State v. Althouse

668 June 16, 2016 No. 36

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

WILLIAM MICHAEL ALTHOUSE,

Petitioner on Review.

(CC 11C48471; CA A152626; SC S062909)

On review from the Court of Appeals.*

Argued and submitted September 14, 2015.

Shawn E. Wiley, Deputy Public Defender, Salem, argued

the cause and filed the brief for petitioner on review. With

him on the brief was Ernest G. Lannet, Chief Defender,

Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. With

him on the brief were Ellen F. Rosenblum, Attorney General,

and Anna M. Joyce, Solicitor General.

Sara F. Werboff and Shauna M. Curphey, Portland, filed

the brief for amicus curiae Oregon Justice Resource Center.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, Brewer, and Nakamoto, Justices.**

KISTLER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

_____________

**  On appeal from Marion County Circuit Court, Lindsay Partridge, Judge.

266 Or App 548, 339 P3d 470 (2014).

**  Linder, J., retired December 31, 2015, and did not participate in the deci-

sion of this case.

Cite as 359 Or 668 (2016) 669

Case Summary: Defendant was convicted of felony public indecency after pre-

viously having been convicted of three other felony sex crimes. Pursuant to ORS

137.719, the trial court sentenced defendant to life in prison without parole. On

appeal, defendant argued that his sentence was disproportionate in violation of

Article I, section 16, of the Oregon Constitution and cruel and unusual in violation

of the Eighth Amendment to the United States Constitution. The state responded

that ORS 138.222 barred defendant from challenging his sentence on direct

appeal. The Court of Appeals affirmed without opinion. Held: (1) ORS 138.222

does not bar direct appellate review of a presumptive life sentence imposed under

ORS 137.719; and (2) defendant’s sentence does not violate Article I, section 16,

or the Eighth Amendment, considering defendant’s prior convictions for sexual

abuse and sodomy, his uncharged wrongful sexual offenses, and the legislature’s

decision that recidivist offenders warrant greater punishment than first-time

offenders.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

670 State v. Althouse

KISTLER, J.

Defendant was convicted in 2011 of felony public

indecency after previously having been convicted of three

other felony sex crimes. Pursuant to ORS 137.719(1), the

trial court sentenced him to life imprisonment without the

possibility of parole. Throughout this litigation, defendant

has argued that, as applied to him, a sentence of life impris-

onment without the possibility of parole violates Article I,

section 16, of the Oregon Constitution and the Eighth

Amendment to the United States Constitution. The Court of

Appeals affirmed the trial court’s judgment without opinion.

State v. Althouse, 266 Or App 548, 339 P3d 470 (2014). We

allowed defendant’s petition for review to consider two issues:

whether ORS 138.222(2)(a) bars direct appellate review of a

presumptive sentence imposed pursuant to ORS 137.719(1)

and, if not, whether defendant’s sentence is unconstitutional

as applied. We hold that defendant’s sentence is both review-

able and constitutional. We accordingly affirm the Court of

Appeals decision and the trial court’s judgment.

I.  DIRECT APPELLATE REVIEW

We begin with the state’s argument that ORS

138.222(2)(a) forecloses direct appellate review of defen-

dant’s sentence. Two statutes are relevant to that argu-

ment. ORS 138.222(2)(a) provides that “[a]ny sentence that

is within the presumptive sentence prescribed by the rules

of the Oregon Criminal Justice Commission” may not be

reviewed on direct appeal.1 ORS 137.719(1) provides that

the presumptive sentence for a defendant’s third felony sex

conviction is life imprisonment without the possibility of

parole.2 A trial court may impose a lesser sentence if doing

1

The state acknowledges that defendant’s challenge to his sentence may

be reviewed on post-conviction, but it argues that ORS 138.222(2)(a) precludes

direct appellate review of that challenge.

2

ORS 137.719 provides, in part:

“(1) The presumptive sentence for a sex crime that is a felony is life

imprisonment 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

current sentence.

“(2) The court may impose a sentence other than the presumptive

sentence provided by subsection (1) of this section if the court imposes a

departure sentence authorized by the rules of the Oregon Criminal Justice

Commission based upon findings of substantial and compelling reasons.”

Cite as 359 Or 668 (2016) 671

so is “authorized by the rules of the Oregon Criminal Justice

Commission” and if the trial court finds that there are sub-

stantial and compelling reasons for departing from the pre-

sumptive sentence. ORS 137.719(2).

