State v. Davidson

                                     478

Argued and submitted April 22, 2019, reversed and remanded for resentencing
  November 12, 2020; petition for review allowed April 8, 2021 (

)
                      See later issue Oregon Reports


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   DENNIS JAMES DAVIDSON,
                      Defendant-Appellant.
                   Marion County Circuit Court
                       11C43121; A165303
                                 

    Defendant was convicted of two counts of felony public indecency and sentenced to life in prison without the possibility of parole or release under ORS
137.719(1). The Supreme Court concluded that that sentence was unconstitutionally disproportionate to the offense under Article I, section 16, of the Oregon
Constitution and remanded the case for resentencing. On remand, the sentencing
court imposed a new sentence of 180 months’ incarceration and lifetime post-prison supervision under ORS 137.719(2), which provides for the imposition of
a “departure sentence authorized by the rules of the Oregon Criminal Justice
Commission.” Defendant now appeals for the second time, arguing that the court
lacked statutory authority under ORS 137.719(1) or (2) to impose that sentence.
Held: The sentencing court erred. Because the presumptive life sentence in ORS
137.719(1) was unconstitutional as applied to defendant, the court was required
to impose a sentence under ORS 137.719(2), which authorizes a court to impose
a departure sentence in conformity with the sentencing guidelines. Therefore,
because the sentence imposed did not conform to the guidelines, the court erred
by imposing a sentence of 180-months’ imprisonment and lifetime post-prison
supervision.
   Reversed and remanded for resentencing.

   Susan M. Tripp, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services, argued the cause
and filed the brief for appellant.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
   SHORR, J.
   Reversed and remanded for resentencing.
Cite as 

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        SHORR, J.
         Defendant was convicted of two counts of public
indecency, ORS 163.465, and sentenced to life in prison
without the possibility of parole or release under ORS
137.719(1). The Supreme Court concluded that that sentence was unconstitutionally disproportionate to the offense
under Article I, section 16, of the Oregon Constitution and
remanded the case to the sentencing court for resentencing.
On remand, the sentencing court imposed a new sentence
of 180 months’ incarceration and lifetime post-prison supervision. Defendant now appeals for the second time, arguing
that the sentencing court lacked statutory authority under
ORS 137.719 to impose that sentence. As we explain below,
we conclude that ORS 137.719 does not authorize a sentence
of 180-months’ incarceration and lifetime post-prison supervision. Consequently, we reverse defendant’s sentence and
remand for resentencing.
          The facts underlying defendant’s convictions are
not at issue and are set forth in State v. Davidson, 

, 

 (2015), aff’d, 

, 

 (2016) (Davidson I), and State v. Davidson, 

, 

 (2016) (Davidson II). For the
purposes of this opinion, the relevant facts are procedural.
Defendant was convicted of two counts of public indecency
in 2011 for two separate incidents of public masturbation.
Public indecency is a Class A misdemeanor but is elevated
to a Class C felony upon a person’s second public-indecency
conviction. ORS 163.465(2). Because defendant had been
previously convicted of public indecency on three occasions,
two of those prior convictions and both of defendant’s 2011
convictions were felony sex crimes. ORS 163.465(2); former
ORS 181.594(5)(t) (2009), renumbered as ORS 163A.005(5)(t)
(2015). As a result, defendant was subject to ORS 137.719,
which provides that, for a person who has been previously
convicted of two felony sex crimes, the “presumptive” sentence is life in prison without the possibility of parole or
release. ORS 137.719(1). That statute also provides that, in
lieu of the presumptive life sentence, a sentencing court may
impose a “departure sentence authorized by the rules of the
Oregon Criminal Justice Commission based upon findings
of substantial and compelling reasons.” ORS 137.719(2). At
480                                         State v. Davidson

the original sentencing hearing, the court found that no
mitigating circumstances existed and declined to impose a
departure sentence under ORS 137.719(2). The court sentenced defendant to the presumptive life sentence, and
defendant appealed, contending that the life sentence was
unconstitutionally disproportionate to the offense under
Article I, section 16. We concluded that the “true life” sentence was unconstitutionally disproportionate as applied
to defendant. Davidson I, 

. The Supreme
Court agreed, reversed the judgment in part and remanded
to the sentencing court for resentencing. Davidson II, 

