State v. Schoen

No. 457 May 28, 2026 37

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOSHUA RUSSELL SCHOEN,

aka Joshua Schoen,

Defendant-Appellant.

Clackamas County Circuit Court

22CR10095; A182594

Ann M. Lininger, Judge.

Submitted June 17, 2025.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Andrew D. Robinson, Deputy Public Defender,

Oregon Public Defense Commission, filed the opening brief

for appellant. Joshua Russell Schoen filed the supplemental

brief pro se.

Dan Rayfield, Attorney General, Benjamin Gutman,

Solicitor General, and Colm Moore, Assistant Attorney

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Powers, Judge, and

O’Connor, Judge.

SHORR, P. J.

Affirmed.

38 State v. Schoen

Cite as 350 Or App 37 (2026) 39

SHORR, P. J.

Defendant appeals from a judgment of conviction

for four counts of first-degree unlawful sexual penetration

(Counts 1, 3, 5, and 7) and four counts of first-degree sex-

ual abuse (Counts 2, 4, 6, 8). He raises eight assignments of

error arguing that the trial court plainly erred in (1) failing

to merge the two guilty verdicts (sexual abuse and sexual

penetration) for each of four separate penetrative acts, and

(2) imposing a disproportionate 300-month prison sentence.

Defendant also raises a pro se supplemental assignment of

error challenging the admission of expert witness testimony

as unfairly prejudicial.1 We affirm.

The state charged defendant by indictment with

four counts of first-degree unlawful sexual penetration and

four counts of first-degree sexual abuse committed against

his stepdaughter, T, when she was seven or eight years

old. Defendant opted for a bench trial, at which T testified

that defendant inserted his fingers into her vagina on four

separate occasions. The trial court found defendant guilty

as charged. At sentencing, defense counsel argued that,

for each of the four separate incidents, the convictions for

first-degree sexual abuse should merge with the convic-

tions for first-degree unlawful sexual penetration under

ORS 161.067. The court rejected that merger argument and

imposed a sentence of 300 months total in prison. It imposed

mandatory 300-month prison sentences on the first-degree

unlawful sexual penetration convictions and 75-month

prison sentences on the first-degree sexual abuse convic-

tions, and ran the sentences concurrently.

We begin with defendant’s constitutional challenge

to the imposition of two convictions for each penetrative act.

He argues that the trial court erred by failing to merge the

guilty verdicts for first-degree sexual abuse with the cor-

responding guilty verdicts for first-degree unlawful sexual

penetration, which would have resulted in one conviction,

rather than two, for each of the four penetrative acts for

1

In a second pro se supplemental assignment of error, defendant raises

essentially the same proportionality arguments as in his fifth through eighth

counseled assignments of error. As explained in this opinion, we conclude that

the trial court did not impose a plainly disproportionate sentence, and therefore

reject all of defendant’s proportionality arguments.

40 State v. Schoen

which he was found guilty. Defendant bases that argument

on an amendment to the first-degree unlawful sexual pene-

tration statute, which provides that, “[w]hen multiple crimes

are charged based on one penetrative act, the court * * * may

enter only one conviction for the conduct.” ORS 163.411(4).

According to defendant, that amendment, which became

effective after his sentencing date and which the legislature

did not make retroactive, makes the imposition of two con-

victions for each penetrative act unconstitutional under the

Eighth Amendment to the United States Constitution and

Article I, section 20, of the Oregon Constitution.

We disagree. First, we note that defendant’s argu-

ment is not preserved. Defendant’s merger argument at

sentencing, based on ORS 161.067(1), contended that the

elements of first-degree sexual abuse are subsumed in

the elements of first-degree unlawful sexual penetration.

Defendant does not reprise that argument before us, and

it was insufficient to preserve the constitutional argu-

ments that he now raises on appeal. Second, for the reasons

explained below, we conclude that the trial court’s entry of

eight convictions was not plainly unconstitutional for either

of the reasons asserted by defendant. See State v. Vanornum,

354 Or 614, 629, 317 P3d 889 (2013) (to establish plain error,

a defendant must demonstrate, among other things, that

the error was “obvious”).

The Eighth Amendment to the United States

Constitution provides: “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punish-

ment inflicted.” Defendant argues that the enactment of

ORS 163.411(4) reflects a societal determination that multi-

ple convictions for one penetrative act are disproportionate,

and therefore, the imposition of two convictions for a single

penetrative act obviously violates the Eighth Amendment.

We are not persuaded by that argument. By its plain terms,

the Eighth Amendment prohibits “cruel and unusual pun-

ishments.” US Const, Amend VIII (emphasis added); see

also State v. Bartol, 368 Or 598, 613, 496 P3d 1013 (2021)

(explaining that “the amendment prohibits disproportion-

ate sentences”). In this case, because defendant’s sentences

were to be served concurrently, it is not obvious that the

Cite as 350 Or App 37 (2026) 41

trial court’s imposition of two convictions for each penetra-

tive act resulted in an unconstitutionally disproportionate

punishment. Defendant does not argue that he would have

received a lesser sentence had the trial court merged the

verdicts.

