State v. Miller

FILED: June 16, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JONATHAN CHARLES MILLER,

Appellant.

(97P3415; CA A102199)

Appeal from Circuit Court, Polk County.

Charles E. Luukinen, Judge.

Submitted on record and briefs May 7, 1999.

David E. Groom, Public Defender, and Jesse Wm. Barton, Deputy Public Defender, filed the brief for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Linder and Brewer, Judges.

PER CURIAM

Reversed and remanded for resentencing.

PER CURIAM

Defendant was convicted on one count each of murder and criminal conspiracy. On the murder conviction, the trial court imposed the 300-month minimum sentence required by ORS 137.700(2)(a)(A). In addition, the court sentenced defendant "to the custody of the Corrections Division of the State of Oregon for the remainder of defendant's life," pursuant to Ballot Measure 11, codified at ORS 163.115(5)(a). Defendant first assigns error to the imposition of a life term of imprisonment for his murder conviction. He contends that in State v. McLain, 158 Or App 419, 974 P2d 727 (1999), we held unconstitutional the "imprisonment for life" provision of ORS 163.115(5)(a). The state concedes the point. We accept the concession.

Defendant also contends that the mandatory minimum sentence required by Ballot Measure 11 is unlawful because Ballot Measure 11 itself is unconstitutional. Defendant's contentions in that regard have been rejected in State ex rel Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145, cert den 118 S Ct 557 (1997), and subsequent cases.

Reversed and remanded for resentencing.