S058431, Opinion — State v. Bowen

109
109
Argued and submitted March 9, corrected judgment reversed and remanded
with instructions to again merge aggravated murder and intentional murder
convictions, and to separately enumerate aggravating factors underlying merged
aggravated murder convictions; conviction and sentence of death otherwise
affirmed June 28, 2012
STATE OF OREGON,
Respondent,
v.
GREGORY ALLEN BOWEN,
Appellant.
(CC 02CR0019; SC S058431)
282 P3d 807
Defendant was convicted on two counts of aggravated murder, one count of
intentional murder, and other charges, and sentenced to death. On automatic and
direct review, the Oregon Supreme Court affirmed defendant’s convictions and the
sentence of death, but remanded for entry of a corrected judgment that merged
defendant’s convictions for aggravated murder and intentional murder. At a
hearing on remand, the trial court denied three defense motions that raised issues
concerning the correct sentencing procedure on remand, the trial court’s decision
during the initial trial to require defendant to wear a stun device, and constitutional
“speedy trial” provisions. The trial court then entered a corrected judgment that
merged defendant’s convictions for aggravated murder and intentional murder. On
automatic and direct review of the corrected judgment, defendant assigned error to
the trial court’s denial of his motions on remand. Held: (1) The trial court correctly
denied defendant’s motion to follow ORS 138.012, because paragraph (2)(a)
of that statute did not apply to the proceedings on remand; (2) the failure of the
corrected judgment to separately enumerate each of the aggravating factors
underlying defendant’s aggravated murder convictions amounted to error on the
face of the record, requiring entry of a new corrected judgment; (3) the trial court
did not err in denying defendant’s motion for a new trial based on the stun device
issue; and (4) the trial court did not err in denying defendant’s motion to dismiss
based on constitutional “speedy sentencing” provisions.
The corrected judgment is reversed and remanded with instructions to
again merge the aggravated murder and intentional murder convictions, and to
separately enumerate the aggravated factors underlying the merged aggravated
murder convictions. The conviction and the sentence of death are otherwise
affirmed.
En Banc
On automatic and direct review of judgment of conviction
and sentence of death imposed by the Curry County Circuit
Court following remand from this court.*
______________
* 340 Or 487, 135 P3d 262 (2006).

110 	State v. Bowen
Jesse Margolis, Judge.
Robin A. Jones, Senior Deputy Public Defender, Office
of Public Defense Services, Salem, argued the cause for
appellant. With her on the briefs was Peter Gartlan, Chief
Defender.
Timothy 	A. 	Sylwester, 	Assistant 	Attorney 	General,
Salem, argued the cause for respondent. With him on the
brief were John R. Kroger, Attorney General, and Mary H.
Williams, Solicitor General.
DE MUNIZ, J.
The corrected judgment is reversed and remanded with
instructions to again merge the aggravated murder and
intentional murder convictions, and to separately enumerate
the aggravating factors underlying the merged aggravated
murder convictions. The conviction and the sentence of
death are otherwise affirmed.

Cite as 352 Or 109 (2012) 	111
DE MUNIZ, J.
This capital case is before this court, for a second time,
on automatic and direct review of a judgment of conviction
and sentence of death. In 2006, in the initial proceeding
under ORS 138.012(1), this court affirmed defendant’s
convictions for aggravated murder and the imposition of
the death penalty, but concluded that the trial court had
erred in failing to merge two aggravated murder verdicts
and one intentional murder verdict against defendant into a
single conviction set out in a single judgment that imposed
one sentence of death. State v. Bowen, 340 Or 487, 527, 529,
135 P3d 272 (2006) (Bowen I). On remand, the trial court
denied several defense motions—which are now at issue
in this proceeding—and entered a corrected judgment. We
affirm the trial court’s denial of defendant’s motions and
also affirm defendant’s merged conviction and the sentence
of death. However, we reverse the corrected judgment and
remand for entry of a new corrected judgment, for reasons
explained in this opinion.
I. 	FACTS AND PROCEDURAL BACKGROUND
The facts surrounding the crimes that gave rise to
defendant’s convictions are described in Bowen I, 340 Or at
489-92, 525-27, and we need not repeat them in detail here.
By way of summary, defendant was indicted in January
2002 for multiple crimes that occurred in December 2001,
involving two different victims. The first group of allegations
involved victim Christiansen, including two aggravated
murder charges (death caused during robbery and death
caused during burglary), as well as an intentional murder
charge, 	together 	with 	additional 	crimes 	that 	occurred
in Christiansen’s home. The second group of allegations
involved crimes against victim Dalton on the same day but in
a different location. Defendant pleaded guilty to the Dalton
allegations and not guilty to the Christiansen allegations. In
April 2003, a jury convicted defendant of all the Christiansen
allegations, and, at the conclusion of sentencing, the jury
answered “yes” to each of the four statutory questions
under ORS 163.150(1)(b) as to both counts of aggravated
murder. The trial court thereafter imposed a sentence of
death on the Christiansen aggravated murder counts, with

