16 December 26, 2024 No. 922
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
THOMAS ALAN DAVIS, JR.,
Defendant-Appellant.
Washington County Circuit Court
C131383CR; A169891
On remand from the Oregon Supreme Court, State v.
Davis, 372 Or 618,
553 P3d 1017 (2024).
James Lee Fun, Jr., Judge.
Submitted on remand August 21, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Lagesen, Chief Judge,
and Kamins, Judge.
TOOKEY, P. J.
Affirmed.
Cite as 337 Or App 16 (2024) 17
TOOKEY, P. J.
In our opinion addressing defendant’s second appeal
of his convictions for one count of first-degree kidnapping,
ORS 163.235 (Count 1); one count of attempted first-degree
sexual abuse, ORS 163.427, ORS 161.405 (Count 2); and one
count of fourth-degree assault, ORS 163.160 (Count 3), we
reversed and remanded defendant’s convictions after determining that the trial court had abused its discretion in failing to exclude evidence of other bad acts under OEC 403,
because the danger of unfair prejudice resulting from the
admission of the evidence substantially outweighed the probative value of the evidence. State v. Davis, 319 Or App 737,
511 P3d 10 (2022). On the state’s appeal, the Supreme Court
reversed our decision, State v. Davis,
372 Or 618,
553 P3d
1017 (2024), and has now remanded the case to us to consider defendant’s third assignment of error, challenging his
presumptive life sentence under ORS 137.719, which we did
not reach previously because of our reversal of defendant’s
convictions. State v. Davis,
290 Or App 244, 262 n 6,
414 P3d
887 (2018). For the reasons explained here, we reject defendant’s third assignment of error and therefore affirm.
Because defendant’s conviction of attempted first-degree sexual abuse was his third conviction for a felony sex
offense, ORS 137.719(1) required that he be sentenced to a
presumptive sentence of life in prison without the possibility of parole.1 In his third assignment of error, defendant
argues that, as applied to him, the statutory presumptive
life sentence without the possibility of parole is unconstitutionally disproportionate under Article I, section 16, of
the Oregon Constitution and the Eighth Amendment to the
United States Constitution.2
1
ORS 137.719(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.”
2
Defendant concedes that, below, he did not expressly cite Article I, section
16, of the Oregon Constitution. However, given his argument that the sentence
would be disproportionate, and the consideration of that argument by the trial
court—including its discussion of opinions of the Supreme Court—we conclude
that the purposes of preservation were adequately met. See State v. Walker, 350
Or 540, 548,
258 P3d 1228 (2011) (focusing on meeting purposes of preservation);
18 State v. Davis
Whether a sentence is unconstitutionally disproportionate is a question of law. State v. Ryan, 361 Or 602, 612,
396 P3d 867 (2017) (addressing analytical framework). We
address first defendant’s argument that his sentence is
unconstitutionally disproportionate under Article I, section
16, which provides that “all penalties shall be proportioned to
the offense.” A statutorily required sentence violates Article I,
section 16, as applied, if it is “so disproportionate, when compared to the offense, as to ‘shock the moral sense’ of reasonable people.” State v. Rodriguez/Buck,
347 Or 46, 58,
217 P3d
659 (2009) (quoting State v. Wheeler,
343 Or 652, 670,
175 P3d
438 (2007)). It is rare that the standard is met.
Id.
In assessing whether a punishment is unconstitutionally disproportionate, the court considers at least 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.”
Rodriguez/Buck, 347 Or at 58. Under the first Rodriguez/
Buck factor, the court considers the relationship between
the gravity of the crime and the severity of the penalty
imposed. It is a basic proportionality concept that “more
serious crimes should receive more serious sentences than
less serious crimes and vice versa.”
Id. at 61. Under the second Rodriguez/Buck factor, the court compares the penalty
imposed with penalties for related offenses.
Id. at 63. “If the
penalties for more ‘serious’ crimes than the crime at issue
result in less severe sentences, that is an indication that the
challenged penalty may be disproportionate.”
Id. Under the
third Rodriguez/Buck factor, the court considers the defendant’s criminal history, which includes his convictions as
well as misconduct that did not result in conviction.
Id. at 65.
When a sentence is enhanced by operation of ORS
137.719 because of a defendant’s repeat-offender status, additional considerations come into play. “The idea that a penalty
that might be proportional as applied to one who has previously
State v. Hitz, 307 Or 183, 188,
766 P2d 373 (1988) (whether the defendant correctly identifies the source for his position is “less crucial” for preservation than
raising the issue).
Cite as
337 Or App 16 (2024) 19
committed the same or other crimes but not proportional as
applied to a first-time offender is rooted in Blackstone’s influential writings on proportionality.” Rodriguez/Buck,
347 Or
at 65-66; see also Wheeler,
343 Or at 671 (“[T]he proportionality provision permits the imposition of penalties for repeat
offenders that might not be permissible for a single offense.”).
In that context, the first and third Rodriguez/Buck factors
will, “in large part, coalesce.” State v. Althouse,
359 Or 668,
686,
375 P3d 475 (2016). A comparison of the severity of the
penalty and the gravity of the crimes that are subject to that
penalty under a repeat-offender statute focuses not on the
last offense committed but on the gravity of the defendant’s
criminal history.
