State v. Althouse

359 Or. 668

375 P.3d 475

State of Oregon, Respondent on Review

v.William Michael Althouse, Petitioner on Review.

CC 11C48471

CA A152626

SC S062909

Supreme Court of Oregon.

Argued and submitted September 14, 2015.

June 16, 2016

Shawn E. Wiley, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Sara F. Werboff and Shauna M. Curphey, Portland, filed the brief for amicus curiae Oregon Justice Resource Center.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, Brewer, and Nakamoto, Justices.^**

KISTLER, J.

Defendant was convicted in 2011 of felony public indecency after previously having been convicted of three other felony sex crimes. Pursuant to ORS 137.719(1), the trial court sentenced him to life imprisonment without the possibility of parole. Throughout this litigation, defendant has argued that, as applied to him, a sentence of life imprisonment without the possibility of parole violates Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. The Court of Appeals affirmed the trial court's judgment without opinion. State v. Althouse , 266 Or.App. 548, 339 P.3d 470 (2014). We allowed defendant's petition for review to consider two issues: whether ORS 138.222(2)(a) bars direct appellate review of a presumptive sentence imposed pursuant to ORS 137.719(1) and, if not, whether defendant's sentence is unconstitutional as applied. We hold that defendant's sentence is both reviewable and constitutional. We accordingly affirm the Court of Appeals decision and the trial court's judgment.

I. DIRECT APPELLATE REVIEW

We begin with the state's argument that ORS 138.222(2)(a) forecloses direct appellate review of defendant's sentence. Two statutes are relevant to that argument. ORS 138.222(2)(a) provides that “[a]ny sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission” may not be reviewed on direct appeal.¹ ORS 137.719(1) provides that the presumptive sentence for a defendant's third felony sex conviction is life imprisonment without the possibility of parole.² A trial court may impose a lesser sentence if doing so is “authorized by the rules of the Oregon Criminal Justice Commission” and if the trial court finds that there are substantial and compelling reasons for departing from the presumptive sentence. ORS 137.719(2).

In this case, the trial court did not impose a downward departure sentence pursuant to ORS 137.719(2). Rather, it imposed the presumptive sentence provided in ORS 137.719(1). It follows, the state argues, that ORS 138.222(2)(a) precludes defendant from challenging that sentence on direct appeal. In making that argument, the state recognizes that ORS 138.222(2)(a) applies only to presumptive sentences “prescribed by the rules of the Oregon Criminal Justice Commission.” It also recognizes that ORS 137.719(1) prescribed the presumptive sentence that the trial court imposed. It argues, however, that the Oregon Criminal Justice Commission's rules define the term “presumptive sentence” as meaning both a presumptive sentence specified in a sentencing guidelines “grid block” and “a sentence designated as a presumptive sentence by statute.” See OAR 213–003–0001(16) (defining “presumptive sentence”).³ The state reasons that, because the Commission's administrative rules designate a life sentence imposed pursuant to ORS 137.719(1) as a “presumptive sentence” and because the Commission's rules also direct trial courts to impose presumptive sentences that the guidelines provide,⁴ a life sentence imposed pursuant to ORS 137.719(1) is a “presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission,” as that phrase is used in ORS 138.222(2)(a). It follows, the state concludes, that ORS 138.222(2)(a) precludes our review of defendant's challenge to his sentence.

In analyzing the state's argument, we follow our customary methodology. We begin with the text and context of ORS 138.222(2)(a) and, if appropriate, turn to the legislative history of that statute. See State v. Walker , 356 Or. 4, 13, 333 P.3d 316 (2014) (describing statutory construction methodology).

A. Text

ORS 138.222 provides, in part:

“(2) Except as otherwise provided in subsection (4)(c) of this section, on appeal from a judgment of conviction entered for a felony committed on or after November 1, 1989, the appellate court may not review:

“(a) Any sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.”

The text of ORS 138.222(2)(a) bars direct appellate review of a sentence if three prerequisites are met. First, the challenged sentence must be a presumptive sentence.⁵ Second, the challenged sentence must be “within [a] presumptive sentence.” Finally, the challenged sentence must be “prescribed by the rules of the Oregon Criminal Justice Commission.”