112 	State v. Bowen
a separate judgment and sentence for each count. Id. at
525. On the Christianson intentional murder charge, the
court entered another separate judgment that imposed a
300-month sentence with lifetime post-prison supervision
and also imposed sentences on all remaining counts as to
both victims. Id. at 527.
On automatic review, this court rejected defendant’s
assignments of error relating to various pretrial and guilt-
phase issues, and substantive challenges to the penalty
phase. Id. at 492-525. However, the court concluded that
the trial court had erred under ORS 161.067(1) in failing
to merge the aggravated murder verdicts into a single
conviction and also in failing to merge the intentional
murder verdict with the aggravated murder verdicts, which
should have been set out in a single judgment imposing one
sentence of death, and that those errors were apparent on
the face of the record.1 Id. at 527, 529. The court therefore
remanded for entry of a corrected judgment. Id. The specific
remand direction that this court provided to the trial court
is at issue in this proceeding and is discussed in greater
detail later in this opinion.
On remand, at a hearing in March 2010, the trial
court denied three defense motions: (1) “motion to follow ORS
138.012,” asserting that the trial court on remand either
must sentence defendant to life in prison with the possibility
of parole or commence a new sentencing proceeding before
a jury; (2) motion for new trial, based on the trial court’s
decision to require defendant to wear a stun device during
the initial trial; and (3) motion to dismiss, for lack of “speedy
sentencing,” based on the amount of time that had elapsed
between the issuance of the appellate judgment in Bowen I
and the scheduling of resentencing proceedings. The court
then entered a new judgment that merged the aggravated
murder and murder convictions and imposed a sentence
1 ORS 161.067(1) provides:
“When the same conduct or criminal episode violates two or more statutory
provisions and each provision requires proof of an element that the others do
not, there are as many separately punishable offenses as there are separate
statutory violations.”
In Bowen I, the state conceded that the form of the judgments amounted to error
under ORS 161.067(1). Bowen, 340 Or at 525.

Cite as 352 Or 109 (2012) 	113
of death, but made no other changes to the earlier form of
judgment.
On review, defendant assigns error to the trial
court’s 	denial 	of 	each 	motion 	summarized 	above 	and
contends that the error in each instance requires reversal
of the corrected judgment of conviction and the sentence of
death. We address each of defendant’s assignments of error
below.
II. 	DISCUSSION
A. 	Motion 	for 	Resentencing 	on 	Remand 	Under 	ORS
138.012(2)(a)
1. 	Scope of Remand
We begin by setting out the statute that forms the
basis for defendant’s assignment of error. ORS 138.012
provides, in part:
“(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. * * *
“(2) 	Notwithstanding ORS 163.150(1)(a), after auto-
matic 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

114 	State v. Bowen
“(iii) 	Imprisonment for life in the custody of the
Department of Corrections as provided in ORS 163.105(1)(c).”
(Emphases added.)
The crux of defendant’s argument relies on the
phrase, “[i]f a reviewing court finds prejudicial error in
the sentencing proceeding only,” in ORS 138.012(2)(a). In
defendant’s view, the trial court’s earlier error under ORS
161.067(1) in entering the separate judgments of conviction
and sentences of death—as identified by this court in
Bowen I—necessarily qualified as “prejudicial error” found
in the original “sentencing proceeding” for purposes of ORS
138.012(2)(a). 	Consequently, defendant argues, the trial
court was limited to the sentencing choices on remand set
out in ORS 138.012(2)(a)(A) and (B), at the state’s election,
and was not permitted to simply enter a corrected judgment.
In response, the state emphasizes that this court in Bowen
I expressly rejected all defendant’s claims of error that
challenged the validity of his convictions and sentences of
death, and it affirmed those convictions and sentences. As
to the form of judgment only, the state continues, this court
concluded that the trial court had erred in failing to merge
the aggravated murder and intentional murder convictions
and to enter a single judgment imposing a sentence of death,
and the court limited its disposition to correction of that error.
The 	parties’ 	dispute 	focuses 	on 	a 	purported
ambiguity arising out of the wording in this court’s opinion
in Bowen I. In that opinion, after concluding that the
judgments convicting defendant on two counts of aggravated
murder and imposing sentences of death did not comply
with ORS 161.067(1) and that that error amounted to error
apparent on the face of the record, this court stated:
“[W]e reverse the judgments of conviction for aggravated
murder on counts one and two, vacate the sentences of
death imposed on those convictions, and remand to the trial
court for entry of corrected judgments and resentencing.”
340 Or at 527 (emphases added). Similarly, after concluding
that the trial court also had erred under ORS 161.067(1)
with respect to the separate judgment that incorporated the
intentional murder conviction, and that that error also was
apparent on the face of the record, this court stated:

Cite as 352 Or 109 (2012) 	115
“[W]e reverse the judgment of conviction for intentional
murder on count three, vacate the sentence imposed on
that conviction, and remand to the trial court for entry of a
corrected judgment and resentencing.”
Id. at 529 (emphases added). At the conclusion of its opinion,
the court summarized its disposition as follows:
“[W]e remand the case for entry of a corrected judgment
of conviction, reflecting defendant’s guilt on the charge of
aggravated murder, based upon alternative aggravating
factors, and intentional murder, and imposing one sentence
of death. We otherwise affirm the judgments of conviction
and the sentences of death.
“The judgments of conviction and sentences of death
are affirmed. The case is remanded to the circuit court for
further proceedings.”
Id. (emphases added).
Defendant is correct that some of the wording in
Bowen I may be ambiguous. For example, after concluding
that the trial court erred in failing to merge the aggravated
murder convictions, the court stated that the judgments
were “reverse[d]” and remanded for entry of corrected
judgments “and resentencing.” Id. at 527. The court repeated
that wording when it concluded that error also had occurred
in the failure to merge the intentional murder conviction
with the aggravated murder convictions. Id. at 529.
When 	the 	relevant 	parts 	of 	the 	opinion 	are
considered in their entirety, however, this court’s intention
in ordering remand in Bowen I is clear. In the concluding
paragraph of its opinion, this court concluded that the trial
court had erred in entering three separate judgments and
that remand was necessary to enter a corrected judgment
that accurately reflected the nature of defendant’s crimes.
That limited aspect of the remand is clarified in the
concluding words of the opinion, wherein the court “affirmed”
the judgments of conviction and sentences of death, but
nonetheless remanded for further proceedings, the purpose
of which was entry of a corrected judgment. Id.
Because this court’s intended disposition in Bowen
I was to remand solely for entry of a corrected judgment,

116 	State v. Bowen
the corollary result is that the court did not intend that the
remand proceed pursuant to the resentencing provisions
set out in ORS 138.012(2)(a). As this court previously has
explained, the intent of the statutory provision now codified
as ORS 161.067(1) was to ensure that
“criminal records accurately reflect all crimes actually
committed and that a person who commits multiple
crimes by the same conduct or during the same criminal
episode should have a criminal record reflecting each crime
committed rather than only a single conviction which
would not accurately portray the nature and extent of that
person’s conduct.”
State v. Crotsley, 308 Or 272, 276-77, 779 P2d 600 (1989). If
this court determines that an error under ORS 161.067(1)—
such as that at issue in Bowen I—occurred, then the court
must remand, so that the trial court may enter a corrected
judgment that accurately reflects the crimes for which the
defendant was convicted. See State v. Kizer, 308 Or 238, 241,
779 P2d 604 (1989) (“[u]nlike many trial errors, a failure
to object to an unlawful sentence does not require a retrial
and the error often can be determined without reference to
evidence”; court remanded for resentencing after concluding
that trial court should have merged defendant’s convictions
for forging and uttering single check in single transaction).
And, in capital cases involving multiple convictions for
aggravated murder and sentences of death involving the
same victim, the remand is limited to entry of a corrected
judgment. See State v. Gibson, 338 Or 560, 577-78, 113 P3d
423 (2005), cert den, 546 US 1044 (2005) (court remanded
for entry of corrected judgment that merged two aggravated
murder convictions into single conviction and that imposed
single sentence of death, so that judgment would correctly
reflect defendant’s guilt on multiple aggravated murder
charges involving one victim); State v. Hale, 335 Or 612,
630-31, 631 n 10, 75 P3d 612 (2003), cert den, 541 US 942
(2004) (same).
As noted, defendant relies on the words, “prejudicial
error in the sentencing proceeding,” in ORS 138.012(2)(a)
to contend that a renewed sentencing determination was
required in this case. Additionally, defendant argues that,