.
         On remand, a different sentencing court presided
over the resentencing proceedings. That court held two
hearings to determine defendant’s new sentence in light of
Davidson II. At the first hearing, the court heard the parties’
arguments regarding the appropriate statute under which
to sentence defendant. Defendant argued that the court
lacked statutory authority to impose a sentence under ORS
137.719. According to defendant, that was so because the
Supreme Court held, in Davidson II, that the presumptive
life sentence was unconstitutional as applied to the instant
case, precluding the application of the presumptive life sentence in ORS 137.719(1). Additionally, defendant argued,
because the first sentencing court had originally found no
basis for a departure under ORS 137.719(2), the second
sentencing court was precluded from imposing a sentence
under that provision. Therefore, the court was required to
impose a sentence under the felony sentencing guidelines.
The state responded that the court’s opinion in Davidson II
stood for the proposition that a life sentence was unconstitutional but did not otherwise limit the court’s authority to
impose a sentence other than life. In the state’s view, the
sentencing court retained authority to impose a sentence
under ORS 137.719(1), so long as the sentence was less than
life.
         The court noted that “the first question” for the
court to resolve was whether the court retained authority to
sentence defendant under ORS 137.719. The court concluded
that it did.
Cite as 

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      “From this Court’s position we go back to that statute.
   There’s nothing that kicked us out of using that statute as
   our sentencing mechanism. So once we’re back in that statute as the sentencing mechanism, to the Court that means
   that we then look to the language of that statute.
      “And the language says the court must find factors
   that would cause the court to depart from a life sentence. I
   believe that the Oregon Supreme Court’s saying that something is unconstitutional as applied, that’s a reason for
   departure.”
         In line with that conclusion, the court determined
the appropriate sentence under ORS 137.719 at the second
resentencing hearing. The court began by adopting the findings of the original sentencing court. The court explained
that a lengthy sentence was warranted in defendant’s case,
placing particular emphasis on defendant’s recidivism and
the high likelihood that defendant would reoffend upon
release from prison. The court also revisited the discussion
of the applicable sentencing statute, concluding that neither
provision of ORS 137.719 required it to apply the sentencing
guidelines.
       “[ORS] 137.719 I believe is the sentencing structure we
   use. We come out of that sentence using some type of substantial and compelling reasons to depart downward. So
   the next question that we have is if life is disproportionate,
   what is proportionally appropriate. The legislature found
   for the protection of our community that this type of offense
   was a sex offense at one point.
      “…
        “That was the intent of the presumptive life sentence
   was to go outside [the guidelines sentencing] scheme. And
   … if the Court imposes a departure sentence authorized
   by the rules of the Oregon Criminal Justice Commission,
   I believe what they’re saying is that if—is the departure something that’s listed or something that would be
   authorized.
       “I don’t believe they’re saying go back to the grid block
   because if they wanted the court to go back to the grid
   block, they’d have the ability to say very clearly, ‘Go back
   to the grid block. Return to the sentencing structure.’ But
   they don’t say that.”
482                                                      State v. Davidson

The court resentenced defendant to 90 months’ incarceration
on each count, to be served consecutively, and lifetime post-prison supervision. Thus, the total sentence was 180-months’
incarceration and lifetime post-prison supervision.
         Defendant now appeals from his sentence for the
second time, raising four assignments of error. The crux
of defendant’s combined arguments is that the sentencing
court lacked statutory authority to impose 180 months of
incarceration and lifetime post-prison supervision under
ORS 137.719(1) and (2).1 Defendant relies on State v.
Leathers, 

, 

 (1975), to assert that a
sentence must be in conformity with the governing sentencing statute under which it is imposed. 

 (“When
a court acts beyond the bounds of its sentencing authority,
it infringes upon the power of the legislature to determine
the manner of punishment. A sentence must be in conformity with the governing statute; any non-conforming sentence is void for lack of authority and thus totally without
legal effect.”). Because ORS 137.719(1) authorizes a life sentence only, defendant contends that the sentence imposed
here—180-months’ incarceration and life-long post-prison
supervision—does not conform to ORS 137.719(1) and is
invalid under that provision. Defendant further asserts
that, contrary to the court’s interpretation on remand, ORS
137.719(2) does not authorize a sentencing court to impose
a departure sentence from life if it makes findings of substantial and compelling reasons to do so.2 Rather, defendant
argues that ORS 137.719(2) authorizes a sentencing court
to impose a departure sentence under the felony sentencing
guidelines, and, because the sentence here exceeds the maximum sentence authorized by the felony sentencing guidelines, the court lacked authority to impose it. The state contends that both subsections authorized the court to impose
the sentence in question.
    1
      Defendant does not contend that the sentence imposed on remand was
unconstitutional under Article I, section 16, only that the court lacked statutory
authority to impose the sentence.
    2
      As we explain below, the sentencing court did not expressly state whether
it was imposing the sentence under ORS 137.719(1) or (2). The parties agree
that the court likely intended to sentence defendant under subsection (2) in
light of the court’s multiple references to the language of subsection (2) during
sentencing.
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 (2020)                             483

          Thus, the issue before us is whether subsections (1)
or (2) of ORS 137.719 authorized the sentence that the sentencing court imposed on remand in this case in light of the
Supreme Court’s decision that the presumptive life sentence
under subsection (1) was unconstitutionally disproportionate as applied to defendant. “We review a claim that the
sentencing court failed to comply with the requirements of
law in imposing a sentence for errors of law.” State v. Brewer,

, 

, rev den, 

(2014).

