State v. Horner

                                    402

 Submitted January 9, 2018; affirmed September 2; on appellant’s petition for
 reconsideration filed September 23, 2020, reconsideration allowed by opinion
                              February 3, 2021
                    See 

, ___ P3d ___ (2021)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   JEREMY LANCE HORNER,
                      Defendant-Appellant.
                    Lane County Circuit Court
                      201204868; A162293
                                 

   Charles D. Carlson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, filed the brief for respondent.
  Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
   PER CURIAM
   Affirmed.
   DeHoog, P. J., concurring.
Cite as 

 (2020)                             403

        PER CURIAM
         Defendant stole a truck, sped away when spotted
by a police officer, drove the wrong way on a highway while
being pursued, eventually drove the truck into two parked
minivans, and ran away on foot. State v. Horner, 

, 

 (2015), rev den, 

 (2016).
After defendant was caught, police discovered stolen property
in the truck. Id. at 359. Defendant was convicted of 26 crimes,
including first-degree burglary and felon in possession of a
firearm, and he received a decades-long prison sentence. In
defendant’s initial appeal, we rejected defendant’s challenges
to his convictions. Id. at 358. However, we remanded for
resentencing, for reasons not pertinent here. Id. at 371.
         At resentencing, the trial court ordered defendant
to serve a term of incarceration on each of the 26 counts of
which he had been convicted, some to run consecutively and
some to run concurrently. The trial court ruled that many of
the felony sentences were subject to ORS 137.717, Oregon’s
repeat property offender statute (defendant has numerous
previous convictions), and the court found substantial and
compelling reasons to impose durational departures on many
of the sentences. In the end, the aggregate sentence on the
26 counts included a total of 342 months of incarceration.
        On appeal from resentencing, defendant contends
that his sentence is unconstitutional. Specifically, he challenges the aggregate 342-month term as unconstitutionally disproportionate under both Article I, section 16, of
the Oregon Constitution and the Eighth Amendment to the
United States Constitution. In addition, defendant contends
that the sentences on some of the individual counts are
unconstitutionally disproportionate. We reject defendant’s
Eighth Amendment argument without discussion. We do
the same with respect to defendant’s Article I, section 16,
challenges to sentences on individual counts.
         We briefly address defendant’s Article I, section 16,
challenge to his 342-month aggregate sentence. As defendant acknowledges, in State v. Parker, 

,

 (2013), rev den, 

 (2014), we deemed it
“not appropriate” to consider the defendant’s disproportionality challenge to an aggregate sentence. And, subsequently,
404                                                        State v. Horner

we declined to address a post-conviction petitioner’s contention that a lengthy aggregate sentence was unconstitutional, relying on Parker and noting that Article I, section 16, “requires that each penalty be ‘proportioned to the
offense.’ ” Real v. Nooth, 

, 

,
rev den, 

 (2015). We understand Parker and Real
to hold, albeit with little published analysis, that disproportionality challenges with respect to aggregate sentences
imposed on convictions for multiple counts are not cognizable under Article I, section 16. Although defendant contends
that Parker was wrongly decided, he has not attempted to
establish that it is plainly wrong, our standard for reversing precedent. State v. Doyle, 

, 720, 

 (2019). We note, again, that the question remains open
in the Supreme Court. See State v. Carey-Martin, 

, 

 (2018) (so noting). However, under
Parker and Real, we affirm.
          Affirmed.
          DeHoog, P. J., concurring.
          As the majority opinion suggests, defendant’s convictions in this case resulted largely from his commission
of an unremarkable property crime—unauthorized use of
a vehicle—followed by an ill-advised and criminally dangerous attempt to avoid being arrested the next morning
after an officer saw defendant leaving a restaurant in the
truck he had stolen. 306 Or App at 403. The theft of that
truck, it turns out, was itself part of a series of property
offenses committed the night before, in which defendant or
an accomplice had broken into two vehicles, stolen their contents, broken into a garage using a remote taken from one
of the vehicles, and carted off the fruits of those crimes in
a third vehicle—the stolen truck that defendant used in his
attempt to elude the police. During the night, defendant had
also used a $100 Walmart gift card taken from the burglarized garage to buy cigarettes, socks, and t-shirts. For those
offenses, the trial court sentenced defendant to serve nearly
30 years in prison.1
    1
      Defendant received a sentence of 342 months, or 28 and one-half years.
Included in that sentence was a consecutive 18-month term for being a felon in
possession of a firearm, which resulted from defendant’s possession of a handgun
he had happened to find in the stolen truck.
Cite as 

