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State v. Ryan

Supreme Court of Oregon

June 22, 2017

STATE OF OREGON, Respondent on Review,
v.
STEVEN LEVI RYAN, Petitioner on Review.

         On review from the Court of Appeals CC 13C43883, CA A156146 *

          Argued and submitted September 20, 2016

          David O. Ferry, Deputy Public Defender, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Susan Yorke, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Alexander A. Wheatley, Portland, fled the brief for amici curiae Fair Punishment Project and Oregon Justice Resource Center.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Nakamoto, Justices, and Baldwin, Senior Justice pro tem. **

         The decision of the Court of Appeals is affirmed in part and reversed in part. The judgments of conviction are affirmed, but the sentences are vacated, and the case is remanded to the circuit court for resentencing, in a manner consistent with this opinion.

         [361 Or. 603] Case Summary: Defendant, who pleaded guilty to first-degree sexual abuse, argued at sentencing that 75 months' imprisonment, as mandated under ORS 137.700(2)(a)(P), was unconstitutionally disproportionate as applied to him because of his intellectual disability. Held: In comparing the gravity of defendant's offense and the severity of the sentence, the trial court erred in failing to consider evidence of defendant's intellectual disability when that evidence, if credited, would establish that defendant's age-specific intellectual capacity fell below the minimum level of criminal responsibility for a child.

         The decision of the Court of Appeals is affirmed in part and reversed in part. The judgments of conviction for third-degree sexual abuse and resulting sentences are affirmed. The judgment of conviction for first-degree sexual abuse is affirmed, but the sentence is vacated, and the case is remanded to the circuit court for resentencing on that conviction.

         [361 Or. 604] BREWER, J.

         Defendant, who is intellectually disabled, makes an as-applied challenge to his 75-month mandatory minimum prison sentence for first-degree sexual abuse, ORS 163.427, on the ground that it violates Article I, section 16, of the Oregon Constitution, and the Eighth Amendment to the United States Constitution, which prohibit sentences that are disproportionate to the offense for which they are imposed.

         Defendant pleaded guilty to one count of first-degree sexual abuse and three counts of third-degree sexual abuse, for over-the-clothes touching of the sexually intimate parts of nine- and fourteen-year-old victims. At his sentencing, defendant argued that the 75-month minimum sentence for first-degree sexual abuse, which was mandated by ORS l37.7OO(2)(a)(P) (Measure 11), would be disproportionate as applied to him. As part of the proportionality analysis, defendant argued that the trial court should take into account his intellectual disability, as well as the availability of residential rehabilitative treatment for him as part of an alternative probationary sentence.

         The trial court noted that defendant was intellectually disabled, but the court did not indicate that it had considered that factor in its proportionality analysis, and the court ruled that it lacked authority to consider the availability of rehabilitative treatment for defendant in a nonin-carcerative setting, unless it first could conclude that the Measure 11 prison term was disproportionate. The court then concluded that the Measure 11 sentence was not disproportionate. The Court of Appeals affirmed without opinion. State v. Rvan, 275 Or.App. 22, 364 P.3d 1012 (2015). For the reasons explained below, we conclude that the trial court erred when it compared the gravity of defendant's offense and the severity of the Measure 11 sentence, because the court failed to consider evidence of defendant's intellectual disability when that evidence, if credited, would establish that the sentence would be arguably unconstitutional because it shows that defendant's age-specific intellectual capacity fell below the minimum age level of criminal responsibility for a child. However, we decline to consider defendant's argument [361 Or. 605] on review that the availability of rehabilitative treatment is relevant to the gravity of his offense, because defendant failed to adequately develop that argument within the context of this court's analytical framework for proportionality challenges under Article I, section 16. Accordingly, we remand defendant's conviction for first-degree sexual abuse for resentencing, and otherwise affirm.

         I. FACTS AND PROCEDURAL HISTORY

         As we will explain, defendant has intellectual disabilities, as well as attention deficit hyperactivity disorder (ADHD). When he committed the offenses at issue, defendant was on probation for second-degree criminal mischief for having masturbated into an item of clothing in a department store dressing room.

