16 December 26, 2024 No. 922 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. THOMAS ALAN DAVIS, JR., Defendant-Appellant.

Washington County Circuit Court C131383CR; A169891 On remand from the Oregon Supreme Court, State v. Davis, 372 Or 618, 553 P3d 1017 (2024).

James Lee Fun, Jr., Judge.

Submitted on remand August 21, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, Lagesen, Chief Judge, and Kamins, Judge.

TOOKEY, P. J.

Affirmed.

Cite as 337 Or App 16 (2024) 17 TOOKEY, P. J.

In our opinion addressing defendant’s second appeal of his convictions for one count of first-degree kidnapping, ORS 163.235 (Count 1); one count of attempted first-degree sexual abuse, ORS 163.427, ORS 161.405 (Count 2); and one count of fourth-degree assault, ORS 163.160 (Count 3), we reversed and remanded defendant’s convictions after deter- mining that the trial court had abused its discretion in fail- ing to exclude evidence of other bad acts under OEC 403, because the danger of unfair prejudice resulting from the admission of the evidence substantially outweighed the pro- bative value of the evidence. State v. Davis, 319 Or App 737, 511 P3d 10 (2022). On the state’s appeal, the Supreme Court reversed our decision, State v. Davis, 372 Or 618, 553 P3d 1017 (2024), and has now remanded the case to us to con- sider defendant’s third assignment of error, challenging his presumptive life sentence under ORS 137.719, which we did not reach previously because of our reversal of defendant’s convictions. State v. Davis, 290 Or App 244, 262 n 6, 414 P3d 887 (2018). For the reasons explained here, we reject defen- dant’s third assignment of error and therefore affirm.

Because defendant’s conviction of attempted first- degree sexual abuse was his third conviction for a felony sex offense, ORS 137.719(1) required that he be sentenced to a presumptive sentence of life in prison without the possibil- ity of parole.1 In his third assignment of error, defendant argues that, as applied to him, the statutory presumptive life sentence without the possibility of parole is unconsti- tutionally disproportionate under Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution.2 ORS 137.719(1) provides: “The presumptive sentence for a sex crime that is a felony is life impris- onment 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 cur- rent sentence.”

Defendant concedes that, below, he did not expressly cite Article I, section 16, of the Oregon Constitution. However, given his argument that the sentence would be disproportionate, and the consideration of that argument by the trial court—including its discussion of opinions of the Supreme Court—we conclude that the purposes of preservation were adequately met. See State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011) (focusing on meeting purposes of preservation); 18 State v. Davis Whether a sentence is unconstitutionally dispropor- tionate is a question of law. State v. Ryan, 361 Or 602, 612, 396 P3d 867 (2017) (addressing analytical framework). We address first defendant’s argument that his sentence is unconstitutionally disproportionate under Article I, section 16, which provides that “all penalties shall be proportioned to the offense.” A statutorily required sentence violates Article I, section 16, as applied, if it is “so disproportionate, when com- pared to the offense, as to ‘shock the moral sense’ of reason- able people.” State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009) (quoting State v. Wheeler, 343 Or 652, 670, 175 P3d 438 (2007)). It is rare that the standard is met. Id. In assessing whether a punishment is unconstitu- tionally disproportionate, the court considers at least three factors: “(1) a comparison of the severity of the penalty and the grav- ity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.”

Rodriguez/Buck, 347 Or at 58. Under the first Rodriguez/ Buck factor, the court considers the relationship between the gravity of the crime and the severity of the penalty imposed. It is a basic proportionality concept that “more serious crimes should receive more serious sentences than less serious crimes and vice versa.” Id. at 61. Under the sec- ond Rodriguez/Buck factor, the court compares the penalty imposed with penalties for related offenses. Id. at 63. “If the penalties for more ‘serious’ crimes than the crime at issue result in less severe sentences, that is an indication that the challenged penalty may be disproportionate.” Id. Under the third Rodriguez/Buck factor, the court considers the defen- dant’s criminal history, which includes his convictions as well as misconduct that did not result in conviction. Id. at 65.

When a sentence is enhanced by operation of ORS 137.719 because of a defendant’s repeat-offender status, addi- tional considerations come into play. “The idea that a penalty that might be proportional as applied to one who has previously State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (whether the defendant cor- rectly identifies the source for his position is “less crucial” for preservation than raising the issue).

Cite as 337 Or App 16 (2024) 19 committed the same or other crimes but not proportional as applied to a first-time offender is rooted in Blackstone’s influ- ential writings on proportionality.” Rodriguez/Buck, 347 Or at 65-66; see also Wheeler, 343 Or at 671 (“[T]he proportion- ality provision permits the imposition of penalties for repeat offenders that might not be permissible for a single offense.”).