 (2020)                                                 405

          Of the 26 convictions arising from that course of
conduct, the most serious under the applicable sentencing
provisions was defendant’s first-degree burglary conviction,
for which he might lawfully have received a sentence of as
little as 36 months under the repeat property offender (RPO)
statute, ORS 137.717.2 Furthermore, nothing in the applicable laws required the trial court to impose departure sentences on any other offense, nor was there anything to preclude the court from making each of defendant’s individual
sentences concurrent with every other sentence. As a result,
defendant’s total sentence for the entire criminal episode
could have been as short as 36 months; instead, for what
some might view as a series of comparatively minor property and driving-related crimes in which, fortunately, no
one was physically harmed, defendant received a sentence of
nearly 10 times that duration. Moreover, given the majority
opinion’s conclusion that defendant cannot challenge that
aggregate sentence on proportionality grounds, see 306 Or
App at 403-04, it appears that he would have been similarly
without recourse had the trial court imposed virtually all of
defendant’s sentences consecutively, in which case he would
have been required to serve an additional 15 years in custody, with a total period of incarceration of almost 15 times
the minimum required sentence.3
          In writing separately in this case, I do not mean to
suggest that I would view defendant’s conduct as relatively
inconsequential if I were sentencing him, or that I necessarily conclude that the sentence imposed on him violated
the proportionality requirement of Article I, section 16,
of the Oregon Constitution. Nor do I have any material
     2
       Under the sentencing guidelines, defendant’s first-degree burglary conviction was categorized a 7-C, which carries a presumptive prison sentence of not
more than 24 months. However, sentencing defendant under the RPO statute,
ORS 137.717, and finding grounds for an upward departure given defendant’s
probation status and persistent involvement in crime, the trial court imposed
a 72-month prison term for defendant’s unlawful entry into a garage to steal
property.
     3
       In the course of fleeing the police, defendant drove the wrong way on a highway and off-ramp, causing several other drivers to pull off the roadway to avoid
potential head-on collisions; defendant also endangered several other motorists
and at least one pedestrian with the manner and speed of his driving. As a result
of the resulting driving convictions and several misdemeanor property offenses,
the trial court imposed an additional 15 years’ incarceration, but it made that
time concurrent with defendant’s 342-month prison term.
406                                           State v. Horner

disagreement with the manner in which the majority opinion characterizes defendant’s arguments or our precedent
regarding the Article I, section 16, proportionality analysis.
Finally, I agree that defendant has not made a persuasive
argument that, under our Article I, section 16, case law, he
may, in fact, challenge his aggregate sentence on proportionality grounds or that, if he cannot, then our case law is
plainly wrong.
          Instead of challenging those aspects of the majority
opinion, I write to express two concerns. First, notwithstanding the manner in which we—as opposed to the Supreme
Court—have expressly declined to consider the proportionality of aggregate sentences, I do not necessarily agree that
the only way to read our own cases is as holding that such
an analysis is prohibited. Second, to the extent that our case
law does establish such a prohibition, the rather uncritical
manner in which that rule developed should serve to remind
us all of the key role that careful reasoning and the accurate
characterization of our precedent must play in the development of our case law.
          Because it is central to the majority’s conclusion, I
begin with a close examination of State v. Parker, 