         In his plea petition in this case, defendant acknowledged that, on July 15, 2013, he subjected a nine-year-old child, AS, to sexual contact by touching her genital area. The incident occurred at a sleepover birthday party involving a group of defendant's adult disabled friends. One friend brought his sisters, AS (age nine) and CS (age 14). On the evening of the sleepover, defendant flirted with CS and sent her a text message asking her to join him in the bathroom to kiss. Inside the bathroom, defendant slapped and grabbed CS's buttocks, ground his penis against her, attempted to expose her breasts by pulling on her dress, and kissed her on the mouth.

         The next morning, while most of the party guests were outside, AS went into the house to retrieve her shoes. While inside, she encountered defendant, who was the only other person in the house. Defendant pushed AS to the floor, got on top of her, grabbed her genital area outside her clothing, and ran his hand down her leg. AS told defendant to get off her, and defendant complied, but he then chased her as she tried to run away. AS ended the pursuit by kicking defendant. Afterwards, AS was upset and crying, and she stated at sentencing that she had been very frightened during the incident.

         The state charged defendant with three counts of third-degree sexual abuse based on the incident involving [361 Or. 606] CS, and one count of first-degree sexual abuse for his conduct with respect to AS. Defendant pleaded guilty to all four charges. However, defendant argued at sentencing that, in view of his intellectual disability, the imposition of a 75-month prison term on the first-degree sexual abuse conviction under Measure 11 would be unconstitutionally disproportionate. In support of that argument, defendant provided the court with written reports from four mental health evaluations performed between 2008 and 2013. All the evaluators diagnosed defendant with intellectual disabilities. The first evaluator reported an IQ score of 50 for defendant, the most recent IQ test scored defendant at 60, and each evaluator found significant impairment in his adaptive functioning.[1] Defendant represented to the court that he functioned at an approximate mental age of 10, and the state did not dispute that representation.

         More specifically, the first evaluation-performed when defendant was 17 and living in an adolescent group home-was part of an effort to secure services for defendant based on his developmental delay. The evaluator, Dr. Sacks, noted that defendant had a history of striking out at others and that, between 2001 and 2006, he had engaged in misconduct that "seemed to increase in severity." Sacks diagnosed defendant with Conduct Disorder and Reactive Attachment Disorder and stated that defendant needed a residential setting with highly developed structure to avoid impulsive and dangerous acts.

         The second evaluation was performed in 2012, when defendant was 21, to determine whether he was able to aid and assist in his defense on the criminal mischief charge. The evaluator, Dr. Stoltzfus, diagnosed defendant with low cognitive functioning, attention deficit hyperactivity disorder (ADHD), and Conduct Disorder. Stoltzfus reported that [361 Or. 607] defendant had been placed in foster care at age 12 for kissing a seven-year-old girl and that he primarily had lived in group home settings between the ages of 12 and 21. In his interview with Stoltzfus, defendant made repeated references to aggression toward people who made him angry. Stoltzfus opined that defendant had a high degree of impul-sivity and reactive hostility that could be ameliorated to some extent with psychotropic medication, but that "[h]is low cognitive and low adaptive functioning are not amenable to treatment and will never change." Stoltzfus concluded that defendant was not then capable of aiding and assisting his defense. As a consequence, defendant was placed in the Oregon State Hospital for further evaluation and treatment.

         In December 2012, Dr. Corbett evaluated defendant at the state hospital. He noted that defendant had been placed in nonrelative foster care for extended intervals between 2005 and 2008, and that he had received services for his developmental delay in Marion County from 2006 to 2009. Defendant stated that he had been so angry at the hospital that he wanted to hit people, but Corbett noted that defendant had made some progress in "competency restoration education." Corbett opined that defendant had made sufficient progress that he was then able to aid and assist in his defense.

