No. 5 March 14, 2024 81

IN THE SUPREME COURT OF THE 

STATE OF OREGON

MATTHEW DWIGHT THOMPSON,

Appellant,

v.

Corey FHUERE,

Superintendent,

Oregon State Penitentiary,

Respondent.

(CC 20CV29516) (CA A179314) (SC S070162)

En Banc

On certification from the Court of Appeals under ORS 

19.405.*

Argued and submitted September 19, 2023.

Jeffrey E. Ellis, Law of Office of Alsept & Ellis, Portland, 

argued the cause and filed the briefs for appellant.

Timothy A. Sylwester, Assistant Attorney General, Salem,

argued the cause and filed the briefs for respondent. Also on 

the briefs were Ellen F. Rosenblum, Attorney General, and 

Benjamin Gutman, Solicitor General.

GARRETT, J.

The judgment of the post-conviction court is affirmed.

______________

* Appeal from Marion County Circuit Court, Thomas M. Hart, Judge.
82 Thompson v. Fhuere
Cite as 372 Or 81 (2024) 83

GARRETT, J.

Petitioner committed capital crimes in 1994 and 

was sentenced to death. Decades later, petitioner filed a 

successive petition for post-conviction relief, claiming that 

his death sentence and two of the penalty-phase questions that had been posed to the jury at sentencing were 

unconstitutional. Because of then-recent changes in the 

law, the parties agreed that petitioner’s death sentence 

had to be vacated. However, the parties disagreed about 

the proper remedy. The superintendent requested that the 

post-conviction court modify petitioner’s sentence to life 

without the possibility of parole, while petitioner sought to 

remand the case for resentencing. The post-conviction court 

vacated petitioner’s death sentence, modified his sentence 

to life without the possibility of parole, and ruled that his 

remaining claims concerning the penalty-phase questions 

were procedurally barred.

Petitioner appealed the judgment to the Court 

of Appeals, arguing, among other things, that the postconviction court had erred by failing to remand the case 

for resentencing. While petitioner’s appeal was pending, 

then-Governor Kate Brown commuted the death sentences 

of 17 individuals—including petitioner—to sentences of life 

without the possibility of parole. We accepted certification 

from the Court of Appeals to consider, among other issues, 

the effect of the Governor’s commutation on this case. See 

ORS 19.405 (describing procedures for certification of an 

appeal). For reasons that we will explain, we conclude that 

petitioner has presented no basis for reversing the postconviction court’s judgment. Petitioner’s argument that he 

is entitled to a remand for resentencing because the death 

sentence that he originally received was unconstitutional 

fails because, as a result of the Governor’s commutation, 

petitioner is not serving a death sentence. Further, petitioner failed to preserve his challenge to the post-conviction 

court’s ruling that his constitutional challenges to the two 

penalty-phase questions were procedurally barred, and, for 

that reason, we do not reach the merits of petitioner’s constitutional challenges to those questions. Accordingly, we 

affirm.
84 Thompson v. Fhuere

I. BACKGROUND AND PROCEDURAL HISTORY

A. History of the Case

The basic procedural facts are undisputed. Petitioner 

was convicted of four counts of aggravated murder involving 

the murder of two victims in 1994. Two counts were based 

on the aggravating circumstance that petitioner had committed multiple murders as part of the same criminal episode. ORS 163.095(1)(d) (1993). The other two counts were 

based on the aggravating circumstance that he had “personally and intentionally committed” murder in the course of 

and in furtherance of committing or attempting to commit 

a statutorily enumerated felony (i.e., first-degree burglary in 

one count and first-degree robbery in the second count). ORS 

163.095(2)(d) (1993); ORS 163.115(1)(b)(C), (G) (1993).

During the penalty phase, the jury was instructed 

that there were three possible penalties: death, life imprisonment without the possibility of parole, and life imprisonment with the possibility of parole. As described in more 

detail below, 372 Or at 85-86, 85 n 3, the jury answered certain questions that were legally required at that time for the 

imposition of a death sentence, including two pertaining to 

whether petitioner posed a “continuing threat” and whether 

he “deserved death.” Petitioner was sentenced to death.1

On automatic and direct review, this court affirmed 

the judgment of conviction and sentence of death. State v. 

Thompson, 328 Or 248, 971 P2d 879, cert den, 527 US 1042 

(1999). Petitioner then sought post-conviction relief, challenging his convictions and sentence on numerous grounds. 

The Court of Appeals affirmed the post-conviction court’s 

judgment denying petitioner relief, and this court denied 

review.2 Thompson v. Belleque, 268 Or App 1, 341 P3d 911 

(2014), rev den, 357 Or 300 (2015).

1 Petitioner was sentenced to death on each of the four counts of aggravated 

murder. State v. Thompson, 328 Or 248, 253 n 2, 971 P2d 879, cert den, 527 US 

1042 (1999). For convenience, however, we refer to those sentences collectively as 

either petitioner’s “sentence” or “death sentence.”

2 Petitioner then filed a petition for a writ of habeas corpus in federal district 

court. Thompson v. Premo, No 6:15-cv-01313-SI (D Or 2015). That case is currently stayed pending the outcome of this appeal.
Cite as 372 Or 81 (2024) 85

B. Senate Bill 1013

Several years later, in 2019, the legislature passed 

Senate Bill (SB) 1013, which significantly changed Oregon’s 

death penalty statutes. Or Laws 2019, ch 635; see State v. 

Bartol, 368 Or 598, 496 P3d 1013 (2021) (describing SB 1013, 

its legislative history, and its effects). As pertinent here, 

SB 1013 “created a new category of murder, ‘murder in the 

first degree’; reclassified all the forms of murder that previously had been ‘aggravated murder’ as ‘murder in the first 

degree’; and provided a maximum sentence of life imprisonment without the possibility of parole for ‘murder in the 

first degree.’” Bartol, 368 Or at 601 (citing Or Laws 2019, 

ch 635, §§ 1, 3(1), (2)). Thus, SB 1013 eliminated the death 

penalty for all the forms of murder that previously had been 

eligible for it, which included the forms that petitioner had 

committed.

