State v. Fudge

552 P.3d 145

333 Or.App. 149

STATE of Oregon, Plaintiff-Respondent,

v.Matthew A. FUDGE, Defendant-Appellant.

A179798

Court of Appeals of Oregon.

Argued and Submitted April 30, 2024

June 12, 2024

Washington County Circuit Court, C152987CR; Beth L. Roberts, Judge.

Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

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

Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge.

ORTEGA, P. J.

₁₅₀This case is before us for a third time on defendant’s appeal from a judgment imposing sentence for first-degree sodomy (Count 1), ORS 163.405, and first-degree sexual abuse (Count 2), ORS 163.427. Defendant challenges his 200-month sentence on Count 1, arguing that the trial court lacked statutory authority to impose that sentence and, alternatively, that the sentence is constitutionally disproportionate as applied to him under the Oregon and United States Constitutions. Because we agree with defendant that the trial court lacked statutory authority to impose a 200-month sentence on Count 1, we again remand for resentencing.

We recounted the historical facts of this case in State v Fudge, 297 Or App 750, 751-55, 443 P.3d 1176, rev. den., 365 Or. 819, 453 P.3d 1289 (2019) (Fudge I), and need not repeat them here. The procedural facts are not disputed. The trial court initially imposed a 300-month mandatory minimum sentence on Count 1 under ORS 137.700. On defendant’s first appeal, we remanded for resentencing in light of State v. Ryan, 361 Or. 602, 396 P.3d 867 (2017), because it was not clear from the record of the first sentencing proceeding that the trial court had considered the constitutional implications of defendant’s intellectual disability. Fudge I, 297 Or App at 760-61, 443 P.3d 1176. On remand from Fudge I, the trial court reimposed the same 300-month mandatory minimum sentence on Count 1. On defendant’s second appeal, we held, in a nonprecedential memorandum opinion, that "the imposition of a 300-month mandatory sentence as applied to defendant is unconstitutionally disproportionate under Article I, section 16," of the Oregon Constitution, but we "offer[ed] no opinion on what a proportionate sentence would be." State v. Fudge, 320 Or App 614, 617-18, 2022 WL 3094497 (2022) (nonprecedential memorandum opinion) (Fudge II). We reasoned that "defendant has a profound intellectual disability and the adaptive functioning of an eight-year-old; the same offense for more intellectually advanced youth offenders with no criminal history is 200 months less than the 300 months’ mandatory sentence for defendant; and defendant has no prior uncharged criminal conduct and was deemed low risk for recidivism." Id at 617.

₁₅₁On remand from Fudge II, the parties were willing to stipulate to a 100-month sentence on Count 1 for the purposes of settlement, which would have rendered it unreviewable on appeal. See ORS 138.105(9) ("The appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant."). The parties discussed their proposed settlement with the trial court in chambers, and the court indicated that it was inclined to impose a longer sentence. At a later resentencing hearing, the trial court imposed 200 months in prison on Count 1, purportedly under ORS 137.700, and 75 months on Count 2, to be served concurrently. Defendant timely appealed and again challenges the sentence imposed on Count 1.¹ He argues that no statute authorized the 200-month sentence and, alternatively, that the 200-month sentence is constitutionally disproportionate under Article I, section 16, and the Eighth Amendment to the United States Constitution as applied to him. Because we agree with defendant’s statutory argument, we do not address his constitutional challenge.

[1–3] We review the propriety of a trial court’s sentence for legal error. State v. Koelzer, 327 Or App 143, 145, 534 P.3d 299 (2023); ORS 138.105(7). "A sentence must be authorized by the governing statute under which it is imposed." State v. Davidson, 369 Or. 480, 485, 507 P.3d 246 (2022) (Davidson II) (citing State v. Leathers, 271 Or. 236, 240, 531 P.2d 901 (1975)). When a court imposes a sentence that does not conform to the governing statute, it " ‘infringes upon the power of the legislature to determine the manner of punishment.’ " Id. (quoting State v. Speedis, 350 Or. 424, 431, 256 P.3d 1061 (2011)).

The Oregon felony sentencing 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." Id at 486, 507 P.3d 246 (citing ORS 137.669 (providing that the guidelines "shall control the sentence for all crimes committed after" their effective date), ORS 137.637 ("When a determinate sentence of imprisonment is required or authorized by statute, the sentence imposed shall be the ₁₅₂determinate sentence or the sentence as provided by the [felony sentencing guidelines], whichever is longer."), and OAR 213-009-0001(1) ("If a mandatory prison sentence is required or authorized by statute, the sentence imposed shall be that determinate sentence or the sentence under these rules[,] whichever is longer.")).

