State v. Davidson

360 Or. 370

380 P.3d 963

State of Oregon, Petitioner on Review,

v.Dennis James Davidson, Respondent on Review.

State of Oregon, Respondent on Review,

v.Dennis James Davidson, Petitioner on Review.

S063480 (CC 11C43121

CA A150292

SC S063387 (Control), SC S063480)

Supreme Court of Oregon.

Argued and submitted May 9, 2016.

September 22, 2016

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review/ respondent on review State of Oregon. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Solicitor General.

Ernest G. Lannet, Chief Defender, Salem, argued the cause and filed the brief for respondent on review/petitioner on review Dennis James Davidson.

Jordan R. Silk, Portland, filed the brief on behalf of amici curiae Oregon Justice Center. With him on the brief was Alexander A. Wheatley.

En Banc

BREWER, J.

Defendant was convicted of two counts of public indecency under ORS 163.465 for exposing himself at a public park; because he had two prior felony convictions for public indecency, and the trial court found no ground for downward departure, defendant was sentenced consecutively on each count to life imprisonment without the possibility of parole under ORS 137.719(1).¹ The Court of Appeals affirmed defendant's convictions but held that the sentences violated Article I, section 16, of the Oregon Constitution, which provides that all penalties shall be proportioned to the offense.² State v. Davidson , 271 Or.App. 719, 353 P.3d 2 (2015). Defendant sought review in this court, arguing that the Court of Appeals erred in upholding his convictions. The state also sought review, asserting, first, that defendant's sentences are unreviewable because they are “presumptive” sentences and, second, that the sentences were not unconstitutionally disproportionate in light of the facts of this case and the circumstances of defendant's previous crimes. We allowed both petitions. As explained below, we affirm defendant's convictions, but we conclude that the sentences are unconstitutionally disproportionate as applied to defendant. Accordingly, we affirm the decision of the Court of Appeals, and we reverse defendant's sentences and remand to the circuit court for resentencing.

This case presents some of the same issues that we recently addressed in State v. Althouse , 359 Or. 668, 375 P.3d 475 (2016). Althouse, in fact, forecloses the state's reviewability argument, and we therefore reject that argument without further discussion. See id. at 678, 375 P.3d 475 (holding that ORS 138.222(2)(a) does not preclude review of sentence of life imprisonment without possibility of parole imposed pursuant to ORS 137.719 ). In addition to its reviewability holding, Althouse set out a framework for the consideration of as-applied constitutional challenges to sentences imposed pursuant to ORS 137.719. Accordingly, we first address defendant's challenge to his underlying convictions under ORS 163.465 and then evaluate the constitutionality of the life sentences imposed for those convictions under the framework set out in Althouse.

I. FACTS AND PROCEDURAL HISTORY

A. Current Convictions

Because the jury found defendant guilty of the current charges, we view the evidence presented at trial in the light most favorable to the state. State v. Agee , 358 Or. 325, 327, 364 P.3d 971 (2015). A group of women and children were having lunch in a park in Salem when defendant walked by and waved at them. After the older children left the group to play on a nearby play structure, a man came by and told the group that defendant was behind a nearby tree. One of the women, Davis, looked over her shoulder and could see defendant peeking out at her from behind the tree.

When Davis stood up and turned, she was able to see that defendant was exposing his genitals and masturbating. Davis called 9–1–1 and gathered her group together to return to their car. As they left, defendant approached and told Davis several times that he was leaving; he then left through the south end of the park. Responding officers searched the area to the south of the park and found defendant standing at a fence bordering the park, looking into the park. As the officers approached defendant, they could see that he had his pants open and was masturbating. Defendant was then arrested and subsequently charged with and convicted by a jury of two counts of public indecency, one count for the incident near Davis's group and the other count for the incident at the border of the park shortly before he was apprehended.

