ex post facto clause in Oregon

2026We explained: “Although it is true that simply removing a crime from the list of those crimes convictions that may be set aside is not an ex post facto violation, State v. Burke, 109 Or App 7 , 818 P2d 511 (1991), changing an existing conviction from one for a Class C felony to one for a Class B felony has much broader ramifications—including increasing the maximum sentence that could be imposed.

2026We explained: “Although it is true that simply removing a crime from the list of those crimes convictions that may be set aside is not an ex post facto violation, State v. Burke, 109 Or App 7 , 818 P2d 511 (1991), changing an existing conviction from one for a Class C felony to one for a Class B felony has much broader ramifications—including increasing the maximum sentence that could be imposed.

2023Cal. Dept. of Corrs. v. Morales, 514 US 499, 509 , 115 S Ct 1597 , 131 L Ed 2d 588 (1995).

2023Cal. Dept. of Corrs. v. Morales, 514 US 499, 509 , 115 S Ct 1597 , 131 L Ed 2d 588 (1995).

2023State v. McNab, 334 Or 469, 481-82 , 51 P3d 1249 (2002) (rejecting an ex post facto challenge to the registra- tion requirement, based on the statutory purpose and the fact that “[t]he operation of the law conforms to the legisla- ture’s declared purpose”); see also, e.g., State v. Benson, 313 Or App 748, 770 , 495 P3d 717 , rev den, 369 Or 69 (2021) (“The requirement that an offender acknowledge that they are aware of their registration requirements exists as part of a noncriminal regulatory framework, is individually reg- ulatory in nature, and serves the noncriminal purpose of effectuating

2023State v. McNab, 334 Or 469, 481-82 , 51 P3d 1249 (2002) (rejecting an ex post facto challenge to the registra- tion requirement, based on the statutory purpose and the fact that “[t]he operation of the law conforms to the legisla- ture’s declared purpose”); see also, e.g., State v. Benson, 313 Or App 748, 770 , 495 P3d 717 , rev den, 369 Or 69 (2021) (“The requirement that an offender acknowledge that they are aware of their registration requirements exists as part of a noncriminal regulatory framework, is individually reg- ulatory in nature, and serves the noncriminal purpose of effectuating

1996The plain and obvious meaning of this prohibition is, that the Legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done; or to add to the punishment of that which was criminal; or to increase the malignity of a crime; or to retrench the rules of evidence, so as to make conviction more easy." Strong v. The State, 1 Blackf 193, 196 (1822) (citing Calder v. Bull, 3 US (3 Dall) 386, 1 L.Ed. 648 (1798), among other authorities). [12] In 1845, that court made explicit what was implicit in Strong; t

1996The plain and obvious meaning of this prohibition is, that the Legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done; or to add to the punishment of that which was criminal; or to increase the malignity of a crime; or to retrench the rules of evidence, so as to make conviction more easy.” Strong v. The State, 1 Blackf 193, 196 (1822) (citing Calder v. Bull, 3 US (3 Dall) 386, 1 L Ed 648 (1798), among other authorities). 12 In 1845, that court made explicit what was implicit in Strong; that

2021Id. at 438 .

2012As noted, in Guzek III, the court held that admission of the evidence does not violate the ex post facto clause of the federal constitution. 336 Or at 447 .

2002In doing so, we followed our holding in State v. Perez, 119 Or App 436 , 851 P2d 617 , rev den 317 Or 272 (1993), and the United States Supreme Court’s holding in Dobbert v. Florida, 432 US 282 , 97 S Ct 2290 , 53 L Ed 2d 344 (1977).

2002In doing so, we followed our holding in State v. Perez, 119 Or App 436 , 851 P2d 617 , rev den 317 Or 272 (1993), and the United States Supreme Court’s holding in Dobbert v. Florida, 432 US 282 , 97 S Ct 2290 , 53 L Ed 2d 344 (1977).

1994Similarly, in State v. Wille, 317 Or. 487 , 858 P.2d 128 (1993), and State v. Langley, 318 Or. 28 , 861 P.2d 1012 (1993), it was not necessary to decide whether to follow Collins , because the defendant showed an ex post facto violation even under the limited Collins formulation. 317 Or. at 502-05, 858 P.2d 128 .

1994Similarly, in State v. Wille, 317 Or. 487 , 858 P.2d 128 (1993), and State v. Langley, 318 Or. 28 , 861 P.2d 1012 (1993), it was not necessary to decide whether to follow Collins , because the defendant showed an ex post facto violation even under the limited Collins formulation. 317 Or. at 502-05, 858 P.2d 128 .

