State v. Bernal

776                   May 29, 2025               No. 472

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
              CARLOS REYES BERNAL, JR.,
                  Defendant-Appellant.
               Douglas County Circuit Court
                  22CR53684; A181671

  George William Ambrosini, Judge.
  Submitted March 6, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Senior Deputy Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  AOYAGI, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)              777

         AOYAGI, P. J.
         This case arises from an incident in November 2022.
Defendant, who had outstanding warrants for his arrest,
tried to evade police capture. In the process, he shot at three
police officers while fleeing on foot, shot at a bystander, broke
into a house in which an eight-year-old child and her mother
and grandmother were present, threatened those individuals with a gun, held the child and grandmother hostage
(the mother escaped), eventually shot the grandmother in
the stomach, forced the child to hide under a bed with him,
and then shot at three more police officers as they tried to
enter the house. Defendant eventually ran out of bullets and
surrendered.
         As a result of that incident, defendant was indicted
on 30 counts and, pursuant to a plea agreement, was convicted of seven counts of attempted first-degree murder with
a firearm, one count of attempted second-degree murder
with a firearm, one count of first-degree kidnapping with
a firearm, and one count of unlawful use of a weapon with
a firearm, with each count of conviction having a different
victim. The trial court imposed a combination of concurrent
and consecutive sentences—seven consecutive 90-month
sentences, two concurrent 90-month sentences, and a concurrent 24-month sentence—resulting in a total prison sentence of 630 months.
         On appeal, in his sole assignment of error, defendant contends that his 630-month aggregate sentence is
unconstitutionally disproportionate in violation of Article I,
section 16, of the Oregon Constitution and the Eighth
Amendment to the United States Constitution. See Or
Const, Art I, § 16 (“Cruel and unusual punishments shall
not be inflicted, but all penalties shall be proportioned to
the offense.”); US Const, Amend VIII (“Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”). Defendant, who was 49
years old at sentencing, argues that “[a] sentence imposed
on a person for a nonhomicide offense that ensures the person will never be released from prison is not based on reformation and is, by its nature, vindictive and, therefore, disproportionate.” He further argues that, although he has a
778                                                         State v. Bernal

lengthy criminal history, he has demonstrated capacity for
reform, in that he was “out of custody without incident” for
“several years” before this incident and lectured students on
the dangers of drugs and criminal activity. Defendant also
points out that only one victim was physically injured—all
of his shots missed, except when he shot the grandmother
in the stomach—and that the crimes were impulsive rather
than premeditated. Finally, he makes a vertical proportionality argument relating to attempted and completed first-degree murder.
         “We review for legal error the trial court’s conclusion
that defendant’s sentence was constitutional under Article I,
section 16.” State v. Ryan, 

, 

(2017). We do the same under the Eighth Amendment. See
State v. Hurtado, 

, 

 (2024),
rev den, 

 (2025) (using same standard of review
for state and federal disproportionality claims).
         We first address preservation. Defendant did not
object to his sentence as unconstitutionally disproportionate,
but he argues that the purposes of preservation were served
when the trial court indicated, sua sponte, that it had considered constitutional proportionality after deciding the sentence.1 The state counters that the claim of error is unpreserved and should be rejected on that basis. See State v. Wyatt,

, 

 (2000) (“Generally, an issue not
preserved in the trial court will not be considered on appeal.”).
        We agree with the state that the claim of error is
unpreserved. The court’s own sua sponte comments on why it
viewed the sentence as proportionate were not a substitute for
   1
     Specifically, the court stated during sentencing:
        “Although not directly addressed previous to this point, I did endeavor,
   once I settled on the sentence that the court was [going to] impose, to review
   the sentence. And I do believe that this sentence is not disproportionate or
   cruel and unusual under the facts as applied to the Defendant that would
   be a violation of Article 1, Section 16, of the Oregon Constitution and the
   Federal Constitution, Eighth Amendment, under the facts of this case. I do
   not believe it’s disproportionate or cruel and unusual.
        “The gravity of harm and threat to public safety are extreme in this case.
   And the number of victims involved is aggravated. In terms of the range of
   experience for public safety, this case is an extreme. Upon review, the Court
   finds this case is not disproportionate and is consistent with protecting public safety and necessary for community safety.”
Nonprecedential Memo Op: 

 (2025)                              779

defendant alerting the court to a contrary view and making
arguments that the state and the trial court could address.
None of the disproportionality arguments that defendant now
makes on appeal are ones that the court appears to have considered in making its sua sponte remarks. This is not a case
where the purposes of preservation were served. Compare
State v. Roberts, 

, 

 (2018)
(the purposes of preservation were served where “the trial
court raised the equivocal invocation issue sua sponte, and
… the issue was extensively discussed, briefed, and ruled
on”); and State v. Smith, 

, 

(2012), rev den, 

 (2013) (the purposes of preservation were served where “the trial court raised the [knowledge] issue sua sponte—in effect recharacterizing the issue
and defendant’s argument in order to address the theft by
receiving charge more specifically—and the state responded
at length before the trial court specifically ruled on that
issue” (emphasis omitted)); with State v. Carlton, 

, 

 (2025) (the purposes of preservation
were not served where the trial court sua sponte commented
on merger, but “[t]here was no opportunity for the court to
consider, or for the state to respond to, the arguments in favor
of merger that defendant raises for the first time on appeal”).
         As for plain-error review, which is available on a
discretionary basis under ORAP 5.45(1), defendant has not
requested it, and “we normally will not exercise that discretion in the absence of an explicit request for plain-error
review and concomitant plain-error arguments.” State v.
Atwood, 

, 498 n 2, 

 (2024). In any
event, any error is not plain, because it is far from obvious
that an aggregate sentence can be challenged under either
Article I, section 16, or the Eighth Amendment.2 State v.
License, 

, 720-23, ___ P3d ___ (May 29, 2025)
(addressing that issue under both Article I, section 16, and
the Eighth Amendment).
           Affirmed.

    2
      “For an error to be plain error, it must be an error of law, obvious and not
reasonably in dispute, and apparent on the record without requiring the court
to choose among competing inferences.” State v. Vanornum, 

, 

 (2013).