings for extradition, except as required by ORS
133.743 to 133.857.
(d) Sentencing proceedings, except proceedings under ORS
163.150 and section 5 of this 1999 Act
or as required by ORS 137.090.
(e) Proceedings to revoke probation, except as required by ORS
137.090.
(f) Issuance of warrants of arrest, bench warrants or search
warrants.
(g) Proceedings under ORS chapter 135 relating to conditional
release, security release, release on personal recognizance, or preliminary
hearings, subject to ORS 135.173.
(h) Proceedings to determine proper disposition of a child in
accordance with ORS 419B.325 (2) and 419C.400 (3).
(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230,
813.250 and 813.255 to determine whether a driving while under the influence of
intoxicants diversion agreement should be allowed or terminated.
SECTION 12.
ORS 137.707 is amended to read:
137.707. (1)(a) Notwithstanding any other provision of law,
when a person charged with aggravated murder, as defined in ORS 163.095, or an
offense listed in subsection (4)(a) of this section is 15, 16 or 17 years of
age at the time the offense is committed, and the offense is committed on or
after April 1, 1995, or when a person charged with an offense listed in
subsection (4)(b) of this section is 15, 16 or 17 years of age at the time the
offense is committed, and the offense is committed on or after October 4, 1997,
the person shall be prosecuted as an adult in criminal court.
(b) A district attorney, the Attorney General or a juvenile
department counselor may not file in juvenile court a petition alleging that a
person has committed an act that, if committed by an adult, would constitute
aggravated murder or an offense listed in subsection (4) of this section if the
person was 15, 16 or 17 years of age at the time the act was committed.
(2) When a person charged under this section is convicted of an
offense listed in subsection (4) of this section, the court shall impose at
least the presumptive term of imprisonment provided for the offense in
subsection (4) of this section. The court may impose a greater presumptive term
if otherwise permitted by law, but may not impose a lesser term. The person is
not, during the service of the term of imprisonment, eligible for release on
post-prison supervision or any form of temporary leave from custody. The person
is not eligible for any reduction in, or based on, the minimum sentence for any
reason under ORS 421.121 or any other provision of law. ORS 163.105 and 163.150
and section 5 of this 1999 Act apply
to sentencing a person prosecuted under this section and convicted of
aggravated murder under ORS 163.095 except that a person who was under 18 years
of age at the time the offense was committed is not subject to a sentence of
death.
(3) The court shall commit the person to the legal and physical
custody of the Department of Corrections.
(4) The offenses to which this section applies and the
presumptive sentences are:
___________________________________________________________________
(a)(A) Murder, as
defined in
ORS 163.115................................................... 300 months
(B) Attempt or
conspiracy
to commit aggravated
murder, as defined
in ORS 163.095............................................... 120 months
(C) Attempt or
conspiracy
to commit murder, as
defined in ORS
163.115.............................................................. 90
months
(D) Manslaughter
in the
first degree, as defined
in ORS 163.118............................................... 120 months
(E) Manslaughter
in the
second degree, as defined
in ORS 163.125................................................. 75 months
(F) Assault in
the
first degree, as defined
in ORS 163.185...................................................... 90
months
(G) Assault in
the
second degree, as
defined in
ORS 163.175.......................................................... 70
months
(H) Kidnapping
in the first
degree, as defined in
ORS 163.235.......................................................... 90
months
(I) Kidnapping
in the second
degree, as defined in
ORS 163.225.......................................................... 70
months
(J) Rape in
the first degree,
as defined in ORS
163.375............................................................ 100
months
(K) Rape in the
second
degree, as defined in
ORS 163.365.......................................................... 75
months
(L) Sodomy in
the first
degree, as defined in
ORS 163.405........................................................ 100
months
(M) Sodomy in
the second
degree, as defined in
ORS
163.395.......................................................... 75
months
(N) Unlawful
sexual
penetration in the first
degree, as defined
in ORS 163.411............................................... 100 months
(O) Unlawful
sexual
penetration in the
second degree, as
defined in ORS 163.408.................................... 75
months
(P) Sexual
abuse in the
first degree, as
defined in
ORS 163.427..................................................... 75
months
(Q) Robbery in
the first
degree, as defined in
ORS 164.415..................................................... 90
months
(R) Robbery in
the second
degree, as defined in
ORS 164.405..................................................... 70
months
(b)(A) Arson in the
first degree,
as defined in
ORS 164.325, when
the offense represented
a threat of serious
physical injury.................................................... 90 months
(B) Using a
child in a display
of sexually explicit
conduct, as defined in
ORS 163.670..................................................... 70 months
(C) Compelling
prostitution,
as defined in
ORS 167.017..................................................... 70 months
___________________________________________________________________
(5) If a person charged with an offense under this section is
found guilty of a lesser included offense and the lesser included offense is:
(a) An offense listed in subsection (4) of this section, the
court shall sentence the person as provided in subsection (2) of this section.
(b) Not an offense listed in subsection (4) of this section:
(A) But constitutes an offense for which waiver is authorized
under ORS 419C.349, the court, upon motion of the district attorney, shall hold
a hearing to determine whether to retain jurisdiction or to transfer the case
to juvenile court for disposition. In determining whether to retain
jurisdiction, the court shall consider the criteria for waiver in ORS 419C.349.