“SB 1013 did not eliminate the death penalty 

entirely[,]” however. Id. at 601. Instead, SB 1013 “redefined 

‘aggravated murder’ to include different forms of murder, 

most of which are more serious forms of murder than those 

*** previously * ** classified as ‘aggravated murder[,]’” and 

provided that those forms of aggravated murder can be punished by death. Id. 601-02; see id. at 602 n 2 (describing conduct constituting aggravated murder under SB 1013).

In addition, SB 1013 changed the requirements for 

imposing a death sentence. “Prior to SB 1013, the jury had to 

answer four questions in the affirmative in order for a defendant to be sentenced to death.” Bartol, 368 Or at 602 n 3 

(citing ORS 163.150(1)(b) (2013), amended by Or Laws 2019, 

ch 635, § 5).3 Specifically, ORS 163.150(1)(b) (2013) provided:

“Upon the conclusion of the presentation of the evidence, 

the court shall submit the following issues to the jury:

“(A) Whether the conduct of the defendant that caused 

the death of the deceased was committed deliberately and 

with the reasonable expectation that death of the deceased 

or another would result;

3 The penalty-phase questions in ORS 163.150(1)(b) (2013) that we discussed 

in Bartol were same questions that had applied when petitioner was sentenced 

to death.
86 Thompson v. Fhuere

“(B) Whether there is a probability that the defendant 

would commit criminal acts of violence that would constitute a continuing threat to society;

“(C) If raised by the evidence, whether the conduct of 

the defendant in killing the deceased was unreasonable in 

response to the provocation, if any, by the deceased; and

“(D) Whether the defendant should receive a death 

sentence.”

Under that statute, if the jury answered any of those four 

questions in the negative, a death sentence could not be 

imposed. Instead, the trial court was required to sentence 

the defendant to life imprisonment without the possibility of parole, unless “10 or more members of the jury further [found] that there [were] sufficient mitigating circumstances” to warrant life imprisonment with the possibility of 

parole, in which case the trial court was required to impose 

that lesser sentence. ORS 163.150(2)(a) (2013).

SB 1013 eliminated the second of the four questions, 

ORS 163.150(1)(b)(B) (2013), relating to whether a defendant 

constitutes a “continuing threat.” Bartol, 368 Or at 602 n 3.

The bill also added a “‘proof beyond a reasonable doubt’” 

standard to the question of whether a defendant “should 

receive a death sentence.” Id.

Significantly, the legislature did not make SB 1013 

retroactive as to sentences imposed before the effective date 

of the bill. Instead, SB 1013 applied “only to sentencings 

that occur after its effective date, regardless of when the 

crime was committed.” State v. Rogers, 368 Or 695, 700, 499 

P3d 45 (2021) (citing Or Laws 2019, ch 635, § 30). This court 

construed that applicability provision in Bartol to demonstrate that “the legislature did not regard conduct committed before the effective date as more culpable than conduct 

committed after it.” Bartol, 368 Or at 624. Thus,

“[a]lthough the legislature did not make SB 1013 retroactive as to sentences imposed before its effective date, the 

enactment of the bill itself reflect[ed] a judgment that conduct that [had been] previously classified as ‘aggravated 

murder’ [did] not fall within the narrow category of conduct 

that [could] be punished by death, as opposed to lesser sentences, including life imprisonment.”

368 Or at 625.
Cite as 372 Or 81 (2024) 87

Bartol held that, so understood, SB 1013 created a 

proportionality problem under Article I, section 16, of the 

Oregon Constitution, which provides, in part, that “all penalties shall be proportioned to the nature of the offense.” Id.

at 624. That was so, because SB 1013 allowed “the execution 

of persons whose conduct the legislature has determined is 

not the worst of the worst and whose culpability is no different from those who cannot be executed.” Id. (emphases in 

original). Put simply, “whether a person who committed conduct that was previously classified as ‘aggravated murder’ 

but is now classified as ‘murder in the first degree’ can be 

sentenced to death depends on the person’s sentencing date, 

not on the relative gravity of the conduct.” Id.

Accordingly, in Bartol—a death penalty case on 

automatic and direct review—we explained that carrying 

out that defendant’s death sentence

“would allow the execution of a person for conduct that the 

legislature has determined no longer justifies that unique 

and ultimate punishment, and it would allow the execution 

of a person for conduct that the legislature has determined 

is no more culpable than conduct that should not result in 

death.”

Id. at 625. Having concluded that the defendant’s death 

sentence violated Article I, section 16, we vacated the sentence and remanded the case for resentencing. Id. at 626; see 

Rogers, 368 Or at 701 (same).

C. Petitioner’s Post-Conviction Proceeding

Following the enactment of SB 1013 and the issuance of our decisions in Bartol and Rogers, petitioner filed 

the successive post-conviction petition that is the subject of 

this appeal. He raised the following three claims for relief.4

In his first claim, petitioner asserted that his death 

sentence was unconstitutional. He explained that, pursuant to SB 1013, the conduct that he had been found guilty 

of committing was no longer classified as aggravated murder and was no longer punishable by death; thus, under 

the holdings in Bartol and Rogers, his death sentence was 

unconstitutional.

4 Petitioner alleged two additional claims that were voluntarily dismissed.
88 Thompson v. Fhuere

In his second claim, petitioner contended that the 

“continuing threat” question that had been posed to the jury 

in his case was unconstitutional (i.e., the second penaltyphase question, ORS 163.150(1)(b)(B) (2013) (“[w]hether there 

is a probability that the defendant would commit criminal 

acts of violence that would constitute a continuing threat 

to society”)). According to petitioner, that question failed 

to serve its constitutionally required function to rationally 

“narrow the class of death-eligible criminal defendants.” In 

support of that proposition, petitioner referred to empirical 

evidence, including research pertaining to jurors’ ability to 

predict future dangerousness. He further asserted that the 

elimination by SB 1013 of the “continuing threat” question 

was an acknowledgment that the question “did not comport 

with the current understanding of modern circumstances 

and contemporary standards of decency.”

In his third claim, petitioner challenged the constitutionality of the version of the “deserves death” question 

that was posed to his jury (i.e., the fourth penalty-phase 

question, ORS 163.150(1)(b)(D) (2013) (“[w]hether the defendant should receive a death sentence”)). As noted above, that 

version of the question did not require proof beyond a reasonable doubt, which, according to petitioner, made the question inconsistent both with “[m]odern circumstances and 

contemporary standards of decency,” and with the intent of 

the voters when they reinstated the death penalty in 1984. 

