Summary
The Supreme Court of Oregon reconsidered its prior decision in State v. Hagberg after the United States Supreme Court reversed the constitutional reasoning underlying State v. Ice. The court waived the otherwise mandatory 14-day deadline for reconsideration because the petition was based on an intervening authoritative ruling. It withdrew its former opinion and affirmed the Court of Appeals and circuit court, declining to address whether the trial court independently complied with the statutory requirements for consecutive sentences because that issue was not preserved.
Topics
Practice areas
Questions Presented
- Whether the State's petition for reconsideration was timely under ORAP 9.25(1) after the appellate judgment had been recalled and stayed.
- Whether the court could waive the mandatory reconsideration deadline for good cause under ORAP 1.20(5).
- Whether, after Oregon v. Ice rejected the constitutional premise of the court's former decision, the court should determine whether the trial court properly made the statutory findings required by ORS 137.123(2) when defendant had not preserved that separate issue.
Holdings
- A petition for reconsideration of an Oregon Supreme Court decision must be filed within 14 days after the decision under ORAP 9.25(1); recalling or staying issuance of the appellate judgment does not suspend or modify that deadline.
- The Oregon Supreme Court may waive the ORAP 9.25(1) deadline for good cause under ORAP 1.20(5), and the State's reliance on an intervening authoritative United States Supreme Court decision constituted good cause here.
- Because Oregon v. Ice reversed the constitutional reasoning underlying the former Hagberg opinion, the former opinion had to be withdrawn, and the Court of Appeals' decision and circuit court judgment were affirmed.
- The court would not decide whether the trial court properly made the statutory findings required by ORS 137.123 because defendant had not raised that separate issue before the trial court, the Court of Appeals, or the Oregon Supreme Court.
Key quotations
“As our recitation of the procedural history of this case shows, the state's petition for reconsideration was not filed within 14 days of our decision.” (347 Or. 274)
“That power includes authority to waive application of ORAP 9.25(1).” (347 Or. 274)
“The question is not preserved, and we do not choose to address it.” (347 Or. 275)
Factual background
Defendant was convicted of multiple sexual offenses, including two counts of first-degree rape committed against his girlfriend's daughter. The trial court imposed mandatory prison terms under ORS 137.700 and ordered the sentences for the two rape convictions to run consecutively under ORS 137.123(2). The court made its own finding that the offenses were separate and distinct and also stated that the jury had made an equivalent finding.
Procedural history
Hagberg was convicted of multiple sexual offenses, including two first-degree rape counts. The circuit court imposed mandatory prison terms and ordered the sentences for the two rape offenses to run consecutively under ORS 137.123(2). The Court of Appeals affirmed without opinion. The Oregon Supreme Court previously reversed, relying on State v. Ice, but after the United States Supreme Court reversed Ice, the State sought reconsideration. The Oregon Supreme Court waived the reconsideration deadline, withdrew its former opinion, and affirmed the Court of Appeals and circuit court judgments.