If the court retains jurisdiction, the court shall sentence the person as an
adult under sentencing guidelines. If the court does not retain jurisdiction,
the court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile
court for disposition under ORS 419C.067 and 419C.411.
(B) And is not an offense for which waiver is authorized under
ORS 419.349, the court may not sentence the person. The court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile
court for disposition under ORS 419C.067 and 419C.411.
(6) When a person is charged under this section, other offenses
based on the same act or transaction shall be charged as separate counts in the
same accusatory instrument and consolidated for trial, whether or not the other
offenses are aggravated murder or offenses listed in subsection (4) of this
section. If it appears, upon motion, that the state or the person charged is
prejudiced by the joinder and consolidation of offenses, the court may order an
election or separate trials of counts or provide whatever other relief justice
requires.
(7)(a) If a person charged and tried as provided in subsection
(6) of this section is found guilty of aggravated murder or an offense listed
in subsection (4) of this section and one or more other offenses, the court
shall impose the sentence for aggravated murder or the offense listed in
subsection (4) of this section as provided in subsection (2) of this section
and shall impose sentences for the other offenses as otherwise provided by law.
(b) If a person charged and tried as provided in subsection (6)
of this section is not found guilty of aggravated murder or an offense listed
in subsection (4) of this section, but is found guilty of one of the other
charges that constitutes an offense for which waiver is authorized under ORS
419C.349, the court, upon motion of the district attorney, shall hold a hearing
to determine whether to retain jurisdiction or to transfer the case to juvenile
court for disposition. In determining whether to retain jurisdiction, the court
shall consider the criteria for waiver in ORS 419C.349. If the court retains
jurisdiction, the court shall sentence the person as an adult under sentencing
guidelines. If the court does not retain jurisdiction, the court shall:
(A) Order that a presentence report be prepared;
(B) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(C) Enter an order transferring the case to the juvenile court
for disposition under ORS 419C.067 and 419C.411.
SECTION 13.
ORS 144.122 is amended to read:
144.122. (1) After the initial parole release date has been set
under ORS 144.120 and after a minimum period of time established by the board
under subsection (2)(a) of this section, the prisoner may request that the
parole release date be reset to an earlier date. The board may grant the
request upon a determination by the board that continued incarceration is cruel
and inhumane and that resetting the release date to an earlier date is not
incompatible with the best interests of the prisoner and society and that the
prisoner:
(a) Has demonstrated an extended course of conduct indicating
outstanding reformation;
(b) Suffers from a severe medical condition including terminal
illness; or
(c) Is elderly and is permanently incapacitated in such a
manner that the prisoner is unable to move from place to place without the
assistance of another person.
(2) The Advisory Commission on Prison Terms and Parole
Standards may propose to the board and the board shall adopt rules:
(a) Establishing minimum periods of time to be served by
prisoners before application may be made for a reset of release date under
subsection (1) of this section;
(b) Detailing the criteria set forth under subsection (1) of
this section for the resetting of a parole release date; and
(c) Establishing criteria for parole release plans for
prisoners released under this section that, at a minimum, must insure
appropriate supervision and services for the person released.
(3) The provisions of subsection (1)(b) of this section apply
to prisoners sentenced in accordance with ORS 161.610.
(4) The provisions of this section do not apply to prisoners
sentenced to life imprisonment without the possibility of release or parole
under ORS 163.150 or section 5 of this
1999 Act.
SECTION 14.
ORS 144.126 is amended to read:
144.126. (1) The State Board of Parole and Post-Prison
Supervision may advance the release date of a prisoner who was sentenced in
accordance with rules of the Oregon Criminal Justice Commission or ORS 161.610.
The release date may be advanced if the board determines that continued
incarceration is cruel and inhumane and that advancing the release date of the
prisoner is not incompatible with the best interests of the prisoner and
society and that the prisoner is:
(a) Suffering from a severe medical condition including
terminal illness; or
(b) Elderly and permanently incapacitated in such a manner that
the prisoner is unable to move from place to place without the assistance of
another person.
(2) The board shall adopt rules establishing criteria for
release plans for prisoners released under this section that, at a minimum,
must insure appropriate supervision and services for the person released.
(3) The provisions of this section do not apply to prisoners
sentenced to life imprisonment without the possibility of release or parole
under ORS 163.150 or section 5 of this
1999 Act.
SECTION 15. ORS 138.685 and 138.687 are repealed.
SECTION 16. A copy of any document filed in any of the
following proceedings shall be served personally on the defendant, even if the
defendant is represented by counsel, by providing the copy to the custodian of
the defendant, who shall ensure that the copy is provided promptly to the
defendant:
(1) A death warrant hearing
under ORS 137.463.
(2) A proceeding in which a
person other than the defendant seeks to stay execution of the defendant's
sentence of death.
(3) A petition for
post-conviction relief filed under ORS 138.510 (2).
Approved by the Governor
September 1, 1999
Filed in the office of the
Secretary of State September 1, 1999
Effective date October 23,
1999
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