Background
In 2010, Brian Bement shot and killed a man known as G and stole more than $13,000 in cash from him. A 2012 jury convicted Bement of aggravated felony murder, first-degree robbery with a firearm, and felon in possession of a firearm. In a separate penalty-phase proceeding, that same jury declined to impose the death penalty and instead returned a sentence of life without the possibility of parole (LWOP). The Oregon Court of Appeals later reversed the conviction because the trial court had improperly excluded emails showing the victim’s financial distress—evidence relevant to Bement’s claim that G had tried to rob him first. The Oregon Supreme Court affirmed that reversal and the case returned for retrial.
By the time of the 2022 retrial, the 2019 Legislature had restructured Oregon’s murder statutes through Senate Bill 1013, abolishing most capital-eligible categories and creating new first- and second-degree murder offenses. Under the reformed scheme, intentionally killing someone in the course of a robbery constitutes first-degree murder under ORS 163.107(1)(j)—conduct previously charged as aggravated murder. A second jury convicted Bement on all remaining counts under the new statute.
At sentencing, the trial court imposed a true-life sentence (LWOP) under ORS 163.107(2)(b), citing its own factual reasons on the record: the murder was premeditated, the victim was vulnerable, Bement showed no remorse, and he had a significant violent criminal history. The state had not pleaded enhancement facts in the indictment, had not provided formal notice of enhancement facts, and had not sought a sentencing jury. This was notable because the same judge had presided over State v. Johnson, 329 Or App 588 (2023), a companion case raising identical sentencing issues—where proper sentencing-jury procedures had been followed before LWOP was imposed.
The Court’s Holding
The Court of Appeals affirmed the convictions but remanded for resentencing, holding that the trial court violated the Sixth Amendment by imposing a true-life sentence based on its own factual findings. Using Johnson as the interpretive guide, the court explained that ORS 163.107(2)(a) sets the “statutory maximum” for Apprendi/Blakely purposes at life imprisonment with a 30-year minimum, and that subsection (2)(b)’s LWOP option is an enhanced sentence above that ceiling. Any fact that pushes a sentence beyond the statutory maximum must be found by a jury—not the court—beyond a reasonable doubt. Apprendi v. New Jersey, 530 US 466 (2000); Blakely v. Washington, 542 US 296 (2004).
Johnson had held that ORS 163.107(2)(b) is constitutional only when read together with ORS 136.760 through 136.792—Oregon’s Blakely-remedy statutes, enacted “specifically in response to Blakely,” which establish the procedure for empaneling a sentencing jury to find enhancement facts beyond a reasonable doubt. When that procedure is followed, the court may then impose LWOP based on the jury-found facts. When it is not, the court may not. The state’s argument that ORS 163.107(2)(b) gives a sentencing court “unbridled discretion” to choose between sentences simply by stating “reasons”—without jury-found factual findings—was squarely rejected.
On remedy, the court declined to cap the sentence at life with parole. Although the error was pronounced—the same court had applied the correct procedure in Johnson—the state had previously requested a sentencing jury in the alternative, and ORS 136.790 permits the state to provide notice of enhancement facts “within a reasonable time before resentencing.” The case was remanded for resentencing under the constitutionally required two-step procedure.
Key Takeaways
- ORS 163.107(2)(a) establishes life with a 30-year minimum as the “statutory maximum” for Apprendi/Blakely purposes; LWOP under subsection (2)(b) is an enhanced sentence requiring jury-found enhancement facts before the court may impose it.
- A trial court cannot impose a true-life sentence for first-degree murder by stating its own reasons on the record—a sentencing jury must first find the supporting enhancement facts under ORS 136.760–136.792 beyond a reasonable doubt.
- On remand, the state may still seek LWOP by complying with ORS 136.790’s notice requirement and empaneling a sentencing jury; the appropriate remedy is resentencing, not a mandatory reduction to life with parole.
Why It Matters
Bement closes a significant ambiguity about Oregon’s first-degree murder sentencing statute that opened when SB 1013 took effect in 2019. The decision confirms that ORS 163.107(2)(b) is constitutional only when prosecutors use the Blakely-remedy procedure of ORS 136.760–136.792—pleading enhancement facts in advance, noticing them, and presenting them to a sentencing jury. For Oregon prosecutors seeking LWOP, this means front-loading the enhancement-fact process before trial, not relying on sentencing-time judicial findings after a guilty verdict. For defense attorneys, Bement reaffirms that any true-life sentence imposed without a sentencing jury is reviewable as Sixth Amendment error, even where the issue was raised only by pretrial motion in limine. Practitioners who litigate first-degree murder cases under ORS 163.107 should study both Bement and Johnson as a pair to understand the full procedural requirements for a constitutionally sound LWOP sentence in Oregon.