          Before addressing the parties’ specific arguments,
we set out briefly the pertinent sentencing statutes. The felony sentencing guidelines, which are set forth in chapter
213 of the Oregon Administrative Rules, are established by
the rules of the Oregon Criminal Justice Commission and
approved by the legislature. The guidelines “serve as the primary means through which courts determine an offender’s
sentence for felony offenses.” State v. Ferman-Velasco, 

, 

 (2002). A court is required to impose a
sentence under the guidelines unless some other supervening sentencing statute applies. ORS 137.669 (“The guidelines … shall control the sentences for all crimes committed after the effective date of such guidelines.”); ORS 137.637
(“When a determinate sentence of imprisonment is required
or authorized by statute, the sentence imposed shall be the
determinate sentence or the sentence as provided by the
rules of the Oregon Criminal Justice Commission, whichever
is longer.”). Under the guidelines, a defendant’s presumptive
sentence is determined by reference to the guidelines grid
block and is based on that defendant’s criminal history and
the gravity of the crime of conviction. State v. Worth, 

, 

 (2015), rev den, 

 (2016).
A sentencing court must impose the presumptive sentence,
unless the court finds “substantial and compelling reasons”
to impose a departure sentence. OAR 213-008-0001.

        As noted, for the third conviction of a felony sex
crime, ORS 137.719 requires the court to impose a life sentence without the possibility of release or parole, unless
the court makes substantial and compelling findings that
484                                           State v. Davidson

warrant a departure sentence. Specifically, subsection (1)
provides:
       “The presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release
   or parole if the defendant has been sentenced for sex crimes
   that are felonies at least two times prior to the current
   sentence.”
ORS 137.719(1). Subsection (2) provides:
       “The court may impose a sentence other than the presumptive sentence provided by subsection (1) of this section
   if the court imposes a departure sentence authorized by the
   rules of the Oregon Criminal Justice Commission based
   upon findings of substantial and compelling reasons.”
ORS 137.719(2).
          Although the sentencing court noted repeatedly on
remand that it intended to sentence defendant under ORS
137.719, it did not identify the subsection on which it relied
to impose the sentence in this case. However, the parties
agree that the court likely imposed a sentence under subsection (2). We agree. The court referred to and used terms in
subsection (2) several times during the resentencing hearings, remarking that “the language [of ORS 137.719] says
the court must find factors that would cause the court to
depart from a life sentence,” and that “[w]e come out of [the
life] sentence using some type of substantial and compelling
reasons to depart downward.” The court characterized the
issue before it as “if the Court imposes a departure sentence
authorized by the rules of the Oregon Criminal Justice
Commission” whether “the departure [is] something that’s
listed or something that would be authorized.” We understand those statements to indicate that the court intended
to sentence defendant under subsection (2). For that reason,
we begin our analysis by determining whether that subsection authorized defendant’s sentence.
        As noted, defendant contends that ORS 137.719(2)
does not authorize a court to impose any sentence that
departs from a life sentence, as the sentencing court here
concluded, but instead permits a court to impose a departure sentence under the felony sentencing guidelines. The
Cite as 

 (2020)                             485

scope of sentencing authority granted by ORS 137.719(2) is
a question of statutory construction. Accordingly, we employ
the methodology for construing a statute prescribed in
State v. Gaines, 

, 

 (2009).
As always, when construing a statute, the “paramount
goal” is to discern the intent of the legislature. 

.
Under Gaines, the first step in determining the legislatively
intended meaning of a statute is to examine the text and
context. After examining the text and context, we consult
the legislative history if it is useful to our analysis. If the
legislature’s intent remains unclear after examining the
text, context, and legislative history, we employ maxims of
statutory construction to assist in our determination. 

.

         We begin with the text and context of ORS 137.719(2).
The scope of sentencing authority granted by that provision, as it relates to this case, depends on the meaning of “a
departure sentence authorized by the rules of the Oregon
Criminal Justice Commission based upon findings of substantial and compelling reasons.” Our understanding of that
phrase, based on the plain meaning of the text, is that, for a
“departure sentence” to be validly imposed, it must conform
to the requirements of the “rules of the Oregon Criminal
Justice Commission” and be based on findings of substantial
and compelling reasons.

