State v. Pardee

• Decision Date: 15 July 2009
• Docket Number: A136180.,200702801.
• Citation: 229 Or. App. 598,215 P.3d 870
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Steve George PARDEE, Defendant-Appellant.
• Court: Oregon Court of Appeals

215 P.3d 870

229 Or. App. 598

STATE of Oregon, Plaintiff-Respondent, v. Steve George PARDEE, Defendant-Appellant.

200702801.

A136180.

Court of Appeals of Oregon.

Argued and Submitted on February 26, 2009.

Decided July 15, 2009.

Susan F. Drake, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Robert M. Atkinson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General.

Before SCHUMAN, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge.

SCHUMAN, J.

Defendant was convicted of two counts of rape in the first degree, four counts of sodomy in the first degree, two counts of unlawful sexual penetration in the first degree, and three counts of sexual abuse in the first degree. He was sentenced to a total of 400 months' incarceration followed by lifetime post-prison supervision (PPS). Some of that sentence was based on concurrent sentences of 300 months' incarceration plus lifetime PPS on the rape, sodomy, and sexual penetration counts—mandatory sentences required by statute. On appeal, defendant argues that those mandatory sentences are unconstitutional. We affirm.

The scope of this appeal is narrow. Defendant challenges the constitutionality of ORS 137.700(2)(b)(D) to (F) in combination with ORS 144.103(2), which require a court to impose mandatory sentences of 300 months' incarceration with mandatory lifetime PPS for each rape, sodomy, and sexual abuse conviction when the victim is under the age of 12. It is unclear from defendant's brief whether he argues that the statutes he challenges are facially unconstitutional or unconstitutional only as applied to him. However, a statute is facially unconstitutional only if it can never be applied constitutionally—that is, if the legislature violated the constitution when it enacted the statute, regardless of the circumstances in which it might be applied. Advocates for Effective Regulation v. City of Eugene, 160 Or.App. 292, 310, 981 P.2d 368 (1999). Because we conclude that the sentences are constitutional under the circumstances of this case, we necessarily also conclude that the statutes are not facially unconstitutional.

Further, defendant's "Questions Presented" and "Summary of Argument" indicate that he will address, and present arguments based on, both the "proportionality" and "cruel and unusual" clauses of Article I, section 16, of the Oregon Constitution¹ as well as the Eighth Amendment to the United States Constitution. However, in the remainder of the brief, after asserting that United States Supreme Court jurisprudence under the Eighth Amendment is the same as Oregon's state constitutional jurisprudence and summarizing the Oregon Supreme Court's recent decision in State v. Wheeler, 343 Or. 652, 175 P.3d 438 (2007), he develops an argument advancing only the single assertion that Wheeler addresses: that the sentences violate the proportionality clause of Article I, section 16. We therefore address that contention and no others. See State v. Thompson, 328 Or. 248, 254 n. 3, 971 P.2d 879, cert. den., 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999) (refusing to address constitutional claims in the absence of "thorough and focused constitutional analysis"). The question before us, then—and the only question we decide—is whether the court in this case imposed on defendant a sentence that violated Article I, section 16, of the Oregon Constitution.

In Wheeler, the court made a number of relevant observations regarding that provision. First, it concluded that the text of Article I, section 16, suggests that the "cruel and unusual" clause and the "proportionality" clause "should be interpreted independently, although the interpretation of one may inform the interpretation of the other." Wheeler, 343 Or. at 656, 175 P.3d 438. That suggestion, the court concluded, is reinforced by an examination of the history surrounding the adoption of the provision. Id. at 665-66, 175 P.3d 438. The history also indicates that, "[a]t the most basic level, the framers' concern was that the penalty imposed on a criminal defendant be `proportioned' to the specific offense for which the defendant was convicted—that it bear the appropriate `comparative relation' to the severity of that crime." Id. at 667, 175 P.3d 438. To gauge proportionality, or the comparative relationship, of penalty to crime, the court observed that its cases over time have relied on two formulations. First, a penalty is disproportionate if it would "`shock'" the "`moral sense'" of "`reasonable people.'" Id. at 668-69, 175 P.3d 438 (quoting State v. Rogers, 313 Or. 356, 380, 836 P.2d 1308 (1992), cert. den., 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993)). Second, a penalty is disproportionate if the legislative judgment reflected in its enactment is not "`founded upon an arguably rational basis.'" Wheeler, 343 Or. at 669, 175 P.3d 438 (quoting Jensen v. Gladden, 231 Or. 141, 146, 372 P.2d 183 (1962)) (emphasis in Wheeler omitted). Reconciling those two standards, the court in Wheeler stated that "the legislative enactment of the particular penalties" serve as "an external source of law to assist in determining whether those penalties would shock the moral sense of reasonable people." 343 Or. at 670-71, 175 P.3d 438.

The court also reviewed the case law in which the courts have been required to gauge the constitutionality of a penalty for one crime by comparing it to the penalty for other crimes. Stating the well-settled rule that the relative seriousness of crimes is presumptively a legislative decision, the court noted that it had sustained proportionality challenges based on comparing the penalty for one offense to the penalty for a different offense in only one kind of situation: where the penalty for one crime is more severe than the penalty for another crime of which the first is a lesser-included offense. Id. at 674-77, 175 P.3d 438.

Summarizing, the court explained:

"The court has used the test of whether the penalty was so disproportioned to the offense as to `shock the moral sense of reasonable people' and ordinarily has deferred to legislative judgments in assigning penalties for particular crimes, requiring only that the legislature's judgments be reasonable. The cases permit the legislature to impose enhanced sentences on recidivists, even if those sentences would be disproportionate when applied to a defendant without prior convictions. Finally, the proportionality provision bars the legislature from punishing a lesser-included offense (such as an attempt) more severely than the greater-inclusive offense (such as completion of the attempted crime)."

Id. at 676-77, 175 P.3d 438 (omitted).

Guided by the standards and principles that Wheeler reviews and establishes, we conclude that defendant's sentence was not unconstitutionally disproportionate to his crime. Defendant's primary argument is that, because the penalty for intentional murder—300 months' incarceration without mandatory lifetime PPS—is less severe than the penalty that he received for each of seven counts of which he was convicted, the latter penalties are disproportionate.² But as Wheeler makes clear, the text and history of Article I, section 16, establish that disproportionality is a measure of the relationship between a penalty and the offense, not the relationship between the penalty for one offense and the penalty for another. Id. at 656, 666, 175 P.3d 438. In the rare instances where the court has compared the penalties imposed for different crimes, a lesser-included offense had been punished more...