State v. Ryan

• Citation: 396 P.3d 867,361 Or. 602
• Decision Date: 22 June 2017
• Docket Number: SC S063857,CC 13C43883
• Parties: STATE of Oregon, Respondent on Review, v. Steven Levi RYAN, Petitioner on Review.
• Court: Supreme Court of Oregon

361 Or. 602

396 P.3d 867

STATE of Oregon, Respondent on Review,

v.Steven Levi RYAN, Petitioner on Review.

CC 13C43883

SC S063857

Supreme Court of Oregon.

Argued and submitted September 20, 2016.

June 22, 2017

David O. Ferry, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Susan Yorke, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Alexander A. Wheatley, Portland, filed the brief for amici curiae Fair Punishment Project and Oregon Justice Resource Center.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Nakamoto, Justices, and Baldwin, Senior Justice pro tem.^**

BREWER, J.

Defendant, who is intellectually disabled, makes an as-applied challenge to his 75-month mandatory minimum prison sentence for first-degree sexual abuse, ORS 163.427, on the ground that it violates Article I, section 16, of the Oregon Constitution, and the Eighth Amendment to the United States Constitution, which prohibit sentences that are disproportionate to the offense for which they are imposed.

Defendant pleaded guilty to one count of first-degree sexual abuse and three counts of third-degree sexual abuse, for over-the-clothes touching of the sexually intimate parts of nine- and fourteen-year-old victims. At his sentencing, defendant argued that the 75-month minimum sentence for first-degree sexual abuse, which was mandated by ORS 137.700(2)(a)(P) (Measure 11), would be disproportionate as applied to him. As part of the proportionality analysis, defendant argued that the trial court should take into account his intellectual disability, as well as the availability of residential rehabilitative treatment for him as part of an alternative probationary sentence.

The trial court noted that defendant was intellectually disabled, but the court did not indicate that it had considered that factor in its proportionality analysis, and the court ruled that it lacked authority to consider the availability of rehabilitative treatment for defendant in a nonincarcerative setting, unless it first could conclude that the Measure 11 prison term was disproportionate. The court then concluded that the Measure 11 sentence was not disproportionate. The Court of Appeals affirmed without opinion. State v. Ryan , 275 Or. App. 22, 364 P.3d 1012 (2015). For the reasons explained below, we conclude that the trial court erred when it compared the gravity of defendant's offense and the severity of the Measure 11 sentence, because the court failed to consider evidence of defendant's intellectual disability when that evidence, if credited, would establish that the sentence would be arguably unconstitutional because it shows that defendant's age-specific intellectual capacity fell below the minimum age level of criminal responsibility for a child. However, we decline to consider defendant's argument on review that the availability of rehabilitative treatment is relevant to the gravity of his offense, because defendant failed to adequately develop that argument within the context of this court's analytical framework for proportionality challenges under Article I, section 16. Accordingly, we remand defendant's conviction for first-degree sexual abuse for resentencing, and otherwise affirm.

I. FACTS AND PROCEDURAL HISTORY

As we will explain, defendant has intellectual disabilities, as well as attention deficit hyperactivity disorder

(ADHD). When he committed the offenses at issue, defendant was on probation for second-degree criminal mischief for having masturbated into an item of clothing in a department store dressing room.

In his plea petition in this case, defendant acknowledged that, on July 15, 2013, he subjected a nine-year-old child, AS, to sexual contact by touching her genital area. The incident occurred at a sleepover birthday party involving a group of defendant's adult disabled friends. One friend brought his sisters, AS (age nine) and CS (age 14). On the evening of the sleepover, defendant flirted with CS and sent her a text message asking her to join him in the bathroom to kiss. Inside the bathroom, defendant slapped and grabbed CS's buttocks, ground his penis against her, attempted to expose her breasts by pulling on her dress, and kissed her on the mouth.

The next morning, while most of the party guests were outside, AS went into the house to retrieve her shoes. While inside, she encountered defendant, who was the only other person in the house. Defendant pushed AS to the floor, got on top of her, grabbed her genital area outside her clothing, and ran his hand down her leg. AS told defendant to get off her, and defendant complied, but he then chased her as she tried to run away. AS ended the pursuit by kicking defendant. Afterwards, AS was upset and crying, and she stated at sentencing that she had been very frightened during the incident.