In that context, the first and third Rodriguez/Buck factors will, “in large part, coalesce.” State v. Althouse, 359 Or 668, 686, 375 P3d 475 (2016). A comparison of the severity of the penalty and the gravity of the crimes that are subject to that penalty under a repeat-offender statute focuses not on the last offense committed but on the gravity of the defendant’s criminal history. Id. The court “consider[s] the specific cir- cumstances of the charged and uncharged offenses that make up [the defendant’s] criminal history,” as well as the “ ‘seri- ousness of [the defendant’s] repetitive sexual conduct,’ ” and “ ‘the danger that it forecasts for others unless the defendant is segregated from society.’ ” Id. (quoting Jensen v. Gladden, 231 Or 141, 144-45, 372 P3d 183 (1962)). The constitution- ality of an enhanced sentence for repeated sexual offenses “ ‘depend[s] on the seriousness of repetitive sexual conduct of th[e] kind [punished by the statute] and the danger that it forecasts for others unless the defendant is segregated from society.’ ” Althouse, 359 Or at 685. If the defendant “ ‘is a men- ace to the community, his sentence should be aimed at offer- ing the most protection to the community, regardless of the relative innocuousness of the particular crime for which he is now convicted.’ ” Id. at 684 (quoting Tuel v. Gladden, 234 Or 1, 6, 379 P2d 553 (1963)). “Because the legislature has primary authority to determine the gravity of an offense and the appropriate length of punishment, a court may say that a particular punishment is constitutionally disproportionate only in those rare circumstances where the legislature has exceeded that authority.” State v. Delp, 297 Or App 1, 8, 441 P3d 590 (2019) (internal quotation marks omitted).

Gravity of defendant’s crime of conviction and crimi- nal history compared to the severity of the penalty.

We have considered together the first and third Rodriguez/Buck factors—the gravity of defendant’s crime of conviction and criminal history compared to the severity of 20 State v. Davis penalty. It would not benefit the parties, the bench, or the bar to describe in detail the gravity of defendant’s crimes, his criminal history, and his failure to reform his conduct. The trial court cited the “implied violence” in much of defendant’s past conduct as well defendant’s inability to reform his con- duct. Suffice it to say that the first and third factors as they bear on proportionality persuade us that the presumptive life sentence required by ORS 137.719 is not disproportionate to defendant’s crime of conviction and criminal history.

Comparison of defendant’s penalty with penalties imposed for similar crimes.

Under the second Rodriguez/Buck factor, the court compares the penalty imposed on the defendant with pen- alties for related offenses. 347 Or at 63. “If the penalties for more ‘serious’ crimes than the crime at issue result in less severe sentences, that is an indication that the chal- lenged penalty may be disproportionate.” Id. The “[c]rimes that are relevant to [the related-crimes] analysis include other offenses designated as ‘sex crimes’ that are subject to enhanced sentences under ORS 137.719(1), as well as the offenses identified as sexual offenses in ORS chapter 163.”

State v. Sokell, 360 Or 392, 398-99, 380 P3d 975 (2016).

Defendant contends that there are recidivist sexual offenses that, in his view, are as serious as or more serious than defendant’s offenses, including unlawful contact with a child, ORS 163.479, a Class C felony, and unlawfully being in a location where children regularly congregate, a Class A misdemeanor, ORS 163.476, that are not considered to be “sex crimes” and that, therefore, are not subject to ORS 137.719, suggesting that defendant’s sentence is dispropor- tionate. The Supreme Court rejected a similar argument in Althouse, 359 Or at 691-92 (“If, as explained above, defen- dant’s sentence is constitutionally proportionate as applied to his criminal history, it is difficult to see how it advances his as-applied challenge to his sentence to argue that the legislature also could have imposed a life sentence on others who commit additional sex crimes.”).

And, once again, in the context of a sentence that is required by a repeat-offender statute, considerations here Cite as 337 Or App 16 (2024) 21 are not simply a matter of comparing defendant’s sentence to the sentences for other sexual offenses. Where, as here, the court has concluded under the first and third Rodriguez/ Buck factors that the sentence is not disproportionate to the defendant’s criminal history, the comparison required by the second factor is of minimal additional weight. Althouse, 359 Or at 692 (“When, as explained above, defendant’s sen- tence appears proportionate to his particular criminal his- tory, the comparisons that defendant invites us to make provide no reason to hold that a life sentence, as applied to him, is disproportionate in violation of Article I, section 16.”). Defendant’s arguments under the second Rodriguez/ Buck factor do not undermine our conclusion under the first and third factors that defendant’s sentence is not dispropor- tionate to his particular criminal history. Id. Defendant’s Eighth Amendment Challenge We move on to defendant’s contention that the pre- sumptive sentence under ORS 137.719(1), as applied to him, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The disproportionality analysis under the Eighth Amendment in the context of a recidivist sentence is similar to that under the Oregon Constitution.

See Althouse, 359 Or at 692-93 (applying analysis). The same factors that lead us to conclude that defendant’s sentence complies with the Oregon Constitution require the conclu- sion that it complies with the federal constitution.

Having reviewed the facts of this case and defen- dant’s criminal history, and having considered the argu- ments raised on appeal, we conclude that, although defen- dant’s sentence is harsh, this is not one of “those rare instances” in which the enhanced sentence that the legis- lature authorized for a repeat offender is constitutionally disproportionate.

Affirmed.