Again, petitioner cited SB 1013 in support of that claim.

As a remedy for each of those three claims, petitioner asked the post-conviction court to vacate his death 

sentence and remand the case to the trial court for resentencing under the provisions of SB 1013.

The parties filed cross-motions for summary judgment. See ORCP 47 C (providing that summary judgment 

shall be granted if “there is no genuine issue as to any material fact and * * * the moving party is entitled to prevail as a 

matter of law”). With regard to petitioner’s first claim, they 

agreed that petitioner’s death sentence had to be vacated, but 

disagreed as to the remedy. Petitioner argued that a remand 

for resentencing under the provisions of SB 1013 was required; 

the superintendent countered that the post-conviction court 
Cite as 372 Or 81 (2024) 89

could modify petitioner’s sentence to life without the possibility of parole because that was the only legally permissible 

sentence—that is, it was “the next lower sentence that [was] 

both statutorily authorized and constitutionally permissible” 

based on the jury’s findings. The parties also had differing 

views about petitioner’s remaining two claims concerning the 

“continuing threat” and “deserves death” questions, which the 

post-conviction court would need to address if it declined to 

remand for resentencing on petitioner’s first claim. Petitioner 

contended that, if the post-conviction court concluded that 

either question was unconstitutional, a remand for resentencing was required; the superintendent argued that the claims 

were procedurally barred, were moot in light of the parties’ 

agreement that the death sentence had to be vacated, and, in 

all events, lacked merit.

Following a hearing, the post-conviction court granted

petitioner summary judgment, in part, on his first claim 

(i.e., the court vacated petitioner’s death sentence). But, as 

the superintendent had requested, instead of remanding, the 

court modified the judgment of conviction pursuant to ORS 

138.520 to impose a sentence of life without the possibility of 

parole on each of petitioner’s four aggravated murder convictions. See ORS 138.520 (providing that the relief that a postconviction court may order “shall include *** modification of 

sentence”). As to petitioner’s remaining two claims concerning the penalty-phase questions, the post-conviction court 

granted summary judgment to the superintendent, concluding that petitioner’s claims were procedurally barred under 

ORS 138.510(3) and ORS 138.550(3). See ORS 138.510(3) 

(providing, as pertinent here, that “[a] petition * ** must 

be filed within two years” of the date of the denial of certiorari “unless the court on hearing a subsequent petition 

finds grounds for relief asserted which could not reasonably 

have been raised in the original or amended petition”); ORS 

138.550(3) (providing, in part, that “[a]ll grounds for relief 

*** must be asserted in the original or amended petition, 

and any grounds not so asserted are deemed waived unless 

the court on hearing a subsequent petition finds grounds for 

relief asserted therein which could not reasonably have been 

raised in the original or amended petition”). Specifically, 

the court ruled that the constitutionality of those questions 
90 Thompson v. Fhuere

previously had been challenged in this court and upheld, and 

that petitioner had “had direct appeal, post-conviction * * *, 

and other options” to challenge them.

D. The Governor’s Commutation

While petitioner’s appeal of the post-conviction 

court’s judgment was pending in the Court of Appeals, 

then-Governor Brown commuted petitioner’s death sentence to life in prison without the possibility of parole. The 

Governor’s order stated that it was “limited to reducing 

[petitioner’s] death sentence to life in prison without the possibility of parole” and did “not in any way affect the underlying criminal conviction.” According to the Governor, her 

action “remove[d] the possibility” that petitioner would be 

“put to death” and brought “all of us a significant step closer 

to finality.” However, the order explicitly stated that “[n]othing in [the] Commutation Order [was] intended to preclude 

[petitioner] from seeking other or further relief from the 

courts that [he] may be entitled to.”5

E. The Parties’ Appellate Contentions

Despite the fact that the Governor had issued her 

commutation around the time that the parties were filing their briefs in the Court of Appeals, that briefing paid 

relatively little, if any, attention to the legal effect of the 

commutation on this case. Petitioner’s briefing focused on 

5 In the same commutation order, Governor Brown also commuted the death 

sentences of 16 other people. The order provided, in pertinent part:

“[B]y virtue of the authority vested in me under Article V, Section 14, of the 

Oregon Constitution, I, Kate Brown, Governor of the State of Oregon, hereby 

commute the death sentence of each Commutee, in the respective case referenced in Exhibit A, to life in prison without the possibility of parole, effective 

as of the 14th day of December, 2022. This Commutation Order is limited 

to reducing each Commutee’s death sentence to life in prison without the 

possibility of parole, and shall not in any way affect the underlying criminal conviction. Nothing in this Commutation Order is intended to preclude 

a Commutee from seeking other or further relief from the courts that they 

may be entitled to. Although in many cases commutations are granted in 

recognition of extraordinary reform on the part of the individual, that is not 

the basis for my actions here. Instead, the sole basis for commuting the death 

sentences of each Commutee to life in prison without the possibility of parole 

is that the death penalty is dysfunctional and immoral, in all circumstances. 

My action today removes the possibility that any of these Commutees will 

be put to death by the State and brings all of us a significant step closer to 

finality in each of these cases.”
Cite as 372 Or 81 (2024) 91

the post-conviction court’s rulings and raised four assignments of error, contending that the post-conviction court 

had erred in (1) summarily modifying petitioner’s sentence 

to life without parole instead of remanding for resentencing 

after it vacated his unconstitutional death sentence; (2) concluding that his claims concerning the penalty-phase questions were “untimely” when the state had “conceded otherwise”; (3) failing to remand for resentencing because the 

“continuing threat” question was unconstitutional as measured by evolving standards of decency and events that had 

occurred after petitioner’s trial, direct appeal, and prior 

post-conviction proceeding; and (4) failing to remand for 

resentencing because the “deserves death” question was 

unconstitutional for similar reasons. Petitioner’s briefing 

did not mention the Governor’s commutation.

The superintendent called the court’s attention to 

the commutation in his answering brief, noting that the 

Governor’s order made it “unnecessary to address the effect 

of the Bartol decision on the validity of the death sentence 

imposed in petitioner’s case.” The superintendent also contended that the commutation order “effectively moot[ed]” 

petitioner’s claims concerning the penalty-phase questions 

and that the court should not consider them. In support of 

that contention, the superintendent reiterated his argument that the jury’s answers to the penalty-phase questions 

necessarily established that life without the possibility of 

parole is the proper sentence now that the death sentence 

cannot be carried out. The Court of Appeals then certified 

the appeal to this court, and we accepted the certification 

and received supplemental briefing.