Cite as 352 Or 109 (2012) 	117
given the nature of the error, the trial court first should
have merged defendant’s convictions for aggravated and
intentional murder, and then proceeded to sentencing.
Defendant argues that, in the general context of a penalty-
phase proceeding, a trial court must merge the convictions
at the outset of the proceeding, before the jury returns
sentence, so as to eliminate the possibility of inconsistent
sentences—for example, a death sentence for aggravated
murder committed in the course of a robbery, but a life
sentence for aggravated murder committed in the course
of a burglary. In defendant’s view, any subsequent or after-
the-fact “merger” of inconsistent sentences at the conclusion
of the jury’s sentencing determination would be contrary to
ORS 167.071(1), which requires merger of convictions, not
sentences.
Defendant is correct that, in the event of an error
under ORS 161.067(1), a renewed sentencing determination
may be required, depending on the circumstances of the
case. For example, in State v. Barrett, 331 Or 27, 10 P3d
901 (2000), the trial court had imposed consecutive life
sentences for two aggravated murder convictions involving
the same victim. After concluding that the trial court had
erred under a companion provision to ORS 161.067(1)2 and
that the defendant’s record must “depict the full extent
of his involvement in the criminal conduct that led to
the victim’s death,” 331 Or at 36, this court remanded for
entry of a corrected judgment of conviction for one count
of aggravated murder that separately enumerated the
applicable aggravating factors and resentencing based on
entry of the corrected judgment. In Barrett, a new sentencing
determination was required in addition to the corrected
judgment, because this court had invalidated the basis for
the previously imposed consecutive life sentences.
By contrast, however, the jury here returned two
unanimous 	verdicts 	imposing 	the 	death 	sentence, one
on each charge of aggravated murder involving victim
Christianson. Unlike in Barrett, where the error under what
2 In State v. Crotsley, 308 Or 272, 276 n 3, 779 P2d 600 (1989), this court
explained the statutory history of ORS 161.067(1) and its nearly identical
companion, former ORS 161.062(1) (1989), repealed by Or Laws 1999, ch 136, § 1.

118 	State v. Bowen
is now ORS 161.067(1) would have resulted in a longer period
of incarceration, the practical result of the jury’s sentencing
determination here was to return a single sentence of
death, because—unlike a life sentence with the possibility
of parole—a death sentence can be imposed only once. It
follows that the error identified in Bowen I was remedied
by entry of a corrected judgment for a single conviction of
aggravated murder and a single sentence of death, which,
in turn, ensured that defendant’s record accurately reflected
the crimes for which he was convicted. See Gibson, 338 Or
at 577-78 (same result in identical circumstances); Hale,
335 Or at 630-31, 631 n 10 (same). That narrow result is
consistent with our statutory and constitutional obligations
to affirm the verdict and judgment of the trial court unless
an error affects a substantial right of a party. See generally
State v. Mains, 295 Or 640, 662-65, 669 P2d 1112 (1983)
(summarizing statutory and constitutional standards for
assessing prejudicial and harmless error).
In summary, in denying defendant’s motion to
follow ORS 138.012, the trial court on remand correctly
reasoned that, consistently with Bowen I, ORS 138.012(2)(a)
did not apply to the remand proceedings. Instead, this
court’s remand direction in Bowen I was limited to entry
of a corrected judgment, which the trial court entered on
remand. We reject defendant’s arguments to the contrary.
2. 	Form of Judgment on Remand
As explained, in entering the corrected judgment on
remand, the trial court complied with this court’s direction in
Bowen I by merging defendant’s convictions for aggravated
murder and intentional murder. 	The corrected judgment
provided, in part:
“Defendant was found guilty on April 2, 2003, of two counts,
Counts 1 and 2, of Aggravated Murder, ORS 163.095 by a
jury trial by unanimous verdict of a twelve person jury.
Defendant was also found guilty of one Count, Count 3, of
(Intentional) Murder, ORS 163.115 by jury verdict. Those
three Counts merge into one Count of Aggravated Murder,
Count 1.”
However, consistently with Hale, 335 Or at 631, and Gibson,
338 Or at 577-78, this court in Bowen I further directed