         Based on our reading of the text and context, we further conclude that “the rules of the Oregon Criminal Justice
Commission” include the felony sentencing guidelines set
forth in chapter 213 of the Oregon Administrative Rules.
The bulk of those rules relate to the content and application
of the felony sentencing guidelines. As noted above, the felony sentencing guidelines establish presumptive sentences
that a court must impose, and those sentences are calculated
based on the defendant’s criminal history and the gravity
of the crime of conviction. The felony sentencing guidelines
also permit a court to impose a “departure” sentence if the
court finds that there are substantial and compelling reasons to do so. A departure is defined in OAR 213-003-0001(5)
as “a sentence, except an optional probationary sentence,
which is inconsistent with the presumptive sentence for an
486                                         State v. Davidson

offender.” A “nonexclusive” list of factors to be considered
in determining whether substantial and compelling reasons
for a departure exist is enumerated in OAR 213-008-0002.
Given the emphasis placed on the guidelines in the rules of
the Oregon Criminal Justice Commission, it is likely that
the legislature, in making a general reference to those rules,
also intended to refer to the guidelines therein. Moreover,
the legislature used terms that are defined in the rules of
the Oregon Criminal Justice Commission—“departure sentence” and “substantial and compelling reasons”—within
and in relation to the sentencing guidelines.
         The state contends that the text in ORS 137.719(2)
could be reasonably construed to require the sentencing
court only to make findings of substantial and compelling
reasons before departing from the presumptive life sentence
within ORS 137.719(1). That is, the state argues that the
phrase “authorized by the rules of the Oregon Criminal
Justice Commission based on substantial compelling reasons” merely refers to the requirement set forth in OAR 213-
008-0001 that a departure sentence must be supported by
findings of substantial and compelling reasons. Under that
construction of subsection (2), the court would be permitted
to depart from the presumptive life sentence of subsection (1),
so long as it found that there were substantial and compelling reasons to do so.
          We disagree with the state’s construction for several
reasons. First, ORS 137.719(2) plainly refers to the “rules of
the Oregon Criminal Justice Commission,” not to a single
rule set forth in OAR chapter 213. That implies that the legislature intended for the departure sentence to conform with
all of the rules in OAR chapter 213. Second, as we explained
above, most of the rules in OAR chapter 213 are inextricably
and directly related to the content and administration of the
felony sentencing guidelines. Because so many of the rules
in OAR chapter 213 pertain to the guidelines, it is unlikely
that the legislature would make a nonspecific reference to
the rules of the Oregon Criminal Justice Commission if it
did not wish to reference the felony sentencing guidelines.
        Third, to conclude that the legislature did not intend
for departure sentences imposed under ORS 137.719(2)
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 (2020)                                            487

to conform to the rules set forth in OAR chapter 213, we
would have to ignore the text’s inclusion of “authorized by
the rules of the Oregon Criminal Justice Commission.” If
the legislature merely intended for the sentencing court to
make findings of substantial and compelling reasons, as the
state contends, it could have drafted legislation requiring
only that. Instead, the legislature included a directive that
the departure sentence be authorized by the rules of the
Oregon Criminal Justice Commission. ORS 174.010 (“In the
construction of a statute, the office of the judge is … not
to insert what has been omitted, or to omit what has been
inserted.”).
         The phrase “authorized by the rules of the Oregon
Criminal Justice Commission” appears in a number of other
sentencing statutes that are similar to the one at issue
here. Although we found few cases wherein the meaning of
that phrase was directly at issue, our construction of that
text within ORS 137.719(2) is consistent with at least one
prior construction of that same phrase in another statute.
In State v. Bagley, the trial court sentenced the defendant
under ORS 137.717 (1996).3 

, 

(1999). Subsection (1) of that statute provided that, for a person convicted of unauthorized use of a vehicle, who also had
one prior conviction of that crime, the presumptive sentence
was 13 months’ imprisonment. Subsection (3)(b) of that statute provided that a court could impose a longer sentence
than the sentence specified in subsection (1) if it imposed a
“departure sentence authorized by the rules of the Oregon
Criminal Justice Commission based upon findings of substantial and compelling reasons.” We concluded that that
phrase referred to a departure sentence authorized by the
sentencing guidelines, and that, therefore, “to impose a sentence longer than the [sentence] specified in ORS 137.717(1),
the trial court had to do so under the sentencing guidelines.”
Bagley, 

.
         A similar phrase also appears in ORS 137.637, which
states that, “[w]hen a determinate sentence of imprisonment

