Argued and Submitted January 22, 2014.
11C43121. Marion County Circuit Court. Dale Penn, Judge.
Ernest G. Lannet, Chief Deputy Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew Preusch, Assistant Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General.
Before Hadlock, Presiding Judge, and Sercombe, Judge, and Tookey, Judge.[*]
[271 Or.App. 721] SERCOMBE, J.
Certain recidivist sexual offenders are subject to a presumptive sentence of life imprisonment without the possibility of release, a " true life sentence." In particular, under ORS 137.719(1), an offender is subject to a presumptive true life sentence the third time the offender is sentenced for a felony sex crime. Rape, sodomy, and a number of other offenses are felony sex crimes. See ORS 181.805(5). Public indecency is a felony sex crime if the offender has a prior conviction for public indecency (or another sex crime). ORS 163.465(2); ORS 181.805(5)(t). Accordingly, upon an offender's fourth sentence for public indecency, the offender is subject to a presumptive true life sentence.
After being convicted of public indecency for public masturbation on three occasions,
defendant was convicted of two further public indecency charges and--at the age of 34--was sentenced to two consecutive terms of life in prison without the possibility of release. He contends that his sentence shocks the moral sense of reasonable people and, accordingly, is unconstitutional under the proportionality clause of the Oregon Constitution. The state contends that the life sentence is constitutional because it was imposed, not for any particular public indecency conviction, but for defendant's recidivism and lack of amenability to rehabilitation. Because we agree with defendant that his life sentence is constitutionally disproportionate under the circumstances of this case, we remand the case for resentencing. Before [271 Or.App. 722] detailing those circumstances, we set out the standards to determine if a sentence imposed under a sex crime recidivist statute is disproportionate under Article I, section 16, of the Oregon Constitution.
DISPROPORTIONALITY UNDER ARTICLE I, SECTION 16
As noted, under Article I, section 16, " all penalties shall be proportioned to the offense." Article I, section 16, requires that the penalty imposed on a criminal defendant be proportioned to the specific offense for which the defendant was convicted, or, in other words, that the sentence bear the appropriate comparative relation to the gravity of that particular offense. State v. Wheeler, 343 Or. 652, 667, 175 P.3d 438 (2007) (stating test for an " as-applied" application of Article I, section 16, to a particular penalty). Courts evaluate the proportionality of a penalty by considering whether the imposition of the sentence would shock the moral sense of reasonable people. Id. at 668.
Prompted, no doubt, by the difficulty of applying such an amorphous test, the Supreme Court in State v. Rodriguez/Buck, 347 Or. 46, 58, 217 P.3d 659 (2009), fashioned a structured test to assess disproportionality under [271 Or.App. 723] Article I, section 16. There, the court expanded on what kind of relationship between the gravity of a defendant's crimes and criminal history, on the one hand, and a particular punishment, on the other, is constitutionally sufficient to avoid as-applied disproportionality.
In Rodriguez/Buck, the court consolidated two cases in which the defendants had been convicted of first-degree sexual abuse. The state assigned error to the trial courts' imposition of sentences of 16- and 17-month terms of incarceration on the defendants, when ORS 137.700 (Measure 11) required a mandatory minimum sentence of 75 months
in prison for first-degree sexual abuse. 347 Or. at 52. Rodriguez had briefly caused the back of the victim's head to be in contact with Rodriguez's clothed breasts. Id. at 70. Buck had allowed the back of his hand to remain when the victim leaned her clothed buttocks against it several times; later, Buck wiped dirt off of the back of the victim's shorts with two swipes of his hand. Id. In determining that the sentences were constitutionally disproportionate, the Supreme Court considered three nonexclusive factors: " (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." Id. at 58.
Under the first factor, the court compared the severity of the penalty imposed with the " gravity" of the offenses committed by the defendants. Id. at 59, 67. The primary determinant of the severity of the penalty is the amount of time the offender must spend in prison or jail. Id. at 60. The gravity of the offense requires consideration of both the statutory definition of the offense--including the range of conduct prohibited by the statute--and the particular defendant's conduct in committing the offense--including where on the range of prohibited conduct the defendant's offense falls. Id. at 69. The court noted:
" An as-applied proportionality analysis that considers the facts of an individual defendant's specific criminal conduct is particularly significant when the criminal statute at issue covers a broad range of activity, criminalizing a variety of forms and intensity of conduct. In such a case, a harsh penalty might not, on its face, be disproportionate, [271 Or.App. 724] because of the fact that the statute dealt, inter alia, with some extreme form of that conduct. However, when a defendant is convicted for engaging in only more minor conduct encompassed within the statute, the defendant may plausibly argue that the mandatory sentence, as applied to the particular facts of his or her case, is unconstitutionally disproportionate."