In this case, the trial court did not impose a down-

ward departure sentence pursuant to ORS 137.719(2).

Rather, it imposed the presumptive sentence provided

in ORS 137.719(1). It follows, the state argues, that ORS

138.222(2)(a) precludes defendant from challenging that

sentence on direct appeal. In making that argument, the

state recognizes that ORS 138.222(2)(a) applies only to pre-

sumptive sentences “prescribed by the rules of the Oregon

Criminal Justice Commission.” It also recognizes that ORS

137.719(1) prescribed the presumptive sentence that the

trial court imposed. It argues, however, that the Oregon

Criminal Justice Commission’s rules define the term “pre-

sumptive sentence” as meaning both a presumptive sen-

tence specified in a sentencing guidelines “grid block” and

“a sentence designated as a presumptive sentence by stat-

ute.” See OAR 213-003-0001(16) (defining “presumptive sen-

tence”).3 The state reasons that, because the Commission’s

administrative rules designate a life sentence imposed pur-

suant to ORS 137.719(1) as a “presumptive sentence” and

because the Commission’s rules also direct trial courts to

impose presumptive sentences that the guidelines provide,4

a life sentence imposed pursuant to ORS 137.719(1) is a

“presumptive sentence prescribed by the rules of the Oregon

Criminal Justice Commission,” as that phrase is used in

3

As initially promulgated, the Commission’s rules provided:

“ ‘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 crimi-

nal history.”

Former OAR 253-03-001(15) (1988). In 2001, the legislature enacted ORS

137.719, which specifies a presumptive sentence for a defendant’s third felony sex

conviction. See Or Laws 2001, ch 884, § 4. Afterwards, the Commission amended

and renumbered the definition of “presumptive sentence” in its administrative

rules to include statutorily designated presumptive sentences. See OAR 213-003-

0001(16) (2007) (adding the current phrase “or a sentence designated as a pre-

sumptive sentence by statute” to the definition of presumptive sentence).

4

OAR 213-008-0001 provides that, except as otherwise specified, a sentenc-

ing court “shall impose the presumptive sentence provided by the guidelines

unless the judge finds substantial and compelling reasons to impose a departure.”

672 State v. Althouse

ORS 138.222(2)(a). It follows, the state concludes, that ORS

138.222(2)(a) precludes our review of defendant’s challenge

to his sentence.

In analyzing the state’s argument, we follow our

customary methodology. We begin with the text and context

of ORS 138.222(2)(a) and, if appropriate, turn to the leg-

islative history of that statute. See State v. Walker, 356 Or

4, 13, 333 P3d 316 (2014) (describing statutory construction

methodology).

A.  Text

ORS 138.222 provides, in part:

“(2)  Except as otherwise provided in subsection (4)(c)

of this section, on appeal from a judgment of conviction

entered for a felony committed on or after November 1,

1989, the appellate court may not review:

“(a)  Any sentence that is within the presumptive

sentence prescribed by the rules of the Oregon Criminal

Justice Commission.”

The text of ORS 138.222(2)(a) bars direct appellate review

of a sentence if three prerequisites are met. First, the chal-

lenged sentence must be a presumptive sentence.5 Second,

the challenged sentence must be “within [a] presumptive sen-

tence.” Finally, the challenged sentence must be “prescribed

by the rules of the Oregon Criminal Justice Commission.”

There is no dispute that the first prerequisite is sat-

isfied. A sentence of life imprisonment without possibility of

parole imposed pursuant to ORS 137.719(1) is a “presump-

tive sentence.” The statute designates it as such. See ORS

137.719(1) (providing that the “presumptive sentence” for a

defendant’s third felony sex crime is life imprisonment with-

out the possibility of parole).

The second prerequisite—that the sentence be

“within” a presumptive sentence—poses a bigger hurdle for

the state. ORS 137.719 imposes a presumptive sentence of

5

The text does not expressly require that the challenged sentence be a pre-

sumptive sentence. However, we presume that a sentence that is “within [a] pre-

sumptive sentence” will be a presumptive sentence.

