State v. Fernandez

No. 522 July 31, 2024 81

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ADRIAN FERNANDEZ,

Defendant-Appellant.

Lane County Circuit Court

21CR40459; A179207

Jay A. McAlpin, Judge.

Argued and submitted February 7, 2024.

Marc D. Brown, Senior Deputy Director, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Rolf C. Moan, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and

Jacquot, Judge.

AOYAGI, P. J.

Affirmed.

82 State v. Fernandez

AOYAGI, P. J.

Defendant appeals a judgment of conviction for

first-degree online sexual corruption of a child, ORS

163.433 (Count 1), challenging his presumptive sentence

imposed under the felony sentencing guidelines. In his sole

assignment of error, he contends that the sentencing court

“erred when it used crime seriousness category 8 to sentence

defendant on Count 1.” Defendant does not contest that the

applicable rules put his crime of conviction in category 8,

but he argues that the resulting presumptive sentence is

disproportionate in violation of Article I, section 16, of the

Oregon Constitution. We conclude that the alleged error is

unreviewable and therefore affirm.

The relevant facts are procedural. Defendant was

convicted of first-degree online sexual corruption of a child,

which is a felony. ORS 163.433(2). Under the felony sen-

tencing guidelines, first-degree online sexual corruption of

a child is classified in category 8 on the crime seriousness

scale, OAR 213-017-0004(12), and defendant’s criminal his-

tory classification was H, so his grid block was 8-H. See ORS

137.669 (“Except as provided in ORS 137.637 and 137.671,

the incarcerative guidelines and any other guidelines so

designated by the Oregon Criminal Justice Commission

shall be mandatory and constitute presumptive sentences.”);

OAR 213-003-0001(16) (“ ‘Presumptive sentence’ means the

sentence provided in a grid block for an offender classified

in that grid block by the combined effect of the crime seri-

ousness ranking of the current crime of conviction and the

offender’s criminal history or a sentence designated as a

presumptive sentence by statute.”).

At sentencing, defendant did not challenge his grid

block, but he argued that imposing the presumptive sen-

tence for that grid block would violate Article I, section 16,

which requires that “all penalties shall be proportioned to

the offense.” The sentencing court disagreed. It sentenced

defendant to 20 months of imprisonment and 36 months of

post-prison supervision, which is within the presumptive

range for grid block 8-H. OAR ch 213, App 1 (the presump-

tive sentence for grid block 8-H is 19 to 20 months of impris-

onment and three years of post-prison supervision).

Cite as 334 Or App 81 (2024) 83

On appeal, defendant contends that the sentencing

court “erred when it used crime seriousness category 8 to

sentence” him. He does not dispute that the rules put him in

category 8 but again argues that the resulting presumptive

sentence is unconstitutional. Specifically, he argues that it

violates vertical proportionality principles for online sexual

corruption of a child to be classified in crime seriousness cat-

egory 8, because other sexual offenses classified in category

8 are “more serious” in that they involve physical contact,

because the “more serious” offenses of third-degree rape and

third-degree sodomy are classified in crime seriousness cat-

egory 6, and because the crimes of attempted third-degree

rape and attempted third-degree sodomy, which defendant

views as “functionally equivalent” to his crime, are classi-

fied in crime seriousness category 4.

The state urges us to reject defendant’s claim of

error as unreviewable. It relies on ORS 138.105(8)(a)(A),

which provides that “[t]he appellate court has no authority

to review * * * [a] sentence that is within the presumptive

sentence prescribed by the rules of the Oregon Criminal

Justice Commission.”

Defendant responds that his presumptive sentence

is reviewable under ORS 138.105(8)(c)(A), which is an express

exception to ORS 138.105(8)(a). Under ORS 138.105(8)(c)(A),

“the appellate court has authority to review whether the

sentencing court erred * * * [i]n ranking the crime serious-

ness classification of the current crime or in determining

the appropriate classification of a prior conviction or juve-

nile adjudication for criminal history purposes.” (Emphasis

added.) Defendant contends that his claim that the sentenc-

ing court “erred when it used crime seriousness category 8

to sentence” him is thus reviewable.

Whether defendant’s claim is reviewable under

ORS 138.105(8) presents an issue of statutory construc-

tion, which is a question of law. State v. Rusen, 369 Or 677,

509 P3d 628 (2022) (taking that approach to reviewability

under ORS 138.105(9)). When construing a statute, we seek

to ascertain the intent of the legislature by examining the

disputed provision’s text and context, as well as any helpful

84 State v. Fernandez

legislative history of which we are aware. State v. Gaines,

346 Or 160, 171-73, 206 P3d 1042 (2009).

We begin with the text. The disputed portion of

ORS 138.105(8)(c)(A) allows appellate review of claims that

the sentencing court erred “[i]n ranking the crime serious-

ness classification of the current crime.” The plain text sug-

gests that the exception applies only to ranking errors, such

as when the rules provide for a certain crime seriousness

category and the sentencing court uses a different crime

seriousness category.

