Submitted March 25, 2014.
11P3538. Polk County Circuit Court. Monte S. Campbell, Judge.
Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[268 Or.App. 76] SERCOMBE, P. J.
This case concerns whether the imposed sentence is unconstitutionally disproportionate to defendant's offense. Defendant, who lived with his girlfriend and her daughter--the victim--touched the victim's breasts on
two occasions, once over and once under her clothes. The victim was 12 or 13 years old at those times. Defendant made comments related to the victim's sexual development during both incidents. The trial court convicted defendant of one count of sexual abuse in the first degree and sentenced him to the mandatory 75-month term of incarceration required by ORS 137.700(2)(a)(P), part of the mandatory minimum sentences adopted by Ballot Measure 11 (1994). We conclude that the sentence is not disproportionate and, accordingly, affirm.
We draw the following from the transcripts of the plea hearing and sentencing hearing. On the first occasion, defendant hugged the victim from behind and touched her breast over her clothes. He commented that she was developing and " starting to look like a quite good-looking young woman." According to defense counsel, defendant came into contact with the victim's breast inadvertently and this surprised him. On the second, later occasion, defendant commented to the victim that the dress she was wearing was tight and that she looked good. He then reached down under the front of her dress and touched her breasts. According to defense counsel, defendant's intention on this occasion was to " joke with" the victim. Defendant denied that he had any sexual intent in touching the victim, and he acknowledged that his actions were " immature," " dumb and rude."
Defendant was charged with two counts of first-degree sexual abuse under ORS 163.427. The charges identically pleaded that defendant had touched the victim's breasts between December 31, 2009 and October 21, 2011. (Given the victim's date of birth as pleaded in the indictment, she would have been 12 or 13 during that time period.) The [268 Or.App. 77] second count additionally pleaded that the conduct occurred in a separate criminal episode. Defendant pleaded no contest to Count One, and the state agreed to dismiss Count Two. However, defendant admitted at the plea hearing and during sentencing that both incidents occurred in the manner in which we describe them.
At sentencing, the state recommended that the court impose the mandatory minimum sentence of 75 months' incarceration required by Measure 11. Relying on State v. Rodriguez/Buck, 347 Or. 46, 217 P.3d 659 (2009)--which also involved convictions of first-degree sexual abuse involving victims less than 14 years old--defendant argued that imposing that sentence would be disproportionate in comparison with his offense, in violation of Article I, section 16, of the Oregon Constitution. Defendant and the state agreed that, if not for Measure 11, in light of defendant's offense and lack of criminal history, he would fall under block 8-I of the sentencing guidelines grid, which carries a presumptive sentence of 16 to 18 months' incarceration. Defendant contended that probation was a more appropriate sanction in his circumstances. The victim spoke at the sentencing hearing. In her view, the time defendant already had spent in jail was enough because she and defendant had discussed what had happened, he sounded like he regretted it, and he never abused her again during the year he lived with her after she reported the touching. The trial court concluded that defendant's offense was significantly different from those in Rodriguez/Buck because of the statements that defendant had made and because defendant had engaged in " skin-to-skin" contact. As a result, the trial court imposed the 75-month Measure 11 sentence.
Defendant appeals, renewing his argument that his sentence is disproportionate. On review for legal error, State v. Berry, 261 Or.App. 824, 835, 322 P.3d 607, rev den, 356 Or. 163, 334 P.3d 971 (2014), we conclude that defendant's case is not ...