B. Prior Public Indecency Convictions

Defendant's prior convictions for public indecency were relevant to his sentencing on his current convictions, because the prior convictions elevated those offenses from misdemeanors to felony public indecency. See ORS 163.465(2).³ In the guilt phase of the trial in this case, for the purpose of establishing that the current offenses were properly charged as Class C felony offenses, defendant stipulated to the existence of three prior public indecency convictions. The details of defendant's prior convictions, as described below, were presented in a presentence investigation report in the course of the sentencing proceeding.⁴

In 2006, defendant was convicted of the crime of misdemeanor public indecency and placed on probation. That offense occurred when defendant was observed by a neighbor while defendant was standing on the porch of a house and masturbating. When defendant saw the neighbor, he called out to her, “you want some of this?” as he continued to masturbate. The neighbor called the police. Nobody was home at the house when the incident occurred, but, when questioned by the police, defendant claimed to have been visiting “Amy” at the house and suggested that he had some sort of intimate relationship with “Amy.” Defendant even described some items inside the house. The police later contacted the homeowner, who was not named “Amy,” and she denied knowing defendant. The police also discovered that defendant's grandmother lived near the house where the offense occurred, that defendant had stayed with his grandmother at some point in time, and that his grandmother had entered his bedroom and discovered him masturbating while looking out the window toward the house where the offense later occurred. Finally, the police located a letter in defendant's backpack written by defendant to another person, stating that he had a crush on her and had watched her mow her lawn. The woman who owned the house where the offense occurred acknowledged that she regularly mowed the lawn around her house. The woman subsequently obtained a stalking protective order against defendant.

Defendant was convicted of misdemeanor public indecency arising out of the incident on the porch, and he was sentenced to probation for that offense. Several months later, while defendant was on probation for that offense, a number of school staff members reported that they had observed defendant expose his genitals while masturbating near an elementary school playground. One of those staff members indicated that, when defendant saw her looking at him through a window, he turned to face her as if he wanted her to observe him. Three children also saw defendant near the school, although the record did not indicate whether they saw him expose his genitals. Defendant was convicted of public indecency for that conduct, and, because he had a prior misdemeanor public indecency conviction, his conviction for the school incident was elevated to a felony under ORS 163.465(2). Defendant served a 28–month prison sentence for that conviction.

Shortly after defendant was released from prison on his sentence for the school incident, defendant again was arrested for and convicted of felony public indecency. In that incident, a group of women (who had a child with them) were near their car in a store parking lot when they observed defendant looking at them while he exposed his genitals and masturbated. When the police arrived, an officer also observed defendant masturbating in the parking lot. After defendant was apprehended, he told the police that he had been masturbating inside a nearby pornography shop and that he had masturbated in front of the women after he left the store because he thought that it would make the women “hot” and that he would be able to get a “date.”

C. Other Prior Convictions and Misconduct

In evaluating disproportionality challenges to criminal sentences, it is appropriate for a court to consider any prior conviction, as well as misconduct that did not result in convictions. Althouse , 359 Or. at 679, 375 P.3d 475 ; State v. Rodriguez/Buck , 347 Or. 46, 78, 217 P.3d 659 (2009). In the present case, the presentence investigation report indicated that defendant first came into contact with police at age 10, when he was accused of shoplifting a toy.⁵ He was first referred to the juvenile court at age 14 based on a fighting incident at his junior high school; that referral was disposed of informally. When he was in his late teens and early twenties, defendant had numerous contacts with law enforcement, primarily involving possession of controlled substances. He also was arrested twice for battery based on fights with his girlfriend, but those charges were dismissed. He was convicted on one occasion of trespass and investigated for trespass based on several other incidents, some of which arose in conjunction with the public indecency incidents described above. Defendant also had a single prior conviction for driving while suspended.

Most of defendant's convictions for offenses other than public indecency resulted in probationary sentences. The record shows that defendant consistently performed poorly on probation and post-prison supervision, regularly committing new offenses while under supervision, as well as failing to appear at various hearings concerning probation violations. While incarcerated, defendant received...