We briefly address defendant’s reliance on the

Supreme Court’s decision in Bartol, which he cites in sup-

port of his constitutional argument. There, after the defen-

dant was convicted of aggravated murder and sentenced to

death, the legislature enacted Senate Bill 1013 (2019), which

reclassified all the forms of murder that previously had been

“aggravated murder” as “murder in the first degree,” which

cannot be punishable by death. Id. at 600-01. Although

SB 1013 did not apply retroactively to sentences imposed

before its effective date, the Supreme Court held that the

defendant’s death sentence for conduct that, could no lon-

ger be punished by death after the enactment of SB 1013,

was unconstitutionally disproportionate.2 Id. at 625. We are

not convinced that Bartol is analogous to the situation pre-

sented in this case.

In Bartol, the court focused on the disparity in pun-

ishment that resulted from the new legislation—namely

that “persons who engage in exactly the same conduct * * *

can receive uniquely different sentences: one cannot be exe-

cuted, but the other can.” Id. at 624. In this case, where

defendant’s sentences were to run concurrently, there is no

disparity in the length of sentence resulting from the entry

of two convictions rather than one for each penetrative act.

Furthermore, the Supreme Court emphasized that its deci-

sion in Bartol was “based on special proportionality rules

that apply to the death penalty, which are the result of the

unique differences between the death penalty and all other

punishments.” Id. at 625 n 9. For the foregoing reasons, we

conclude that defendant has not identified an obvious vio-

lation of the Eighth Amendment such that the trial court

2

The Supreme Court reached that conclusion under Article I, section 16, of

the Oregon Constitution. Here, defendant argues against multiple convictions for

a single penetrative act based on the Eighth Amendment to the United States

Constitution. Both provisions prohibit disproportionate sentences. Bartol, 368 Or

at 613.

42 State v. Schoen

plainly erred in entering two convictions whose sentences

ran concurrently.3

Defendant also argues that it is a violation of

Article I, section 20, of the Oregon Constitution for him to

be treated differently, based solely on his sentencing date,

than others who get the merger benefits of ORS 163.411(4).

Article I, section 20, prohibits the passage of laws “granting

to any citizen or class of citizens privileges, or immunities,

which, upon the same terms, shall not equally belong to all

citizens.” We have explained that that provision prohibits

legislation which disparately treats “true classes,” those that

have identity apart from the challenged law itself. Tanner v.

OHSU, 157 Or App 502, 521, 971 P2d 435 (1998). But leg-

islation that disparately affects a “nontrue class,” a class

created by the challenged law, does not violate that section.

Id. The class that defendant identifies—those treated dif-

ferently based on the date of sentencing—is a nontrue class

because it is created by the statute itself. The trial court did

not plainly err under Article I, section 20.

We turn to defendant’s challenge to the propor-

tionality of his sentence.4 He contends that the trial court

plainly erred in imposing unconstitutionally disproportion-

ate 300-month prison sentences for each unlawful sexual

penetration conviction. We disagree that the trial court

plainly erred. See Vanornum, 354 Or at 629 (to establish

plain error, a defendant must demonstrate, among other

things, that the error was “obvious”). We have previously

upheld the same sentence under similar circumstances. See

State v. McCombs, 330 Or App 545, 564-65, 544 P3d 390,

rev den, 372 Or 718 (2024) (upholding 300-month prison sen-

tences for sodomy and rape of a child despite the defendant’s

lack of prior criminal history); State v. Alwinger, 236 Or App

240, 246-47, 236 P3d 755 (2010) (300-month prison sentence

was not unconstitutionally disproportionate for a single

occurrence of digital penetration of a three-year-old child).

3

We reiterate that because defendant’s claim of error arises in an unpre-

served posture, we review only for plain error—that is, whether the trial court’s

decision constituted obvious constitutional error under the Eighth Amendment.

4

Defendant assigns error to the trial court’s imposition of concurrent 300-

month prison sentences in both his counseled and supplemental pro se briefs. We

address all of defendants’ arguments here.

Cite as 350 Or App 37 (2026) 43

Because any error is not obvious, we conclude that defen-

dant’s claims of error do not qualify for plain error review.

Finally, we address defendant’s pro se supplemental

assignment of error challenging the admission of the med-

ical examiner’s testimony at trial. We understand defen-

dant to argue that the examiner’s testimony was unfairly

prejudicial because she gave a diagnosis of sexual abuse

where there was no corroborating physical evidence, and

that the trial court plainly erred in permitting that testi-

mony. Defendant does not point to any specific statements

by the examiner nor to any objection he made to any of the

examiner’s testimony. Based on our review of the record, the

medical examiner did not give a medical diagnosis of sex-

ual abuse as part of her testimony. The examiner merely

explained that during the medical exam she listened to T’s

heart and lungs, but that T declined any other part of the

exam, including a pelvic exam. The medical examiner’s tes-

timony was not unfairly prejudicial under OEC 403, and the

trial court did not plainly err in permitting it.

Affirmed.