483
187 v. Rauch
State 303 8,
April Or2020
App
Submitted February 7; remanded for resentencing, otherwise affirmed
April 8, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEFFREY TODD RAUCH,
Defendant-Appellant.
Marion County Circuit Court
17CR50776; A169341
Tracy A. Prall, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
484 State v. Rauch
PER CURIAM
Defendant was convicted on one count of first-degree unlawful sexual penetration, ORS 163.411, and
three counts of first-degree sexual abuse, ORS 163.427. He
received a 300-month sentence on the first-degree unlawful sexual penetration conviction, a 75-month consecutive
sentence on one of the first-degree sexual abuse convictions,
and concurrent sentences of 75-months each on the remaining two first-degree sexual abuse convictions. On appeal, he
argues that the trial court plainly erred in sentencing him,
because it specifically stated when weighing aggravating
and mitigating factors at sentencing that it was considering the fact that defendant had exercised his right to go to
trial. He also argues that his sentence on the first-degree
unlawful sexual penetration conviction was unconstitutionally disproportionate. The state concedes the error as to the
first point. We agree and accept the state’s concession, and
accordingly need not reach defendant’s disproportionality
argument.
When sentencing defendant, the court described
aggravating factors it was considering, including “the
requirement that [the victims] be made to testify, as the
mother said in front of a room full of strangers and to tell
their story, the Court has considered all of that when determining what sentence to impose.” We have held that “[a]
court must impose a sentence based solely on the facts of the
case and the defendant’s personal history, and not as punishment for pleading not guilty and proceeding to trial.” State
v. Qualey,
(2019), we
concluded that a trial court plainly erred in circumstances
comparable to the present case, when the court sentenced
the defendant based on its consideration that the defendant
had put the victims “through additional trauma by forcing
them to take the witness stand.” We exercise our discretion
to correct the error in this case for the reasons outlined in
Hainline.
