State v. Miller
State v. Miller
Opinion of the Court
EGAN, C. J.
After pleading guilty, defendant was convicted of six counts of unlawful delivery of methamphetamine, ORS 475.890 (Counts 1, 3, 5, 7, 9, and 12); six counts of unlawful possession of methamphetamine, ORS 475.894 (Counts 2, 4, 6, 8, 10, and 13); one count of unlawful manufacture of methamphetamine, ORS 475.886 (Count 11); and one count of frequenting a place where controlled substances are used, ORS 167.222 (Count 14).
The following undisputed facts were adduced at defendant's sentencing hearing. In 2008, defendant, a bartender and bar owner in Coos Bay, began regularly using small amounts of methamphetamine; she testified that she would put the drug into her coffee to help her cope with personal and financial stress. Toward the end of that year, defendant began selling methamphetamine to three of her friends, who used the drug in a similar fashion. Defendant would buy "eightballs" or "teeners"
In 2013, the South Coast Interagency Narcotics Team (SCINT) arranged for a confidential government informant to purchase methamphetamine from defendant in a series of six body-wire-recorded controlled buys. Those buys formed the bases for defendant's convictions in this case.
In the first transaction, on March 14, 2013, the informant purchased one-quarter ounce (approximately 6.99 grams) of methamphetamine from defendant for $350. In the second buy, on April 8, the informant purchased 13.85 grams of methamphetamine from defendant for $700. Because her usual supplier did not deal in those quantities, defendant bought the drugs from a different supplier. Defendant also provided "baggies" for the informant to resell the methamphetamine, and they discussed the possibility of a price break for larger quantities. During the third transaction, on April 19, the informant purchased 18.89 grams of methamphetamine from defendant, and defendant provided him with new packaging material. She also told him that she would be making future trips in order to get methamphetamine for him. On May 16, the fourth buy, the informant purchased 27.4 grams (approximately one ounce) of methamphetamine, which defendant purchased from yet another supplier, this time in Portland. She bought the methamphetamine for $800 and sold it to the informant for $1,200. Defendant told him that she "could probably get whatever he wanted at the price he was willing to pay."
Based on those six transactions, defendant was arrested and charged with the offenses listed above. She waived a jury, pleaded guilty to all charges, and was convicted. At sentencing, defendant urged the court to impose a downward departure based on "sentencing entrapment," citing federal case law applying the federal sentencing scheme. See, e.g. , United States v. Castaneda ,
The trial court stated that, given a choice, it would impose a downward durational departure, but that it lacked authority to do that. The court observed that "the only reason [defendant is] a big-time drug dealer is because [she] was pushed to be a big-time drug dealer" and, "in the big picture of drug dealers, the outcome of this case is disproportionate to what I think would be a fair sentence." But, the court explained, Oregon's statutory scheme establishing the sentences for the pertinent offenses expressly precluded the court from departing downward from the statutory minimums:
"I reject that the theory presented-sentencing entrapment-authorized me to ignore the statutory scheme which Oregon has created, which again I reference prohibits *330this Court from downward durational or dispositional departing."
Consequently, the court proceeded to sentence defendant according to the statutorily required minimum sentences, as applicable.
Defense counsel then raised the issue of disproportionality, citing State v. Rodriguez/Buck ,
On appeal, defendant reprises her constitutional argument, contending that, because the trial court made a "finding of sentence entrapment-that, although defendant was predisposed to commit minor methamphetamine offenses, she was not predisposed to commit the major offenses that the state 'pushed' her into"-and her undisputed testimony at the sentencing hearing demonstrates that she engaged in the higher-quantity transactions with the informant "not because she necessarily desired to become a major drug dealer, per se , but out of financial need"-the court erred in concluding that the mandatory minimum sentences on Counts 3 to 13 are not disproportionate as applied to her under Article I, section 16.
In response, the state first contends that we must dismiss the appeal under former ORS 138.222, which confers jurisdiction and regulates the scope of our review in this case. State v. Brewer ,
*331Defendant responds that former ORS 138.222(2)(a) does not preclude review because her claims of error relate to sentences that are prescribed by statute, not the rules of the Oregon Criminal Justice Commission, and the Supreme Court's recent decision in State v. Althouse ,
In Althouse , the court considered whether former ORS 138.222(2)(a) precluded the defendant from obtaining direct appellate review of a sentence imposed pursuant to ORS 137.719(1), which provides that "[t]he presumptive sentence" for a defendant's third felony sex conviction is life imprisonment without the possibility of parole.