Cite as 359 Or 668 (2016) 673

life imprisonment without parole for a third conviction of

certain felony sex crimes. However, life without parole is not

a sentence “within” another sentence; that is, life without

parole is not a sentence that falls within a range of possi-

ble sentences marked by minimum and maximum levels of

severity. Rather, life without parole is a fixed term of impris-

onment whereby a defendant remains incarcerated for the

remainder of his or her natural life, however long that may

be. While a sentence imposed pursuant to ORS 137.719(1)

is a presumptive sentence, it is not “within” a presumptive

sentence or range of presumptive sentences, as that term is

ordinarily understood.

The third prerequisite—that the sentence be within

the presumptive sentence “prescribed by the rules of the

Oregon Criminal Justice Commission”—also cuts against

the state’s position. Ordinarily, the Commission’s rules

establish “grid blocks” that prescribe a range of presump-

tive sentences for a crime, depending on the severity of

the crime and the offender’s criminal history. See State v.

Speedis, 350 Or 424, 427, 256 P3d 1061 (2011). Although

the grid blocks established by the Commission’s rules are

not effective until the legislature approves them, the legisla-

ture does not prescribe the presumptive sentences that the

Commission establishes by rule. See State v. Lane, 357 Or

619, 624, 355 P3d 914 (2015) (explaining that, in approving

the Commission’s sentencing guidelines rules, the legisla-

ture is not “formally adopting them as statutes”).

The presumptive sentence that the trial court

imposed in this case departs from that usual model in two

respects. First, in this case, a statute—ORS 137.719(1)—

prescribed the presumptive sentence that the court imposed,

and the statute did so independently of anything that the

Commission did or did not do. Second, the same thing can-

not be said for the Commission’s rule. Rather, the applicable

rule merely cross-references the statute. It defines a pre-

sumptive sentence, in part, as “a sentence designated as a

presumptive sentence by statute.” OAR 213-003-0001(16). If

the legislature repealed ORS 137.719, no presumptive life

sentence for a defendant’s third felony sex offense would be

prescribed by rule or otherwise.

674 State v. Althouse

To be sure, it is possible to say, as the state does,

that the Commission’s rules prescribe by cross-reference the

same sentence that ORS 137.719(1) prescribes independently

of the rules. However, the state’s rule-based argument does

not fit comfortably with the usual understanding of the

phrase “prescribed by the rules of the Oregon Criminal

Justice Commission” found in ORS 138.222(2)(a). Moreover,

as explained above, it is difficult to describe a life sentence

prescribed either directly by ORS 137.719(1) or deriva-

tively by the Commission’s rules as being “within” a pre-

sumptive sentence or range of presumptive sentences. See

ORS 138.222(2)(a) (imposing that requirement). Focusing

solely on the text of the applicable statutes and rules, we

are doubtful that the state can shoehorn a presumptive sen-

tence imposed pursuant to ORS 137.719(1) into the prohibi-

tion on direct appellate review found in ORS 138.222(2)(a).

B.  Context

The context of ORS 138.222(2)(a) includes “ ‘the pre-

existing common law and the statutory framework within

which the law was enacted.’ ” Stevens v. Czerniak, 336 Or 392,

401, 84 P3d 140 (2004) (quoting Denton and Denton, 326 Or

236, 241, 951 P2d 693 (1998)). The legislature enacted what

is now codified as ORS 138.222(2)(a) in 1989. See Or Laws

1989, ch 790, § 21. Before then, Oregon statutes set a maxi-

mum indeterminate sentence for each class of felonies, and

trial courts were free in individual criminal cases to impose

a sentence anywhere within the statutory maximum. See

Thomas A. Balmer, Some Thoughts on Proportionality, 87

Or L Rev 783, 791-92 (2008) (describing shift from indeter-

minate to determinate sentencing schemes); ORS 161.605

(specifying maximum indeterminate sentences for Class

A, B, and C felonies). For example, aggravated first-degree

theft is a Class B felony, ORS 164.057(2), and the maximum

sentence for a Class B felony is 10 years, ORS 161.605(2).

Before 1989, if a defendant were convicted of that offense,

the sentencing court could impose an indeterminate sen-

tence anywhere within that 10-year range after considering

a broad array of evidence. See Speedis, 350 Or at 427.