Again, however, the parties’ briefing did not devote 

much attention to the legal effect of the Governor’s commutation. Petitioner explained that, although this court’s rulings 

in Bartol and Rogers “likely made all then-existing death sentences unconstitutional,” the commutation had “ended any 

uncertainty when [the Governor] commuted those sentences” 

and expressly “preserve[d] all existing rights for every commutee.” In other words, petitioner acknowledged that, as a 

result of the commutation, he is serving the commuted sentence of life without parole, but, nonetheless, contended that 
92 Thompson v. Fhuere

the express terms of the Governor’s commutation permitted 

him to “seek[] other or further relief from the courts that 

[he] may be entitled to”—including relief that could result in 

an even lesser sentence than his commuted one.

The relief to which petitioner claims an entitlement 

is a remand for resentencing, based, as we understand his 

argument, on four distinct theories. First, because the jury 

had found petitioner guilty of aggravated murder based on 

conduct that (under SB 1013) can no longer be punished by 

death, there is a heightened possibility that his death sentence was influenced by the classification of his conduct as 

“the worst form of murder” and so created a “bias in favor 

of the death penalty,” and, for that reason, he is entitled 

to a remand for resentencing. Second, because this court 

vacated the defendants’ unconstitutionally disproportionate death sentences in Bartol and Rogers and remanded 

those cases for resentencing, petitioner is entitled to the 

same remedy for the same constitutional violation. Third, 

because the post-conviction court had vacated petitioner’s 

death sentence (as both parties had agreed was necessary), 

he was subject to being resentenced under the provisions 

of SB 1013. Fourth, because the “continuing threat” and 

“deserves death” penalty-phase questions that were posed to 

petitioner’s jury were unconstitutional, petitioner is entitled 

to a remand for resentencing as would be the case with any 

other prejudicial penalty-phase error.

In his supplemental brief, the superintendent argued

that the parties’ dispute about the post-conviction court’s 

authority to modify petitioner’s sentence had been rendered 

moot by the Governor’s commutation, because petitioner “is 

no longer subject to a death sentence or the possibility of 

one, and he is now serving a true-life sentence instead.” As a 

consequence, the superintendent reasoned, “this court need 

not consider whether ORS 138.520 authorized the postconviction court to modify the judgment * ** to impose a 

true-life sentence.” The superintendent also contended that 

petitioner was not entitled to a resentencing, because the 

theories that he had advanced lacked merit.

During oral argument, we sought to further clarify 

the parties’ positions about the legal effect of the commutation 
Cite as 372 Or 81 (2024) 93

on this case. Both parties agreed that, as a result of the 

commutation, petitioner is serving a life sentence without 

the possibility of parole. According to the superintendent, 

the commutation rendered moot the parties’ dispute about 

the post-conviction court’s authority to modify petitioner’s 

sentence, because the Governor did that herself. However, 

the superintendent conceded that, if we conclude that there 

was a penalty-phase error that requires a remand for resentencing, the terms of the commutation order do not preclude 

that relief.

As discussed further below, the Governor’s commutation order fundamentally changed the circumstances 

of this case and the nature of what had been litigated, up 

to that point, in the post-conviction court. In this appeal 

of the post-conviction court’s judgment resolving petitioner’s claims for post-conviction relief, our task is to address 

whether petitioner’s assignments of error present a basis for 

reversing that judgment—now that petitioner’s death sentence has been commuted.

II. ANALYSIS

To resolve the parties’ contentions in this case, we 

must determine the legal effect of the Governor’s commutation order. Accordingly, we begin there.

The Governor has the power to grant clemency, 

including commutations, under Article V, section 14, of the 

Oregon Constitution, which provides, in part:

“[The Governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences 

[sic] except treason, subject to such regulations as may be 

provided by law. Upon conviction for treason he shall have 

power to suspend the execution of the sentence until the 

case shall be reported to the Legislative Assembly, at its 

next meeting, when the Legislative Assembly shall either 

grant a pardon, commute the sentence, direct the execution 

of the sentence, or grant a farther [sic] reprieve.”

The Governor is the “sole repository” of this constitutional 

clemency power. Eacret et ux v. Holmes, 215 Or 121, 126, 333 

P2d 741 (1958). This court has repeatedly concluded that “‘it 

is not within judicial competency to control, interfere with, 
94 Thompson v. Fhuere

or even to advise the Governor when exercising [her] power 

to grant reprieves, commutations, and pardons.’” Haugen v. 

Kitzhaber, 353 Or 715, 720, 306 P3d 592 (2013), cert den, 571 

US 1167 (2014) (quoting Eacret, 215 Or at 125-26); see also 

Eacret, 215 Or at 127 (“Where the constitution thus confers 

unlimited power on the Governor to grant reprieves, commutations and pardons, his discretion cannot be controlled 

by judicial decision.”).6

A Governor’s grant of clemency is not a “‘private act 

of grace from an individual happening to possess power.’” 

Haugen, 353 Or at 742 (quoting Biddle v. Perovich, 274 US 

480, 486, 47 S Ct 664, 71 L Ed 1161 (1927) (emphases in 

Haugen)). Instead, it is “an important part of the constitutional scheme envisioned by the framers” that “permits the 

chief executive to determine that ‘the public welfare will be 

better served’ by clemency.” Id. (quoting Biddle, 274 US at 

486). Ultimately, “[t]he Governor’s ability to grant clemency is 

a direct and complete check on specific actions of the judicial 

branch that is entrusted to the chief executive.” Id. at 726.

One form of clemency is a “commutation,” which is 

what petitioner received in this case. See State v. Link, 367 

Or 625, 663, 482 P3d 28 (2021) (“Commutation *** is an 

ad hoc exercise of executive clemency.” (Internal quotation 

marks omitted.)). A commutation is “a change of punishment 

to which a person has been condemned to one less severe.” 

