State v. Fudge

                                  614

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
Argued and submitted February 11; reversed and remanded for resentencing,
                    otherwise affirmed June 29, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                 MATTHEW A. FUDGE,
                   Defendant-Appellant.
              Washington County Circuit Court
                   C152987CR; A174092


  Beth L. Roberts, Judge.
   Zachary Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before James, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  JAMES, P. J.
   Reversed and remanded for resentencing; otherwise
affirmed.
Nonprecedential Memo Op: 

 (2022)                           615

          JAMES, P. J.
         This is defendant’s second appeal challenging his
sentence after a jury found him guilty of first-degree sodomy (Count 1), ORS 163.405, and first-degree sexual abuse
(Count 2), ORS 163.427. In defendant’s first appeal, he
assigned error to the trial court’s imposition of a 300-month
mandatory minimum sentence under ORS 137.700 on Count 1.
State v. Fudge (Fudge I), 

, 

,
rev den, 

 (2019). Among other things, defendant
argued that under the Rodriguez/Buck factors, the sentence
violated Article I, section 16, of the Oregon Constitution,
given his profound intellectual disability and lack of criminal history. 

, 

 (2009).
         While defendant’s first appeal was pending, the
Oregon Supreme Court decided State v. Ryan, 

, 

 (2017) (Ryan I) (concluding that the
trial court erred in its consideration of the first factor under
Rodriguez/Buck by “failing 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 responsibility
for a child”). The court opined that intellectually disabled
persons, “[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses, … do not act
with the level of moral culpability that characterizes the
most serious adult criminal conduct.” 

 at 618-19 (quoting
Atkins v. Virginia, 

, 

, 

 (2002) (internal quotation marks omitted)). In
light of Ryan I, we remanded because it was not clear on the
record made at the original sentencing that the court had
considered the “constitutional implications” of defendant’s
intellectual disability. Fudge I, 

.
        After we remanded, the court reimposed the same
300-month mandatory minimum sentence. Now, in defendant’s second appeal,1 he contends that despite the trial
    1
      Defendant also contends that the trial court erroneously instructed the
jury that it could convict defendant based on a nonunanimous verdict and that
the error requires reversal of his convictions. We reject that without discussion. See State v. Flores-Ramos, 

, 

 (2020), and
616                                                         State v. Fudge

court’s express statement on remand that it had considered
defendant’s intellectual disability in the original sentencing
and again on remand (after Ryan I), the trial court again
failed to conduct a proper analysis. More specifically, defendant argues that the trial court’s analysis at resentencing
in this case is materially indistinguishable from the one
that we rejected in State v. Ryan, 

, 

 (2020) (Ryan II) (vacated and remanded for the trial
court to reconsider for a third time its resentencing because
“the evidence related to the [guilty except for insanity] GEI
defense and competency to stand trial is relevant, but …
those standards do not fully consider the spectrum of intellectual disability and the potential that intellectual disability may reduce, while not eliminate, criminal culpability or
blameworthiness”).
           The state responds that the sentencing court fully
considered the evidence of defendant’s intellectual disability—
i.e., it did not reject that evidence as either unproved, false,
or irrelevant. Rather, it concluded that the record establishes that (1) defendant knew what he was doing when he
committed the crime; (2) he subjectively knew it was wrong;
(3) despite his intellectual disability, he had control over his
criminal conduct but purposely chose not to conform his conduct to the requirements of the law; (4) the victim, given
his young age and having been isolated from his family,
was especially vulnerable; and, (5) as a result, imposition of
the 300-month minimum sentence does not “shock the conscience of the public.”
           Whether a sentence is proportionate to the offense
is a question of law. Fudge I, 

. A trial
court’s findings of historical fact are binding if the record
supports them. 

 After reviewing the parties’ arguments,
the record, and the relevant legal authorities, we agree
with defendant that the court on resentencing failed to
independently assess the mitigating factor of defendant’s
profound intellectual disability in assessing the degree of
moral culpability. We further agree with the parties that

State v. Kincheloe, 

, 

 (2020), cert den, ___ US ___ (No.
20-8126, 

) (June 21, 2021) (concluding that a nonunanimousverdict instruction does not require a new trial when the jury returns unanimous
verdicts).
Nonprecedential Memo Op: 

 (2022)                       617

the record in this case allows us to determine the question of
proportionality and that there is no need to remand for additional development of the record. And, as we explain below,
we conclude that the court’s imposition of a 300-month mandatory sentence is unconstitutionally disproportionate as
applied to this defendant.
         To begin, the undisputed evidence in the record is
that defendant’s IQ has remained stable since elementary
school and is at most 24 points below the cutoff for intellectual disability, and defendant’s adaptive functioning
composite score is that of an eight-year-old. The state does
not dispute that defendant’s impaired intellectual functioning is a mitigating circumstance that weighs heavily in
the balance in determining whether or not the sentence is
unconstitutionally disproportionate as applied to defendant.
Additionally, during oral argument, the state acknowledged
that defendant’s conduct might be more accurately viewed,
not as premeditated, but “opportunistic.”
         Defendant had no criminal history. Had he been a
juvenile, rather than an adult functioning as an eight-year-old juvenile, facing sentencing for the same conviction, with
no criminal history, he would have faced a 100-month sentence, even if he had been able to aid and assist and was
not eligible for a GEI defense. See ORS 137.707(4)(a)(M)
(providing 100-month sentence for first-degree sodomy for
15-, 16-, or 17-year-old offender); see State v. J. C. N.-V., 

, 

 (2016) (noting that “the idea that
children are morally undeveloped and, therefore, less criminally culpable, has long been a feature of Oregon law”).
Here, defendant is not even operating at the mental age of a
12-year-old.2
         In sum, defendant has a profound intellectual disability and the adaptive function of an eight-year-old; the
same offense for more intellectually advanced youth offenders with no criminal history is 200 months less than the
300 months’ mandatory sentence for defendant; and defendant has no prior uncharged criminal conduct and was
deemed low risk for recidivism. We offer no opinion on what
    2
      Under ORS 161.290(1), the minimum age for criminal responsibility is
12 years old.
618                                         State v. Fudge

a proportionate sentence would be, but we conclude that the
imposition of a 300-month mandatory sentence as applied
to defendant is unconstitutionally disproportionate under
Article I, section 16.
         Reversed and remanded for resentencing; otherwise affirmed.