, 

 (2013), rev den, 

 (2014). In
that case, the defendant appealed his sentence for 10 counts
of first-degree encouraging child sexual abuse (ECSA), contending that the sentence was constitutionally disproportionate under Article I, section 16. Id. at 548-49. Defendant’s
convictions had followed an investigation in which hundreds
of still and video images of child pornography were found
on his computer; that discovery led to his indictment on
10 counts of ECSA, to which he later pleaded guilty. Id. at
548. On the first four counts, the trial court sentenced the
defendant to prison terms of 16, 27, 35, and 41 months, which
were to run consecutively. Id. On each of the remaining six
counts, the defendant received a sentence of 45 months, to
run concurrently with all other counts. His total sentence,
therefore, was 119 months in prison. Id.
        On appeal, the defendant assigned error to the
sentence imposed on each count of ECSA and to the aggregate sentence for all 10 counts, arguing that, individually
Cite as 

 (2020)                            407

and cumulatively, his sentences were disproportionate. Id.
at 549. As to the defendant’s challenge to his aggregate
sentence—which we quickly rejected—we first noted that the
defendant had not “provid[ed], nor [were] we aware of, any
authority requiring a proportionality analysis with regard
to a defendant’s aggregate sentence.” Id. (observing that,
in the Supreme Court’s leading opinion on proportionality,
State v. Rodriguez/Buck, 

, 

 (2009),
the court addressed proportionality as to “each defendant’s
[single] conviction for first-degree sexual abuse”) (emphasis
added). We then compared the defendant’s sentence to the
sentence challenged in State v. Baker, 

,

, rev den, 

 (2010). Id.

         Our discussion of Baker in Parker would be telling if
we were writing on a blank slate. As we explained in Parker,
the defendant in Baker had challenged a 180-month aggregate sentence, which comprised five consecutive 36-month
prison terms for five counts of second-degree sexual abuse
and five concurrent six-month terms for incest. Id. In challenging the proportionality of that sentence, the defendant had compared his 180-month aggregate sentence for
10 offenses to the mandatory minimum 100-month sentence
for a single first-degree rape conviction. See Parker, 

. In Parker, we explained that we had rejected
that challenge in Baker because “the proper comparison for
the defendant’s sentence is between the defendant’s sentences for one charge of second-degree sexual abuse and
the sentence for one charge of rape.” 

 (internal quotation
marks and brackets omitted; emphases in Parker). And,
as we further explained, properly considered, “the [Baker]
defendant’s sentences were each ‘substantially shorter than
the 100-month mandatory minimum sentence for rape.’ ” 

(quoting Baker, 

 (emphasis in Parker)).

        Due to what we perceived to be a similarity between
the argument that the Parker defendant made on appeal
and the argument that we had previously rejected in Baker,
we concluded that it was “not appropriate to consider defendant’s aggregate or cumulative sentence of 119 months to
determine if his aggregate or cumulative sentence of 119
months is disproportionate to his 10 offenses.” Parker, 

                                             State v. Horner

App at 549. Despite that seeming non sequitur in Parker—
inexplicably equating a comparison between an aggregate
sentence and the sentence for a single offense with an assessment of an aggregate sentence in light of the 10 offenses for
which it was imposed—one could view the foregoing conclusion as a holding that Article I, section 16, does not permit,
much less require, an examination of whether an aggregate
sentence is proportionate. However, the rationale that we
gave for our conclusion in Parker could also be read to suggest a far more limited holding than that. As we explained,
   “Defendant asks us to compare an aggregate sentence
   for multiple criminal convictions to a single sentence for
   a single criminal conviction and to determine that the
   penalty imposed for all his offenses is disproportionately
   severe. As we alluded to in Baker, that framework is simply
   untenable. The penalties imposed for defendant’s conduct,
   indeed, must be proportioned to the gravity of his offenses.
   However, we cannot compare an aggregate sentence for
   10 counts of first-degree encouraging child sex abuse to the
   maximum sentence for a single related crime.”