The state charged defendant with three counts of third-degree sexual abuse based on the incident involving CS, and one count of first-degree sexual abuse for his conduct with respect to AS. Defendant pleaded guilty to all four charges. However, defendant argued at sentencing that, in view of his intellectual disability, the imposition of a 75-month prison term on the first-degree sexual abuse conviction under Measure 11 would be unconstitutionally disproportionate. In support of that argument, defendant provided the court with written reports from four mental health evaluations performed between 2008 and 2013. All the evaluators diagnosed defendant with intellectual disabilities. The first evaluator reported an IQ score of 50 for defendant, the most recent IQ test scored defendant at 60, and each evaluator found significant impairment in his adaptive functioning.¹ Defendant represented to the court that he functioned at an approximate mental age of 10, and the state did not dispute that representation.

More specifically, the first evaluation—performed when defendant was 17 and living in an adolescent group home—was part of an effort to secure services for defendant based on his developmental delay. The evaluator, Dr. Sacks, noted that defendant had a history of striking out at others and that, between 2001 and 2006, he had engaged in misconduct that "seemed to increase in severity." Sacks diagnosed defendant with Conduct Disorder and Reactive Attachment Disorder and stated that defendant needed a residential setting with highly developed structure to avoid impulsive and dangerous acts.

The second evaluation was performed in 2012, when defendant was 21, to determine whether he was able to aid and assist in his defense on the criminal mischief charge. The evaluator, Dr. Stoltzfus, diagnosed defendant with low cognitive functioning, attention deficit hyperactivity disorder

(ADHD), and Conduct Disorder. Stoltzfus reported that defendant had been placed in foster care at age 12 for kissing a seven-year-old girl and that he primarily had lived in group home settings between the ages of 12 and 21. In his interview with Stoltzfus, defendant made repeated references to aggression toward people who made him angry. Stoltzfus opined that defendant had a high degree of impulsivity and reactive hostility that could be ameliorated to some extent with psychotropic medication, but that "[h]is low cognitive and low adaptive functioning are not amenable to treatment and will never change." Stoltzfus concluded that defendant was not then capable of aiding and assisting his defense. As a consequence, defendant was placed in the Oregon State Hospital for further evaluation and treatment.

In December 2012, Dr. Corbett evaluated defendant at the state hospital. He noted that defendant had been placed in nonrelative foster care for extended intervals between 2005 and 2008, and that he had received services for his developmental delay in Marion County from 2006 to 2009. Defendant stated that he had been so angry at the hospital that he wanted to hit people, but Corbett noted that defendant had made some progress in "competency restoration education." Corbett opined that defendant had made sufficient progress that he was then able to aid and assist in his defense.

Finally, in December 2013, Dr. Nance evaluated defendant for his sentencing in this case. Nance noted the allegation that defendant had violated his probation on the criminal mischief charge by possessing pornography and engaging in improper internet use. Defendant was in jail at the time of his evaluation and told Nance that he did not feel safe there. He described suicidal and homicidal thoughts, but denied that he would act on them.

Nance diagnosed defendant with limited intellectual functioning and as being immature, paranoid, and depressed, and having questionable judgment. On account of his intellectual deficiencies, defendant was unable to take a useful polygraph examination, which was a concern to Nance, because mandated polygraphs are a primary tool of community supervision. According to Nance, defendant was at high risk for re-offending, because he had a sense of sexual entitlement with "rape attitudes," some hostility toward women, and a lack of concern for others. So far, Nance opined, defendant had expressed an attitude that did not support probation. In Nance's view, defendant posed a high risk to commit a similar or more serious crime and was not a suitable candidate for community supervision. Defendant's prognosis for "full rehabilitation" was poor to fair, Nance opined, but good for "some benefit from supportive therapy." Nance recommended a lengthy course of court-mandated sex offender treatment and stated that the court "may consider" a group home that would administer psychotropic medications and ultimately support defendant's community supervision. Nance opined that the...