The Supreme Court disagreed. Parsing the text of the statute, the court noted that the life without parole sentence under ORS 137.719(1) did not fit within the prerequisites of former ORS 138.222(2)(a) in two respects: first, it was not a sentence "within" a presumptive sentence, because it was "not a sentence that falls within a range of possible sentences marked by minimum and maximum levels of severity,"
The court also explored the context and legislative history of former ORS 138.222(2)(a), noting that it was enacted in the same bill in which the legislature initially approved the sentencing guidelines. Id . 674-75,
In 1989, the legislature approved the guidelines and directed the courts to impose the presumptive sentence provided by the applicable guidelines grid block, unless the court found substantial and compelling reasons justifying a departure. Althouse ,
In response to the state's arguments to the contrary, the court also explained that nothing about the enactment of ORS 137.719(1) suggested a legislative intention to expand the scope of former ORS 138.222(2)(a) to bar presumptive sentences that are not contained within a sentencing guidelines grid block from appellate review.
Accordingly, the court confirmed what it had earlier held in State ex rel. Huddleston v. Sawyer ,
With that analysis in mind, we examine the sentences at issue in this case. As noted earlier, because it is dispositive, see 291 Or. App. at 601, n. 3, 422 P.3d at 328, n. 3, we focus our attention on the sentences imposed for defendant's most serious offenses, Counts 11 (unlawful manufacture of methamphetamine, ORS 475.886 ) and 12 (unlawful delivery of methamphetamine, ORS 475.890 ). Among other things, those counts alleged, in each instance, that the offense "involved 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers," triggering application of ORS 475.925 and ORS 475.930.
ORS 475.925 provides, as relevant:
"When a person is convicted of the unlawful delivery or manufacture of a controlled substance, the court shall sentence the person to a term of incarceration ranging from:
"(1) 58 months to 130 months, depending on the person's criminal history,[11 ] if the delivery or manufacture involves:
"* * * * *
"(b) 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers or salts of its isomers[.]"
ORS 475.930, in turn, provides, as relevant:
"(1) When a court sentences a person under ORS *** 475.925 :
"(a) The court shall use the criminal history scale of the sentencing guidelines grid of the Oregon Criminal Justice Commission to determine the sentence to impose. The sentence described in:
"(A) ORS 475.925(1) shall be determined utilizing crime category 10 of the sentencing guidelines grid.
"* * * * *
"(b)(A) Notwithstanding ORS 161.605, the court shall impose the sentence described in ORS *** 475.925 and may not impose a sentence of optional probation or grant a downward dispositional departure or a downward durational departure under the rules of the commission.
*333"(B) The court may impose a sentence other than the sentence described in ORS *** 475.925 if the court imposes a longer term of incarceration that is otherwise required or authorized by law."
Thus, as the trial court recognized, it was required to sentence defendant on Counts 11 and 12 to 58 to 130 months (absent a longer sentence under some other provision of law) depending on her criminal history, using crime category 10 of the sentencing guidelines grid. ORS 475.925(1)(b) ; ORS 475.930(1)(a)(A). Because of her criminal history, defendant was classified as "E" on the criminal history scale;
The state contends that, under that scheme, former ORS 138.222(2)(a) bars appellate review. In the state's view, Althouse supports the state's position, rather than defendant's, because the sentences imposed on Counts 11 and 12 were within a grid block-i.e. , grid block 10-E. The state reasons that, unlike the statute at issue in Althouse , here, ORS 475.930(1)"does not prescribe a presumptive sentence; rather, it merely prescribes a crime-seriousness ranking that then is used to assign the proper gridblock for purposes of determining the proper presumptive sentence within the guidelines." (Emphasis in original; footnote omitted.) Thus, according to the state, the sentences imposed here were within the presumptive sentence prescribed by the rules of the Criminal Justice Commission, because, given defendant's criminal history, the 81-month sentence was the presumptive sentence contained in the grid block for that crime seriousness level.
