State v. Wampler

592                January 22, 2026              No. 28

  This is a nonprecedential memorandum opinion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.
               HOMER R. WAMPLER,
                 Defendant-Appellant.
             Lincoln County Circuit Court
   18CR60267, 19CR10804; A183703 (Control), A183705

  Sheryl Bachart, Judge.
  Submitted November 25, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
  HELLMAN, J.
   In Case Nos. 18CR60267 and 19CR10804, remanded for
resentencing.
Nonprecedential Memo Op: 

 (2026)                                 593

           HELLMAN, J.
         In this consolidated criminal appeal, defendant
appeals judgments of conviction for numerous offenses
based on his abuse of his son’s 15-year-old girlfriend.1 He
challenges his sentence in five assignments of error, arguing that the trial court erred by imposing constitutionally
disproportionate sentences on Counts 19 and 20, failing to
shift his criminal history score to “I” on Counts 4 and 11,
and ordering him to pay per diem fees on Counts 3, 9, and
10. The state concedes that the trial court committed reversible plain error by failing to “shift to I” before sentencing
defendant on Count 11 and by imposing per diem fees, which
it did not announce at defendant’s sentencing hearing. We
accept the state’s concessions but reject defendant’s remaining arguments. Accordingly, we remand for resentencing
based on the errors in sentencing on Counts 3, 9, 10, and 11.
         Proportionality: In his first and second assignments
of error, defendant contends that the trial court violated
Article I, section 16, of the Oregon Constitution by imposing
concurrent 25-year sentences pursuant to ORS 137.6902 on
Counts 19 and 20 for using a child in a display of sexually
explicit conduct, ORS 163.670. We review the trial court’s
conclusion that defendant’s sentence was constitutional
under Article I, section 16, for legal error. State v. Ryan, 

, 

 (2017).
        Article I, section 16, provides that “all penalties shall be proportioned to the offense.” In determining
    1
       In Case No. 18CR60267, defendant was convicted of 19 offenses, and the
trial court sentenced him to a total incarceration term of 533 months. In Case No.
19CR10804, defendant was convicted of two counts of tampering with a witness,
ORS 162.285, and the trial court sentenced defendant to 25 months imprisonment
on both counts, to be served concurrently to each other but consecutively to the sentence in Case No. 18CR60267. In total, the trial court ordered an incarceration term
of 558 months in both cases. On appeal, defendant assignments of error pertain
only to the sentences imposed in Case No. 18CR60267, and we conclude that the
case must be remanded for resentencing. Although he does not challenge the judgment or sentence in Case No. 19CR10804, we also remand that case for resentencing because the cases were tried and sentenced together, See State v. Sheikh-Nur,

, 

, 

, rev den, 

 (2017) (where
multiple cases were tried together, error required resentencing on all cases).
    2
       ORS 137.690 provides, in relevant part, “Any person who is convicted of a
major felony sex crime, who has one (or more) previous conviction of a major felony
sex crime, shall be imprisoned for a mandatory minimum term of 25 years.”
594                                         State v. Wampler

whether a sentence is constitutionally proportionate to the
offense, we consider three nonexclusive 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. State v. Rodriguez/Buck, 

, 

(2009). Having reviewed the facts of this case and considered those factors, we are unpersuaded that this is one of
those “rare circumstances” in which defendant’s sentence
is constitutionally disproportionate. See State v. Horseman,

, 

 (2018), rev den, 

 (2019) (explaining that a sentence is disproportionate
only if it “shock[s] the moral sense of all reasonable people”
and that “judicial review of the constitutionality of penalties
will only in rare circumstances result in a holding of unconstitutional disproportionality” (internal quotation marks
omitted)).
         “Shift-to-I” Rule: In defendant’s third and fourth
assignments, he asserts that the trial court plainly erred
by failing to apply the “shift-to-I” rule when sentencing
defendant to consecutive sentences on Count 4, delivery of
a controlled substance to a minor, ORS 475.906, and Count
11, purchasing sex with a minor, ORS 163.413. Defendant’s
argument rests on the assertion that he committed those
offenses as part of the same criminal episode as Count 19,
which the trial court designated as the primary offense as
defined in OAR 213-003-0001(17).
         As we have explained, “when multiple consecutive
sentences are imposed for crimes committed during the
same criminal episode, only the primary offense is sentenced based on the offender’s true criminal history; the
additional offenses are classified under column I as required
by OAR 213-012-0020(2)(a)(B).” State v. Decleve, 

, 

 (2019). Here, although Counts 4 and
19 were committed during the course of the same night,
the evidence at trial established that defendant induced S
to send him an explicit photograph, and sometime later,
defendant delivered methamphetamine to her at a different
location. On that record, we conclude that that it is neither
obvious nor beyond reasonable dispute that those offenses
Nonprecedential Memo Op: 

 (2026)             595

were part of “continuous and uninterrupted conduct” that
was “so joined in time, place and circumstances” that such
conduct was necessarily “directed to the accomplishment of
a single criminal objective.” ORS 131.505(4) (defining “criminal episode”).
         However, the state concedes that Counts 4 and 11
were committed during the same criminal episode, and
therefore, the state agrees that the trial court plainly erred
by failing to “shift to I” before sentencing defendant on
Count 11. We agree with the state’s concession and exercise
our discretion to review and correct the error. See, e.g., State
v. Monro, 

, 

, rev den, 

 (2013) (concluding that failing to apply the “shift- to-I” rule was plain error and exercising discretion to correct the error on the basis that the defendant received a sentence longer than the maximum permitted by law).
         Per Diem Fees: Finally, in his fifth assignment,
defendant argues, and the state concedes, that the trial
court erred when it ordered defendant to pay per diem fees
on Counts 3, 9, and 10, because that requirement was not
announced in open court at his sentencing hearing. We
agree with and accept the state’s concession. See State v.
Barr, 

, 

, rev den, 

 (2024) (remanding for resentencing when requirement
to pay per diem fees was not announced in open court at sentencing); see also State v. Jacobs, 

, 

 (2005) (explaining that a defendant has a statutory
and constitutional right to be present at sentencing and the
trial court’s failure to “pronounce the sentence in open court
in [the] defendant’s presence” violated that right).
         In Case Nos. 18CR60267 and 19CR10804, remanded
for resentencing.