Id. at 61. In making this " range of activity" assessment,
" a court may consider, among other things, the specific circumstances and facts of the defendant's conduct that come within the statutory definition of the offense, as well as other case-specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim."
Id. at 62.
Thus, to determine whether the penalty is proportioned to the gravity of the offense, it is appropriate to consider the gravity of the instant conduct in comparison with other criminal conduct in light of relative harm to victims and society and relative culpability. Id. (citing Solem v. Helm, 463 U.S. 277, 292-93, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). For example, some crimes are generally considered to be more serious than others ( e.g., violent crimes are more serious than nonviolent, stealing one million dollars is more serious than stealing one hundred dollars) and a lesser-included offense should not be punished more severely than the greater offense ( e.g., assault with intent to murder is more serious than simple assault). Id. (citing Solem, 463 U.S. at 292-93). As to the two defendants in Rodriguez/Buck, the court concluded that, " [n]ot only does defendants' criminal conduct appear insufficiently grave to justify the mandatory [75-month] sentence, but it also is less severe than the conduct in the vast majority of * * * other reported first-degree sexual abuse cases[.]" Id. at 74.
The court then turned to the second factor, under which the court compared the penalty imposed with the penalties for related offenses. Id. at 63. " If the penalties for more 'serious' crimes than the crime at issue result in less severe sentences, that is an indication that the challenged penalty may be disproportionate." Id. Applying that factor, the court noted that the mandatory minimum sentence for [271 Or.App. 725] the defendants' clothed touching of the children at issue was the same as the mandatory minimum sentence for second-degree sodomy, second-degree rape, and second-degree sexual
penetration. Id. at 75. It concluded that reasonable people would not believe that the defendants' sentences were proportioned to their offenses in light of the other, substantially more egregious conduct that was subject to the same mandatory minimum sentence. Id. at 75-76.
Finally, the court considered the defendants' criminal histories. The court noted that the defendants had no prior convictions and that their conduct was qualitatively different from the conduct of defendants in other first-degree sexual abuse cases. Id. at 78. " In the more common first-degree sexual abuse cases," the court explained, " the contact is not only far more physically invasive and sexually charged, but it has occurred multiple times, rather than only once." Id. After examining all three of those factors, and concluding that each indicated that the defendants' sentences were disproportionate, the Supreme Court concluded that the sentences in those cases violated Article I, section 16.
This case involves the application of Rodriguez/Buck and Article I, section 16, to a sentence imposed for several crimes under the current sexual offender recidivism statute. The Supreme Court has addressed the application of Article I, section 16, to a previous version of the sexual offender recidivism statute, which provided for an indeterminate life sentence (with the possibility of release), on several occasions, including as applied to an offender convicted of indecent exposure (but also of another sex crime). The court has also addressed ORS 137.719(1), as applied to an offender convicted of sexual abuse, sodomy, and other crimes--but not public indecency--holding that the sentence in that case was not disproportionate. And we have also addressed ORS 137.719(1), but not in the context of serial convictions for public indecency.
In State v. Waterhouse, 209 Or. 424, 439, 307 P.2d 327 (1957), the Supreme Court suggested that--as applied to persons twice convicted of " peeping Tom" crimes or indecent exposure--application of even an indeterminate life imprisonment sentence might be overly severe: " Consideration of the extreme severity of the penalty in its relation to [271 Or.App. 726] the gravity of such offenses may suggest to the legislative assembly the advisability of ameliorating amendments."  In other words, the court questioned the severity of a sentence imposed on a recidivist with fewer public indecency convictions than required under the current scheme.
