FILED: August 2, 2000

STATE OF OREGON,

Respondent,

v.

ROBERT JOHN HUTCHINSON,

Appellant.

Appeal from Circuit Court, Lincoln County.

Thomas O. Branford, Judge.

Argued and submitted May 31, 2000.

Kimi Nam, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Landau, Presiding Judge, and Linder and Brewer, Judges.

BREWER, J.

Affirmed.

BREWER, J.

Defendant appeals from his conviction for assault in the second degree. ORS 163.175. He argues that the grand jury indictment underlying his conviction was constitutionally defective because, at the time of the indictment, the only statute prescribing qualifications for grand jurors was suspended by the legislature. Defendant also challenges the trial court's imposition of a mandatory minimum sentence under Measure 11, rather than a lesser guidelines sentence. We review for errors of law, ORS 138.220, and affirm.

Defendant was indicted by a grand jury in May 1998 on 20 felony counts. Before trial, defendant filed a motion to quash the indictment, arguing that "the grand jury that purportedly indicted [defendant] was invalid as a matter of constitutional law because the legislature has not promulgated laws to qualify grand * * * jurors," and that the district attorney must charge him by information and preliminary hearing. The trial court denied the motion. Defendant was found guilty after a stipulated facts trial of one count of assault in the second degree. Defendant argued that he should be sentenced under the sentencing guidelines; instead, the trial court sentenced him to 70 months in prison pursuant to Measure 11's mandatory minimum sentence requirements.

Defendant first assigns error to the trial court's denial of his motion to quash the indictment. He argues that, at the time he was indicted, there was no statute in force prescribing qualifications for grand jurors and, therefore, the indictment violated Article VII, section 5, of the Oregon Constitution. The state responds that section 9b of Senate Bill 936 (SB 936) operated "in lieu of" the statute normally prescribing juror qualifications and, therefore, that statutory qualifications for grand jurors did exist at the time of defendant's indictment. We agree with the state.

Article VII, section 5, of the Oregon Constitution, provides, in part:

"(1) The Legislative Assembly shall provide by law for:

"(a) Selecting juries and qualifications of jurors;

"(b) Drawing and summoning grand jurors from the regular jury list at any time, separate from the panel of petit jurors[.]"

The legislature has provided for the selection and qualification of grand jurors in ORS 132.010, which states:

"A grand jury is a body of seven persons drawn from the jurors in attendance upon the circuit court at a particular jury service term, having the qualifications prescribed by ORS 10.030 and sworn to inquire of crimes committed or triable within the county from which they are selected."

It is the statute to which ORS 132.010 refers--ORS 10.030--that is at the root of the current controversy. Prior to 1996, ORS 10.030 did not disqualify nonvoters or convicted felons from jury service, nor did it impose distinct qualifications for civil and criminal juries or for grand juries. (1)

In November 1996, the voters approved Measure 40, which purported to amend the Oregon Constitution, among other effects, to bar persons not registered to vote, as well as persons convicted of a felony within the previous 15 years, from serving on criminal juries. Measure 40 was ultimately declared unconstitutional in its entirety by the Oregon Supreme Court, because it violated the separate vote requirement of Article XVII, section 1, of the Oregon Constitution. Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998).

While court challenges to the constitutionality of Measure 40 were pending, the 1997 legislature passed SB 936, which implemented the provisions of Measure 40 at a statutory level. SB 936 provided that "ORS 10.030 shall not be operative" for the period from December 5, 1996 to July 1, 1999. During that period, the legislature provided that section 9b of SB 936 would "operate in lieu thereof." Or Laws 1997, ch 313,