 (emphases added).
         In light of that explanation, Parker might reasonably be viewed as simply confirming the principle stated in
Baker, namely, that one cannot challenge an aggregate sentence as disproportionate on the grounds that it exceeds the
allowable sentence for any particular single offense. That
is, because the defendant in Parker—like the defendant in
Baker—“ask[ed] us to compare an aggregate sentence for
multiple criminal convictions to a single sentence for a single criminal conviction and to determine that the penalty
imposed for all his offenses is disproportionately severe,” he
asked us to make the wrong comparison, and, for that reason, Baker required us to reject his challenge. Parker, 

.
        Still, Parker does not explicitly limit its holding to
the circumstances present in Baker. Rather, Parker somewhat inescapably says that it is “not appropriate to consider
defendant’s aggregate or cumulative sentence of 119 months
to determine if his aggregate or cumulative sentence of 119
months is disproportionate to his 10 offenses.” 

.
Cite as 

 (2020)                                409

That, as defendant seems to acknowledge, at least sounds
like a definitive holding that a defendant cannot challenge
an aggregate sentence on proportionality grounds, whether
by comparing it to a sentence applicable to a single offense,
or by some other means. As the majority opinion reflects, the
above language from Parker can be reduced to a conclusion
that it was “not appropriate to consider [the] defendant’s
aggregate or cumulative sentence of 119 months to determine if … [it] is disproportionate.” Id. at 549; see 306 Or
App at 407 (describing defendant’s acknowledgment that,
in Parker, “we deemed it ‘not appropriate’ to consider the
defendant’s disproportionality challenge to an aggregate
sentence”).
         Moreover, as the majority also notes, our decision in
Real v. Nooth, 

, 

, rev den, 

 (2015), further solidified that understanding of our statement in Parker. In Real, the petitioner in a post-conviction
proceeding alleged that he had received inadequate assistance of counsel when his trial attorney failed to challenge
on proportionality grounds the petitioner’s 20-year prison
term for two counts of attempted aggravated murder. 

. The post-conviction court agreed. 

. On appeal, we reversed, concluding that the petitioner
had not established that any inadequacy in trial counsel’s
performance had prejudiced the petitioner. 

. We
explained that, “Article I, section 16, requires that the penalty imposed on a criminal defendant be proportioned to the
specific offense for which the defendant was convicted, or, in
other words, that the sentence bear the appropriate comparative relation to the gravity of that offense.” 

 at 753 (citing
State v. Wheeler, 

, 

 (2007)). As
relevant here, we summarily rejected one implicit premise
of the petitioner’s prejudice argument, as follows:
   “First, to the extent that petitioner suggests that his 240-
   month aggregate sentence is unconstitutional, we reject
   that suggestion and, instead, examine the disproportionality of each of the 120-month sentences for the attempted
   aggravated murder convictions. The constitution requires
   that each penalty be ‘proportioned to the offense.’ See
   State v. Parker … (declining to apply disproportionality
   analysis to 119-month aggregate sentence for 10 counts
410                                               State v. Horner

   of first-degree encouraging child [sexual] abuse); State v.
   Baker … (declining to apply disproportionality analysis to
   aggregate sentence of 180 months for five counts of second-degree sexual abuse and five counts of incest).”

Real, 

 (footnote omitted). In light of that
understanding, we proceeded to compare, for proportionality purposes, each 120-month term of incarceration with
the underlying, individual offense of attempted aggravated
murder. 

. We did not, however, provide any further
explanation for our conclusion that we could only consider
proportionality at the level of individual offenses, without considering whether, taken as a whole, the petitioner’s
aggregate sentence may have been disproportionate.
          As with Parker, reasonable minds could differ as to
whether Real’s statement about aggregate sentences should
be viewed as a holding in that case. We explained in Real
that the petitioner had argued that the “penalty for these
[attempted aggravated murder] convictions creates a disparity of ten … times that of the other [attempted assault convictions] as it relates to each count of conviction.” 

