State v. Davidson

307 Or.App. 478

478 P.3d 570

STATE of Oregon, Plaintiff-Respondent,

v.Dennis James DAVIDSON, Defendant-Appellant.

A165303

Court of Appeals of Oregon.

Argued and submitted April 22, 2019.

November 12, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services, argued the cause and filed the brief for appellant.

Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Defendant was convicted of two counts of public indecency, ORS 163.465, and sentenced to life in prison without the possibility of parole or release under ORS 137.719(1). The Supreme Court concluded that that sentence was unconstitutionally disproportionate to the offense under Article I, section 16, of the Oregon Constitution and remanded the case to the sentencing court for resentencing. On remand, the sentencing court imposed a new sentence of 180 months’ incarceration and lifetime post-prison supervision. Defendant now appeals for the second time, arguing that the sentencing court lacked statutory authority under ORS 137.719 to impose that sentence. As we explain below, we conclude that ORS 137.719 does not authorize a sentence of 180-months’ incarceration and lifetime post-prison supervision. Consequently, we reverse defendant's sentence and remand for resentencing.

The facts underlying defendant's convictions are not at issue and are set forth in State v. Davidson , 271 Or. App. 719, 731-34, 353 P.3d 2 (2015), aff'd , 360 Or. 370, 380 P.3d 963 (2016) ( Davidson I ), and State v. Davidson , 360 Or. 370, 373-74, 380 P.3d 963 (2016) ( Davidson II ). For the purposes of this opinion, the relevant facts are procedural. Defendant was convicted of two counts of public indecency in 2011 for two separate incidents of public masturbation. Public indecency is a Class A misdemeanor but is elevated to a Class C felony upon a person's second public-indecency conviction. ORS 163.465(2). Because defendant had been previously convicted of public indecency on three occasions, two of those prior convictions and both of defendant's 2011 convictions were felony sex crimes. ORS 163.465(2) ; former ORS 181.594(5)(t) (2009), renumbered as ORS 163A.005(5)(t) (2015). As a result, defendant was subject to ORS 137.719, which provides that, for a person who has been previously convicted of two felony sex crimes, the "presumptive" sentence is life in prison without the possibility of parole or release. ORS 137.719(1). That statute also provides that, in lieu of the presumptive life sentence, a sentencing court may impose a "departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons." ORS 137.719(2). At the original sentencing hearing, the court found that no mitigating circumstances existed and declined to impose a departure sentence under ORS 137.719(2). The court sentenced defendant to the presumptive life sentence, and defendant appealed, contending that the life sentence was unconstitutionally disproportionate to the offense under Article I, section 16. We concluded that the "true life" sentence was unconstitutionally disproportionate as applied to defendant. Davidson I , 271 Or. App. at 745, 353 P.3d 2. The Supreme Court agreed, reversed the judgment in part and remanded to the sentencing court for resentencing. Davidson II , 360 Or. at 391, 380 P.3d 963.

On remand, a different sentencing court presided over the resentencing proceedings. That court held two hearings to determine defendant's new sentence in light of Davidson II . At the first hearing, the court heard the parties’ arguments regarding the appropriate statute under which to sentence defendant. Defendant argued that the court lacked statutory authority to impose a sentence under ORS 137.719. According to defendant, that was so because the Supreme Court held, in Davidson II , that the presumptive life sentence was unconstitutional as applied to the instant case, precluding the application of the presumptive life sentence in ORS 137.719(1). Additionally, defendant argued, because the first sentencing court had originally found no basis for a departure under ORS 137.719(2), the second sentencing court was precluded from imposing a sentence under that provision. Therefore, the court was required to impose a sentence under the felony sentencing guidelines. The state responded that the court's opinion in Davidson II stood for the proposition that a life sentence was unconstitutional but did not otherwise limit the court's authority to impose a sentence other than life. In the state's view, the sentencing court retained authority to impose a sentence under ORS 137.719(1), so long as the sentence was less than life.

The court noted that "the first question" for the court to resolve was whether the court retained authority to sentence defendant under ORS 137.719. The court concluded that it did.