         Finally, in December 2013, Dr. Nance evaluated defendant for his sentencing in this case. Nance noted the allegation that defendant had violated his probation on the criminal mischief charge by possessing pornography and engaging in improper internet use. Defendant was in jail at the time of his evaluation and told Nance that he did not feel safe there. He described suicidal and homicidal thoughts, but denied that he would act on them.

         Nance diagnosed defendant with limited intellectual functioning and as being immature, paranoid, and depressed, and having questionable judgment. On account of his intellectual deficiencies, defendant was unable to take a useful polygraph examination, which was a concern to Nance, because mandated polygraphs are a primary tool of community supervision. According to Nance, defendant was at high risk for re-offending, because he had a sense [361 Or. 608] of sexual entitlement with "rape attitudes, " some hostility toward women, and a lack of concern for others. So far, Nance opined, defendant had expressed an attitude that did not support probation. In Nance's view, defendant posed a high risk to commit a similar or more serious crime and was not a suitable candidate for community supervision. Defendant's prognosis for "full rehabilitation" was poor to fair, Nance opined, but good for "some benefit from supportive therapy." Nance recommended a lengthy course of court-mandated sex offender treatment and stated that the court "may consider" a group home that would administer psychotropic medications and ultimately support defendant's community supervision. Nance opined that the antisocial aspect of defendant's disorder would be exacerbated if he were to be incarcerated.

         In addition to the evaluators' reports, defendant presented testimony at sentencing from the director of a residential facility that specialized in treating intellectually disabled sexual offenders. The director, Watson, testified that he had one residential space available to treat defendant as part of an alternative nonincarcerative sentence. Participants living in his program's homes were supervised, but not in "closed custody, " meaning that "[i]t's not a locked, secure facility." Watson had not personally evaluated defendant, but he had reviewed reports from other evaluators. He expressed reservations about defendant's suitability for the program, because, despite the prior existence of "supports, " defendant had not engaged in sex offender treatment. However, Watson stated that he would accept defendant under "certain conditions, " including that "I need to make sure I have the backing of the court, " because,

"based on the evidence that I've heard today, [defendant] certain is a-this moderate high-risk guy. And his risk is high under these unsupervised, unstructured environments. What that looks like underneath highly structured and supervised, I don't know. I've not evaluated him and can't render an opinion until we know more."

         In opposing defendant's constitutional challenge, the prosecutor "agree[d] with the [d]efense that one of the things that the Court can also look at is the characteristics of both the [d]efendant and the victim. And the State [361 Or. 609] does not dispute that this [d]efendant has mental disabilities." However, the prosecutor asserted that "you don't look at just one part of the [d]efendant, but rather, again, we get to look at all of his characteristics." The prosecutor noted that defendant's own evaluator, Nance, had "place[d] him in the middle of the high risk to reoffend with similar or more serious types of crimes in our community. He's also thought to not be a good candidate for community supervision." Because defendant had abused more than one child and had an ongoing problem with controlling his sexual urges, and because he was "impulsive, emotionally agitated, verbally aggressive and abusive, and in need of structure to avoid impulsive and destructive acts, " the prosecutor argued that community safety required his incarceration.

         Defendant countered that, in view of his intellectual disability, imposing a 75-month prison sentence on him would shock the moral sense of reasonable people. He requested, instead, that he be sentenced to probation, conditioned on court-mandated residential treatment in Watson's program. In response, the prosecutor asserted that the availability of alternatives to incarceration had no bearing on the determination whether a particular term of incarceration was constitutionally disproportionate.

         The trial court noted that defendant was intellectually disabled. However, the court did not indicate that it had considered that characteristic in resolving defendant's constitutional challenge. Consistently with the request of the victim CS at sentencing, the court did state that it would like to provide treatment for defendant. However, the court opined that it could not consider the availability of treatment as part of an alternative sentence without first concluding that the prescribed Measure 11 sentence was constitutionally disproportionate.[2] Again, without acknowledging [361 Or. 610] or indicating that it had considered defendant's intellectual disability in reaching its conclusion, the trial court then stated that the sentence was not disproportionate. The court therefore sentenced defendant to 75 months' imprisonment on the first-degree sex abuse conviction as to AS; the court then sentenced defendant to a single consecutive term of six months in prison for the three third-degree sex abuse convictions as to CS (concurrent with each other, but consecutive to the 75-month sentence).

