State v. Quinn

TANZER, J.

Defendant was convicted of murder and sentenced to death. He appealed to the Court of Appeals, which dismissed his appeal, citing the parallel case of State v. Warren, 46 Or App 253, 611 P2d 342 (1980). In Warren, the Court of Appeals dismissed an appeal of a murder conviction and death sentence on the ground that it had no jurisdiction because ORS 163.116(5) provided for automatic review by the Supreme Court as the sole means of appeal in such a case.¹ We granted review to determine whether, in addition to automatic Supreme Court review, a defendant sentenced to death is entitled to an appeal to the Court of Appeals and discretionary Supreme Court review under the general appeal statutes. For reasons similar to those of the Court of Appeals, we conclude that he does not.

ORS 2.516 provides that unless there is a specific provision otherwise, all appeals are heard by the Court of Appeals:

"Except where original jurisdiction is conferred on the Supreme Court by the Constitution of Oregon or by statute, the Court of Appeals shall have exclusive jurisdiction of all appeals.”

Original appellate jurisdiction in capital cases is conferred on the Supreme Court by ORS 163.116(5), which was enacted subsequent to the enactment of ORS 2.516. Under ORS 174.020,² the specific provisions of ORS 163.116(5) prevail over the general provisions of ORS 2.516.

In addition to the rule of statutory construction, however, the words and provisions of ORS 163.116(5) clearly imply that direct automatic review is to be the sole appellate review in capital cases. In the general election of 1978, the people of Oregon adopted Ballot Measure 8 (Or Laws 1979, ch 2), an initiative measure restoring the death penalty in murder cases.³ ORS 163.116(5) is the part of the measure which provides for automatic Supreme Court review of any death sentence:

"The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court within 60 days after certification of the entire record by the sentencing court, unless an additional period not exceeding 30 days is extended by the Supreme Court for good cause. 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.”

The wording of ORS 163.116(5) contains no implication that the Supreme Court review is to be a review of the Court of Appeals’ decision rather than the judgment of the trial court. Nor does it imply that the Supreme Court review is to duplicate an appeal to the Court of Appeals either simultaneously or thereafter. To the contrary, the meaning conveyed is that the appeal in such cases is in the Supreme Court. By use of the phrase "conviction and sentence” in the context in which it is used, the statute requires that the Supreme Court review both the finding of guilt and the punishment of death imposed as a result of that finding. Moreover, ORS 163.116(5) mandates direct review of capital cases by the Supreme Court within 60 or 90 days from certification of the record. This time limitation for appeals which are likely to be comprehensive and difficult is stringent for review by one court and utterly impracticable for a two-level appeal. It is unlikely, therefore, that the limitation was intended to regulate appellate review by two courts. Finally, if it was intended that the defendant should have two appeals, one by choice to the Court of Appeals and another automatically to the Supreme Comb, the drafters may be expected to have employed express language rather than silent implication.⁴

The Public Defender argues that affording two levels of appellate review would be consistent with the spirit, if not the words, of ORS 163.116(5). We conclude, however, that the underlying intent of the initiative, both as a matter of semantics and legislative spirit, is to provide for one complete and expeditious appellate review in the court of last resort.

Defendant also makes passing reference in his brief to providing "equal protection of law for defendants appealing their conviction” by allowing "a maximum number of jurists to review death penalty cases.” We take this to be an invocation of the equal privileges clause of the Oregon Constitution, Art I, § 20, and the equal protection clause of the 14th Amendment to the United States Constitution. A non-capital criminal case is reviewed on appeal by the Court of Appeals subject to correction by the Supreme Court upon petition of either party. If a party petitions for review, the case is ultimately disposed of by the Supreme Court either by denial or allowance of review. Capital cases are also disposed of by the Supreme Court, except that the review is automatic and direct rather than discretionary and ultimate. In either case, a defendant receives the benefit of appellate review within the oversight of the Supreme Court. The affording of basic rights in different form to criminal defendants is constitutionally permissible if the difference is based upon a rational distinction. The difference in the magnitude of punishment between deprivation of liberty and deprivation of life justifies the distinction between intermediate appellate review with discretionary Supreme Court review in noncapital cases and mandatory Supreme Court review in capital cases. We therefore conclude that it is not necessary to construe ORS 163.116(5) as allowing duplicate appeals to the Court of Appeals in order to save the statute from constitutional infirmity.

Because the enactment of ORS 163.116(5) provides an exclusive appellate remedy in capital cases, there was no jurisdiction in the Court of Appeals to hear this case and the dismissal of the appeal by the Court of Appeals was correct. Automatic direct review shall proceed forthwith under the provisions of Rule 2.15(5).

Affirmed.

1 We dismissed the petition for review in Warren on different grounds. 289 Or 677 (1980). That case will be automatically reviewed.

2 ORS 174.020 provides:

"In the construction of a statute the intention of the legislature is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.”

3 Capital punishment was first abolished in Oregon, by constitutional amendment, in 1914 (Or Laws 1915, at 12), revived in 1920 (Or Laws 1921, at 6), and abolished again in 1964 (Or Laws 1965, at 6).

4 These observations are also applicable to OBS 137.465(1), enacted as part of the same initiative measure, which provides that a defendant sentenced to death shall be delivered by the sheriff to the Oregon State Penitentiary for lodging "pending the determination of the automatic review by the Supreme Court.” It makes no provision for the lodging of the defendant during an appeal to the Court of Appeals, implying that Supreme Court review is the only appellate review comprehended by initiative.