Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Allen

Court of Appeals of Oregon

October 10, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
THOMAS GOLDEN ALLEN, Defendant-Appellant.

          Submitted October 29, 2015

          Marion County Circuit Court 12C46063, Claudia M. Burton, Judge.

          Peter Gartlan, Chief Defender, and Robin A. Jones, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.

         Case Summary:

         Defendant, who suffers from intellectual and learning disabilities, appeals from a judgment of conviction after he pleaded guilty to two counts of first-degree rape, one count of first-degree sodomy, one count of first-degree sexual penetration, and one count of first-degree sexual abuse, based on acts he committed as a juvenile against his then 11-year-old sister. Defendant contends that ORS 137.690, under which he was sentenced to three 25-year concurrent terms of imprisonment, is disproportionate as applied in violation of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. Held: Two opinions of the Supreme Court that bear on defendant's proportionality challenge were decided after defendant was sentenced and require reconsideration of defendant's sentence. In State v. Ryan, 361 Or. 602, 624, 396 P.3d 867 (2017), the court held that a sentencing court is required to take into consideration a defendant's intellectual disability in making a proportionality analysis under Article I, section 16, of the Oregon Constitution. In Kinkel v. Persson, 363 Or. 1, 417 P.3d 401 (2018), the court said that, in the addressing the constitutional proportionality of a mandatory minimum sentence under the Eighth Amendment of the United States Constitution, the court should consider the transience of the defendant's youth. The Court of Appeals remanded [294 Or.App. 302] the case for resentencing so that the circuit court can reconsider defendant's proportionality challenge in light of Ryan and Kinkel.

         Remanded for resentencing; otherwise affirmed.

         [294 Or.App. 303] EGAN, C. J.

         Defendant appeals from a judgment of conviction after he pleaded guilty to two counts of first-degree rape, one count of first-degree sodomy, one count of first-degree sexual penetration, and one count of first-degree sexual abuse, based on acts he committed as a juvenile against his then 11-year-old sister, V. Defendant asserts that ORS 137.690, under which he was sentenced to three 25-year concurrent terms of imprisonment, is disproportionate as applied, in violation of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. For the reasons explained in this opinion, we remand for reconsideration of defendant's sentence in light of two Oregon Supreme Court opinions that were issued after defendant was sentenced.

         In 2007, when defendant was 12 years old and his sister V was six, defendant digitally penetrated her vagina at least once, repeatedly touched her buttocks and genitals, and repeatedly had V touch his genitals, both on top of and under his clothing. Based on that conduct, defendant was adjudicated as a juvenile on one count of first-degree sexual penetration, one count of first-degree sexual abuse, and one count of third-degree sexual abuse. He was placed under the supervision of the Oregon Youth Authority (OYA), where he received extensive sex-offender treatment.

         At approximately age 16, defendant was released to foster care with his grandmother and step-grandfather. During that time, he briefly attended high school but then dropped out to work full time at McDonald's, where he had success as an employee. While living with his grandparents for approximately one year and a half, defendant attended sex-offender therapy and was prohibited from having contact with V. In October 2011, on defendant's motion, the juvenile court terminated its jurisdiction, and defendant's juvenile history was expunged.

         In 2012, on his counselor's recommendation, defendant returned to the family home. At that time, defendant was 17 years old and V was 11. Defendant's mother testified at sentencing that she told personnel at OYA that she worked full-time and that there would be times when [294 Or.App. 304] defendant and V would be unsupervised. She expressed concern to OYA about defendant being at home alone with V and his two other sisters. Defendant's step-grandfather testified that he wondered whether there might be future counseling for defendant as he transitioned back to the home "or a game plan of something to watch for, you know, red flags, you know, things that we should be aware of."

         When he had been living at home for only a few months, defendant again abused V, resulting in the instant charges. Defendant waived a jury trial and pleaded guilty, admitting:

"When I was 17, and before my 18th birthday, I had sexual intercourse with my 11 year old sister, including oral sex and digital penetration of her vagina and sexual touching of her vagina."

         At the sentencing hearing, the court heard testimony from Steinhauser, a clinical and forensic social worker and expert in sexual misconduct who had evaluated defendant. She described defendant as "basically a good kid who has suffered a great deal of trauma and emotional deprivation in his life who has acted out." She testified that defendant is "intellectually low-functioning," with severe learning disabilities. Steinhauser conducted a psychosexual evaluation of defendant to assess his risks of reoffending. She reported that defendant demonstrated "no significant sexual interest in male or female children at all, nothing in teens." She testified that

"he did not demonstrate any significant sexual interest in children or teens and did not identify any traits consistent with psychopathy, which is a significant risk factor for a sexual offender population."

         Steinhauser testified that her testing showed that defendant does not have characteristics that are typically predictive of relapse, including prior criminal convictions, impulsivity, delinquency, and high deviant sexual arousal. In the absence of those factors, Steinhauser opined, defendant was an excellent candidate for treatment and was at low risk of reoffending, provided he did not have access to the victim. Steinhauser testified that the risk factors that defendant did demonstrate could be treated with therapy.

         [294 Or.App. 305] On cross-examination, the prosecutor asked Steinhauser to address whether it is possible to determine when a juvenile has a propensity for continued sexual offending. Steinhauser responded that the task was challenging but that risk factors have been identified that have a high correlation with future reoffending. Based on its colloquy with the witness, the sentencing court was also interested in defendant's risk of reoffending. The court asked Steinhauser if V

"is the beginning and end of the universe of potential victims? In other words, if he is out and in the community and let's say he has children or gets involved with a woman who has children or any other number of circumstances where he might be exposed to children."

         Steinhauser testified that V was "a convenient and available victim. Opportunity presented itself and there had been a reinforcement history there that drove the arousal," but that defendant "simply does not have the skill set or the level of risk taking in his history, his repertoire to go outside the home and develop relationships with young kids or to blitz attack." In response to the trial court's question about whether defendant might present a risk to others, Steinhauser testified that she did not believe that defendant would reoffend with someone other than the victim. But she cautioned:

"There's always risk. We can't eliminate risk completely, but by targeting the criminogenic risk factors for re-offense, those idiosyncratic criminogenic risk factors that are changeable, the dynamic risk factors that are listed here, we increase the likelihood he will more effectively manage his sexual behavior problems as an adult. But there is never, never a guarantee for anybody who has a behavioral management problem if they're going to be able to abstain from the behavior for the remainder of their lives."

         The court knew that three of defendant's sex offenses were subject to a 25-year minimum sentence under ORS 137.690, [1] and asked the witness "not just what would we [294 Or.App. 306] provide [defendant] in a perfect world with unlimited funding, but what can I actually order that will actually ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.