That construction is strongly supported by case law

applying the statutory predecessor of ORS 138.105(8). Former

ORS 138.222 (1989), repealed by Or Laws 2017, ch 529, § 26,

was enacted as part of the same bill that created the felony

sentencing guidelines. Or Laws 1989, ch 790, § 21; State v.

Althouse, 359 Or 668, 675-76, 375 P3d 475 (2016) (“In the

same bill in which the legislature approved the sentencing

guidelines and directed courts to impose a presumptive

sentence provided by the applicable grid block, the legisla-

ture also enacted the statute that currently is codified as

ORS 138.222.”). It contained provisions materially identical

to those in current ORS 138.105(8). It disallowed appellate

review of “[a]ny sentence that is within the presumptive

sentence prescribed by the rules of the State Sentencing

Guidelines Board,” former ORS 138.222(2)(a) (1989), but

contained an exception for claims that the “sentencing court

erred in ranking the crime seriousness classification of the

current crime or in determining the appropriate classifica-

tion of a prior conviction or juvenile adjudication for crimi-

nal history purposes,” former ORS 138.222(4)(b) (1989).

In 2017, the legislature repealed former ORS

138.222 (2015) as part of an overhaul of statutes related to

criminal appeals, and it enacted in its place ORS 138.105

(2017) for appeals by defendants and ORS 138.115 (2017)

for appeals by the state.1 Or Laws 2017, ch 529, §§ 13, 14,

26; State v. Davis-McCoy, 300 Or App 326, 329, 454 P3d 48

(2019). The provisions codified at ORS 138.105(8)(a), (b), and

(c) (2017)—and identical provisions in ORS 138.115(6)—were

1

The former statute applied to appeals by either party. Former ORS

138.222(7) (1989).

Cite as 334 Or App 81 (2024) 85

“intended to restate the limits on reviewability” of felony

guideline sentences that had been in former ORS 138.222(2)(a)

through (c) (2015), former ORS 138.222(3) (2015), and for-

mer ORS 138.222(4)(b) and (c) (2015). Exhibit 37, Senate

Committee on Judiciary, SB 896, Apr 6, 2017, 21 (Report of

the Direct Criminal Appeals Work Group on SB 896 (2017),

Oregon Law Commission).

Because the reviewability exception in ORS

138.105(8)(c)(A) is materially identical to its statutory pre-

decessor, we look to case law regarding former ORS 138.222

as informative. State v. Cloutier, 351 Or 68, 100, 261 P3d

1234 (2011) (“Our analysis of [the statute] is also informed

by this court’s prior construction of that statute or its prede-

cessors.”); see also Lindell v. Kalugin, 353 Or 338, 349, 297

P3d 1266 (2013) (“Case law existing at the time of the adop-

tion” of a statute “forms a part of the context.”). We find two

cases to be particularly informative.

The first is State ex rel Huddleston v. Sawyer, 324

Or 597, 932 P2d 1145, cert den, 522 US 994 (1997). In that

case, the sentencing court decided that it would be unconsti-

tutional to impose a sentence under ORS 137.700 (Measure

11) for the defendant’s crime and so imposed the felony

guideline sentence instead. Id. at 599-600. The state sought

a writ of mandamus. Id. at 600. Before reaching the merits,

the Supreme Court addressed whether mandamus was an

appropriate remedy and concluded that it was because the

sentence was unreviewable on direct appeal. Id. at 600-08.

Addressing reviewability under former ORS 138.222

(1995), the Huddleston court explained that a “presumptive

sentence” refers to the sentence provided by the rules of the

Oregon Criminal Justice Commission. Id. at 603. The defen-

dant had been sentenced in accordance with the rules of the

Oregon Criminal Justice Commission, so he had received a

“presumptive sentence” within the meaning of the review-

ability statute. Id. at 605. Further, the court explained, the

state was necessarily challenging a presumptive sentence by

arguing that the defendant should have received a different

sentence from the presumptive sentence, that is, the Measure

11 sentence. Id. at 605-06. Considering text, context, and leg-

islative history, the court concluded that “appellate review

86 State v. Fernandez

is not available to challenge a presumptive sentence when

a conviction is placed in the proper grid block.” Id. at 606.

“With respect to those cases in which the trial court imposed

a presumptive sentence on a conviction that was placed in

the proper grid block, the stated intention [of the legislature]

was that appellate review would not be available.” Id. at 607.