We appreciate the state's point that the statutory scheme here is distinct from the one at issue in Althouse ; however, we are not persuaded that that distinction makes a difference, given the court's reasoning in Althouse . It is clear from the court's interpretation of former ORS 138.222(2)(a) in that case-in particular, its reliance on the interrelationship between that enactment and the adoption of the sentencing guidelines-that the presumptive sentence "prescribed by" the rules of the Commission can refer only to the presumptive sentence contained in the appropriate guidelines grid block as dictated by application of the crime seriousness and criminal history scales established by the Commission in the guidelines . Here, the legislature itself mandated the crime seriousness scale to be used in determining the presumptive sentences, notwithstanding what the Commission had, by rule, promulgated in the guidelines; moreover, the statutory scheme expressly precluded the court from imposing a downward departure that would otherwise be available under the guidelines rules. Accordingly, sentences imposed under ORS 475.925 and ORS 475.930 -although determined by reference to the grid block-are not within the presumptive sentence prescribed by the rules of the Commission, as the legislature, in enacting former ORS 138.222(2)(a), intended. As in Althouse , the sentences here are not "provided in a grid block for an offender classified in that grid block,"
Having rejected the state's assertion that defendant's claims of error are not reviewable, we turn to the merits. "We review a trial court's decision under Article I, section 16, for legal error, State v. Padilla ,
As noted, defendant contends that the statutorily required sentences that were imposed on Counts 3 to 13 are unconstitutionally disproportionate as applied to her under Article I, section 16. Her thesis-with respect to all of the counts-is that, under the framework for evaluating proportionality established in Rodriguez/Buck and subsequent cases,
"[w]hen a defendant is predisposed to commit a minor offense but has been entrapped to committing a much greater offense with a more severe sentence, a mandatory minimum sentence for the greater offense may be disproportionate under the circumstance of the particular case."
(Boldface omitted.) She contends that the court's comments at sentencing "amount to a finding that defendant was predisposed to commit the lesser offense, but not the greater offenses, and that she committed those greater offenses as a result of government conduct"; therefore, according to defendant, the statutorily required mandatory minimum sentences that flowed from those offenses are unconstitutionally disproportionate as applied to her. She also appears to contend that her undisputed testimony that she was motivated by financial need-rather than the "desire[ ] to become a major drug dealer"-suggests that the penalty was unconstitutionally disproportionate to the offense. Defendant acknowledges that no published Oregon appellate decision has recognized sentencing entrapment as a basis for a proportionality challenge under Article I, section 16 ; however, she asserts that Rodriguez/Buck and its progeny support that proposition. We are not persuaded.
A criminal penalty violates the proportionality guarantee of Article I, section 16, when its imposition would "shock the moral sense" of reasonable people. State v. Wheeler ,
"In declaring unconstitutional a punishment that is so disproportionate, when compared to the offense, so as to 'shock the moral sense' of reasonable people, this court has identified at least three factors that bear upon that ultimate conclusion: (1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant."
Defendant's reliance on Rodriguez/Buck for the proposition that "sentencing entrapment" rendered her 81-month mandatory minimum sentence unconstitutionally disproportionate is flawed in several respects. First, although defendant is correct that Rodriguez/Buck allows for consideration of "the specific circumstances and facts of the *335defendant's conduct" that led to the defendant's conviction when comparing the severity of the penalty and the gravity of the offense under the first factor, id . at 62,
"[a]n as-applied proportionality analysis that considers the facts of an individual defendant's specific criminal conduct is particularly significant when the criminal statute at issue covers a broad range of activity, criminalizing a variety of forms and intensity of conduct. In such a case, a harsh penalty might not, on its face, be disproportionate, because of the fact that the statute dealt, inter alia , with some extreme form of that conduct. However, when a defendant is convicted for engaging in only more minor conduct encompassed within the statute, the defendant may plausibly argue that the mandatory sentence, as applied to the particular facts of his or her case, is unconstitutionally disproportionate ."
Id . at 61,
Such was the case in Rodriguez/Buck , where the two defendants were convicted of first-degree sexual abuse under ORS 163.427, an offense that covers a broad range of conduct, all of which is subject to a 75-month mandatory prison term under Ballot Measure 11.
