No. 108 February 19, 2026 199
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN EDWARDS MARKS,
Defendant-Appellant.
Lane County Circuit Court
201416553; A183153
Charles M. Zennaché, Judge.
Submitted July 30, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Ryan Kahn, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
POWERS, J.
Affirmed.
200 State v. Marks
POWERS, J.
Defendant appeals from a judgment of conviction
and sentence for two counts of first-degree sexual abuse
(Counts 3 and 6) and one count of attempted second-degree
rape (Count 5), all committed against his step-granddaughter. The judgment on appeal, which was issued after we
remanded the case for resentencing, includes the imposition
of a $25,000 compensatory fine on each of the sexual abuse
convictions, for a total of $50,000. On appeal, defendant
challenges the imposition of the fines and designation of the
fines as compensatory, payable to the victim’s mother. As
explained below, we conclude that the sentencing court provided a logical, nonvindictive reason to support imposition
of the compensatory fines as part of a package that included
a total term of incarceration that was shorter than the originally imposed term. Accordingly, we affirm.
This case has a long and somewhat complicated history. In 2014, a jury found defendant guilty of first-degree
unlawful sexual penetration (Count 1), three counts of first-degree sexual abuse (Counts 2, 3, and 6), and second-degree
rape (Count 5). Two of the first-degree sexual abuse guilty
verdicts merged with other counts. Defendant was sentenced to a term of imprisonment for 300 months on Count
1, 75 months on Count 2, 75 months on Count 5 (to be served
consecutively to Count 2), and a total of $600 in fines and
$730.95 in restitution. Defendant appealed but later dismissed the appeal.
Subsequently, defendant sought post-conviction
relief. The post-conviction court granted relief, ordering that
defendant be retried. At the 2019 retrial, defendant waived
his right to a jury and was tried to the court. After a bench
trial, the trial court acquitted him on Count 1 and convicted
him of the other counts listed above, except that, on Count
5, he was convicted of attempted second-degree rape rather
than the completed offense. Following the retrial, defendant
was sentenced to 75 months’ imprisonment and $25,000
as a compensatory fine on each of the first-degree sexual
abuse guilty verdicts, Counts 3 and 6, with 28 months of
the sentence on Count 6 to run consecutively to Count 3.
Defendant was also sentenced to 14 months’ imprisonment
Cite as 347 Or App 199 (2026) 201
on Count 5, concurrent with Count 6. Defendant appealed.
We remanded the case for resentencing because the court
had imposed the $25,000 compensatory fines on Counts 3
and 6 without evidence of economic loss. State v. Marks,
319
Or App 641,
510 P3d 914 (2022).
At the 2023 resentencing, which is the subject of this
appeal, the trial court reimposed the compensatory fines on
Counts 3 and 6 after finding, based on evidence presented
at that resentencing hearing, that the victim’s mother had
paid for medical and counseling services and related costs
for the victim as a result of defendant’s offenses. Defendant
argued, relying on State v. Partain, 349 Or 10,
239 P3d 232
(2010), that the court was imposing a harsher sentence on
remand, based on the substantial increase in the amount of
financial obligations. The court explained that the increased
fines were not intended to punish defendant for exercising
his right to appeal or for successfully challenging his convictions through the post-conviction relief process. It further
explained that it had imposed the fines because defendant’s
overall sentence had been reduced—due to his acquittal
on Count 1 on retrial—from 25 years to eight and a half
years. That would allow defendant, after his release, to pay
the fines “at some point in the future and contribute to the
future.” The court also noted that the fines had already been
paid from the $95,000 security that defendant’s wife had
posted with the court.1
In four assignments of error, defendant challenges
the trial court’s imposition of the $25,000 compensatory fines
on Counts 3 and 6. Specifically, defendant assigns error to the
trial court’s imposition of a fine of $25,000 on Count 3 and on
Count 6 (first and second assignments of error, respectively),
1
At the sentencing hearing, there was evidence that defendant and his wife
regarded those funds as a loan from family and community members and that he
and his wife intended to repay the people who had contributed. When defendant’s
wife testified about how the funds were obtained, however, she referred multiple times to family and community members having “donated,” and explained
that she had reached out for help getting defendant home pending his retrial
because he had suffered a massive stroke. There was no evidence that defendant
had an obligation—rather than just an intention—to repay the funds. The trial
court found that the funds were available to defendant as part of his financial
resources. See State v. Morales, 367 Or 222, 234,
476 P3d 954 (2020) (explaining
considerations for determining whether funds posted as security by a third-party
can be considered financial resources of the defendant).
202 State v. Marks
and he assigns error to the imposition of a compensatory fine
in the amount of $25,000 on each of the two counts (third and
fourth assignments). Defendant argues, based on Partain,
that after his retrial, the trial court violated the Due Process
Clause by increasing the fines compared to his original sentence.2 He also argues that the fines are constitutionally disproportionate, in violation of the Eighth Amendment to the
United States Constitution, and Article I, section 16, of the
Oregon Constitution. And finally, defendant contends that
the trial court abused its discretion by making the fines
entirely compensatory fines payable to the victim’s mother.
As noted, we affirm the trial court’s judgment.
