State v. Shumway , 291 Or. 153 ( 1981 )

TONGUE, J.,

concurring in part, dissenting in part.

I concur in those parts of the opinion by Chief Justice Denecke concerning the instruction on self-defense, the questioning of prospective jurors, and the issue of sever-ability.

I respectfully dissent, however, from the holding of that opinion that:

(1) Section 5 of the ballot measure adopted by the voters of Oregon in 1978 (ORS 163.115(5), which imposed a mandatory minimum sentence of 25 years for all murders) is not so inconsistent with provisions of the “aggravated murder” statute adopted by the legislature in 1977 (ORS 163.105, which imposed mandatory minimum sentences of 15 and 20 years for certain described types of “aggravated murder”), so as to result in an implied repeal of that 1977 statute because the murder committed by this defendant was not an “aggravated murder” under that statute and he could not have been convicted under that statute (291 Or at 161), and, at the same time, that:

(2) The mandatory minimum sentence of 25 years imposed on this defendant under Section 5 of the ballot measure (ORS 163.115(5)) was invalid because such a sentence is so inconsistent with mandatory minimum sentences of 15 or 20 years for more “aggravated murders” under ORS 163.105 as to violate Article I, Section 16 of the Oregon Constitution, which requires that “all penalties shall be proportioned to the offense.” (291 Or at 163).

In my opinion, because defendant’s mandatory minimum sentence of 25 years under ORS 163.115(5) was so inconsistent with mandatory minimum sentences of 15 or 20 years for more aggravated murders under ORS 163.105 as to require a holding that Article I, Section 16 was violated, it also follows that ORS 163.115(5) and ORS 163.105 are so inconsistent as to also require a holding that the aggravated murder statute of 1977 (ORS 163.105, which provided mandatory sentences of 15 or 20 years for some “aggravated murders”) was repealed by implication when the voters of Oregon in 1978 adopted a statute which provides a mandatory minimum sentence of 25 years for all murders.

I am in agreement with the decision by the Court of Appeals in which that court, in an opinion by Schwab, C.J., held that ORS 163.105 was repealed by implication by ORS 163.115(5) and in so holding agreed with the Attorney General that:

“* * * the obvious intent of the sponsors was to create a unified punishment scheme for all murders: The intent was that persons convicted of any murder be punished by death or by life imprisonment subject to the 25-year minimum incarceration requirement.”

and went on to hold that:

“It is apparent that the penalty provided by ORS 163.115(5), as amended, is in conflict with the penalties under ORS 163.105, and that the two statutes cannot be reconciled. Even leaving aside the fact that the kinds of conduct punishable under ORS 163.105 are more ‘serious’ than some kinds of conduct to which ORS 163.115(5) relates, it is self-evident that the requirement of a minimum of 25 years’ confinement for all murders under ORS 163.115(5) as amended is not compatible with the sentencing scheme under ORS 163.105, which made parole effectively possible after 15 or 20 years for some murders.”

For these reasons, I would hold, as did the Court of Appeals, that ORS 163.105 was repealed by implication by the adoption by the voters of Oregon in 1978 of what is now ORS 163.115(5).

I would also hold that a statute such as this, which provides for a mandatory minimum sentence for the offense of murder, does not violate the constitutional requirement under Article I, Section 16 that “all penalties shall be proportioned to the offense.” The sole basis for the holding by the majority that ORS 163.115(5) is invalid as contrary to Article I, Section 16, (and the sole contention by the defendant) is that its provisions for a mandatory minimum sentence of 25 years are in conflict with the less stringent provisions of the aggravated murder statute, ORS 163.105. Because, however, that statute was repealed by the adoption of ORS 163.115(5), it follows that there is no such conflict. In the absence of such a conflict, the sole basis for that holding does not exist.

For these reasons I dissent from the opinion by Chief Justice Denecke that ORS 163.115(5) is invalid as in conflict with Article I, Section 16 of the Oregon Constitution.

Peterson, J., joins in this opinion.