   3
      ORS 137.717 (1996), amended by Or Laws 1999, ch 1022, §§ 2, 4, 7; Or Laws
2001, ch 784, § 1; Or Laws 2007, ch 584, § 2; Or Laws 2008, ch 14, § 7; Or Laws
2009, ch 660, §§ 8, 11; Or Laws 2013, ch 649, § 5; Or Laws 2017, ch 673, § 5.
488                                                   State v. Davidson

is required or authorized by statute, the sentence imposed
shall be the determinate sentence or the sentence as
provided by the rules of the Oregon Criminal Justice
Commission, whichever is longer.” We have consistently
understood the reference in that statute to “the rules of the
Oregon Criminal Justice Commission” to refer to the sentencing guidelines. See, e.g., State v. Langdon, 

, 

 (2000) (“Under ORS 137.637, when a statute mandates a sentence of imprisonment, the trial court
must impose that mandatory sentence or the sentence prescribed under the sentencing guidelines, whichever is longer.”); State v. Nygaard, 

, 

, rev den, 

 (2020) (trial court violated ORS
137.637 when it imposed a sentence that exceeded both the
mandatory minimum sentence and the maximum sentence
permissible under the sentencing guidelines, given requirement under ORS 137.637 that the sentence imposed shall be
the determinate sentence or the sentence as provided by the
rules of the Oregon Criminal Justice Commission, whichever is longer).
          The state asserts that the legislature could not have
intended our construction of ORS 137.719(2) because ORS
137.719 is a recidivist statute. In the state’s view, because
the legislature intended to target recidivist conduct, the legislature could not have intended for the alternative sentence
to be so much lower than the presumptive life sentence. But
the difference between the presumptive sentence and the
maximum guidelines departure sentence would be less dramatic for more severe crimes. For example, the maximum
departure sentence for a single count of an offense classified
at crime category 10 for a person with two prior person felony
convictions is 20 years’ imprisonment.4 Offenses classified at
crime category 10 include first-degree rape, first-degree sexual penetration, and first-degree sodomy, depending on the
presence of certain aggravating factors. OAR 213-017-0002.
As we observed in Davidson I, the public indecency crimes
     4
       The maximum presumptive sentence for a single count of an offense classified at crime category 10 for a person with two prior person felonies is 120
months. Oregon Felony Sentencing Guidelines Grid, OAR ch 213, App 1. Under
the guidelines a sentencing court may impose a maximum departure sentence
of twice that term of imprisonment, which is 240 months, or 20 years. OAR
213-008-0003(2).
Cite as 

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that defendant committed are “comparatively less serious
than a grouping of other sex crimes—which largely involve
crimes against children, violent acts, or prohibited or nonconsensual sexual touching—for which a true life sentence
might be imposed under ORS 137.719(1).” 

.
         Having determined that subsection (2) authorizes
the sentencing court to impose a departure sentence that
conforms to the sentencing guidelines, we further conclude
that the sentencing guidelines do not permit defendant’s sentence of 180-months’ incarceration in this case. Departure
sentences are limited by various rules within the sentencing guidelines, including OAR 213-008-0003(2). Under OAR
213-008-0003(2), a departure sentence may not exceed double the maximum duration of the presumptive prison term.
In Davidson I, we described defendant’s maximum sentence
under the guidelines:
   “For the first public indecency count, defendant would have
   been classified at 6B in the sentencing grid block, which
   carries a presumptive sentence of 19 to 24 months in prison.
   For the second public indecency count, he would have been
   classified at 6A, which carries a presumptive sentence of
   25 to 30 months. If he were sentenced to the maximum and
   given the maximum upward durational departure for each
   count under OAR 213-008-0003(2), and the sentences were
   imposed consecutively, the sentence would have been 108
   months, or nine years.”

. In addition, OAR 213-008-0003(2) limits departure sentences by providing that in no case may
the sentence for each conviction exceed the statutory maximum indeterminate sentence set forth in ORS 161.605. For
a Class C felony, the maximum sentence is five years. Thus,
the sentence imposed in this case does not conform to the
felony sentencing guidelines and violates the limits within
OAR 213-008-0003(2).
          The state contends that, even if we conclude, as we
do here, that ORS 137.719(2) authorizes the court to impose
only departure sentences that conform with the sentencing
guidelines, the sentence that the court imposed was lawful
because it was a downward departure from the presumptive life sentence and OAR 213-008-0003(2) imposes limits
490                                                      State v. Davidson