Cite as 352 Or 109 (2012) 	119
that the corrected judgment separately enumerate each
aggravating factor underlying the merged convictions for
aggravated murder. Id. at 527. As can be seen, the corrected
judgment did not separately enumerate those factors.
Neither party mentioned that deficiency in the
corrected judgment, which—under the reasoning set out in
Bowen I, 340 Or at 525-27—amounts to error on the face of
the record. In this capital case, it is particularly important
that the judgment comply with all statutory requirements
and accurately reflect the crimes for which defendant was
convicted. We therefore exercise our discretion to reverse
the corrected judgment and direct entry of a new corrected
judgment that, in addition to again merging the two
counts of aggravated murder and one count of intentional
murder, also separately enumerates each of the aggravating
factors underlying defendant’s merged aggravated murder
convictions (here, death occurring in the course of robbery
and death occurring in the course of burglary). Our limited
direction to the trial court on remand is to enter a new
corrected judgment that complies with this decision; we
continue to affirm defendant’s merged aggravated murder
convictions and the sentence of death.
B. 	Motion for New Trial—Stun Device
In Bowen I, defendant challenged the use of the
stun device at trial, contending that, although he had not
preserved the issue for purposes of appeal, the trial court
had committed plain error in neither holding a hearing
on the matter nor entering findings supporting that form
of restraint. 	340 Or at 494-95. This court concluded that
defendant had not established plain error, because the record
was insufficient to show whether the stun device had been
visible to the jury or whether it had affected defendant’s
ability to assist in his defense. Id. at 495-96. On remand,
defendant moved for a new trial based on the stun device
issue. The trial court denied the motion as untimely and not
properly before the court.
We agree with the trial court that defendant was
not permitted to relitigate the stun device issue on remand.
In Bowen I, defendant raised the unpreserved stun device
issue, and this court rejected it. We reject defendant’s

120 	State v. Bowen
renewed stun device contention and affirm the trial court’s
denial of defendant’s motion for a new trial.
C. 	Motion to Dismiss—Speedy Trial Violation
Finally, defendant contended on remand that the
delay in excess of two years that had elapsed between this
court’s issuance of the appellate judgment in Bowen I and
the scheduled resentencing date violated his “speedy trial”
rights under Article I, section 10, of the Oregon Constitution
and the Sixth Amendment to the United States Constitution,3
citing the criteria set out in State v. Harberts, 331 Or 72, 88,
11 P3d 641 (2000), and Barker v. Wingo, 407 US 514, 530,
92 S Ct 2182, 33 L Ed 2d 101 (1972). Defendant moved to
dismiss the case on that ground; as noted, the trial court
denied that motion.
For 	its 	part, the 	state 	acknowledges 	that 	the
lengthy delay “was the result of inadvertence and neglect
by the parties and the court, and is neither chargeable
to 	defendant 	nor 	excusable.” The 	state 	also 	does 	not
dispute defendant’s contention that a remanded retrial or
resentencing proceeding implicates Article I, section 10.
The state emphasizes, however, that this court in Bowen I
affirmed all defendant’s convictions and effectively upheld
the jury’s imposition of a sentence of death, limiting remand
to only entry of a corrected judgment. In that circumstance,
the state argues, no constitutional violation occurred.
In the context of the parties’ contentions, we agree
with the state. Here, the error in the original proceeding was
limited to the form of judgment, and—as explained earlier
in this opinion—remand was limited to correction of that
error. The court in Bowen I otherwise affirmed defendant’s
conviction and sentence of death. Although nothing in the
record justifies the delay that occurred, no prejudice to
defendant resulted from the delayed entry of the corrected
judgment that implicates either Article I, section 10, of
the Oregon Constitution or the Sixth Amendment to the
United States Constitution. See generally Harberts, 331 Or
3 Article I, section 10, provides, in part, that “justice shall be administered * * *
without delay[.]” The Sixth Amendment provides, in part, that, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial[.]”

Cite as 352 Or 109 (2012) 	121
at 88 (prejudice to defendant resulting from delay is one
component of state constitutional analysis); Barker, 407 US
at 532 (same, regarding federal constitutional analysis).
We reject defendant’s contentions under Article I, section
10, and the Sixth Amendment, and affirm the trial court’s
denial of defendant’s motion to dismiss.
III. 	CONCLUSION
In sum, we conclude that, on remand, the trial
court properly denied defendant’s motion to follow ORS
138.012, his motion for new trial based on stun device, and
his motion to dismiss based on purported “speedy trial”
constitutional violations. The trial court correctly entered a
corrected judgment that merged the aggravated murder and
murder convictions as to victim Christianson and imposed
a single sentence of death. However, the corrected judgment
failed to separately enumerate the aggravating factors
underlying 	defendant’s 	aggravated 	murder 	convictions,
and we therefore reverse the corrected judgment and
remand with the limited direction that the trial court enter
a new corrected judgment that again merges defendant’s
aggravated murder and intentional murder convictions and
that also enumerates the aggravating factors underlying
defendant’s merged aggravated murder convictions.
The corrected judgment is reversed and remanded
with instructions to again merge the aggravated murder
and 	intentional 	murder 	convictions, and 	to 	separately
enumerate the aggravating factors underlying the merged
aggravated murder convictions. The conviction and the
sentence of death are otherwise affirmed.