The wide latitude of sentencing choices that charac-

terized indeterminate sentencing “sometimes led to disparate

Cite as 359 Or 668 (2016) 675

sentences for similarly situated defendants.” Id. As a result of

that problem, the 1985 Oregon Legislature established what

is now known as the Oregon Criminal Justice Commission

and directed the Commission to develop recommendations

for criminal sentencing. See Or Laws 1985, ch 558, §§ 2-3. In

response to the legislature’s directive, the Commission cre-

ated a grid of presumptive sentences, where the appropri-

ate grid block for a conviction lies at the intersection of two

axes—one axis representing the seriousness of the crime

of conviction and the other axis representing a defendant’s

criminal history. See Speedis, 350 Or at 427 (describing sen-

tencing guidelines grid blocks); OAR 213-004-0001(1). Once

a sentencing court determines the grid block within which a

defendant’s conviction falls, the grid block specifies a range

of presumptive sentences for that conviction, and the sen-

tencing court may impose a sentence within that range. See

OAR 213-005-0001(1) (stating that “the presumptive sen-

tence shall be a term of imprisonment within the durational

range of months stated in the grid block”).6

In 1989, the Oregon legislature approved the sen-

tencing guidelines that the Commission had promulgated

and made them applicable to felonies committed on or after

November 1, 1989. See Or Laws 1989, ch 790, §§ 2, 87. The

legislature also provided that sentences within the sentenc-

ing grid blocks will “constitute presumptive sentences.” Id.

§ 95. A trial court need not impose a presumptive sentence,

however. Rather, the 1989 act also authorized trial courts to

impose departure sentences “outside the presumptive sen-

tence or sentence range made presumptive * * * for a specific

offense if it finds * * * there are substantial and compelling

reasons justifying a deviation from the presumptive sen-

tence.” Id. § 39; see id. § 95.

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,

6

For example, aggravated first-degree theft is a Class B felony. Under the

sentencing guidelines, aggravated first-degree theft is ranked at “Crime Category

6” if the amount of loss is greater than $50,000. See OAR 213-018-0010(1). If a

defendant is convicted of aggravated first-degree theft and is classified in crim-

inal history category A, the sentencing guidelines prescribe a presumptive sen-

tence of 25 to 30 months in prison. See OAR ch 213, App 1.

676 State v. Althouse

the legislature also enacted the statute that currently is

codified as ORS 138.222. See id. § 21. Specifically, the 1989

legislature precluded appellate review of “[a]ny sentence

that is within the presumptive sentence prescribed by the

rules of the [Oregon Criminal Justice Commission],” while

authorizing judicial review of departure sentences. Compare

id. § 21(2)(a) (precluding review of presumptive sentences),

with id. § 21(3) (authorizing review of departure sentences).

Read in the context of the larger bill of which it was

a part, the phrase in ORS 138.222(2)(a)—“[a]ny sentence

that is within the presumptive sentence prescribed by the

rules of the Oregon Criminal Justice Commission”—can

have only one referent: The phrase refers to a sentence that

comes within the range of presumptive sentences prescribed

by a sentencing guidelines grid block. Conversely, if a trial

court does not impose a sentence within the presumptive

sentence set out in a grid block but imposes a departure sen-

tence instead, then the departure sentence may be reviewed

on appeal. See ORS 138.222(3) (so providing).

That is the conclusion that this court drew from

the text and context of ORS 138.222(2)(a) in State ex rel

Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145, cert den,

522 US 994 (1997). As this court explained in Huddleston,

ORS 138.222(2)(a) “refers only to ‘the sentence provided

in a grid block for an offender classified in that grid block

by the combined effect of the crime seriousness ranking of

the current crime of conviction and the offender’s criminal

history.’ ” Id. at 605 (quoting OAR 253-03-001(16) (1995))

(emphasis added). The court in Huddleston drew the same

conclusion from the legislative history of ORS 138.222(2)(a).

See id. at 606-07 (discussing legislative history). If, as this

court held in Huddleston and the text, context, and legis-

lative history of ORS 138.222(2)(a) confirm, the phrase in

ORS 138.222(2)(a)—“[a]ny sentence within the presump-

tive sentence prescribed by the rules” of the Commission—

“refers only to ‘the sentence provided in a grid block for an

offender classified in that grid block,’ ” Huddleston, 324 Or

at 605, then ORS 138.222(2)(a) does not preclude review of

a presumptive sentence that is not contained within a grid

block. Specifically, ORS 138.222(2)(a) does not preclude

Cite as 359 Or 668 (2016) 677

review of a presumptive life sentence imposed pursuant to

ORS 137.719(1).