There is no dispute that the first prerequisite is satisfied. A sentence of life imprisonment without possibility of parole imposed pursuant to ORS 137.719(1) is a “presumptive sentence.” The statute designates it as such. See ORS 137.719(1) (providing that the “presumptive sentence” for a defendant's third felony sex crime is life imprisonment without the possibility of parole).

The second prerequisite—that the sentence be “within” a presumptive sentence—poses a bigger hurdle for the state. ORS 137.719 imposes a presumptive sentence of life imprisonment without parole for a third conviction of certain felony sex crimes. However, life without parole is not a sentence “within” another sentence; that is, life without parole is not a sentence that falls within a range of possible sentences marked by minimum and maximum levels of severity. Rather, life without parole is a fixed term of imprisonment whereby a defendant remains incarcerated for the remainder of his or her natural life, however long that may be. While a sentence imposed pursuant to ORS 137.719(1) is a presumptive sentence, it is not “within” a presumptive sentence or range of presumptive sentences, as that term is ordinarily understood.

The third prerequisite—that the sentence be within the presumptive sentence “prescribed by the rules of the Oregon Criminal Justice Commission”—also cuts against the state's position. Ordinarily, the Commission's rules establish “grid blocks” that prescribe a range of presumptive sentences for a crime, depending on the severity of the crime and the offender's criminal history. See State v. Speedis , 350 Or. 424, 427, 256 P.3d 1061 (2011). Although the grid blocks established by the Commission's rules are not effective until the legislature approves them, the legislature does not prescribe the presumptive sentences that the Commission establishes by rule. See State v. Lane , 357 Or. 619, 624, 355 P.3d 914 (2015) (explaining that, in approving the Commission's sentencing guidelines rules, the legislature is not “formally adopting them as statutes”).

The presumptive sentence that the trial court imposed in this case departs from that usual model in two respects. First, in this case, a statute—ORS 137.719(1) —prescribed the presumptive sentence that the court imposed, and the statute did so independently of anything that the Commission did or did not do. Second, the same thing cannot be said for the Commission's rule. Rather, the applicable rule merely cross-references the statute. It defines a presumptive sentence, in part, as “a sentence designated as a presumptive sentence by statute.” OAR 213–003–0001(16). If the legislature repealed ORS 137.719, no presumptive life sentence for a defendant's third felony sex offense would be prescribed by rule or otherwise.

To be sure, it is possible to say, as the state does, that the Commission's rules prescribe by cross-reference the same sentence that ORS 137.719(1) prescribes independently of the rules. However, the state's rule-based argument does not fit comfortably with the usual understanding of the phrase “prescribed by the rules of the Oregon Criminal Justice Commission” found in ORS 138.222(2)(a). Moreover, as explained above, it is difficult to describe a life sentence prescribed either directly by ORS 137.719(1) or derivatively by the Commission's rules as being “within” a presumptive sentence or range of presumptive sentences. See ORS 138.222(2)(a) (imposing that requirement). Focusing solely on the text of the applicable statutes and rules, we are doubtful that the state can shoehorn a presumptive sentence imposed pursuant to ORS 137.719(1) into the prohibition on direct appellate review found in ORS 138.222(2)(a).

B. Context

The context of ORS 138.222(2)(a) includes “ ‘the preexisting common law and the statutory framework within which the law was enacted.’ ” Stevens v. Czerniak , 336 Or. 392, 401, 84 P.3d 140 (2004) (quoting Denton and Denton , 326 Or. 236, 241, 951 P.2d 693 (1998) ). The legislature enacted what is now codified as ORS 138.222(2)(a) in 1989. See Or. Laws 1989, ch. 790, § 21. Before then, Oregon statutes set a maximum indeterminate sentence for each class of felonies, and trial courts were free in individual criminal cases to impose a sentence anywhere within the statutory maximum. See Thomas A. Balmer, Some Thoughts on Proportionality , 87 Or. L. Rev. 783, 791–92 (2008) (describing shift from indeterminate to determinate sentencing schemes); ORS 161.605 (specifying maximum indeterminate sentences for Class A, B, and C felonies). For example, aggravated first-degree theft is a Class B felony, ORS 164.057(2), and the maximum sentence for a Class B felony is 10 years, ORS 161.605(2). Before 1989, if a...