Fehl v. Martin, 155 Or 455, 459, 64 P2d 631 (1937); see Black’s 

Law Dictionary 350 (11th ed 2019) (defining “commutation” 

6 “[T]o the extent that limits are imposed on the clemency power, those limits 

must come from the constitution itself, or from the people.” Haugen, 353 Or at 726. 

As we have previously stated, “[t]he most fundamental limit [on the Governor’s 

power] is imposed through the actions of the people, if they choose not to reelect 

the Governor.” Id. at 742; see Eacret, 215 Or at 128 (noting that, if a Governor 

abuses the clemency power, the people have recourse “at the polls”). The “text, 

history, and case law surrounding Article V, section 14,” also demonstrate that 

“the Governor’s power may be checked by the legislative branch, as in cases of 

treason convictions and through the legislature’s authority to establish regulations regarding the Governor’s power.” Haugen, 353 Or at 742-43. The legislature 

has enacted a few statutory provisions addressing the Governor’s clemency power. 

ORS 144.649 - 144.670. “Most of those provisions address procedural issues, such 

as the procedure for reporting acts of clemency to the legislature and the procedure for applying for clemency.” Haugen, 353 Or at 727 n 7. The one statutory provision that addresses the scope of the Governor’s power, ORS 144.649, “restates 

the Governor’s constitutional power, but also expresses the legislature’s intent to 

defer to the Governor’s judgment regarding the exercise of that power[.]” Id.
Cite as 372 Or 81 (2024) 95

to include “[t]he executive’s substitution in a particular case 

of a less severe punishment for a more severe one that has 

already been judicially imposed on the defendant”); see 

also Duehay v. Thompson, 223 F 305, 307-08 (9th Cir 1915) 

(explaining that, in commuting a sentence, “the executive 

has superimposed its mind upon the judgment of the court; 

but the sentence remains, nevertheless, the judgment of the 

court, and not of the executive, and is subject to the regulations of law respecting its enforcement”).

In addition, “[a] commuted sentence has the same 

legal effect as though the sentence had originally been for the 

commuted term.” Pardon and Parole, 67A CJS § 6 (2023); see 

also, e.g., Pardon and Parole, 59 Am Jur 2d § 52 (2023) (“In 

effect, a commuted sentence replaces the sentence imposed 

by the original judgment. Since it is a mere substitution 

of a lesser for a greater punishment, it has the same legal 

effect, and the status of the prisoner is the same as though 

the sentence had originally been for the commuted term.” 

(Footnote omitted.)). The Court of Appeals has recognized 

that principle—that is, that a commuted sentence has the 

same legal effect as though the sentence had originally been 

for the commuted term—for almost 50 years. See Marteeny 

v. Brown, 321 Or App 250, 288, 517 P3d 343, rev den, 370 Or 

303 (2022) (explaining that a “commuted sentence stands as 

though it had originally been for the commuted term, and 

entitles the offender to benefits of the commuted term—for 

example good time” (citing Ferguson v. Cupp, 23 Or App 

122, 124-25, 541 P2d 489 (1975) (internal quotation marks 

omitted)); see also Ferguson, 23 Or App 122 (concluding that, 

after the Governor unconditionally commuted the petitioner’s life sentence for murder to a term of 25 years in 1974, 

the petitioner was entitled to credits resulting in the reduction of his commuted sentence computed from the date of 

his original life sentence in 1957 (citing State ex rel. Murphy 

v. Wolfer, 127 Minn 102, 148 NW 896 (1914)); Murphy, 127 

Minn at 103, 148 NW at 897 (“A few principles applicable 

to the case are, however, well settled. It is well settled that 

a commutation of a sentence is a substitution of a less for 

a greater punishment. After commutation[,] the commuted 

sentence is the only one in existence, and the only one to be 

considered. After commutation, the sentence has the same 
96 Thompson v. Fhuere

legal effect, and the status of the prisoner is the same, as 

though the sentence had originally been for the commuted 

term.”)). Thus, the issuance of a commutation significantly 

affects the trajectory of a case and the cognizable challenges 

to the originally imposed judicial sentence.

Applying those general principles is complicated 

because this case comes to us in an unusual posture. At the 

time that the Governor commuted petitioner’s death sentence to a sentence of life without the possibility of parole, 

the following key events already had occurred: (1) SB 1013 

had been enacted; (2) this court had issued its decisions in 

Bartol and Rogers, vacating the defendants’ death sentences 

and remanding their cases so that new sentences could be 

imposed; (3) petitioner had sought post-conviction relief, 

claiming that his death sentence and two of the penaltyphase questions were unconstitutional; (4) the parties had 

agreed that defendant’s unconstitutional death sentence had 

to be vacated but disagreed as to how a new sentence would 

be determined (i.e., whether the case should be remanded 

for resentencing or whether the post-conviction court should 

modify petitioner’s sentence to life without the possibility of 

parole); and (5) petitioner had appealed the post-conviction 

court’s judgment, challenging several of that court’s rulings. 

Nonetheless, while the appeal was pending, the Governor 

exercised her constitutional authority to commute petitioner’s death sentence and to substitute, in its place, a sentence 

of life without the possibility of parole. Thus, following the 

commutation, petitioner’s sentence of life without the possibility of parole has been imposed, not by judicial decree, but 

as a function of the Governor’s constitutional authority.

However, the commutation order expressly reserved 

to petitioner the right to seek other or further relief from the 

courts: “Nothing in this Commutation Order is intended to 

preclude a Commutee from seeking other or further relief 

from the courts that they may be entitled to.” Therefore, the 

timing of the Governor’s commutation gives rise to the question whether, as petitioner contends in his first assignment 

of error, he would be entitled to a remand for resentencing 

if we were to conclude on appeal that the post-conviction 

court erred in imposing a modified sentence rather than 
Cite as 372 Or 81 (2024) 97

remanding for a new sentence to be imposed. For the interrelated reasons that follow, we conclude that, in light of the 

commutation, petitioner is not entitled to such relief.