The state argues, however, that we should not take

Huddleston at face value, at least in the context of this case.

The state reasons that, when this court decided Huddleston,

the legislature had not yet enacted ORS 137.719, nor had the

Commission promulgated rules that defined a “presumptive

sentence” as meaning “a sentence designated as a presump-

tive sentence by statute.”7

In our view, that sequence of events cuts against

the state’s argument. Because the 1989 legislature intended

that ORS 138.222(2)(a) would apply only to presumptive

sentences contained within a grid block, Huddleston, 324 Or

at 605, the state’s argument necessarily depends on one of

two propositions: either (1) the 2001 legislature that enacted

ORS 137.719 intended that presumptive sentences imposed

outside of a grid block be included within the class of pre-

sumptive sentences that ORS 138.222(2)(a) shields from

direct review or (2) the 1989 legislature gave the Commission

authority to enlarge by rule the class of sentences to which

ORS 138.222(2)(a) applies.

The state does not identify anything in the text,

context, or legislative history of ORS 137.719 that suggests

that, in enacting that statute, the 2001 legislature intended

to expand the class of presumptive sentences that would be

shielded from direct appellate review, nor are we aware of

any basis for attributing that intent to the 2001 legislature.

The state’s argument accordingly appears to rest

on the second proposition noted above: that the Commission

has authority to alter the meaning of ORS 138.222(2)(a). On

that issue, the legislature has authorized the Commission to

amend presumptive sentences included within a grid block.

See ORS 137.667(1) (authorizing the Commission to adopt

“necessary modifications to the crime seriousness scale of

the guidelines” for new and legislatively modified crimes

7

The legislature enacted ORS 137.719 in 2001, 12 years after it enacted

ORS 138.222(2)(a). See Or Laws 2001, ch 884, § 4. Five years later, in 2006,

the Commission amended the definition of “presumptive sentence” to include the

current phrase “or a sentence designated as a presumptive sentence by statute.”

OAR 213-003-0001(16) (2007).

678 State v. Althouse

and to “classify offenses as person felonies or person misde-

meanors for the purposes of the rules”). However, the state

points to no statute that gives the Commission authority to

shield presumptive sentences that are not contained within

a grid block from appellate review. To be sure, the legisla-

ture must approve the sentencing guidelines for them to

be effective. However, legislative approval does not convert

the Commission’s rules into statutes, nor does it give the

Commission power to trump by rule what a statute provides.

See Lane, 357 Or at 624.

Whatever the Commission may have envisioned

when it expanded its rule-based definition of presump-

tive sentence in 2006, the Commission has no authority to

amend by rule the scope of ORS 138.222(2)(a). Because a

sentence imposed pursuant to ORS 137.719(1) does not come

within the class of sentences to which ORS 138.222(2)(a)

applies, we turn to defendant’s argument that a sentence of

life imprisonment without possibility of parole, as applied

to him, violates the proportionality clause of Article I, sec-

tion 16, of the Oregon Constitution, as well as the Eighth

Amendment to the United States Constitution.

II.  CONSTITUTIONAL CHALLENGES

In considering defendant’s constitutional challenges

to his sentence, we first set out the relevant sentencing

facts. We then discuss the legal principles applicable to

defendant’s state constitutional challenge and explain why

his sentence is not constitutionally disproportionate in vio-

lation of Article I, section 16. Finally, we turn to defendant’s

Eighth Amendment challenge.

A.  Sentencing Facts

The facts relevant to defendant’s as-applied chal-

lenge to his sentence are not limited to the facts that gave

rise to his 2011 conviction for public indecency. That is so

for two reasons. First, the trial court sentenced defendant

pursuant to a repeat-offender statute, which authorizes an

enhanced sentence for a third felony sex conviction. When

a court imposes an enhanced sentence based on a repeat

offender statute, we consider a defendant’s criminal history

in determining whether the sentence is proportionate to

Cite as 359 Or 668 (2016) 679

the crime. See State v. Wheeler, 343 Or 652, 673, 175 P3d

438 (2007) (explaining that, for repeat offender sentences,

“the analysis must focus not only on the latest crime and its

penalty, but on the defendant’s criminal history”); State v.