on upward durational departures, not downward durational
departures. OAR 213-008-0003(2) provides, “A durational
departure from a presumptive prison term shall not total
more than double the maximum duration of the presumptive prison term. In no case may the sentence exceed the
statutory maximum indeterminate sentence described in
ORS 161.605.” According to the state, because the first of
the two sentences in OAR 213-008-0003(2) provides that a
departure “shall not total more than double the maximum
duration of the presumptive prison term,” that rule, “by
mathematical necessity,” can “only be intended to refer to
an upward durational departure.” (Emphasis in original.)
The state further contends that, by extension, the limitation in the second sentence of OAR 213-008-0003(2) must
only apply to upward departures. That second sentence provides that “[i]n no case may the sentence exceed the statutory maximum indeterminate sentence described in ORS
161.605.” In the state’s view, that language “clearly refers to
the upward departure that was the subject of the provision’s
immediately preceding sentence.”
        We disagree with the state’s construction. As the
state acknowledges, OAR 213-008-0003(2) refers only to
“durational departures.” It does not specify that the rule,
or any portion of it, applies only to upward or downward
departures. In other words, nothing in the text of OAR 213-
008-0003(2) precludes its application to departure sentences
imposed under ORS 137.719(2). As we explained above, once
the court finds substantial and compelling reasons to depart
from the presumptive life sentence in ORS 137.719(1), ORS
137.719(2) requires the court to impose a departure sentence
that conforms with the sentencing guidelines. That includes
OAR 213-008-0003(2). It thus follows that a departure sentence imposed under ORS 137.719(2) must not exceed double
the maximum duration of the presumptive prison term—
necessarily meaning, in this context, the presumptive grid
block sentence under the guidelines5 —and, in any event, not

    5
      See OAR 213-008-0001(16) (“ ‘Presumptive sentence’ means the sentence
provided in a grid block for an offender classified in that grid block by the combined effect of the crime seriousness ranking of the current crime of conviction
and the offender’s criminal history or a sentence designated as a presumptive
sentence by statute.”).
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 (2020)                                             491

more than the statutory maximum set out in ORS 161.605,
as provided in OAR 213-008-0003(2).
          We now consider whether the sentencing court
retained statutory authority to impose the challenged
sentence under ORS 137.719(1).6 Defendant’s argument
with respect to the court’s authority under subsection (1)
is brief. Defendant cites Leathers for the proposition that
a sentence must conform to the statute under which it is
imposed. In that case, the trial court sentenced the defendant to serve his jail sentence on the weekends in a different
county from where the defendant was convicted. The trial
court explained that it imposed the sentence in a different
county—where the defendant owned a business—because
the court was concerned that serving a jail sentence in the
county of conviction would make it difficult for the defendant
to run his business. Leathers, 

. A sentencing
statute permitted the court to impose the defendant’s sentence in another county but only if the reasons related to the
defendant’s safety. 

. Therefore, the Supreme Court
held that the trial court exceeded its statutory authority by
considering factors unrelated to the defendant’s safety in
its decision to impose the defendant’s sentence in another
county. 

. The court explained that, “[w]hen a
court acts beyond the bounds of its sentencing authority, it
infringes upon the power of the legislature to determine the
manner of punishment. A sentence must be in conformity
with the governing statute; any non-conforming sentence
is void for lack of authority and thus totally without legal
effect.” 

.
        In defendant’s case, he asserts that subsection (1)
authorizes the imposition of only one sentence—life without
the possibility of release or parole—and that any sentence
other than life imposed under subsection (1) is nonconforming and invalid. Consequently, defendant contends that the
sentence of 180-months’ imprisonment is nonconforming

    6
      Although the record suggests that the sentencing court sentenced defendant under ORS 137.719(2), we nonetheless consider whether the sentence was
authorized by subsection (1), because, “[w]ith respect to a sentencing error, a
defendant is not prejudiced if it is clear that, on remand, the trial court lawfully could, and would, impose the same total term of imprisonment.” State v.
Jenniches, 

, 

, rev den, 

 (2003).
492                                        State v. Davidson

under subsection (1) and the sentencing court lacked statutory authority to impose it.
         The state asserts that defendant’s reliance on
Leathers is misplaced. The state acknowledges that a sentencing court may not exceed its sentencing authority and
that a sentence must conform to the sentencing statute
under which it is imposed. But the state contends that the
court did not act beyond the bounds of the authority created
by ORS 137.719(1) by shortening defendant’s unconstitutional presumptive life sentence following remand from the
Supreme Court. Instead, the state argues that a “presumptive” sentence is “an assumed or default sentence that may
be raised or lowered” depending on the presence of various
factors. Accordingly, “where the legislature has authorized
[the] imposition of a ‘presumptive’ sentence of a particular
duration but the constitution requires something less—a
court retains authority on remand to impose a shorter sentence that is consistent with both sources of law.” By imposing a shorter sentence here, the state asserts that the sentencing court was effectuating the legislature’s intent—and
thus conforming to ORS 137.719(1)—to the extent it was
constitutionally permissible.
         We agree that Leathers does not definitively answer
the question before us. Certainly, Leathers stands for the
proposition that a sentence must conform to some grant of
legislative authority. Indeed, that a sentencing court may
not deviate from legislatively prescribed sentences is a wellestablished principle of law. State v. Wheeler, 