In response to petitioner’s first claim for postconviction relief, in which he challenged his death sentence 

as unconstitutional, the post-conviction court vacated the 

death sentence and modified petitioner’s sentence to life 

without the possibility of parole, rather than remanding for 

resentencing. On appeal, petitioner contends that the postconviction court’s ruling was erroneous and that his case 

should have been remanded for a resentencing, where, theoretically, a different and lesser sentence of life with the possibility of parole could be imposed. The problem with petitioner’s theory is that, even if we were to assume that the 

post-conviction court erred at the time that it made its ruling and should have remanded for resentencing, petitioner 

would not be entitled to that relief on appeal. That is so 

because the Governor has since exercised her constitutional 

authority to impose a sentence of life without the possibility of parole. As previously explained, the legal effect of the 

commutation is that the sentence of life without the possibility of parole stands as if it had been originally imposed. 

Following the Governor’s exercise of her constitutional 

clemency power, petitioner’s judicially imposed sentence is 

deemed not to have existed, and a new sentence, derived 

from a different source, became effective as if it were the 

original sentence.

It is plain that, if the Governor had commuted petitioner’s sentence before he petitioned for post-conviction 

relief, or even during the pendency of the post-conviction 

proceeding, his challenge to the constitutionality of his 

death sentence would not have been cognizable, because 

there would have been no death sentence to challenge. The 

post-conviction court would have had no death-sentence 

claim to dispose of, and petitioner consequently would have 

had no opportunity to assign error to any such disposition 

on appeal. As it happened, the Governor’s commutation did 

not occur until after petitioner had filed his appeal, but that 

does not change the fact that we must now proceed as if petitioner had received a sentence of life without the possibility 
98 Thompson v. Fhuere

of parole from the beginning. If a post-conviction claim 

challenging the constitutionality of a nonexistent death sentence is not cognizable, it follows that no assignment of error 

to the disposition of such a claim can be cognizable, either.

Essentially, petitioner is asking us to resolve this 

appeal as though the Governor had not stepped in and 

commuted his sentence to life without the possibility of 

parole and to ignore the legal effects of that exercise of constitutional authority. We cannot do so. The validity of the 

Governor’s action has not been challenged here—or, to our 

knowledge, in any other proceeding. The parties agree that 

petitioner is serving the Governor’s commuted sentence. 

Thus, for present purposes, we must treat the commutation 

as a valid exercise of the Governor’s constitutional authority 

to impose a new sentence that stands as if it had been the 

sentence originally imposed.

To the extent that petitioner argues that, regardless of the commutation, he nonetheless remains entitled to 

a resentencing because that is what SB 1013 required or 

because he is entitled to the same remedy that the defendants in Bartol and Rogers received, we disagree. “[T]he 

legislature did not make SB 1013 retroactive as to [death] 

sentences imposed before its effective date[.]” Bartol, 368 

Or at 625. Instead, SB 1013 applied only to sentencings 

that occurred thereafter. Rogers, 368 Or at 700. Thus, SB 

1013 itself did not provide an entitlement to a resentencing. 

Instead, that entitlement must be found elsewhere. As to 

petitioner’s argument concerning Bartol and Rogers, the circumstances of this case are qualitatively different. In those 

cases, the defendants were serving unconstitutional death 

sentences, and, on direct appeal, we vacated those sentences 

and remanded for resentencing so that a new sentence could 

be imposed. Here, unlike the defendants in Bartol and 

Rogers, petitioner is not serving a death sentence. Instead, 

he is serving the commuted sentence of life without parole. 

Petitioner’s argument that he is entitled to the same remedy 

as the defendants in Bartol and Rogers ignores the fact that 

the Governor commuted his sentence.

In sum, in his first assignment of error on appeal, 

petitioner contends that, having vacated his death sentence, 
Cite as 372 Or 81 (2024) 99

the post-conviction court erred in declining to remand for 

resentencing so that a new sentence could be imposed. 

However, the Governor has since exercised her constitutional authority to commute petitioner’s death sentence 

and impose a new sentence of life without the possibility 

of parole. The legal effect of the commutation is that the 

commuted sentence is treated as though it had been originally imposed, and it has been substituted for the judicially 

imposed death sentence that had been the focus of the postconviction court’s inquiry. Petitioner’s first assignment of 

error is predicated on a sentence that does not exist and, 

for all relevant purposes, is deemed never to have existed. 

Accordingly, even if the post-conviction court erred at the 

time that it granted relief from the death sentence, petitioner’s first assignment of error does not present a basis for 

reversing that court’s ruling.

We emphasize that this resolution of petitioner’s 

first assignment of error is a product of how petitioner 

pleaded his first claim for post-conviction relief. Unlike his 

other claims for relief, which essentially challenge the judicial proceeding that led to his death sentence, petitioner’s 

first claim for relief challenges the sentence itself. Petitioner 

alleges that it violates the constitution for petitioner to be 

“under a death sentence,” and, therefore, that his “death sentence should be vacated.” As we have explained, the death 

sentence that the first claim for relief purports to challenge 

does not exist. Because of the commutation, any claim challenging the constitutionality of the death sentence per se

necessarily fails. That is not to say that the commutation in 

this case precludes other claims for relief that challenge the 

underlying judicial proceeding that ultimately resulted in 

petitioner’s sentence. Petitioner’s later claims for relief are 

of that nature. As we next explain, petitioner is not entitled 

to relief as to those claims, but for reasons unrelated to the 

commutation of petitioner’s sentence.

Petitioner’s remaining assignments of error concern the post-conviction court’s resolution of his claims that 

the “continuing threat” and “deserves death” questions, presented to the jury in his original sentencing proceeding, 

were unconstitutional. Unlike petitioner’s first claim for 
100 Thompson v. Fhuere

post-conviction relief, which challenged the constitutionality of a death sentence that subsequently was commuted, 

the gravamen of his other post-conviction claims is that the 

jury’s consideration of unconstitutional questions in determining which sentence to impose (i.e., death, life without 

parole, or life with the possibility of parole) amounted to 

a prejudicial penalty-phase error that entitled him to a 

remand for resentencing. We agree with the parties that, if 

petitioner is correct that he suffered such a prejudicial error 

and was entitled to a remand for resentencing, the express 

terms of the Governor’s commutation order do not preclude 

that result.7 That is so even though any sentencing proceeding would now occur under the provisions of SB 1013 and, at 

least in the abstract, could result in an even lesser sentence 

of life with the possibility of parole. Accordingly, we turn 

to the parties’ contentions concerning the penalty-phase 

questions.