Here, by contrast, the relevant statutes do not describe a wide array of conduct subject to the same penalty; instead, the crimes are defined quite narrowly. For example, ORS 475.890 provides that, subject to a few exceptions, "it is unlawful for any person to deliver methamphetamine"; similarly, ORS 475.886 makes it "unlawful for any person to manufacture methamphetamine." And, as discussed above, under ORS 475.925 and ORS 475.930, the penalties for those crimes are increased based on the quantities of drugs involved, which the state must plead in the indictment. Thus, unlike Rodriguez/Buck , this is not a case where the graveness of defendant's specific acts in committing the offenses can be measured in comparison to different acts that also fall within the scope of the offense. Instead, defendant's conduct in committing the offenses is essentially the only conduct encompassed within those offenses.
Defendant's theory, nonetheless, is that the mandatory minimum penalties imposed were disproportionate as applied to her-not because her conduct constituting the offenses was less severe than other conduct constituting those offenses-but because she would not have committed that conduct had the government agent not induced her to do so. She also contends that evidence that she engaged in that conduct "out of financial need," and "not because she necessarily desired to become a major drug dealer, per se ," further suggests that the penalty is overly severe. In other words, defendant argues that her reasons for engaging in the criminal conduct somehow makes the conduct itself less severe for purposes of assessing proportionality. However, there is nothing in Rodriguez/Buck , or any of the cases that have followed, to suggest that a person's motivation for committing a crime is a relevant *336consideration under Article I, section 16, and we see no justification for imputing such a consideration in this case.
Second, defendant argues that we should consider her relative "culpability," but does not explain why the circumstances make her conduct less blameworthy than "an ordinary defendant" convicted of the same crimes. Cf. State v. Sanderlin ,
Moreover, under the Rodriguez/Buck framework, it is not only relative culpability, but also relative harm-caused or threatened-to the victim or society that is relevant in judging the seriousness of an offense. Rodriguez/ Buck ,
Third, in determining whether her sentences are unconstitutionally disproportionate as applied, defendant urges us to compare the sentences she received with those that she would have received had she instead committed "the routine or basic offense[s]." That argument turns the second Rodriguez/Buck factor on its head. In addressing the usefulness of that factor-"a comparison of the penalties imposed for other, related crimes," id . at 58,
Here, however, defendant does not identify any related but more serious crimes that would yield a lesser penalty than she was subject to; instead, she points by way of comparison to penalties imposed for less serious crimes than the crimes for which she was convicted. Specifically, defendant contends that, had she been convicted of the crimes she was admittedly "predisposed to commit"-that is, selling small quantities of methamphetamine to her friends-she would have been subject to a 19-month, rather than *337an 81-month, prison term.
In sum, the factors identified in Rodriguez/Buck do not assist defendant. Nor has defendant otherwise persuaded us that this is one of those rare circumstances in which the statutorily prescribed penalty is so disproportionate to the offenses that it would "shock the moral sense of reasonable people." Rodriguez/Buck ,
Affirmed.
All of the references in this opinion to statutes in ORS chapter 475 are to the 2011 version of the statutes, which were in effect when defendant committed the crimes of conviction. Some of those statutes have since been amended. For the same reason, we also cite the 2011 version of ORS 167.222.
Former ORS 138.222 (2015) was repealed in 2017 by Senate Bill (SB) 896, see Or. Laws 2017, ch. 529, § 26. Because the judgment in this case was entered before the January 1, 2018, effective date of SB 896, its provisions do not apply. Or. Laws 2017, ch. 529, § 28 (providing that the repeal of ORS 138.222 applies "on appeal from a judgment or order entered by the trial court on or after the effective date of this 2017 Act"). Accordingly, former ORS 138.222 (2015) governs this case.
Because defendant raises the same legal issue with respect to all of the sentences, which we reject, we need not address whether the sentences on the remaining counts are reviewable because, even if they are, those claims of error would fail for the same reason.
An "eightball" is an eighth of an ounce (approximately 3.5 grams); the "standard going price" for an eightball at the time was $175 to $200. A "teener" is half an "eightball," which was selling for $100 to $125. Defendant testified that she would buy an "eightball" or "teener" for herself and break it into $20, $50, or $100 "sacks" to sell to her friends.