(brackets in original). The relevant comparison there was
between the petitioner’s 120-month sentence for attempted
murder and his 12-month sentence for attempted assault
arising out of the same conduct; it is not clear whether he
ever argued that his total sentence of 20 years was disproportionate under the circumstances. Thus, it is also far from
clear that there was any reason for us to decide in that case
whether we could countenance such a challenge. If not, our
statement about aggregate sentences can only be viewed as
dictum.
        The majority opinion, of course, concludes that
Parker and Real, either individually or collectively, hold
that a defendant cannot challenge an aggregate sentence
as disproportionate under Article I, section 16. 306 Or App
at 403-04. And, even though defendant does not expressly
concede that those opinions reach that holding—he instead
acknowledges that we rejected such a challenge in Parker
and says that, “[t]o the extent that [Parker’s] statement
constitutes” such a holding, it was “wrongly decided”—he
neither argues that we did not reach the holding that the
Cite as 

 (2020)                              411

majority opinion says we did, nor, as the majority points out,
does he undertake the task of persuading us that those decisions are plainly wrong. Under the circumstances, it is not
appropriate for us to make such arguments for him, and, for
those reasons, I concur with the majority opinion.

         What matters most to me for purposes of this concurrence is how the rule that the majority now relies on
developed over the course of our decisions in Baker, Parker,
and Real. As the majority opinion acknowledges, that rule
emerged with “little published analysis.” 306 Or App at 404.
Parker’s rationale is set out above and, as indicated, seems
to have relied entirely on a mistaken understanding that,
because we said in Baker that the defendant could not challenge his aggregate sentence in the manner that he tried
to—by comparing it to the sentence he might have received
for a single offense—it followed that no defendant could challenge any aggregate sentence on proportionality grounds.
We did not explain in Parker how, exactly, that conclusion
followed, nor did we point to any aspect of Article I, section 16, its history, its construction by other states having
comparable provisions, or anything else, to support such a
conclusion.

         A closer examination of Real reveals no further support for that conclusion. In its entirety, that aspect of the
opinion merely states that it rejects any suggestion that the
defendant’s aggregate sentence is unconstitutionally disproportionate, because “[t]he constitution requires that each
penalty be ‘proportioned to the offense.’ ” Real, 

 (citing, without further discussion, Parker and Baker
as each “declining to apply disproportionality analysis”).
Thus, in Real, we essentially accepted the matter as settled,
even though we had never really addressed whether in fact
that was the rule or why.

         It may well be that, were we to follows our typical
approach to construing constitutional provisions, we would
ultimately reach the same conclusion that we did in Parker,
Real, and now the majority opinion in this case; after all, the
starting point for that analysis would be the text of Article I,
section 16, which refers to “the offense” in the singular. Or
412                                                          State v. Horner

Const, Art I, § 16 (emphasis added).4 As things stand, however, we now have a settled and apparently binding rule of
law whose basis is largely unknown, whose consequences
may be extraordinary, and which, under our principles of
stare decisis, cannot be set aside unless it is shown to be
“plainly wrong,” a task made all the more difficult by the
absence of any explanation for the rule in the first place.
In allowing a rule of constitutional law—or, for that matter, any rule having the potential to have significant consequences for any number people who may come before the
court—to develop in such an unconsidered manner does a
disservice to the law, to the public, and to the court itself.
For those reasons, I respectfully concur.




     4
       That conclusion, however, is not inevitable. See, e.g., Farris v. State, 

 (Ind 2001) (considering, under constitutional provision substantially similar to Article I, section 16, of the Oregon Constitution, whether the
defendant’s aggregate sentence was proportionate to his “offense” of killing one
person and wounding three others); Commonwealth v. LaPlante, 482 Mass 399,
403, 

 (2019) (rejecting argument, under constitutional prohibition
against cruel and unusual punishments, that a sentence was lawfully proportional so long as each part of sentence did not exceed statutory maximum for the
sentenced offense).