         Defendant appealed, raising an as-applied challenge to the constitutionality of the 75-month prison sentence on his first-degree sexual abuse conviction.[3] As noted, the Court of Appeals affirmed without opinion.

         On review, defendant asserts, based on this court's framework for analyzing proportionality challenges under Article I, section 16, that the trial court erred in failing to sufficiently consider his intellectual disability in assessing the proportionality of the Measure 11 sentence. Defendant contends, based on the record here, that he deserved less severe punishment than other defendants who commit similar offenses and, consequently, that the mandatory prison term was not properly proportioned to his offense. Defendant also argues that the prescribed sentence is relatively more severe punishment for him than for a normally-abled offender because intellectually disabled offenders are especially vulnerable to abuse and other adverse effects in [361 Or. 611] prison. In addition, defendant argued in his opening brief on review that the trial court erred in its application of the framework that this court set out in State v. Rodriguez/ Buck, 347 Or. 46, 58, 217 P.3d 659 (2009)-specifically, in determining the gravity of his offense-by failing to consider the availability of rehabilitative treatment for his disability[4] In light of those factors, defendant asserts that the trial court erred in failing to properly consider his intellectual disability in determining whether the Measure 11 sentence was disproportionate.

         In response, the state again acknowledges that defendant's individual characteristics-including his intellectual disability-are relevant considerations in evaluating the proportionality of his sentence. However, the state asserts that "the availability of alternative treatment options is completely irrelevant to an assessment of the gravity of the offense; indeed, it has nothing to do with a particular defendant's culpability." More generally, the state argues that defendant's focus on treatment is untenable because the constitutional provisions on which he relies do not require courts to choose the least restrictive means of protecting the public, even when an offender is intellectually disabled. To the contrary, the state argues, it is the legislature's responsibility to prescribe appropriate criminal sanctions, and the state and federal constitutions afford it broad latitude in doing so.

         As the state sees it, defendant's treatment-based argument fails to take into account the sentencing objectives of retribution and deterrence and, generally speaking, would transform an objection to the constitutionality of a mandatory sentence into a full-blown sentencing hearing. Finally, the state urges, consideration of alternative treatment options could yield inconsistent results for similarly culpable offenders, based solely on whether appropriate treatment happens to be available at a particular time or place-an inconsistency, the state argues, that highlights the fallacy of recognizing such a constitutional requirement. It follows, the state asserts, that the sentencing court in this [361 Or. 612] case was not authorized to consider the availability of treatment in determining whether the Measure 11 sentence was constitutionally disproportionate.

         Alternatively, the state notes that the residential treatment program that defendant proposed was not custodially secure and that it was not clear that the program would be suitable for defendant. Under those circumstances, the state argues, the prescribed sentence was not disproportionate. With the parties arguments thus framed, we turn to defendant's constitutional challenge under the Oregon Constitution. See State v. Newcomb, 359 Or. 756, 764, 375 P.3d 434 (2016) (describing first-things-first approach).

         II. ANALYSIS

         A. Article I, Section 16

         1. Analytical framework

         Article I, section 16, provides, in part:

         "Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense."

         "For the most part, this court has analyzed the requirement that penalties shall be proportioned to the offense" separately from the related prohibition on cruel and unusual punishments. State v. Althouse,359 Or. 668, 683, 375 P.3d 475 (2016). In considering the proportionality requirement, this court ordinarily has asked whether the length of the sentence would shock the moral sense of reasonable people. Id. (citing, e.g., State v. Rogers,313 Or. 356, 380, 836 P.2d 1308 (1992), cert den,507 U.S. 974 (1993) (death penalty for murder committed during the course of attempted first-degree sex abuse "would not shock the moral sense of reasonable people")). That standard "reflect[s] the principle that the legislature has primary authority to determine the gravity of an offense and the appropriate length of punishment." Id. ...


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