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State v. Cook

Court of Appeals of Oregon

June 5, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
COREY THOMAS COOK, Defendent-Appellant.

          Argued and submitted May 8, 2018 .

          Coos County Circuit Court 14CR2064 Richard L. Barron, Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan Yorke, Assistant Attorney General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals his conviction and sentence for first degree sexual abuse, ORS 163.427, assigning error to the trial court's imposition of a mandatory 75-month sentence imposed pursuant to ORS 137.700 (Ballot Measure 11 (1994)) over his constitutional proportionality challenge, which relied on State v. Rodriguez/Buck, 347 Or. 46, 217 P.3d 659 (2009), and State v. Ryan, 361 Or. 602, 396 P.3d 867 (2017). Defendant argues that the trial court erred when it declined to consider his vulnerability in prison resulting from his intellectual disability when assessing sentence proportionality under Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. Held: In light of Ryan, intellectual disability must be considered in evaluating the gravity of the offense, and the severity of a sentence, for purposes of assessing constitutional proportionality under Article I, section 16. It is an open question under Oregon law whether the severity of a sentence is determined [297 Or.App. 863] solely by reference to the length of incarceration-a quantitative assessment-or also permits consideration of the subjective experiences of the defendant while incarcerated-a qualitative assessment. Here, the Court of Appeals declined to reach the merits of the constitutional questions posed by defendant, concluding that any error was harmless under the particular circumstances. Because the trial court rejected the necessary factual predicate for defendant's constitutional arguments-that he would be at an increased risk of victimization in prison due to his intellectual disability-the trial court would have reached the same result regardless of the constitutional import of any such victimization.

         Affirmed.

          [297 Or.App. 864] JAMES, J.

         Defendant appeals his conviction and sentence for first-degree sexual abuse, ORS 163.427, assigning error to the sentencing court's imposition of a mandatory 75-month sentence imposed pursuant to ORS 137.700 (Ballot Measure 11 (1994)) over his constitutional proportionality challenge relying on State v. Rodriguez I Buck, 347 Or. 46, 217 P.3d 659 (2009), and State v. Ryan, 361 Or. 602, 396 P.3d 867 (2017). In this case, the trial court found that defendant suffered from intellectual disability and considered that disability in relation to defendant's criminal culpability. However, the court specifically found that it could not consider the "the fact that [defendant] may be victimized in prison" as a result of that intellectual disability. Thus, this case presents a question going to the heart of what it means to consider intellectual disability in a proportionality challenge. If a trial court expressly finds that it cannot consider an intellectually disabled defendant's increased vulnerability within prison, has it truly "consider[ed] an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence?" Ryan, 361 at 620-21 (emphasis added). To put an even finer point on it, in considering intellectual disability in the context of the "severity" of a sentence, is a court limited to merely the quantitative severity of a sentence, i.e., the length of incarceration, or is a court permitted to consider the qualitative nature of a sentence's severity as applied to an intellectually disabled defendant?

         As we explain below, the issue raised by defendant is an interesting, and unresolved, issue of Oregon law. But, ultimately, we cannot reach a resolution here. Article VII (Amended), section 3, of the Oregon Constitution states that when we concludes, "after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial." Here, even assuming the trial court erred in failing to consider defendant's vulnerability [297 Or.App. 865] within the prison, on this record that error was harmless. Accordingly, we affirm.[1]

         In considering a sentence proportionality challenge under Article I, section 16, "we review for legal error the trial court's conclusion that defendant's sentence was constitutionally.]" Ryan, 361 Or at 614. "In conducting that review, we are bound by any findings of historical fact that the trial court may have made, if they are supported by evidence in the record." Id. at 615. In this case, defendant pleaded guilty to sexual abuse in the first degree, ORS 163.427, acknowledging that he knowingly subjected a child under the age of 14 to sexual contact by touching her genital area with his mouth.

         During sentencing, defendant presented evidence that his cognitive abilities were about that of a 10-year-old [297 Or.App. 866] child. One expert testified that that defendant was "very, very slow. [Defendant's] processing speed is at the [0.3] percentile, meaning 99.7 percent of people do better than him." In addition, defendant offered testimony that he suffered from fetal alcohol syndrome (FAS). Defendant presented evidence that one of the effects of FAS is an impairment of one's ability to read social cues. Defendant's expert explained:

"[Those with FAS are] poor readers of social cues. And, as we know in prisons, one has to be very aware of social cues. *** [Defendant's going to have what's called bad papers, because he sexually abused a child. He's also intellectually impaired, socially dysfunctional. And, because of that he's going to be a target for predatory behavior."

         When asked if that meant that defendant would be "[t]he prey," the expert responded, "Yeah. He will be victimized? (Emphasis added.)

         Another expert testified that:

"For people who are developmentally delayed, they are far more likely to be victimized [in prison]. And, specifically, I would go back to yesterday where [defendant] demonstrated extreme naivete about his fellow prisoners and how they would help him.
"That's very different than the prison culture that's going to see him as prey.

         " (Emphasis added.)

         After testimony regarding defendant's cognitive abilities and the likelihood of victimization in a prison setting, the sentencing court made factual findings that defendant had a mental deficiency, had a diminished capacity, and suffered from FAS. The court found that it could take into consideration defendant's diminished capacity in assessing proportionality. However, as part of that consideration of intellectual disability, defendant argued that the sentencing court could consider defendant's vulnerability in the prison system. The sentencing court declined to do so, holding that it could not take into account defendant's potential for being [297 Or.App. 867] victimized in prison due to his intellectual disabilities. The sentencing court stated:

"I generally accept the fact that he has a diminished capacity and *** it's probably as low as what the testimony shows it is. What I don't think I can take into account is the fact that ...

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