State v. Carey-Martin

• Decision Date: 06 September 2018
• Docket Number: A157942 (Control), A157943
• Citation: 293 Or.App. 611,430 P.3d 98
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Alixandur C. CAREY-MARTIN, Defendant-Appellant.
• Court: Oregon Court of Appeals

293 Or.App. 611

430 P.3d 98

STATE of Oregon, Plaintiff-Respondent,

v.Alixandur C. CAREY-MARTIN, Defendant-Appellant.

A157942 (Control), A157943

Court of Appeals of Oregon, En Banc.

Argued and submitted June 21, 2016

Resubmitted en banc April 11, 2018

September 6, 2018

Anne K. Fujita Munsey, Deputy Public Defender, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

ORTEGA, J.

ORS 137.690, the statute that enacted Ballot Measure 73, imposes a mandatory minimum term of 25 years for a person who has been convicted of more than one "major felony sex crime."¹ Included among the sex crimes defined as "major felony sex crime[s]" is the crime of using a child in a display of sexually explicit conduct, ORS 163.670.² Defendant was sentenced under Ballot Measure 73 for 10 convictions for conduct that occurred over a period of about a year and a half while he was a teenager, some of it while he was underage, and which involved requesting and receiving, by text messaging, nude images of girls who were two to four years younger than he was. Put succinctly, defendant engaged in what is commonly known as "sexting." See 293 Or. App. at 634, 430 P.3d at 112 ("[R]equesting and sending sexually explicit self-portraits via a camera phone is a common enough behavior to have engendered the term ‘sexting.’ "). In this consolidated criminal appeal,³ defendant seeks a remand for resentencing of the 25-year sentences that the trial court imposed for those convictions.

Defendant asserts that the sentences were disproportionate as applied to him in violation of Article I, section 16, of the Oregon Constitution (providing that "all penalties shall be proportioned to the offense").⁴ In defendant’s view, the 25-year sentences, which were imposed concurrently to each other and to the sentences he received for other sexual crimes, shock the moral sense of reasonable people; he argues that his conduct did not warrant those penalties when the factors set out by the Supreme Court in State v. Rodriguez/Buck , 347 Or. 46, 58, 217 P.3d 659 (2009), to determine proportionality under Article I, section 16, are applied to the circumstances of his case. The crux of the state’s argument is that defendant’s conduct was "extremely grave" and that, because it was not "innocuous," the trial court correctly determined that the sentences imposed on defendant would not shock the moral sense of reasonable people. We agree with defendant and, therefore, reverse and remand the sentences imposed under ORS 137.690.

I. ARTICLE I, SECTION 16, PROPORTIONALITY

The Supreme Court has not yet considered a facial or as-applied Article I, section 16, challenge to ORS 137.690 ; our resolution of this as-applied challenge to defendant’s 25-year prison sentences imposed under that statute is informed by our understanding of the court’s case law addressing whether prison sentences imposed under two other sentencing provisions— ORS 137.719 and ORS 137.700 —run afoul of the constitutional prohibition against disproportionate sentences under Article I, section 16. A review of that case law provides context for the court’s treatment of recidivism in proportionality review and illuminates the nature of the review that we are called upon to undertake in this case.

ORS 137.719(1) is a "recidivism statute" that requires the imposition of life imprisonment without the possibility of parole for a felony sex crime if a defendant has previously been convicted of two felony sex crimes. The court considered a facial challenge to that statute in Statev. Wheeler, 343 Or. 652, 654, 175 P.3d 438 (2007), and later considered the proportionality of the statute as applied to the defendants in State v. Althouse , 359 Or. 668, 375 P.3d 475 (2016), and State v. Davidson , 360 Or. 370, 380 P.3d 963 (2016). ORS 137.700, the codification of Ballot Measure 11, imposes mandatory minimum prison sentences for a host of crimes against persons. The court has also considered as-applied proportionality challenges to the imposition of 75-month prison sentences for first-degree sexual abuse under that statute, in Rodriguez/Buck and State v. Ryan , 361 Or. 602, 396 P.3d 867 (2017).

In Wheeler , the court examined the framers' intent in adopting Article I, section 16 ’s requirement that "all penalties shall be proportioned to the offense" and its application in Supreme Court case law as a review for whether, under the circumstances, the duration of the imposed sentence "would shock the moral sense" of reasonable people of what is "right and proper." 343 Or. at 668, 175 P.3d 438. The court observed that, under its case law, a finding of disproportionality would occur "only in rare circumstances," and that a court looks to the "legislative enactment of the particular penalties at issue as an external source of law to assist in determining whether those penalties would shock the moral sense of reasonable people." Id. at 670-71, 175 P.3d 438.

The court further observed that its cases "underscore the legislature’s authority to set enhanced penalties in response to recidivism," and noted its conclusion in State v. Smith , 128 Or. 515, 273 P. 323 (1929), that an "enhanced sentence (even a life sentence) is appropriate, and not disproportionate, when a defendant is ‘an incorrigible criminal.’ " 343 Or. at 672-73, 175 P.3d 438. It went on to discuss further application of that concern in other cases, noting that the legislature is permitted "to impose enhanced sentences on recidivists, even if those sentences would be disproportionate when applied to a defendant without prior convictions." Id . at 676-77, 175 P.3d 438. The court rejected the defendant’s as-applied challenge to his true-life sentence, observing that sex crimes "may or may not result in permanent physical injury, but the legislature is entitled to presume that they are a serious matter in light of the potential for both physical and psychological injury and that lengthy sentences are necessary to protect the public from further harm by recidivists." Id. at 679-80, 175 P.3d 438.

After Wheeler , the Supreme Court considered a nonrecidivism statute, ORS 137.700 (Ballot Measure 11), which requires a sentence of at least 75 months of imprisonment for a single conviction of first-degree sexual abuse. In Rodriguez/Buck , the court affirmed two trial court determinations that sentences imposed under the statute were constitutionally disproportionate and, reviewing its case law, identified three nonexclusive factors for assessing as-applied challenges under Article I, section 16 :

"(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."

347 Or. at 58, 217 P.3d 659. The Supreme Court recognized the "central role" the legislature has in establishing penalties for crimes but underscored the "role of the court to ensure that sentences conform to requirements that have been in our constitution for 150 years." Id .

As regards the first factor, the court considered the relationship between the severity of the penalty urged by the state and rejected by the trial courts—75 months incarceration—and the gravity of the offenses committed by the two defendants. Id . at 59, 67, 217 P.3d 659. The amount of time the offender must spend incarcerated for the conviction is the "primary determinant" of how severe the penalty is. Id . at 60, 217 P.3d 659. The offense, for purposes of an as-applied proportionality challenge, is not limited to the description of the prohibited conduct in the statute but includes consideration of the range of conduct prohibited by the statute as well as the circumstances of the defendant’s specific offense, and then placing the defendant’s conduct on the range of prohibited conduct. Id . at 69, 217 P.3d 659. 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, 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 . When assessing the "range of activity,"

"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, 217 P.3d 659. In applying that factor, the court concluded that the defendants' criminal conduct was "insufficiently grave to justify the mandatory six-year and three-month sentence" and "less severe than the conduct in the vast majority of (and probably in all) other reported first-degree sexual abuse cases since Measure 11 was passed." Id . at 74, 217 P.3d 659.

Under the second factor announced in Rodriguez/ Buck , the court compared the imposed penalty to penalties for related offenses. Id. at 63, 217 P.3d 659. That is, 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...