Submitted March 29, 2017
County Circuit Court 15CR07897; David E. Leith, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Neil F. Byl, Deputy Public Defender, Offce of Public Defense
Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Robert M. Wilsey, Assistant Attorney General,
fled the brief for respondent.
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
was convicted of 10 counts of encouraging child sexual abuse
in the first degree, ORS 163.684. Because he had been
sentenced for a felony sex crime at least two times prior,
the trial court sentenced him to life in prison without the
possibility of release or parole under ORS 137.719(1). He
appeals, contending that his sentence is unconstitutionally
disproportionate as applied to him under Article I, section
16, of the Oregon Constitution.
repeat offender sentence prescribed by the legislature under
ORS 137.719(1) did not violate Article I, section 16, as
applied to defendant, given (1) his criminal history and
uncharged criminal misconduct, which reflected a pattern of
repetitive sexual behavior directly targeting child victims;
(2) the multitude of victims who were harmed; (3) the
ineffectiveness of lesser sanctions in deterring his conduct;
and (4) the resultant danger that defendant posed to children
if not confined.
Or.App. 2] EGAN, C. J.
was convicted of 10 counts of encouraging child sexual abuse
in the first degree, ORS 163.684, based on his guilty plea
that, on five separate dates, he had "knowingly
duplicated a visual recording of sexually explicit conduct
involving a child while [he] was aware of and consciously
disregarded the fact that the original creation of that
visual recording involved child abuse." Because he had
been sentenced for a felony sex crime twice before, the trial
court sentenced him to life in prison without the possibility
of release or parole. See ORS 137.719. Defendant
appeals, asserting that his sentence is unconstitutionally
disproportionate as applied to his circumstances under
Article I, section 16, of the Oregon
Constitution. We affirm.
Or.App. 3] I. FACTS
begin with the sentencing facts, which include
defendant's prior and current convictions, as well as
evidence of past instances of relevant uncharged misconduct.
State v. Davidson, 360 Or. 370, 375, 380 P.3d 963
(2016) ("In evaluating disproportionality challenges to
criminal sentences, it is appropriate for a court to consider
any prior conviction, as well as misconduct that did not
result in convictions."); State v. Rodriguez I
Buck, 347 Or. 46, 78, 217 P.3d 659 (2009)
("Traditional understandings of proportionality, as well
as this court's cases, require us to consider whether a
defendant is a repeat offender by considering previous
criminal convictions and whether there is evidence of
multiple instances of uncharged wrongful conduct."). We
take those facts from the record, and from the state's
sentencing memorandum, which, unless otherwise noted,
defendant does not dispute.
2004, defendant was convicted in the United States District
Court for the District of Oregon of one count of possession
of child pornography, 18 USC section 2252 (a)(5), and
sentenced to 60 months' incarceration. Three other counts
were dismissed by motion of the government. The record
discloses no further details about that offense.
September 14, 2004, following a stipulated bench trial,
defendant was convicted in Oregon circuit court of two counts
of first-degree sodomy, one count of first-degree sexual
abuse, and three counts of first-degree encouraging child
sexual abuse. We described the facts underlying those
convictions in State v. Delp, 218 Or.App. 17, 178
P.3d 259, rev den, 345 Or. 317 (2008), as follows.
March 2000, an FBI agent, posing as a 14-year-old girl,
engaged in an online chat, during which defendant asked the
purported 14-year-old "whether she had 'ever been
with an older man,' suggested that he could travel to
Ohio to meet her in person, indicated that he had previously
had sexual intercourse with a 12-year-old girl in Indiana,
and said that he was planning to have sexual intercourse with
a nine-year-old girl who lived about an hour from him."
Id. at 19. [297 Or.App. 4] He also sent her pictures
of himself, including two nude photographs, and gave his
email address. The FBI traced the conversation to defendant
and obtained a warrant to search defendant's home.
Id. at 20. During the search, defendant directed the
agents to a computer disk, which contained numerous images of
child pornography. Id. During the investigation that
followed, defendant also confessed to performing sexual acts
on his girlfriend's one-year-old child.
appealed his convictions, contending, among other things,
that the state did not provide sufficient corroborating
evidence of defendant's confession to the sodomy and
sexual abuse counts, as required by ORS 136.425(1)
(2003). Id. at 27. We agreed and reversed
those convictions. Id. at 29. We affirmed
defendant's convictions for three counts of first-degree
encouraging child sexual abuse, and he was ultimately
sentenced to a total of 119 months' incarceration on
those counts. He served that sentence and was released to
post-prison supervision in May 2014.
Current Convictions and Uncharged Misconduct
reported to the National Center for Missing and Exploited
Children that child pornography had been uploaded to Google
Drive on November 8, 16, and 22, 2014, and January 24, 2015,
from an account associated with [297 Or.App. 5] defendant.
The images depicted infants, toddlers, and prepubescent boys
and girls being sexually abused and molested by adults.
Additionally, Microsoft reported that a user associated with
defendant's email address uploaded child pornography to
the user's SkyDrive/One Drive account on January 18,
2015, and January 24, 2015. Those child pornography images
depicted prepubescent boys and girls being sexually abused
and molested by adults, including vaginal, oral, and anal
the investigation that ensued, defendant admitted (among
other conduct discussed below) to uploading and duplicating
child pornography into the Google and Microsoft cloud
services, and he was charged with 10 counts of first-degree
encouraging child sexual abuse. He waived a jury trial and
pleaded guilty to those charges, admitting that, on five
separate dates-November 8, 2014, November 16, 2014, November
22, 2014, January 18, 2015, and January 24, 2015-he
unlawfully and knowingly duplicated a visual recording of
sexually explicit conduct involving a child while he was
aware of and consciously disregarded the fact that the
original creation of the recording involved child abuse.
See ORS 163.684. He also admitted to two upward
departure factors-persistent involvement in similar offenses
and multiple victims/incidents.
of defendant's plea agreement, the state agreed not to
charge him with any additional crimes based on information it
had obtained during its investigation. However, the parties
also agreed that the state could present that information for
the court's consideration at sentencing. Accordingly, the
state submitted a sentencing memorandum describing the
results of its investigation. Defendant also submitted a
sentencing memorandum. Except as noted, defendant did not
dispute the state's description of the facts.
investigation revealed that defendant had uploaded a total of
536 images and videos of child pornography in his Google and
Microsoft cloud storage services, including [297 Or.App. 6]
depictions of children engaged in acts of sexually explicit
conduct with men, women, other children, and dogs. According
to the National Center, 77 of the children depicted in those
files were known and identified victims who were rescued.
Defendant's smartphone contained 467 photos and videos of
child pornography, ...