Argued and Submitted: January 22, 2013.
Marion County Circuit Court. 07C41580. Terry Ann Leggert, Judge.
Bear Wilner-Nugent argued the cause and filed the briefs for appellant.
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 Wollheim, Presiding Judge, and Nakamoto, Judge, and Schuman, Senior Judge.[*]
[261 Or.App. 658] WOLLHEIM, P. J.
A jury found defendant guilty of first-degree rape, ORS 163.375(1)(a), for raping his wife by forcible compulsion. Defendant received a mandatory 100-month prison sentence for his crime. ORS 137.700(2)(a)(J)
(setting a mandatory minimum sentence of 100 months' imprisonment for first-degree rape under ORS 163.375(1)(a)). On appeal, defendant urges us to remand for resentencing because the trial court did not have the benefit of the Supreme Court's opinion in State v. Rodriguez/Buck, 347 Or. 46, 217 P.3d 659 (2009), which clarified the test for assessing the proportionality of a sentence for purposes of Article I, section 16, of the Oregon Constitution. We agree with defendant that the trial court should be allowed to reconsider its decision--including making any necessary factual findings--with regard to the proportionality of defendant's sentence. We therefore vacate the sentence and remand for resentencing.
In early 2007, the victim, defendant's wife, called the police to report that defendant had raped her. The police investigated the report, including interviewing defendant. According to the interviewing detectives, defendant essentially admitted that he had physically forced the victim to have sexual intercourse with him and believed that it was his " right" to have sex with her. Defendant was subsequently charged with first-degree rape under ORS 163.375(1)(a), which makes it a crime to have sexual intercourse with a person by " forcible compulsion."
At trial, the victim testified that she and defendant were in bed together when defendant climbed on top of her. She told defendant that she did not want to have sex, and defendant then accused her of having an affair with someone else and threatened to kill her if that were the case. Defendant grabbed the victim's arms and forced them above her head; she struggled to fight defendant off but was unable to do so. She testified that defendant " [w]as using force when he inserted his penis," that she was crying, and that it hurt " [a] little bit."
Defendant also testified at trial. He denied that he had ever forced the victim to have sexual intercourse with [261 Or.App. 659] him, and further denied telling the investigating officers that it was his right to have intercourse with his wife.
The jury found defendant guilty of first-degree rape, and the case proceeded to sentencing. Under Ballot Measure 11 (1994), codified at ORS 137.700 to ORS 137.707, the offense of first-degree rape carries a mandatory minimum sentence of 100 months in prison. ORS 137.700(2)(a)(J). At the sentencing hearing, which occurred in 2007, defendant's counsel argued against the imposition of that Measure 11 sentence:
" Your Honor, objecting to a mandatory Measure 11 sentence is pretty much just for purposes of hearing my own voice, I think, but I will make the objection. I think as it is imposed in this case, it is cruel and unusual. It does not fit the facts as proposed. For instance, in a similar--the charge could have been the same if this were stranger to stranger, if he had simply accosted somebody in the park that he had never known, and those ...