State v. Cotter

594                  August 13, 2025              No. 728

   This is a nonprecedential memorandum opinion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.
              SCOTT ANTHONY COTTER,
                  Defendant-Appellant.
              Lincoln County Circuit Court
                  23CR55068; A184156

  Sheryl Bachart, Judge.
  Submitted July 9, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
  JOYCE, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)                            595

           JOYCE, J.
         Defendant appeals from a judgment of conviction for
first-degree online sexual corruption of a child and luring a
minor. The trial court sentenced him to the presumptive sentences for those crimes, 28 months and 19 months, respectively. The court also ordered the sentences to be served consecutively. On appeal, in three claims of error, he challenges
his sentence as being aggregately disproportionate as applied
to him and as being vertically disproportionate.1 We affirm.
         Defendant’s convictions were based on his admissions that he engaged in sexually explicit conduct and conversations with two officers posing as underage females and
that he ultimately went to a location to meet with one of
them, whom he believed to be an underaged girl. As noted,
he received an aggregate sentence of 47 months for those
crimes. In his first claim of error, he argues that his sentence is, in the aggregate, unconstitutionally disproportionate under both the state and federal constitutions.2 Under
Article I, section 16, of the Oregon Constitution, disproportionality challenges are limited to individual, and not
aggregate, sentences. Real v. Nooth, 

,

, rev den, 

 (2015) (holding that it could
not review a 240-month aggregate sentence for disproportionality under Article I, section 16, and instead examining
only the individual 120-month sentences); State v. Parker,

, 

 (2013), rev den, 

 (2014) (concluding that it was “not appropriate” to consider the defendant’s “aggregate or cumulative sentence” in
assessing disproportionality under Article I, section 16). The
trial court thus correctly rejected defendant’s challenge to
his aggregate sentence.
        In his second and third claims of error, defendant
raises a different challenge to his sentences, arguing that
    1
      Defendant filed a pro se supplemental brief in which he recounts the facts
of his case and what he describes as misconduct between the trial court and the
prosecutor. We have reviewed his arguments and conclude that they provide no
basis for reversal.
    2
      Defendant does not develop a separate argument under the federal constitution, noting that we have previously determined that an analysis under
Article I, section 16, also provides a basis for assessing whether a defendant’s
sentence is disproportionate under the federal constitution.
596                                                         State v. Cotter

his sentences are vertically disproportionate. He acknowledges that he did not raise a vertical proportionality challenge as to the conviction for luring a minor but argues that
he preserved that argument as to his conviction for online
sexual corruption of a child. For its part, the state argues
that defendant did not preserve a vertical proportionality
challenge to even that conviction.
         What both parties agree upon, however, is that on its
merits, this case is controlled by State v. Fernandez, 

, 

, rev allowed, 

 (2024). There,
we held that ORS 138.105(8)(a)(A) bars review of a presumptive sentence.3 Thus, even assuming that defendant’s
challenge to his conviction for online sexual corruption of a
child is preserved, it would fail on its merits. And, in light of
Fernandez, we cannot say that his unpreserved challenge to
his sentence for luring a minor is error, let alone plain error.
           Affirmed.




    3
      Defendant observes that the defendant in Fernandez assigned error to the
particular crime seriousness categories and argued that the court should have
used lower categories that applied to other comparable offenses, whereas here,
defendant challenges the prison terms and not the crime seriousness categories.
Either framing, however, amounts to challenges to a “sentence that is within the
presumptive sentence prescribed by the rules of the Oregon Criminal Justice
Commission,” see ORS 138.105(8)(a)(A), and, thus, our review is barred by ORS
138.105.