State v. Davidson

369 Or. 480

507 P.3d 246

STATE of Oregon, Petitioner on Review,

v.Dennis James DAVIDSON, Respondent on Review.

CC 11C43121 (SC S068231)

Supreme Court of Oregon.

Argued and submitted September 14, 2021

Resubmitted January 25, 2022

March 31, 2022

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

Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for respondent on review.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, Justices.^**

NELSON, J.

In this case, defendant was sentenced to life without the possibility of parole under ORS 137.719 on his convictions for public indecency, a Class C felony, because he had been sentenced for felony sex crimes at least twice before sentencing for the current crimes. This court held that that sentence was unconstitutionally disproportionate as applied to defendant's offenses, and it remanded the case to the trial court for resentencing. The trial court concluded on remand that it was permitted to sentence defendant to any term of imprisonment short of life imprisonment without the possibility of parole. The Court of Appeals reversed, holding that, under ORS 137.719, in the circumstances, the trial court was required to impose a departure sentence in conformity with Oregon's felony sentencing guidelines. We allowed the state's petition for review, and, for the reasons discussed below, we affirm the decision of the Court of Appeals.

BACKGROUND

The facts relevant to our resolution of the legal issue before us are brief. Defendant was convicted of two felony counts of public indecency under ORS 163.465 for exposing himself in a public park.¹ Because defendant had two prior felony convictions for public indecency and because the original sentencing court found no ground for a downward departure, defendant was sentenced to consecutive life sentences without the possibility of parole under ORS 137.719. That statute provides, in relevant part:

"(1) The presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence.

"(2) The court may impose a sentence other than the presumptive sentence provided by subsection (1) of this section if the court imposes a departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons."

On review, this court concluded that a sentence of life without the possibility of parole was unconstitutionally disproportionate as applied to defendant's offenses, because defendant's criminal history included no offense more serious than public indecency and that history included no other conduct demonstrating that defendant posed a "significant physical danger to society." State v. Davidson , 360 Or. 370, 391, 380 P.3d 963 (2016) ( Davidson I ). The court vacated the sentence of life without the possibility of parole and remanded the case to the trial court for resentencing.

On remand, the trial court held hearings to determine defendant's new sentence in light of Davidson I . Before the trial court, defendant argued that the court lacked authority to sentence him under ORS 137.719(1), and, because the original sentencing court had found no basis for departure under ORS 137.719(2), the court on remand also was precluded from sentencing him under that provision. According to defendant, that meant that the court was required to sentence him under the sentencing guidelines. The state, for its part, argued that, although this court in Davidson I had held that a life sentence for defendant's crimes was unconstitutional, it did not otherwise limit the sentence that the court could impose, and neither this court's decision in Davidson I nor the statute required the court to impose a guidelines sentence. The state argued that the trial court was authorized to and should impose a significant term of imprisonment short of life.

The trial court essentially agreed with the state, concluding that ORS 137.719(1) did not apply to defendant's case and that ORS 137.719(2) did not require it to impose a guidelines sentence. The court reasoned that this court's determination in Davidson I that the presumptive life sentence was unconstitutional as applied to defendant was a "substantial and compelling" reason "to impose a sentence other than the presumptive sentence" under ORS 137.719(2). It adopted the findings of the original sentencing court: namely, that defendant was persistently involved in the same type of offense, that defendant's crimes involved multiple victims, that defendant was on supervision at the time of the crimes, that defendant's prior incarceration had not deterred his criminal activity, and that incarceration was necessary for the public safety. Further, it observed that a lengthy sentence was necessary to protect the public. Based on those factors, the court resentenced defendant to 90 months’ incarceration on each count, to be served consecutively—for a total term of imprisonment of 180 months—and to be followed by a lifetime term of post-prison supervision.

Defendant appealed to the Court of Appeals, challenging those sentences and arguing that the sentencing court lacked authority to impose a sentence of 180 months’ incarceration followed by lifetime post-prison supervision, but pursuing a slightly different line of reasoning. Defendant argued that ORS 137.719(1) authorizes only one sentence—a presumptive life sentence—which this court held was unconstitutional as applied to him; it does not authorize a sentence of 180 months of incarceration and lifetime post-prison supervision. Therefore, he argued, he was required to be sentenced under ORS 137.719(2), which, in his view, did not authorize the sentence that the trial court imposed and, instead, required the court to apply the sentencing guidelines rules, which would cap his sentence at 108 months and which would not permit lifetime post-prison supervision. The state responded that both subsections of ORS 137.719 authorized the trial court to impose the sentence that it did.

The Court of Appeals reversed. State v. Davidson , 307 Or. App. 478, 478 P.3d 570 (2020) ( Davidson II ). The court observed that the trial court had imposed defendant's sentence under subsection (2), and, therefore, the court began by considering the text and context of ORS 137.719(2). In particular, the court examined the meaning of the phrase "a departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons." Based on its reading of the text and context of that provision, the court stated that it understood the "rules of the Oregon Criminal Justice Commission" to include the felony sentencing guidelines set out in chapter 213 of the Oregon Administrative Rules, which establish presumptive sentences that a court must generally impose, based on the defendant's criminal history and the gravity of the offense, and permit the court to depart from the presumptive sentence if it finds "substantial and compelling reasons" to do so. Davidson II , 307 Or. App. at 485-88, 478 P.3d 570. From there, the court concluded that subsection (2) authorizes the sentencing court to impose a departure sentence that conforms to the sentencing guidelines, and that the sentencing guidelines permit neither defendant's sentence of 180-months’ incarceration nor the imposition of lifetime post-prison supervision in this case. Id . at 496, 478 P.3d 570.

ANALYSIS

On review, the state reprises its arguments that the sentence that the trial court imposed was authorized under both ORS 137.719(1) and ORS 137.719(2). Before we begin our consideration of the issues presented, a brief review of the relevant statutes and regulations is helpful.

A sentence must be authorized by the governing statute under which it is imposed. State v. Leathers , 271 Or. 236, 240, 531 P.2d 901 (1975) ("A sentence must be in conformity with the governing statute; any nonconforming sentence is void for lack of authority and thus totally without legal effect."). When a court imposes a sentence that is not in conformity with the governing statute, " ‘it infringes upon the power of the legislature to determine the manner of punishment.’ " State v. Speedis , 350 Or. 424, 431, 256 P.3d 1061 (2011) (quoting Leathers , 271 Or. at 240, 531 P.2d 901 ).

As discussed, defendant initially was sentenced under ORS 137.719(1), which makes the presumptive sentence for his crimes life in prison without the possibility of parole. Subsection (2) permits the court to impose a sentence other than the presumptive sentence "if the court imposes a departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons." The parties dispute precisely which rules the phrase "the rules of the Oregon Criminal Justice Commission" refers to, but, in general, the parties agree that the commission's rules are commonly known as the felony sentencing guidelines.²

The felony sentencing guidelines establish "grid blocks" that prescribe a range of presumptive sentences for virtually all crimes, depending on the seriousness of the crime and the offender's criminal history, and they provide other requirements for and limitations on sentences and terms of post-prison supervision. The guidelines apply to felony offenses, and they determine the sentence for any offense not otherwise provided for by a statute that calls for a longer sentence. ORS 137.669 ("The guidelines *** shall control the sentences for all crimes committed after the effective date of such guidelines."); ORS 137.637 (...