The "going" price at the time for one ounce was $650 to $850; the informant was willing to pay an inflated price.
Specifically, with respect to the counts at issue on appeal, the court sentenced defendant as follows (statutory enhancements in parenthesis):
• Count 3: Delivery of Methamphetamine (substantial quantity consisting of 10 or more grams, for consideration), 21 months
• Count 4: Possession of Methamphetamine (10 grams or more), 30 days
• Count 5: Delivery of Methamphetamine (substantial quantity consisting of 10 or more grams, commercial drug offense, for consideration), 23 months
• Count 6: Possession of Methamphetamine (10 grams or more), 30 days
• Count 7: Delivery of Methamphetamine (substantial quantity consisting of 10 or more grams, for consideration), 21 months
• Count 8: Possession of Methamphetamine (10 grams or more), 30 days
• Count 9: Delivery of Methamphetamine (100 grams or more, substantial quantity consisting of 10 or more grams, for consideration), 46 months
• Count 10: Possession of Methamphetamine (10 grams or more), 10 months
• Count 11: Manufacture of Methamphetamine (500 grams or more, 100 grams or more, substantial quantity consisting of 10 or more grams, commercial drug offense), 81 months
• Count 12: Delivery of Methamphetamine (500 grams or more, 100 grams or more, substantial quantity consisting of 10 or more grams, commercial drug offense, for consideration), 81 months
• Count 13: Possession of Methamphetamine (10 grams or more, commercial drug offense), 25 months.
Article I, section 16, provides, in part, that "all penalties shall be proportioned to the offense."
The state further contends that, because defendant's claims are unreviewable, we also lack jurisdiction to decide the appeal because defendant has failed to present a "colorable claim of error" as required under former ORS 138.222(7). That argument is foreclosed by State v. Silsby ,
The Supreme Court issued its decision in Althouse after briefing in this case was complete. We take the parties' contentions regarding the effect of that decision from defendant's memorandum of additional authorities and oral argument in the case.
At the time, the Commission was named the Oregon Criminal Justice Council. See Or. Laws 1985, ch. 558, § 2.
That 58- to 130-month range coincides with the range of sentences established for crime seriousness scale 10 on the guidelines grid.
Defendant does not dispute that the trial court correctly applied State v. Miller ,
The state also points out that there are numerous statutes that now prescribe a crime-seriousness ranking for a particular crime, see, e.g. , ORS 163.147 (second-degree manslaughter and criminally negligent homicide); ORS 163.168 (third-degree assault); ORS 163.196 (aggravated driving while revoked); ORS 813.012 (felony DUII), and, therefore, if we "exempt from the bar in [former ] ORS 138.222(2)(a) any presumptive sentence that is obtained by application of crime-seriousness ranking specially prescribed by a statute" we would "make reviewable a large class of presumptive sentences that the legislature clearly has declared are not reviewable." We disagree with the state's premise. The legislature has declared in former ORS 138.222(2)(a) that presumptive sentences prescribed by the rules of the Commission are not subject to appellate review; the legislature has made no such declaration with respect to sentences for which, as explained below, the legislature itself has prescribed the presumptive sentence by altering one-half of the equation, that is, by substituting its own determination of the seriousness level of an offense for the Commission's.
The state does not point to anything in the text, context, or legislative history of ORS 475.925 and ORS 475.930 suggesting that the legislature intended those statutes to expand the class of presumptive sentences excluded from direct appellate review under former ORS 138.222(2)(a). Cf. Althouse ,
For example, in Rodriguez/Buck ,
Defendant's calculation requires us to assume that defendant would have committed the same type (possession, delivery, and manufacture of methamphetamine) and number of offenses for which she was convicted, but without the quantity or other enhancements that applied in this case. There is no basis for that assumption, and it only serves to further illustrate the flaw in defendant's argument.
Defendant also points to her lack of criminal history, the third Rodriguez/Buck factor, asserting that "[s]entences that are proportionate for a repeat offender may be disproportionate for a first-time offender." Although that is certainly the case, defendant is not a first-time offender for these purposes. Davidson , 360 Or. at 375,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.