764
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted June 20, affirmed October 25, petition for review denied
December 21, 2023 (371 Or 771)
STATE OF OREGON,
Plaintiff-Respondent,
v.
THOMAS FRANKLIN GILKEY, JR.,
Defendant-Appellant.
Marion County Circuit Court
20CR05450; A177936
Donald D. Abar, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Nonprecedential Memo Op: 328 Or App 764 (2023) 765
ORTEGA, P. J.
Defendant appeals a judgment of conviction, following a guilty plea, for three counts of first-degree sexual
abuse, ORS 163.427,1 involving his two step-granddaughters,
D and S. On appeal, defendant presents a single assignment
of error, challenging the 75-month prison sentence imposed
for each count respectively. He argues that given his age,
health, lack of criminal history, and psychological examination that suggested that he was amenable to reformation
and unlikely to reoffend, his sentences are constitutionally
disproportionate under Article I, section 16, of the Oregon
Constitution.2 We conclude that defendant’s sentences do not
violate the constitution and therefore affirm the trial court’s
judgment.
We review for legal error whether a sentence is constitutionally disproportionate under Article I, section 16.
State v. Hawthorne, 316 Or App 487, 502,
504 P3d 1185
(2021), rev den,
369 Or 856 (2022). “In conducting that
review, we are bound by any findings of historical fact that
the trial court may have made, if they are supported by evidence in the record.”
Id. With that standard in mind, we
provide some background and recount the facts necessary
to explain our ruling.
The state initially indicted defendant with one count
of first-degree sodomy involving D and two counts of first-degree sexual abuse involving S, for conduct that allegedly
occurred on separate occasions. At the time of the respective
conduct, both D and S were younger than 14 and were under
defendant’s care, as defendant looked after them while their
parents were at work. Defendant ultimately entered into an
agreement with the state to plead guilty in exchange for
the state amending the indictment to substitute the sodomy
charge for another first-degree sexual abuse charge. The
stipulated amended indictment, to which defendant pleaded
guilty, alleged that defendant had subjected D and S to
1
“A person commits the crime of sexual abuse in the first degree when that
person … [s]ubjects another person to sexual contact and … [t]he victim is less
than 14 years of age.” ORS 163.427(1)(a)(A).
2
The Oregon Constitution provides that “all penalties shall be proportioned
to the offense.” Or Const, Art I, § 16.
766 State v. Gilkey
sexual contact during separate occasions by touching D’s
vagina and S’s pelvic area and genitals. The court convicted
defendant of the charges as amended.
During defendant’s sentencing hearing, both children’s parents as well as S made statements, and S read a
note written by D. Those statements included, among other
things, that due to defendant’s conduct, D was diagnosed
with post-traumatic stress, suicidal, in treatment for depression, and was not in person in court on that day because she
was “too anxious” to be in defendant’s presence. S, who was
present during the sentencing hearing, stated that defendant “traumatized” her into not trusting others, and that
she was scared that defendant would appear at her school,
her home, or her work.
The trial court, partially agreeing with the state’s
recommendation, sentenced defendant pursuant to ORS
137.700(2)(a)(Q) (Ballot Measure 11) to 75-month prison
sentences on each count, with 50 months of the sentence in
Count 2 to be served consecutively to the sentence in Count 1
and the sentence in Count 3 to be served concurrently with
the other two counts.3 In making those determinations,
the court considered several factors, including defendant’s
“crime-free” history, his health condition, and his age—he
was 63 at the time of sentencing—which the court weighed
in defendant’s favor. The court also observed that defendant
stipulated to the conduct described in the amended indictment and pleaded guilty to all three counts of sexual abuse,
which involved separate victims and would allow consecutive sentences.4 Furthermore, the court noted that, based on
the facts presented, “the abuse took place over [an] extended
period of time” and caused “extreme or significant mental
and emotional damage” to both D and S, who were “vulnerable” victims in the court’s view “given the nature of
… defendant’s position within the family.” The court then
3
The state recommended that the court sentence defendant under Ballot
Measure 11 to consecutive 75-month prison sentences on all three counts.