Here, the indictment alleged a theory of first-degree sodomy under ORS 163.405(1)(b) (engaging in oral or anal sexual intercourse with another person under 12 years of age) on Count 1, and a jury found defendant guilty of that offense. The guidelines authorize a range of 58-60 months in prison on Count 1, given that the parties agree that defendant has no criminal history. See OAR 213-017-0002(9), (12)(c) (placing sodomy of a victim under 12 years old in crime seriousness category 10); OAR 213-004-0007 (placing offenders with no relevant criminal history in criminal history category I); OAR 213-004-0001, Appendix 1 (providing a presumptive sentence of 58 to 60 months in prison for grid block 10-1). ORS 137.700, however, requires the trial court to impose a 300-month sentence for that offense:

"(1) Notwithstanding ORS 161.605 [providing for maximum terms of imprisonment for classes of felonies], when a person is convicted of * * * one of the offenses listed in subsection (2)(b) of this section and the offense was committed on or after October 4, 1997, * * * the court shall impose, and the person shall serve, at least the entire term of imprisonment listed in subsection (2) of this section. * * *. The court may impose a greater sentence if otherwise permitted by law, but may not impose a lower sentence than the sentence-specified in subsection (2) of this section.

"(2) The offenses to which subsection (1) of this section applies and the applicable mandatory minimum sentences are:

"* * * * *

"(b) * * *

"(E) Sodomy in the first degree, as defined in ORS 163.405(1)(b) * * * 300 months."

ORS 137.700(2)(b)(E) (emphasis added). As noted, we held that the 300-month mandatory minimum sentence ₁₅₃prescribed by ORS 137.700(2)(b)(E) is unconstitutional as applied to defendant. Fudge II, 320 Or App at 617-18.

The parties dispute the effect of Fudge II on the trial court’s statutory authority to impose the 200-month sentence at issue here. In defendant’s view, no statute authorized the court to impose a 200-month sentence. Defendant argues that ORS 137.700 authorizes the trial court to impose only one sentence (300 months), which the trial court cannot impose on defendant under Fudge II; therefore, the Oregon felony sentencing guidelines control, which authorize a presumptive sentence of 58-60 months. In the state’s view, ORS 137.700 authorized the court to impose a 200-month sentence The state argues that, because ORS 137.700 requires a court to impose a 300-month minimum sentence on Count 1, "it necessarily also authorizes a court to impose a 200-month minimum sentence instead—as a sort of lesser-included sentence—if the court determines that Article I, section 16, precludes imposition of the whole 300-month term but that imposing a 200-month sentence instead would be constitutionally permissible." We agree with defendant.

ORS 137.700(1) mandates that the trial court impose the sentence specified in subsection (2)—here, 300 months under subparagraph (2)(b)(E)—unless a greater sentence is "otherwise permitted by law." And it expressly prohibits the court from imposing a lesser sentence. By its plain terms, then, ORS 137.700 authorizes only one sentence on Count 1—a minimum sentence of 300 months—the sentence that we held is unconstitutional as applied to defendant.

The Supreme Court's decision in Davidson supports that conclusion. In that case, the trial court initially sentenced the defendant to life in prison under ORS 137.719(1),² but the court held that sentence was unconstitutionally ₁₅₄disproportionate as applied to him. 369 Or. at 482-83, 507 P.3d 246. On remand, the trial court imposed a 180-month sentence, purportedly under ORS 137.719(2), which exceeded the maximum sentence authorized under the guidelines. On appeal, the state defended the trial court’s imposition of a 180-month sentence under both ORS 137.719(1) and (2), arguing that "where ORS 137.719(1) authorizes a sentence of life without the possibility of parole but the constitution does not permit its imposition[,] ORS 137.719(1) permits the trial court to impose any sentence short of life that is constitutionally permissible." 369 Or. at 487, 507 P.3d 246. The court rejected that argument, because "ORS 137.719(1) provides for only one sentence—the presumptive sentence of life without the possibility of parole." Id. The court further concluded that "ORS 137.719(2) provides a mechanism for imposing a sentence other than...