, 

 (2007) (the Supreme Court “consistently
has adhered to the view that it is the province of the legislature to establish the penalties for the violations of the
various criminal statutes” (internal quotation marks and
brackets omitted)); State ex rel Huddleston v. Sawyer, 

, 

, cert den, 

 (1997) (noting
that the Supreme Court “has held that courts need specific
statutory authority to impose a sentence of imprisonment”);
State v. Cotton, 

, 

 (1965) (“The
court in imposing punishment for a criminal offense is limited strictly to the provisions of the applicable statute, and
any deviation from the statute in the mode, extent or place of
punishment renders the judgment void.” (Emphasis added.)).
Cite as 

 (2020)                             493

There are numerous cases that discuss a sentencing court’s
error in exceeding its statutory authority in imposing a sentence. See, e.g., Howell v. State, 

 (1859) (trial
court exceeded statutory authority where statute authorized court to sentence the defendant to up to 20 days of solitary confinement, but court sentenced the defendant to one
year of solitary confinement); State v. Longenecker, 

, 

, rev den, 

 (2001) (trial
court erred in imposing 830-month sentence where neither
Measure 11 nor sentencing guidelines authorized a sentence
of that length); State v. Keefer, 

,

 (2000) (sentencing guidelines did not authorize
court to impose a prison sentence and then suspend the execution of the sentence).
          However, there is little Oregon case law addressing
the scope of statutory authority granted by a statute when
the presumptive sentence in that statute is unconstitutional
as applied to a particular defendant. In one case, Cannon
v. Gladden, the court held that a sentence of life in prison
for assault with the intent to commit rape was unconstitutionally disproportionate, because the maximum sentence
for the greater offense of rape was 20 years’ imprisonment.

, 

 (1955). The statute providing for life in prison also provided an alternative sentence of
20 years’ imprisonment. The court explained that, because
the defendant could not be sentenced to life in prison, the
defendant should be sentenced under the alternative. 

. The Supreme Court did not provide detailed analysis in
Cannon, but that case provides some limited guidance here
and suggests that, where a presumptive sentence is unconstitutional but the legislature provides an alternative sentence, one appropriate resolution is for the sentencing court
to impose the alternative sentence.
         That resolution is also appropriate here. Although
the particular confines of a sentencing court’s inherent sentencing authority have not been decided, we are guided by
the principle we stated above. A sentencing court “is limited
strictly to the provisions of the applicable statute, and any
deviation from the statute in the mode, extent or place of
punishment renders the judgment void.” Cotton, 

.
494                                           State v. Davidson

         We have not found, and the state does not provide,
any legal authority in ORS 137.719(1) or Oregon case law
that would permit the sentencing court to impose the sentence in this case. Subsection (1) authorizes the court to
impose a sentence of life in prison without the possibility
of release or parole. On its face, it simply does not authorize the imposition of any other sentence, including the
180-month sentence imposed here. Because a sentencing
court “is limited strictly to the provisions of the applicable
statute, and any deviation from the statute … renders the
judgment void,” the sentence here is legally impermissible.

 The court did not have authority to impose defendant’s
sentence under either subsection of ORS 137.719.
         The state’s reliance on State v. Rodriguez/Buck,

, 

 (2009), does not support its position
either. There, in two separate cases, the trial courts found
that the mandatory minimum sentences of 75 months were
unconstitutionally disproportionate as applied to the defendants under Article I, section 16. 

. The courts each
sentenced the defendants, who were convicted of first-degree
sexual abuse, to terms of imprisonment that the defendants “would have received under the Oregon Sentencing
Guidelines, were it not for the mandatory Measure 11 sentence.” 

. The Supreme Court did not expressly state
whether the trial courts were sentencing the defendants
under the guidelines or the statute requiring mandatory
minimum sentences. 

. The court agreed that the
sentences were unconstitutional as applied and affirmed the
sentences imposed by the trial courts. 