It did not matter how the defendant came to receive a pre-

sumptive sentence. Id. (finding nothing in the legislative his-

tory to suggest “that the reason for imposing the presumptive

sentence, or the reason for not imposing a different (higher

or lower) sentence, would matter” (emphasis in original)).2

The second informative case is State v. Munro, 109

Or App 188, 818 P2d 971 (1991), rev den, 312 Or 588 (1992).

There, the defendant claimed on appeal that the sentencing

court had miscalculated his criminal history score in deter-

mining his grid block under the felony sentencing guide-

lines. Id. at 190-91. The reviewability exception in former

ORS 138.222(4)(b) (1991) allowed appellate review of errors

“in ranking the crime seriousness classification of the cur-

rent crime or in determining the appropriate classification

of a prior conviction or juvenile adjudication for criminal

history purposes.” Applying that exception, we concluded

that the claim was reviewable. Id. at 191-92. We understood

“classification” to be a “clear” reference “to the crime seri-

ousness scale and criminal history scale that make up the

sentencing guidelines grid.”3 Id. at 191. Because the defen-

2

In response to Huddleston, the legislature enacted former ORS 138.222(4)

(c) (1997) to allow review of claims that a “sentencing court erred in failing to

impose a minimum sentence that is prescribed by ORS 137.700.” Or Laws 1997,

ch 852, § 9; see State v. Dubois, 152 Or App 515, 954 P2d 1264 (1998) (recogniz-

ing change in law). However, as to the issue for which we cite Huddleston, the

Supreme Court reaffirmed Huddleston in Althouse, 359 Or at 676-77.

3

Regarding the crime seriousness scale, see OAR 213-004-0002(1) (“The

Crime Seriousness Scale consists of eleven categories of crimes. Each crime

category represents crimes of relatively equal seriousness. The complete Crime

Seriousness Scale is set forth in OAR 213-017-0000 through 0011.”).

Regarding the criminal history scale, see OAR 213-004-0006(1) (“The

Criminal History Scale includes nine mutually exclusive categories used to

classify an offender’s criminal history according to the extent and nature of the

offender’s criminal history at the time the current crime or crimes of convic-

tion is sentenced. The nine categories in the scale are labeled alphabetically and

are arranged in order of seriousness from the most serious (Criminal History

Category A) to the least serious (Criminal History Category I).”), and OAR 213-

004-0006 (rules to determine a person’s criminal history category).

Cite as 334 Or App 81 (2024) 87

dant was claiming that the sentencing court had misap-

plied a guideline rule and thus miscalculated his criminal

history score, his claim was reviewable. Id. at 192; see also

State v. Rathbone II, 110 Or App 419, 823 P2d 432 (1991),

rev den, 313 Or 300 (1992) (concluding that the defendant’s

challenge to his presumptive sentence was reviewable under

former ORS 138.222(4)(b) (1991), where he claimed that the

sentencing court did not comply with the rules regarding

unranked offenses when it put his racketeering conviction

in crime seriousness category 9).

Both Huddleston and Munro support our reading

of the plain text of ORS 138.105(8)(c)(A). We understand a

sentencing court to err “[i]n ranking the crime seriousness

classification of the current crime,” ORS 138.105(8)(c)(A),

when it misapplies the rules of the Oregon Criminal Justice

Commission regarding the crime seriousness scale that are

part of the felony sentencing guidelines.

In this case, it is undisputed that the sentencing

court correctly applied the rules of the Oregon Criminal

Justice Commission when it ranked defendant’s crime of

conviction in crime seriousness category 8 and defendant’s

criminal history in category H, and it is undisputed that the

court imposed a sentence within the presumptive sentenc-

ing range for grid block 8-H. The sentencing court therefore

cannot be said to have erred “[i]n ranking the crime seri-

ousness classification of the current crime,” so as to come

within the exception in ORS 138.105(8)(c)(A).

Notwithstanding how he has framed his assign-

ment of error, defendant is not really claiming that the

sentencing court erred in ranking the crime seriousness

classification of his crime of conviction. The only way that

defendant could claim misranking by the sentencing court is

if the rules provided for the sentencing court to use a lower

crime seriousness ranking in these circumstances and the

court failed to do so. We are unaware of any authority, how-

ever, that would have allowed the court to use a lower crime

seriousness ranking than it did. What defendant is really

challenging is not misranking by the sentencing court but,

instead, the constitutionality of the Oregon Criminal Justice

Commission’s crime seriousness scale, specifically the rule

88 State v. Fernandez

classifying first-degree online sexual corruption of a child

in crime seriousness category 8. That is not a challenge that

comes within the scope of ORS 138.105(8)(c)(A).

For those reasons, we conclude that defendant’s pre-

sumptive sentence under the felony sentencing guidelines is

unreviewable under ORS 138.105(8)(a)(A).

Affirmed.