Id. The court “consider[s] the specific circumstances of the charged and uncharged offenses that make
up [the defendant’s] criminal history,” as well as the “ ‘seriousness of [the defendant’s] repetitive sexual conduct,’ ” and
“ ‘the danger that it forecasts for others unless the defendant
is segregated from society.’ ”
Id. (quoting Jensen v. Gladden,
231 Or 141, 144-45,
372 P3d 183 (1962)). The constitutionality of an enhanced sentence for repeated sexual offenses
“ ‘depend[s] on the seriousness of repetitive sexual conduct of
th[e] kind [punished by the statute] and the danger that it
forecasts for others unless the defendant is segregated from
society.’ ” Althouse,
359 Or at 685. If the defendant “ ‘is a menace to the community, his sentence should be aimed at offering the most protection to the community, regardless of the
relative innocuousness of the particular crime for which he
is now convicted.’ ”
Id. at 684 (quoting Tuel v. Gladden,
234
Or 1, 6,
379 P2d 553 (1963)). “Because the legislature has
primary authority to determine the gravity of an offense and
the appropriate length of punishment, a court may say that
a particular punishment is constitutionally disproportionate
only in those rare circumstances where the legislature has
exceeded that authority.” State v. Delp,
297 Or App 1, 8,
441
P3d 590 (2019) (internal quotation marks omitted).
Gravity of defendant’s crime of conviction and criminal history compared to the severity of the penalty.
We have considered together the first and third
Rodriguez/Buck factors—the gravity of defendant’s crime of
conviction and criminal history compared to the severity of
20 State v. Davis
penalty. It would not benefit the parties, the bench, or the
bar to describe in detail the gravity of defendant’s crimes, his
criminal history, and his failure to reform his conduct. The
trial court cited the “implied violence” in much of defendant’s
past conduct as well defendant’s inability to reform his conduct. Suffice it to say that the first and third factors as they
bear on proportionality persuade us that the presumptive life
sentence required by ORS 137.719 is not disproportionate to
defendant’s crime of conviction and criminal history.
Comparison of defendant’s penalty with penalties
imposed for similar crimes.
Under the second Rodriguez/Buck factor, the court
compares the penalty imposed on the defendant with penalties for related offenses. 347 Or at 63. “If the penalties
for more ‘serious’ crimes than the crime at issue result in
less severe sentences, that is an indication that the challenged penalty may be disproportionate.”
Id. The “[c]rimes
that are relevant to [the related-crimes] analysis include
other offenses designated as ‘sex crimes’ that are subject to
enhanced sentences under ORS 137.719(1), as well as the
offenses identified as sexual offenses in ORS chapter 163.”
State v. Sokell,
360 Or 392, 398-99,
380 P3d 975 (2016).
Defendant contends that there are recidivist sexual
offenses that, in his view, are as serious as or more serious
than defendant’s offenses, including unlawful contact with
a child, ORS 163.479, a Class C felony, and unlawfully being
in a location where children regularly congregate, a Class A
misdemeanor, ORS 163.476, that are not considered to be
“sex crimes” and that, therefore, are not subject to ORS
137.719, suggesting that defendant’s sentence is disproportionate. The Supreme Court rejected a similar argument in
Althouse, 359 Or at 691-92 (“If, as explained above, defendant’s sentence is constitutionally proportionate as applied
to his criminal history, it is difficult to see how it advances
his as-applied challenge to his sentence to argue that the
legislature also could have imposed a life sentence on others
who commit additional sex crimes.”).
And, once again, in the context of a sentence that
is required by a repeat-offender statute, considerations here
Cite as 337 Or App 16 (2024) 21
are not simply a matter of comparing defendant’s sentence
to the sentences for other sexual offenses. Where, as here,
the court has concluded under the first and third Rodriguez/
Buck factors that the sentence is not disproportionate to the
defendant’s criminal history, the comparison required by
the second factor is of minimal additional weight. Althouse,
359 Or at 692 (“When, as explained above, defendant’s sentence appears proportionate to his particular criminal history, the comparisons that defendant invites us to make
provide no reason to hold that a life sentence, as applied
to him, is disproportionate in violation of Article I, section
16.”). Defendant’s arguments under the second Rodriguez/
Buck factor do not undermine our conclusion under the first
and third factors that defendant’s sentence is not disproportionate to his particular criminal history.
Id.
Defendant’s Eighth Amendment Challenge
We move on to defendant’s contention that the presumptive sentence under ORS 137.719(1), as applied to him,
violates the Eighth Amendment’s prohibition against cruel
and unusual punishment. The disproportionality analysis
under the Eighth Amendment in the context of a recidivist
sentence is similar to that under the Oregon Constitution.
See Althouse, 359 Or at 692-93 (applying analysis). The same
factors that lead us to conclude that defendant’s sentence
complies with the Oregon Constitution require the conclusion that it complies with the federal constitution.
Having reviewed the facts of this case and defendant’s criminal history, and having considered the arguments raised on appeal, we conclude that, although defendant’s sentence is harsh, this is not one of “those rare
instances” in which the enhanced sentence that the legislature authorized for a repeat offender is constitutionally
disproportionate.
Affirmed.