"From this Court's position we go back to that statute. There's nothing that kicked us out of using that statute as our sentencing mechanism. So once we're back in that statute as the sentencing mechanism, to the Court that means that we then look to the language of that statute.

"And the language says the court must find factors that would cause the court to depart from a life sentence. I believe that the Oregon Supreme Court's saying that something is unconstitutional as applied, that's a reason for departure."

In line with that conclusion, the court determined the appropriate sentence under ORS 137.719 at the second resentencing hearing. The court began by adopting the findings of the original sentencing court. The court explained that a lengthy sentence was warranted in defendant's case, placing particular emphasis on defendant's recidivism and the high likelihood that defendant would reoffend upon release from prison. The court also revisited the discussion of the applicable sentencing statute, concluding that neither provision of ORS 137.719 required it to apply the sentencing guidelines.

" [ORS] 137.719 I believe is the sentencing structure we use. We come out of that sentence using some type of substantial and compelling reasons to depart downward. So the next question that we have is if life is disproportionate, what is proportionally appropriate. The legislature found for the protection of our community that this type of offense was a sex offense at one point.

"* * * * *

"That was the intent of the presumptive life sentence was to go outside [the guidelines sentencing] scheme. And * * * if the Court imposes a departure sentence authorized by the rules of the Oregon Criminal Justice Commission, I believe what they're saying is that if—is the departure something that's listed or something that would be authorized.

"I don't believe they're saying go back to the grid block because if they wanted the court to go back to the grid block, they'd have the ability to say very clearly, ‘Go back to the grid block. Return to the sentencing structure.’ But they don't say that."

The court resentenced defendant to 90 months’ incarceration on each count, to be served consecutively, and lifetime post-prison supervision. Thus, the total sentence was 180-months’ incarceration and lifetime post-prison supervision.

Defendant now appeals from his sentence for the second time, raising four assignments of error. The crux of defendant's combined arguments is that the sentencing court lacked statutory authority to impose 180 months of incarceration and lifetime post-prison supervision under ORS 137.719(1) and (2).¹ Defendant relies on State v. Leathers , 271 Or. 236, 531 P.2d 901 (1975), to assert that a sentence must be in conformity with the governing sentencing statute under which it is imposed. Id . at 240, 531 P.2d 901 ("When a court acts beyond the bounds of its sentencing authority, it infringes upon the power of the legislature to determine the manner of punishment. A sentence must be in conformity with the governing statute; any non-conforming sentence is void for lack of authority and thus totally without legal effect."). Because ORS 137.719(1) authorizes a life sentence only, defendant contends that the sentence imposed here—180-months’ incarceration and life-long post-prison supervision—does not conform to ORS 137.719(1) and is invalid under that provision. Defendant further asserts that, contrary to the court's interpretation on remand, ORS 137.719(2) does not authorize a sentencing court to impose a departure sentence from life if it makes findings of substantial and compelling reasons to do so.² Rather, defendant argues that ORS 137.719(2) authorizes a sentencing court to impose a departure sentence under the felony sentencing guidelines, and, because the sentence here exceeds the maximum sentence authorized by the felony sentencing guidelines, the court lacked authority to impose it. The state contends that both subsections authorized the court to impose the sentence in question.

Thus, the issue before us is whether subsections (1) or (2) of ORS 137.719 authorized the sentence that the sentencing court imposed on remand in this case in light of the Supreme Court's decision that the presumptive life sentence under subsection (1) was unconstitutionally disproportionate as applied to defendant. "We review a claim that the sentencing court failed to comply with the requirements of law in imposing a sentence for errors of law." State v. Brewer , 260 Or. App. 607, 618, 320 P.3d 620, rev. den. , 355 Or. 380, 328 P.3d 696 (2014).

Before addressing the parties’ specific arguments, we set out briefly the pertinent sentencing statutes. The felony sentencing guidelines, which are set forth in chapter 213 of the Oregon Administrative Rules, are established by the rules of the Oregon Criminal Justice Commission and...