At the outset, we reject the superintendent’s argument that we need not consider petitioner’s assignments of 

error concerning those questions because, even if petitioner’s 

claims concerning the constitutionality of the penalty-phase 

questions had merit, he would not be entitled to a remand 

for resentencing. Specifically, the superintendent argues 

that, if petitioner

“were correct that either of the trial jury’s ‘yes’ verdicts on 

the second and fourth questions must be converted into a 

‘no’ because the question that was answered was ‘unconstitutional,’ that would provide a basis only to invalidate the 

death sentence; but it would not undermine the factual and 

legal basis for imposition of a true-life sentence instead.

“In other words, once the death sentence is eliminated, 

the jurors’ determination of whether to impose either a 

true-life sentence or a sentence of life imprisonment with 

the possibility of parole depends, under ORS 163.150(2), on 

whether ‘10 or more members of the jury further find that 

there are sufficient mitigating circumstances to warrant 

life imprisonment.’ Because the trial jury unanimously

7 Because the Governor’s commutation order expressly permitted petitioner 

to “seek[] other or further relief from the courts that [he] may be entitled to,” we 

need not decide, and express no opinion about, the effects of a commutation that 

lacks such wording. 
Cite as 372 Or 81 (2024) 101

found that those mitigating circumstances did not warrant 

a sentence less than death, the jurors’ verdict necessarily 

included within it their determination that fewer than ten 

of them believed that * * * those mitigating circumstances 

warranted a sentence less than true life.”

(Emphases in original.)

In short, the superintendent contends that, once 

the death sentence was vacated, the only legally permissible 

sentence was life without the possibility of parole, because 

the jury’s answers to the penalty-phase questions demonstrated that, as between a sentence of life without parole 

and life with the possibility of parole, the jury would have 

chosen the former. But that argument rests on an internal 

contradiction. The superintendent’s position on appeal is 

predicated on the assumption that the “continuing threat” 

and “deserves death” questions are unconstitutional and, as 

a result, the jury’s unanimous “yes” answers to those questions must be disregarded.8

 But, if that is so, then one cannot 

simultaneously rely on those same answers—as the superintendent does—to infer that, if the jury had been required 

to choose between life with parole and “true life,” the jury 

would have chosen the latter. Without those answers, no 

other basis exists for assuming that the necessary number 

of jurors would have declined to find sufficient mitigating 

circumstances to impose a sentence of life with parole.9

Accordingly, we reject the superintendent’s threshold argument and turn to petitioner’s remaining assignments of 

error concerning his claims that the “continuing threat” and 

“deserves death” questions are unconstitutional.

As we will explain, however, petitioner failed to preserve his second assignment of error challenging the postconviction court’s ruling that those claims were procedurally 

8 See ORS 163.150(1)(e) (providing now, as it did when defendant was convicted and sentenced, that the court shall instruct the jury that it may not 

answer any of the death penalty questions “yes” unless “it agrees unanimously”).

9 See ORS 163.150(2)(a) (providing now, as it did when defendant was convicted and sentenced, that, if the jury answered any of the death-penalty questions in the negative, the trial court was required to sentence the defendant to 

“life imprisonment without the possibility of release or parole,” unless “10 or more 

members of the jury further find that there are sufficient mitigating circumstances to warrant life imprisonment,” in which case the trial court is required 

to sentence the defendant to life imprisonment with the possibility of parole).
102 Thompson v. Fhuere

barred. Because that failure obviates the need for us to consider petitioner’s third and fourth assignments concerning 

the merits of those claims (i.e., whether each question was 

unconstitutional), we do not address them further and limit 

our discussion to petitioner’s second assignment.

In that assignment, petitioner contends that the 

post-conviction court erred in ruling that his claims concerning the “continuing threat” and “deserves death” questions 

were “untimely” when the state had “conceded otherwise.” 

Petitioner’s entire argument in support of that assignment 

of error in his opening brief is as follows:

“The [superintendent] could have but did not assert that 

[petitioner’s] petition was untimely. In fact, it expressly 

conceded timeliness. In any event, the issue was waived.

“[‘The state] could have raised the Statute of Limitations 

as an affirmative defense in an answer or in a motion to 

dismiss. ORCP 19 B; ORCP 21 A(9). [The state] did neither, and thereby waived that defense. ORCP 21 G(2).

“[‘Allowing [the state] to raise the Statute of Limitations 

for the first time on appeal would deprive petitioner of 

any opportunity to present evidence that would show 

why the petition raises grounds for relief that could not 

reasonably have been raised in a timely fashion. ORS 

138.510(2). [The state] may not do so.[’]”

“Palmer v. State [of Oregon], 121 Or App 377, 380, 854 P2d 

955 *** (1993), aff’d [in part on other grounds], 318 Or 352, 

867 P2d 1368 (1994).”10

As we will explain, the fundamental problem for petitioner 

is that he never raised those bases (i.e., concession and 

waiver) in the post-conviction court, and they are therefore 

unpreserved.

“The general requirement that an issue, to be raised 

and considered on appeal, ordinarily must first be presented to the trial court is well-settled in our jurisprudence.” 

Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008). 

Among other things, “[p]reservation gives a trial court the 

chance to consider and rule on a contention, thereby possibly 

10 ORCP 21 A(9) is now set out at ORCP 21 A(1)(i), and ORS 138.510(2) is now 

set out at ORS 138.510(3).
Cite as 372 Or 81 (2024) 103

avoiding an error altogether or correcting one already made, 

which in turn may obviate the need for an appeal,” and it 

“also ensures fairness to an opposing party, by permitting 

the opposing party to respond to a contention and by otherwise not taking the opposing party by surprise.” Id. Here, to 

demonstrate that petitioner failed to preserve his appellate 

contention that the post-conviction court erred in ruling that 

his claims concerning the penalty-phase questions were procedurally barred, we describe the pleadings and proceedings 

before the post-conviction court in some detail.

