State v. Silverman

• Decision Date: 14 April 1999
• Citation: 977 P.2d 1186,159 Or.App. 524
• Parties: STATE of Oregon, Appellant, v. Samuel Arthur SILVERMAN, Respondent. (964914C2 and 970116C3; CA A99377)
• Court: Oregon Court of Appeals

Page 1186

977 P.2d 1186

159 Or.App. 524

STATE of Oregon, Appellant, v. Samuel Arthur SILVERMAN, Respondent.

(964914C2 and 970116C3; CA A99377)

Court of Appeals of Oregon.

Argued and Submitted March 17, 1999.

Decided April 14, 1999.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Robert J. McCrea, Eugene, argued the cause for respondent. With him on the brief was Robert J. McCrea, P.C.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

De MUNIZ, P.J.

The state appeals from a judgment imposing 10-year probationary sentences on defendant on two counts of first degree sexual abuse. ORS 163.427. The state argues that the trial court erred in ruling that the mandatory minimum prison sentences of 75 months required by ORS 137.700 (Measure 11) were unconstitutionally cruel and unusual and in imposing probationary sentences. We agree and reverse and remand.

Defendant was charged with two counts of first degree sexual abuse and two counts of second degree sodomy of a boy under the age of 14 and was charged with three counts of sexual abuse in the first degree of another boy under the age of 14. All of the crimes were alleged to have occurred in the later half of 1996. Pursuant to a plea agreement, defendant pleaded guilty to one count of first degree sexual abuse of each of the victims, and the remainder of the charges were dismissed. At sentencing, the court ruled that the mandatory minimum prison sentences of 75 months for each of the first degree sexual abuse convictions were "cruel and inhuman" and imposed probationary sentences on both convictions.

On appeal, the state contends that the trial court erred in holding that the mandatory minimum sentences required by statute for these crimes were unconstitutionally cruel and unusual as applied to the facts of this case. Defendant responds that the issue is not reviewable and, alternatively, that the lower court correctly ruled that the mandatory minimum sentences of 75 months were cruel and unusual, as applied.

We turn first to defendant's contention that the assigned error is not reviewable on appeal. Defendant argues that, in State ex rel. Huddleston v. Sawyer, 324 Or. 597, 607, 932 P.2d 1145, cert. den. --- U.S. ----, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997), the court concluded that a virtually identical question was not reviewable on direct appeal and thus was reviewable in mandamus. The state asserts that the question is reviewable under ORS 138.222(4)(c), enacted after Huddleston was decided, which provides that the appellate court may review claims that a "sentencing court erred in failing to impose a minimum sentence that is prescribed by ORS 137.700[.]" Defendant responds that application of the reviewability provisions ORS 138.222(4)(c) to his case is an impermissible ex post facto application of the law. In State v. Dubois, 152 Or.App. 515, 954 P.2d 1264 (1998), we held that ORS 138.222(4)(c) applies to pending appeals, and, in State v. Jackman, 155 Or.App. 358, 963 P.2d 170 (1998), we held that application of ORS 138.222(4)(c) to cases in which the crime had been committed before the enactment did not violate the ex post facto provisions of either the state or federal constitutions. We therefore reject defendant's argument that the issue before us is unreviewable.

Article I, section 16, of the Oregon Constitution provides: "Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense." A sentence violates this constitutional provision if it "is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper." State v. Isom, 313 Or. 391, 401, 837 P.2d 491 (1992). The state asserts on appeal that 75-month sentences for defendant's sex crimes against children are not "so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper." Defendant argued to the trial court, and asserts on appeal, that, because several mental health professionals opined that his pedophilia is treatable and that he would not be able to receive treatment if he were imprisoned, a mandatory sentence of imprisonment would be cruel and unusual.

To review this question, we must set forth some of the underlying facts that were before the sentencing court. ¹ Defendant is in his late 50s and has been a social worker for many years, primarily treating pre-adolescent and adolescent males. The present convictions arose from a series of events that occurred in 1996. A 13-year-old friend of defendant's son reported to a therapist that defendant had, on 20 or more occasions, fondled his genitals. In a police interview, the child reported several incidents of sodomy as well. The police then taped a telephone call from the child to defendant in which the child told defendant that he wanted the sexual contacts to stop. Defendant agreed and expressed a concern about whether the child had told others about the sexual contacts.

Defendant was arrested on multiple charges of sodomy and sexual abuse, and, after his arrest, another friend of defendant's son came forward, stating that defendant had been making sexual advances toward the child for two years. The child reported that, on about 50 occasions, defendant had attempted to insert his hands into the child's pants. He reported that defendant had, on different occasions, unbuttoned the child's pants, asked the child to take off his swim suit, and asked the child to kiss him. The child also reported that defendant had told him that he would prefer that the child not tell anyone about what had been occurring. Defendant was charged with three more counts of first degree sexual abuse relating to his abuse of this child, as well.

The presentence investigation revealed that numerous children had reported inappropriate sexual behaviors by defendant over many years. According to one parent, approximately 10 years before the charged incidents occurred, defendant had reached for the groin of her 10-year-old mentally retarded son during a counseling session. Another therapist reported that one of his clients, a 17-year-old male, said that defendant had asked the child to masturbate during a treatment session. Three other boys, one aged 13 and two aged 15, reported that defendant would rub and stroke their stomachs, reaching lower and lower until the children stopped him. Another mental health professional at an agency at which defendant had worked reported that there had been complaints that defendant asked children inappropriate questions about anal sex.

The record also contains information from a psychiatrist, Dr. Beebe, whom defendant had been seeing for years before the incidents that led to the current convictions, as well as information from another psychiatrist and a psychologist who evaluated defendant after the current charges were brought. Beebe described the incidents that led to the current convictions as "some inappropriate play" with defendant's son's friends, and opined that defendant had not previously been attracted to underage boys and that he could be successfully treated on an outpatient basis and by attending Sex Love Addicts Anonymous meetings.

A psychiatrist, Dr. Kjaer, who evaluated defendant at the request of his attorney, also provided a report. That report indicates that defendant had sexual experiences with adolescent males when he himself was an adolescent and that he was arrested at age 21 for inappropriate sexual contact with a male, after which he received several years of psychotherapy. Defendant continued to receive therapy at regular intervals throughout his life and was advised by a therapist not to discuss his homosexual inclinations with his wife. Defendant reported to Kjaer that, in his therapy practice, he had treated a 10-year-old boy for sexual abuse and that, when the boy reached the age of 22, they had an affair. Kjaer opined that, because of defendant's grief and depression over the ending of the affair with the 22-year-old, he had allowed himself to become preoccupied with the victims, whom Kjaer described as "inquisitive sexual animals." Psychological testing showed that defendant was depressed, but not psychotic. Kjaer opined in his report that defendant should continue to...