Background
Dayton Leroy Rogers was convicted of 13 counts of aggravated murder in 1989 for killing six women and sentenced to death. Over three decades, the Oregon Supreme Court vacated and remanded his death sentence four times due to errors in the sentencing proceedings—ranging from improper jury instructions to limitations on expert testimony and allocution. Each time, he was resentenced to death. In 2021, in State v. Rogers (Rogers IV), the Supreme Court held that following the passage of Senate Bill 1013 (2019), Rogers’s death sentence was unconstitutional under Article I, section 16 of the Oregon Constitution (the proportionality clause). SB 1013 reclassified conduct that previously constituted aggravated murder—including intentional killing—as first-degree murder, which is no longer subject to the death penalty.
On remand for a fifth sentencing proceeding, the trial court and defense counsel disputed which sentencing statute should govern. Defendant argued the court should proceed under ORS 138.052, the aggravated murder remand statute that applies after the Oregon Supreme Court vacates a death sentence. The state contended that SB 1013’s new first-degree murder sentencing statute, ORS 163.107, should apply instead. The trial court agreed with the state, applied ORS 163.107, and sentenced Rogers to six consecutive sentences of life without the possibility of parole (LWOP).
Rogers appealed on three grounds: (1) the trial court erred in applying the first-degree murder sentencing statute instead of the aggravated murder statute; (2) the trial court erred in allowing a prior waiver of ex post facto objections to LWOP to apply; and (3) the addition of LWOP to the aggravated murder sentencing scheme violates the Oregon Constitution. He had explicitly waived his right to a jury trial at sentencing.
The Court’s Holding
The Court of Appeals affirmed the LWOP sentence but agreed with Rogers that the trial court had erred in its choice of sentencing statute. The court held that SB 1013 does not authorize a trial court to reclassify an aggravated murder conviction into a first-degree murder conviction on remand. Because Rogers was convicted of aggravated murder, not first-degree murder, the sentencing should have proceeded under ORS 138.052, which governs remand sentencing for aggravated murder after the Supreme Court vacates a death sentence. ORS 138.052 permits the court to impose LWOP only if the jury so determines (unless the defendant waives jury trial), or to impose LWPP (life with parole after 30 years).
Nevertheless, the court found the error harmless. Rogers had explicitly waived his right to a jury at sentencing and stated he would not seek one even if the court reconsidered its ruling. The trial court had also explicitly found that it would have imposed the same LWOP sentence under ORS 138.052 had that statute applied. Under the harmless error doctrine, when “it is clear that, on remand, the trial court lawfully could, and would, impose the same” sentence, the error is harmless. Because Rogers waived jury trial and the court would reach the identical result under the correct statute, the misapplication of ORS 163.107 had no practical effect on his sentence.
The court also upheld the validity of Rogers’s 1994 waiver of ex post facto objections to LWOP. Although that waiver was made before LWOP existed as a sentencing option for aggravated murder, the court reasoned that following Bartol and Rogers IV, the ex post facto analysis had fundamentally changed. With death no longer an available sentence, the relevant comparison is between a sentencing structure without death but with presumptive LWOP, and the prior structure with death or presumptive LWPP. Removing death from the options does not disadvantage Rogers for ex post facto purposes. To the extent an ex post facto issue remained, Rogers had unequivocally waived his rights “forever” in his 1994 waiver, which explicitly stated he was giving up his constitutional protections against ex post facto laws concerning LWOP. Finally, the court rejected Rogers’s constitutional challenge to LWOP as a sentencing option for aggravated murder.
Key Takeaways
- When a death sentence is vacated and remanded, a trial court cannot apply the new first-degree murder sentencing statute to an existing aggravated murder conviction; instead, it must proceed under the remand statute (ORS 138.052).
- A sentencing error is harmless if the trial court would impose the same sentence under the correct legal standard, particularly when the defendant has waived jury trial.
- A prior waiver of ex post facto objections to LWOP, made when LWOP did not yet exist as an option, remains valid and binding on the defendant across multiple sentencing proceedings.
- Following SB 1013’s reclassification of aggravated murder conduct as first-degree murder (non-capital), ex post facto analysis for such defendants must account for the removal of death as a sentencing option.
Why It Matters
This decision clarifies the interaction between SB 1013 and death penalty remands, resolving an ambiguity in how the new sentencing framework applies to defendants whose convictions predate its enactment. The court’s holding that SB 1013 does not permit trial courts to reclassify aggravated murder convictions as first-degree murder convictions on remand preserves the integrity of jury verdicts and prevents circumventing the statutory framework that governs remand sentencing. The opinion also demonstrates that harmless error analysis is outcome-focused: where a procedural error in choosing among applicable statutes yields an identical result, the error may not warrant reversal.
The decision also has broader implications for the scores of death-row inmates whose sentences were vacated following Bartol and Rogers IV. It establishes that prior waivers of ex post facto objections—made decades earlier when LWOP was not available—remain enforceable and binding, even in light of subsequent constitutional changes. This holding may limit avenues for challenge in future remand sentencings and underscores the practical and legal finality that can attach to a defendant’s waiver decisions, even across multiple sentencing proceedings spanning decades.