In his successive petition for post-conviction relief, 

petitioner conceded that the petition had been “filed more 

than two years after finality,” but he contended that, 

because it was “premised” on SB 1013, Bartol, and Rogers, 

“the grounds for relief * ** could not reasonably have been 

raised previously or in [his] previous [post-conviction] petition.” Put simply, petitioner alleged that his claims “were 

not available previously” and were “timely, not improperly 

successive, and meritorious pursuant to ORS 138.530(1)(c),” 

which provides, in part, that post-conviction relief shall be 

granted when a petitioner establishes the “unconstitutionality of [his] sentence.” The superintendent admitted, in his 

answer, that petitioner’s death sentence could not be maintained and that “petitioner could not reasonably have raised 

the claims based on SB 1013 and [Bartol] in his previous 

petition for post-conviction relief and within the time limitation set by ORS 138.510(3).” (Emphasis added.) However, the 

superintendent “otherwise denie[d]” petitioner’s allegation 

that “the grounds for relief * ** could not reasonably have 

been raised previously or in [his] previous [post-conviction] 

petition.” In other words, as the superintendent explained, 

he “agreed that petitioner ‘could not reasonably have raised’ 

in his previous petition the claims that he alleged in this 

petition but only to the extent that those actually are ‘based 

on SB 1013 and *** Bartol.’” (Emphasis in original.)

In moving for summary judgment on the claims 

concerning the penalty-phase questions, petitioner clarified that, although his arguments drew “support from the 

legislative changes brought about by SB 1013,” his claims 

were “founded on the contention that both questions were 
104 Thompson v. Fhuere

unconstitutional at the time of [petitioner’s] trial—before 

SB 1013 became law.” (Emphasis added.) Petitioner subsequently filed a memorandum in support of his motion, 

explaining why, in his view, those penalty-phase questions 

were unconstitutional.

In his cross-motion, the superintendent asserted 

that—“[a]s explained in [his] supporting memorandum,” 

which also served as his response to petitioner’s summary 

judgment motion—petitioner’s claims concerning the two 

penalty-phase questions did not provide “any legal basis 

for [the] court to grant petitioner post-conviction relief.” 

Specifically, in the supporting memorandum, the superintendent argued, among other things, that those two claims 

were procedurally barred under ORS 138.510(3) and ORS 

138.550(3), and, in all events, lacked legal merit. Petitioner 

did not file a response to the superintendent’s cross-motion 

or seek to file a reply to the superintendent’s response to 

his summary judgment motion, explaining why, in his view, 

the superintendent had conceded timeliness (or otherwise 

waived that issue).

At the summary judgment hearing, the parties’ 

arguments focused on whether the post-conviction court 

had authority to modify petitioner’s sentence or whether a 

remand for resentencing was required. At the conclusion of 

the hearing, the post-conviction court ruled that the “continuing threat” and “deserves death” questions were “both 

time-barred and procedurally barred,” noting that those 

questions had been “on numerous occasions challenged at 

the Oregon Supreme Court and upheld as appropriate,” 

and that petitioner had had “direct appeal, post-conviction 

relief, and other options to challenge that.” Again, petitioner 

did not alert the post-conviction court that, in his view, 

the superintendent had conceded timeliness (or otherwise 

waived that issue).

Following the hearing, the superintendent, as 

directed, prepared an order and judgment for the postconviction court’s signature; however, the parties disagreed 

about the court’s ruling as to the claims concerning the 

penalty-phase questions. In a letter to the court, the superintendent explained, “Petitioner’s counsel has informed me 
Cite as 372 Or 81 (2024) 105

that he believes [the court] ruled that [those claims] have 

no merit. My recollection of the ruling is that those claims 

are procedurally barred. Because of counsels’ disagreement 

as to your ruling, I have prepared two different orders.” 

Even at that point, petitioner did not seek to alert the postconviction court to the contentions that he now raises on 

appeal.

Ultimately, the post-conviction court issued an order

providing that the superintendent was entitled to summary 

judgment on petitioner’s second and third claims for relief, 

explaining, as it had at the conclusion of the hearing, that 

those claims were “procedurally barred by ORS 138.510(3) 

and ORS 138.550(3).” See ORS 138.510(3) (generally precluding untimely petitions); ORS 138.550(3) (generally precluding improperly successive petitions).

In sum, petitioner’s successive petition included an 

allegation that his claims could not reasonably have been 

raised earlier. Thereafter, the superintendent disputed that

assertion, yet petitioner did nothing to alert the postconviction court to his view that the superintendent nonetheless had somehow “waived” or “conceded” that issue, as 

petitioner now asserts. On review, in contending that the 

post-conviction court erred, petitioner relies on the superintendent’s concession that petitioner’s claims were timely to 

the extent that they were based on SB 1013 and Bartol, and 

on his related assertion that the claims could not “be subject 

to any procedural bar” because SB 1013’s elimination of the 

“continuing threat” question and its imposition of a “beyond 

a reasonable doubt” standard on the “deserves death” question demonstrate that both questions are unconstitutional 

as measured by evolving standards of decency and events 

that occurred after petitioner’s trial, direct appeal, and 

prior post-conviction proceeding. (Emphasis added.) But 

that argument disregards the fact that the superintendent 

expressly argued to the post-conviction court that petitioner’s claims could have been raised even before SB 1013 and 

Bartol, and that the procedural bars therefore applied. In 

light of those arguments, it was incumbent on petitioner 

to inform the post-conviction court of his position that the 
106 Thompson v. Fhuere

superintendent had conceded timeliness or, in all events, 

had waived the issue. He did not do so.

Accordingly, petitioner did not preserve his challenge to the post-conviction court’s ruling that his claims 

for relief concerning the penalty-phase questions were procedurally barred under ORS 138.510(3) and ORS 138.550(3).

III. CONCLUSION

After the post-conviction court entered its judgment 

resolving petitioner’s first claim for post-conviction relief by 

vacating his death sentence and modifying the sentence to 

life without the possibility of parole instead of remanding 

for resentencing, the Governor stepped in and commuted 

petitioner’s death sentence to a sentence of life without the 

possibility of parole. As we have explained, even if the postconviction court erred at the time that it made its ruling, 

petitioner is not entitled to the relief that he requests on 

appeal (i.e., a reversal of the post-conviction court’s judgment and a remand for resentencing). That is so because the 

Governor’s commuted sentence became the operative sentence, as though it had been the sentence originally imposed, 

and, as a result, petitioner is not entitled to relief concerning 

the judicially imposed sentence that had been the focus of 

the post-conviction court’s inquiry. In addition, petitioner 

failed to preserve his challenge to the post-conviction court’s 

ruling that his claims concerning two of the penalty-phase 

questions were procedurally barred. Accordingly, we affirm.

The judgment of the post-conviction court is affirmed.