See ORS 137.700(2)(a)(Q) (a first-degree sexual abuse conviction is subject to
75-month mandatory minimum term of imprisonment).
4
See ORS 137.123 (1) (“A sentence imposed by the court may be made concurrent or consecutive to any other sentence which has been previously imposed or is
simultaneously imposed upon the same defendant.”).
Nonprecedential Memo Op: 328 Or App 764 (2023) 767
concluded that defendant’s 75-month prison sentences, as
stated above, were appropriate.
On appeal, defendant argues that his three
75-month prison sentences violated Article I, section 16. His
argument is limited to contending that those sentences are
disproportionate as applied to him, given his age, health
issues, absence of criminal history, and a psychological
examination that suggested that he was amenable to reformation and unlikely to reoffend. The state disagrees,
arguing that defendant’s sentences are not disproportionate
under the applicable standards. In his reply, defendant asks
us to disregard the state’s argument, contending that the
state based that argument on conduct that relates to the
first-degree sodomy charge, which was removed from the
indictment, rather than on the conduct to which defendant
pleaded guilty.
Regardless of the state’s argument on appeal, based
on the record before the trial court, we conclude that the
court did not err in applying the mandatory minimum sentences to defendant. When applying a mandatory minimum
75-month prison sentence pursuant to ORS 137.700, a trial
court shall depart from that requirement if the court finds
that the respective sentence would be unconstitutionally disproportionate; that is, when the court finds that a sentence
would “shock the moral sense” of reasonable people. State
v. Wheeler, 343 Or 652, 668,
175 P3d 438 (2007); see also
State v. Rodriguez/Buck,
347 Or 46, 58,
217 P3d 659 (2009)
(Article I, section 16, proportionality analysis requires the
court to observe three factors: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and
(3) the criminal history of the defendant”).
Here, we conclude that defendant’s sentences for
first-degree sexual abuse offenses, which are based on conduct that falls squarely within the type of conduct covered by
ORS 163.427, are not constitutionally disproportionate. The
trial court’s findings—which are supported by the record—
support a conclusion that those sentences would not “shock
the moral sense” of reasonable people as required under
768 State v. Gilkey
the legal standard set forth in Rodriguez/Buck.5 First, the
conduct to which defendant pleaded guilty in the stipulated
amended indictment occurred during an extended period
of time and was “repeated.” See State v. Camacho-Garcia,
268 Or App 75, 83,
341 P3d 888 (2014), rev den,
357 Or 164
(2015) (a 75-month prison sentence for a first-degree sexual
abuse conviction was not disproportionate where the related
conduct was “repeated” and thus “more likely to be psychologically damaging”). Second, defendant’s conduct was perpetrated against two vulnerable victims, given defendant’s
relationship to them, and in fact caused “extreme or significant mental and emotional damage” to those victims. See id.
at 82 (the defendant’s step-parent type role in the parties’
relationship added to the gravity of the conduct).
Indeed, defendant could have been sentenced under
ORS 137.700 to three consecutive 75-month prison sentences, but the trial court applied a partially consecutive
penalty on Count 2 and a concurrent penalty on Count 3. In
deciding not to impose consecutive sentences for all counts,
the court considered the same factors that defendant asks
us to consider on appeal, including his age, health condition,
and absence of a criminal history. Because the trial court
already considered those factors in sentencing defendant,
and because applying the mandatory minimum sentence to
his crimes would not “shock the moral sense” of reasonable
people in light of his conduct, we conclude that his sentences
did not violate Article I, section 16. Accordingly, the trial
court did not err.
Affirmed.
5
Because defendant does not argue that his sentences were too severe in
comparison to the gravity of his offenses or to other related crimes, we need not
to conduct a detailed assessment of the Rodriguez/Buck factors.