On the other hand, in Jensen v. Gladden, 231 Or. 141, 372 P.2d 183 (1962), the Supreme Court held that an indeterminate life sentence that had been imposed on a recidivist sexual offender did not violate Article I, section 16. The petitioner had previously been convicted of contributing to the delinquency of a minor. About two years later, while on parole, the petitioner was convicted of indecent exposure. The sexual offender statute in effect at the time-- former ORS 167.050 (1985), repealed by Or. Laws 1971, ch 743, § 432--listed several offenses (including contributing to the delinquency of a minor and indecent exposure) and provided that a person who committed one of the listed sexual offenses and had previously been convicted of one of those offenses was subject to a sentence of life imprisonment. Under the sentencing scheme in effect at that time, the sentencing judge would set an indeterminate prison term not exceeding the statutory maximum, and the parole board would then determine the amount of time defendant actually spent in prison. See generally State ex rel Engweiler v. Felton, 350 Or. 592, 598, 260 P.3d 448 (2011) (describing difference between " matrix" and determinate sentencing schemes).
In Jensen, the trial court imposed the maximum statutory indeterminate sentence of life imprisonment. On appeal, the petitioner argued that the crime of indecent exposure, even when coupled with the previous crime of contributing to the delinquency of a minor, was not sufficiently grave to warrant
imposition of a sentence that could result in the petitioner's imprisonment for life and, accordingly, his sentence violated Article I, section 16.
[271 Or.App. 727] Whether an indeterminate life sentence, under the circumstances, would shock the conscience, the court stated, would " depend upon the seriousness of repetitive sexual conduct of this kind and the danger that it forecasts for others unless the [petitioner] is segregated from society." Jensen, 231 Or. at 144-45. However, the court noted that little was known about the causes and cures of sexual offenses. Nonetheless, the court acknowledged that some held the view that " sex offenders tend to progress from minor to major crimes. And there is a belief that all sex offenders tend to be recidivists." Id. at 145. Although it cited expert opinion to the contrary, the court opined that the legislature could have had those or similar considerations in mind when it enacted former ORS 167.050. Id. Moreover, the court observed that the legislation containing former ORS 167.050 also afforded those sentenced under it to a periodic parole board review, including consideration of a recent psychiatric examination. Id. at 146. The court noted:
" Undoubtedly this legislation was influenced by the movement then under way which proposed that sex law offenders be incarcerated for an indeterminate time so as to measure their imprisonment in accordance with the time that it was necessary to effect psychiatric rehabilitation."
Id. at 146-47 (emphasis added). Thus, although the court upheld a life sentence imposed upon a recidivist sexual offender whose crimes included public indecency, the court tied the need for an indefinite and sometimes lengthy sentence to the possibility of reformation and release.
Only a year after Jensen, the court upheld a true life sentence imposed on a recidivist offender who had been convicted of burglary not in a dwelling and, previously, of three other unspecified felonies. Tuel v. Gladden, 234 Or. 1, 379 P.2d 553 (1963). In reaching its conclusion, the court [271 Or.App. 728] opined, " If the criminal is a menace to the community, his sentence should be aimed at offering the most protection to the community, regardless of the relative innocuousness of the particular crime for which he is now convicted." Id. at 6. The court further observed that, if previous efforts at reformation had failed, it is more likely that an offender will continue to be dangerous and will not respond to additional reformation attempts. Id. at 6-7.
Both we and the Supreme Court have considered true life sentences imposed under the current sexual offender recidivism statute and concluded that they were not constitutionally disproportionate. Wheeler, 343 Or. 652, 175 P.3d 438; State v. Meyrovich, 204 Or.App. 385, 129 P.3d 729, rev den, 340 Or. 673, 136 P.3d 743 (2006). In Meyrovich, the defendant had previously been convicted of nine prior sex offenses. After he gained access to the victim's house and then forcibly kissed her on the neck, he was convicted of first-degree burglary and first-degree sexual abuse, and sentenced to true life under ORS 137.719(1). Id. at 387. Applying the " shock the moral sense" standard, we rejected the defendant's disproportionality challenge. The defendant's focus on the " assertedly innocuous" conduct in the instant case missed the point, we explained, because ORS 137.719(1) emphasizes not the gravity of a particular offense but " the fact that the offender is a habitual sex criminal." Id. at 393. The defendant's criminal history included nine prior sex offenses involving minor victims, weapons, and use of force, and he had never acknowledged culpability for the first-degree burglary and first-degree sexual abuse. In light of that history,
we concluded that a life sentence was not unconstitutionally ...