1999Determining that the purpose was not punitive does not end the inquiry, however, but simply leads to the second question, whether the * * * [registration requirement] is so punitive as to negate the nonpunitive intention.” Gress v. Board of Parole, 143 Or App 7, 15-16 , 924 P2d 329 , adhered to as modified 144 Or App 375 , 927 P2d 138 (1996), rev dismissed 326 Or 68 (1997), vacated and dismissed 152 Or App 491 , 950 P2d 418 (1998) (reasoning readopted and reaffirmed by Frey v. Board of Parole, 152 Or App 462, 464 , 950 P2d 418 , rev den 327 Or 173 (1998)) (designation of an individual as a pre

1999Determining that the purpose was not punitive does not end the inquiry, however, but simply leads to the second question, whether the * * * [registration requirement] is so punitive as to negate the nonpunitive intention.” Gress v. Board of Parole, 143 Or App 7, 15-16 , 924 P2d 329 , adhered to as modified 144 Or App 375 , 927 P2d 138 (1996), rev dismissed 326 Or 68 (1997), vacated and dismissed 152 Or App 491 , 950 P2d 418 (1998) (reasoning readopted and reaffirmed by Frey v. Board of Parole, 152 Or App 462, 464 , 950 P2d 418 , rev den 327 Or 173 (1998)) (designation of an individual as a pre

1995On reconsideration, we adhered to our holding that “the rules constitute an ex post facto violation as to petitioner and that he is entitled to be considered for release under the rules in effect when his offenses were committed.” Williams v. Board of Parole, supra, 112 Or App at 113 .

1993Williams v. Board of Parole, 107 Or App 515 , 812 P2d 443 (1991), on recon 112 Or App 108 , 828 P2d 465 , rev dismissed 313 Or 300 (1992).

1995In that case, we concluded that because the petitioner was not disadvantaged by application of the new rule, the ex post facto analysis did not apply. 117 Or App at 266 .

1993In Rise v. Board of Parole, 117 Or App 265 , 843 P2d 997 (1992), rev den 315 Or 443 (1993), we held that the petitioner had not shown an ex post facto violation where the Board applied the new rule, but indicated that it would have *613 awarded the same reduction under the old rule.

2021The ex post facto challenge at issue in Upton arose after the legislature made changes to Oregon sentencing procedures in order to bring them into compliance with Apprendi v. New Jersey, 530 US 466 , 120 S Ct 2348 , 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296 , 124 S Ct 2531 , 159 L Ed 2d 403 (2004).

2021The ex post facto challenge at issue in Upton arose after the legislature made changes to Oregon sentencing procedures in order to bring them into compliance with Apprendi v. New Jersey, 530 US 466 , 120 S Ct 2348 , 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296 , 124 S Ct 2531 , 159 L Ed 2d 403 (2004).

2021The ex post facto challenge at issue in Upton arose after the legislature made changes to Oregon sentencing procedures in order to bring them into compliance with Apprendi v. New Jersey, 530 US 466 , 120 S Ct 2348 , 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296 , 124 S Ct 2531 , 159 L Ed 2d 403 (2004).

2021The ex post facto challenge at issue in Upton arose after the legislature made changes to Oregon sentencing procedures in order to bring them into compliance with Apprendi v. New Jersey, 530 US 466 , 120 S Ct 2348 , 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296 , 124 S Ct 2531 , 159 L Ed 2d 403 (2004).

2021Cite as 368 Or 38 (2021) 55 We have consistently held, however, that not every change in the law, applied retroactively, is an ex post facto law within the meaning of the constitutional provision.

2021Cite as 368 Or 38 (2021) 57 487, 502, 858 P2d 128 (1993), insists that we already have held that any change to the elements of a crime violates the ex post facto clause.

2021See Or Laws 1997, ch 313, § 29; State v. Shaw, 338 Or 586, 613 , 113 P3d 898 (2005) (holding that to apply OEC 404(4) to a crime that predates the rule’s enactment would result in an ex post facto violation). 4 The concurrence contends that we are perpetuating a misconception that OEC 404(3) prohibits “propensity” reasoning rather than “character” reasoning. 368 Or at 733-34 (Garrett, J., concurring).

2021See Or Laws 1997, ch 313, § 29; State v. Shaw, 338 Or 586, 613 , 113 P3d 898 (2005) (holding that to apply OEC 404(4) to a crime that predates the rule’s enactment would result in an ex post facto violation). 4 The concurrence contends that we are perpetuating a misconception that OEC 404(3) prohibits “propensity” reasoning rather than “character” reasoning. 368 Or at 733-34 (Garrett, J., concurring).

2021We again reasoned that the new law was not detrimental to the defendant, saying that “SB 528 permits bifurcation of the penalty phase from the guilt phase to avoid presenting prej- udicial evidence to the jury when it determines guilt.” Id. at 683 .

2021The defendant made an argument along those lines in Upton, 339 Or at 682-83 , though there we held that the bifurcation of guilt and penalty phases in enhancement factor sentencing negated that possibility, and so we did not need to decide whether such a change would violate the ex post facto clause.

2016Smith, 343 Or at 419-20 ; Butler, 194 Or App at 171-73 .

2016Smith, 343 Or at 419-20 ; Butler, 194 Or App at 171-73 .

2016Smith, 343 Or at 419-20 ; Butler, 194 Or App at 171-73 .

2016Smith, 343 Or at 419-20 ; Butler, 194 Or App at 171-73 .

2016Defendant acknowledges that we held in Vazquez-Escobar that the permanent revocation of driving privileges under ORS 809.235 is not “greater or additional punishment” for purposes of an ex post facto challenge under Article I, section 21, of the Oregon Constitution and Article I, section 10, of the United States Constitution. 211 Or App at 125 .