It is a violation of a defendant’s due process rights
for a court to vindictively impose a more severe sentence
after the defendant has succeeded in challenging a conviction. State v. Reinke, 289 Or App 10, 15,
408 P3d 249 (2017),
rev den,
362 Or 665 (2018). When a defendant raises such a
claim, we apply a two-step analysis to determine whether
the new sentence is unconstitutionally vindictive. First, we
must determine whether the new sentence is more severe
than the first sentence. Id. at 16-17. Second, if the new sentence is more severe, it will be considered vindictive unless
the sentencing court articulates on the record “a wholly logical, nonvindictive reason for the more severe sentence.” Id.
at 16 (internal quotation marks omitted). When we compare
the sentences, we must consider the sentencing package,
not the sentences on each individual count. State v. Febuary,
361 Or 544, 561-62,
396 P3d 894 (2017). If a defendant is
2
Partain applies when a defendant is sentenced after a successful appeal
or retrial, providing a framework for ensuring that the defendant is not punished for the exercise of the right to appeal. Here, defendant had been granted
post-conviction relief, after which he had a new trial and sentence. Defendant
then appealed that sentence, challenging the imposition of compensatory fines on
Counts 3 and 6, among other contentions. Marks, 319 Or App at 642. Defendant
did not argue that the sentence after retrial was vindictive. As noted earlier, this
appeal is from the remand required by Marks, in which we reversed the compensatory fines and remanded for resentencing.
Id. at 646-47. Thus, the successful
appeal at issue in the typical Partain analysis would be the one leading to the
remand for resentencing. That is, ordinarily, the sentence to be compared under
Partain would be the immediately preceding imposed sentence. The trial court
reimposed that sentence on remand, and defendant has not argued that the sentence in the judgment from which defendant now appeals is more severe than
the one he appealed in Marks. We assume without deciding that defendant can
challenge his sentence in this fashion, comparing his sentence before he obtained
postconviction relief to the sentence reimposed in the judgment on appeal.
Cite as
347 Or App 199 (2026) 203
unable to establish the presumption of improper motive, the
defendant may show a due process violation by affirmatively
proving actual vindictiveness, as explained in Wasman v.
United States,
468 US 559, 569,
104 S Ct 3217,
82 L Ed 2d 424
(1984), with proof that an improper motive—such as statements by the judge demonstrating actual vindictiveness—
caused the “more severe” subsequent sentence. Febuary,
361
Or at 557-58.
Defendant does not explain how the entire sentencing package is more severe than his original sentence of 300
months of imprisonment and $1,330.95 in fines and restitution. He focuses only on the increase in fines and seems to
suggest that the decrease in total incarceration should not be
considered because it was the result of his acquittal on Count
1. In Febuary, however, the Supreme Court explained that “a
sentence is ‘more severe’ when the total length of the second
sentence exceeds that of the first, regardless of the counts of
conviction.” Id. at 563. That is not the case here. Even if we
were to factor in the increased fines, it is not apparent that
an eight-and-a-half-year sentence with $50,000 in compensatory fines that have already been paid is “more severe”
than a 25-year sentence with $1,330.95 in fines and restitution. That is, we cannot conclude that a 25-year sentence
with lower fines—resulting in defendant’s incarceration for
approximately an additional 17 years—would be a lesser
sentence. Under these circumstances, there is no presumption of vindictive sentencing, which means defendant would
have to show that the sentence imposed was actually vindictive. Defendant has not made that showing here.
As noted earlier, the sentencing court explained on
the record that, when defendant had been sentenced to 25
years’ imprisonment, there was little likelihood that he would
be able to pay any substantial fine. However, after the court
acquitted him on Count 1 and defendant’s sentence decreased
to just over eight and a half years, there was a possibility that
he could earn money to contribute to the fines “at some point
in the future.” That explanation constitutes a logical, nonvindictive reason to support imposition of the compensatory
fines as part of a package that included a prison term that
was about one third as long as the original term.
204 State v. Marks
Defendant also makes constitutional proportionality arguments that imposition of the fines violated the state
and federal constitutions. The state contends that those
arguments are unpreserved and do not constitute plain
error. We agree with the state’s argument. It is not obvious
and not beyond reasonable dispute that the fines imposed
in this case violate either the Eighth Amendment to the
United States Constitution or Article I, section 16, of the
Oregon Constitution. See State v. Vanornum, 354 Or 614,
629,
317 P3d 889 (2013) (explaining that, 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”).
First-degree sexual abuse is a Class B felony. ORS
163.427. The legislature has authorized punitive fines of up
to $250,000 for each Class B felony offense. ORS 161.625(1)(c).
Defendant argues that it is plain that the fines “bear no
rational relationship to valid penological goals” and that
“the record demonstrates that defendant does not have an
ability to pay the fines or repay his friends and family while
remaining financially self-sufficient.” Those contentions are
also not beyond reasonable dispute and are not apparent on
the record. The trial court explained why it considered the
offenses to be particularly reprehensible, warranting the
imposition of the fines. The court also found that defendant
had assets that might be available to help pay the fines, and
that the $95,000 posted as security for defendant was available for his use. There was evidence in the record to support
those findings. Because defendant’s Eighth Amendment and
Article I, section 16, arguments were not preserved and do
not constitute plain error, we do not further address them.
Similarly, we conclude that defendant did not preserve his challenge to the designation of the fines, and his
contention does not meet the requirements for plain-error
review. See, e.g., State v. Serrano, 355 Or 172, 182,
324 P3d
1274 (2014), cert den,
576 US 1037 (2015) (concluding that,
because the court had “never had that issue before it for resolution,” the defendant had not demonstrated that the legal
point was “obvious” for purposes of plain-error review).
Cite as
347 Or App 199 (2026) 205
In short, defendant has not convinced us that the
trial court erred when it reimposed $25,000 fines on Counts
3 and 6 on resentencing. Accordingly, we reject each of defendant’s assignments of error and affirm.
Affirmed.
