Argued and submitted on January 22, 2013.
Marion County Circuit Court 10C44228 Bryan T. Hodges, Senior Judge.
Kendra M. Matthews argued the cause for appellant. With her on the briefs was Ransom Blackman LLP.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
Defendant appeals judgments of conviction for 10 counts of first-degree encouraging child sexual abuse, challenging the constitutional proportionality of the sentences imposed in the judgments. ORS 163.684 (2009). We review for errors of law to determine whether defendant's sentence "[e]xceeds the maximum allowable by law" or "[i]s unconstitutionally cruel and unusual." ORS 138.050; State v. Barajas, 254 Or.App. 106, 108, 292 P.3d 636 (2012), rev den, 353 Or 747 (2013). We affirm.
Defendant was investigated for purchasing and using child pornography and was contacted by federal investigators in 2008. The investigation resulted in the discovery of hundreds of images and videos of child pornography on defendant's computer, including at least some videos depicting children being sexually abused by adults, as well as images of young children "posing." On June 25, 2010, defendant was indicted for 10 counts of first-degree encouraging child sexual abuse, a Class B felony. ORS 163.684(2). Defendant admitted that he had paid to access 10 to 15 child pornography websites and had illegally downloaded child pornography. Less than a month after the indictment, he pleaded guilty to each of those 10 counts. For the first four counts, the court sentenced defendant to imprisonment terms of 16, 27, 35, and 41 months' imprisonment, respectively, to run consecutively. For the other six counts, the court sentenced defendant to terms of 45 months' imprisonment, to run concurrently to all other counts. In aggregate, defendant was sentenced to 119 months of imprisonment.
Defendant assigns error to each of the individual sentences, as well as to the aggregate 119-month sentence. Defendant argues that the sentences--both individually and cumulatively--violate the proportionality clause of Article I, section 16, of the Oregon Constitution.
We first briefly address and reject defendant's contention that the aggregate sentence of 119 months is unconstitutional. Defendant does not provide, nor are we aware of, any authority requiring a proportionality analysis with regard to a defendant's aggregate sentence. In State v. Rodriguez/Buck, 347 Or 46, 49, 217 P.3d 659 (2009), the Supreme Court addressed constitutional proportionality challenges to each defendant's conviction for first-degree sexual abuse, ORS 163.427. As part of its analysis in that case, the court considered and compared only the mandatory 75-month sentence for first-degree sexual abuse to other "related crimes." Id. at 63. In State v. Baker, 233 Or.App. 536, 538, 226 P.3d 125, rev den, 348 Or 414 (2010), the defendant pleaded guilty to five counts of second-degree sexual abuse and five counts of incest, for which the trial court imposed five consecutive 36-month presumptive terms of incarceration for sexual abuse and six-month sentences for each count of incest, to run concurrently to the consecutive sentences. The defendant challenged the proportionality of his sentences, a total of 180 months of imprisonment. Id. at 538. Similar to defendant in this case, the defendant in Baker compared his aggregate sentence, 180 months, to the mandatory minimum sentence of 100 months for one count of first-degree rape. Id. at 539. However, we observed that the proper comparison for the defendant's sentence "is between [the] defendant's sentences for one charge of second-degree sexual abuse and the sentence for one charge of rape." Id. at 540 (emphasis added). We determined that the defendant's sentences were each "substantially shorter than the 100-month mandatory minimum sentence for rape." Id. We conclude it is not appropriate to consider defendant's aggregate or cumulative sentence of 119 months to determine if his aggregate or cumulative sentence of 119 months is disproportionate to his 10 offenses.
As noted, defendant's case is similar to Baker. Defendant asks us to compare an aggregate sentence for multiple criminal convictions to a single sentence for a single criminal conviction and to determine that the penalty imposed for all his offenses is disproportionately severe. As we alluded to in Baker, that framework is simply untenable. The penalties imposed for defendant's conduct, indeed, must be proportioned to the gravity of his offenses. However, we cannot compare an aggregate sentence for 10 counts of first-degree encouraging child sex abuse to the maximum sentence for a single related crime.
We also disagree with defendant that his individual sentences are unconstitutional. "To determine whether the sentence is unconstitutionally disproportionate, we ask whether the sentence would 'shock the moral sense' of reasonable people when the sentence is compared with the offense." Id. at 539. In Rodriguez/Buck, the court identified "three factors that bear upon" whether a sentence would shock the moral sense of reasonable people for the purposes of Oregon's proportionality clause: "(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant." 347 Or at 58.
Applying that test, defendant does not present one of those "rare circumstances" where the punishment is so disproportionately severe that it would shock the moral sense of reasonable people. Id. As to a comparison of the severity of the penalty and the gravity of the crime, defendant argues that his conduct, downloading images of child pornography, falls on the less severe end of the spectrum of conduct addressed within ORS 163.684. We disagree. The conduct addressed by ORS 163.684 addresses a relatively narrow spectrum of conduct and, contrary to defendant's contention, his conduct does not lie on the less severe end of that spectrum. Defendant's conduct lies somewhere in the middle of that spectrum and we need not, in this case, determine exactly where in the middle of the spectrum defendant's conduct lies. Defendant's crimes were serious, and the sentences are not individually incongruent with the gravity of his crimes. Defendant pleaded guilty to 10 counts of a Class B felony, each of which was subject to a 10-year maximum sentence of imprisonment. ORS 163.684(2); ORS 161.605(2). Further, this point bears reiteration: Defendant's acts are inextricably and irreversibly tied to the sexual abuse of vulnerable children, State v. Stoneman, 323 Or 536, 541, 920 P.2d 535 (1996). Defendant conceded in his sentencing memorandum that the pornography found on his computer involved "1, 460 images and videos * * * 286 of which were original and not duplicates, " and that that quantity of unique visual recordings suggested as many as 286 unique child victims. See State v. Reeves, 250 Or.App. 294, 310-11, 280 P.3d 994, rev den, 352 Or 565 (2012) (concluding that each duplication of child pornography revictimizes the child being depicted and that a child anonymously depicted in pornography is still a "victim of the recorded act of abuse and the subsequent duplication of the recording"). Defendant also conceded that at least some of those depicted children were subject to "violent rape, sodomy or molestation, " as the state had alleged. In other words, defendant's use of those websites necessarily implicated the harm of those children. See Stoneman, 323 Or at 550; State v. Betnar, 214 Or.App. 416, 423, 166 P.3d 554 (2007) (construing ORS 163.684 and observing that "the dissemination of the depiction of the child sexual abuse * * * is further exploitative conduct that occurs after the abuse takes place").
Further, as we have noted in other cases involving sexual abuse and exploitation of children, the severity of defendant's offenses are not mitigated by an absence of physical harm, "especially given the fact that his conduct was aimed at a particularly vulnerable victim[, ]" in this case, the children who are being sexually abused and whose images are duplicated for sexual gratification. State v. Alwinger, 236 Or.App. 240, 246, 236 P.3d 755 (2010). Indeed, we have observed that ORS ...