. In a footnote, the court also noted that
   “[t]he state’s position is that the 75-month term is constitutional. It makes no alternative argument that, even if a
   75-month sentence would violate Article I, section 16, any
   prison term less than 75 months would be constitutional.
   For that reason, we do not need to consider whether some
   sentence greater than the 16 months imposed on Rodriguez
   or the 17 months imposed on Buck—but less than the
   75-month mandatory sentence—would pass constitutional
   muster.”

 at 79 n 19 (emphasis in original). The state contends
that Rodriguez/Buck illustrates that, “when a mandatory
Cite as 

 (2020)                            495

sentence is held to [be] unconstitutionally disproportionate,
the trial court has authority on remand to enter a shorter
sentence even if there is no express statutory authority for
doing so.”

         That understanding of Rodriguez/Buck rests on too
many assumptions. The Supreme Court may have alluded
to a potential argument concerning the constitutionality
of any sentence less than the mandatory minimum, but
whether the trial courts had statutory authority to sentence
the defendants under the mandatory minimum statute was
not at issue in that case. The Rodriguez/Buck court did not
state the particular statute under which the sentences were
imposed, and, in any case, absent authority to sentence the
defendants under the mandatory minimum statute, the sentencing courts would have had statutory authority to sentence the defendants under the guidelines. See OAR 213-
017-0004 (listing Sexual Abuse I under crime category 8
for the purposes of determining the presumptive grid
block sentence under the guidelines). We note that, under
Oregon’s current sentencing scheme, the felony sentencing
guidelines would provide secondary sentencing authority for
most felonies for which the presumptive sentence was held
unconstitutional.

         The state argues that to conclude that the sentencing court lacked authority to sentence defendant under
ORS 137.719(1) here could lead to circumstances where
future sentencing courts are left without authority to sentence defendants at all upon reversal of a sentence that is
unconstitutionally disproportionate. That concern was also
expressed by the dissent in State v. Link, 

, 187
n 15, 

, rev allowed, 

 (2019) (Tookey, J.,
dissenting). In that case, we concluded that the Eighth
Amendment to the United States Constitution prohibited
the imposition of a mandatory 30-year sentence on juvenile
offenders because the statute establishing that sentence did
not permit the sentencing court to consider the qualities of
youth. Id. at 158. Although we did not address the proper
sentence on remand, the dissent expressed concern that, as
a result of our holding in that case, “the only penalties that
the legislature chose for the crime of aggravated murder
496                                        State v. Davidson

are unconstitutional to impose on any juvenile offender,”
and therefore “there is no longer a legislatively authorized
penalty for that crime,” which is not ranked on the crime
seriousness scale of the sentencing guidelines. Link, 

 n 15.
          Whether a sentencing court could impose a sentence under those circumstances is not directly at issue in
this case, because, as discussed earlier in this opinion, the
sentencing court had authority to impose an alternative
sentence under ORS 137.719(2). Again, we note that nearly
all felonies are accounted for in the felony sentencing guidelines, which provide for departure sentences in the event
that a presumptive guidelines sentence is unconstitutional.
Therefore, we need not, and do not, decide whether a court
has inherent authority to impose a sentence in the rare case
where “there is no longer a legislatively authorized penalty
for [a] crime” because the only sentence or sentences established by the legislature for a particular crime are unconstitutional as applied. The question here is whether, when the
presumptive life sentence in subsection (1) of ORS 137.719
is not available because it is unconstitutionally disproportionate but the legislature has provided an alternative sentence in subsection (2) of the same statute, the court may
impose any sentence less than life under subsection (1). In
answering that question, we only address whether ORS
137.719(1), on its face, authorized a sentence of 180-months’
imprisonment. As we explained above, we conclude that
ORS 137.719(1) does not authorize that sentence, and the
sentencing court is required, on remand, to impose a sentence under the correct construction of subsection (2).
         Finally, for the reasons discussed throughout this
opinion, we conclude that the sentencing court did not have
authority to impose lifetime post-prison supervision on
either count of public indecency. Under our construction of
ORS 137.719(2), the imposition of post-prison supervision
must conform to the rules of the Oregon Criminal Justice
Commission, which include the felony sentencing guidelines.
Those rules do not authorize a term of post-prison supervision of that duration. OAR 213-005-0002. Nor was the
imposition of post-prison supervision authorized under ORS
137.719(1). As we explained above, that statute authorizes a
Cite as 

 (2020)                             497

sentence of life in prison without the possibility of parole or
release, it does not authorize the imposition of post-prison
supervision.
         In sum, we conclude that, because the presumptive life sentence in ORS 137.719(1) was unconstitutional
as applied to defendant, the sentencing court was required
to impose a sentence under ORS 137.719(2). Because ORS
137.719(2) authorizes a sentencing court to impose a departure sentence in conformity with the sentencing guidelines,
the court erred by imposing a sentence of 180-months’
imprisonment and lifetime post-prison supervision.
        Reversed and remanded for resentencing.