Smith, 128 Or 515, 525-26, 273 P 323 (1929) (same). Second,

defendant has raised an as-applied challenge to his sentence,

which requires consideration not only of his past convictions

but also of his past instances of relevant uncharged miscon-

duct. See State v. Rodriguez/Buck, 347 Or 46, 78, 217 P3d

659 (2009) (“Traditional understandings of proportionality,

as well as this court’s cases, require us to consider whether a

defendant is a repeat offender by considering previous crim-

inal convictions and whether there is evidence of multiple

instances of uncharged wrongful conduct.”). We accordingly

summarize defendant’s history of charged and uncharged

sex offenses, which we take from the uncontested prelimi-

nary sentence investigation.8

In 1982, defendant was convicted of first-degree

sexual abuse for touching the vaginal area and buttocks of

his eight-year-old daughter. He later admitted that, during

the same time period, he fondled his five-year-old son and

that the abuse of his children occurred more than once.

As a result of his 1982 sexual-abuse conviction, defendant

initially was placed on probation for three years and par-

ticipated in a sex offender treatment program. In 1983, he

was terminated from the treatment program because “he

simply chose to maintain his dangerous patterns of deviant

thinking.” In 1985, defendant’s probation was revoked, and

he was sentenced to five years in prison. The presentence

report does not specify the grounds for revoking defendant’s

probation.

In 1993, a woman reported to the Seaside, Oregon

police that she had seen defendant talking to her five-year-

old son outside their home. Defendant had put his arm

around the boy “like he was going to pick him up.” When

asked what he was doing, defendant replied that “he was

just giving the child a hug.” Although defendant was asked

8

The trial court directed that a presentence report be prepared so that it

could decide whether to impose a downward departure sentence. At the sentenc-

ing hearing, defendant did not contest the accuracy of any fact set out in the

report.

680 State v. Althouse

to leave, he returned to the boy’s house twice. Later, the

boy told his mother that defendant had touched him on his

penis.

Two days later, defendant approached a family on

the beach at Seaside and told them he was trying to find

a lost dog. The parents went out in their boat, leaving one

of their children—a nine-year-old boy—alone. The boy went

back to his family’s motor home. Defendant followed and

asked if he could come inside to play a board game with the

boy. After the boy let defendant inside, defendant took off his

shirt. The boy became uncomfortable and tried to get out of

the house. Defendant stopped him, forced the boy into the

bathroom where he put a shirt over the boy’s mouth, and

orally sodomized him. Defendant then forced the boy to per-

form oral sex on him. The boy got out of the house and iden-

tified defendant to other persons in the motor home park.

As a result of those acts, defendant was convicted

of first-degree sodomy, first-degree sexual abuse, and first-

degree burglary. While defendant was waiting to be sen-

tenced on those convictions, he was involved in a separate

incident in Hillsboro, Oregon. A different nine-year-old

boy, whom defendant knew, saw defendant “looking at him

through the sliding glass door” of the boy’s home. Defendant

started to open the glass door, but the boy closed the door

and locked it. The boy called his mother, who saw defendant

running away from the bushes near their patio. The police

arrived and saw defendant “staggering through the parking

lot of the apartment complex with no pants on.” Defendant

was arrested for second-degree criminal trespass.9

After the incident in Hillsboro, the Clatsop County

Circuit Court sentenced defendant to approximately 10

years in prison for the convictions arising out of his assault

on the boy in Seaside. In 2001, defendant was released

from prison on post-prison supervision. Between 2001 and

2002, defendant violated the terms of his release five times.

9

It is unclear whether the Washington County District Attorney’s office pur-

sued the Hillsboro charge beyond reporting it to the sentencing court in Clatsop

County. Additionally, while defendant was waiting to be sentenced on the Clatsop

County charges, he was living within 500 feet of a school in violation of his release

agreement.

Cite as 359 Or 668 (2016) 681

Among other things, he went to a park and “got nude” after

he saw a family a short distance away, he exposed himself in

a public hot tub, he looked at pictures of nude children, and

he “masturbate[ed] in front of his bedroom window on three

occasions, with the windows full[y] opened so someone could

see him through the open window.”

In 2002, defendant was walking naked, except for

a baseball cap, through a Marion County park. In investi-

gating a complaint about defendant’s behavior, the police

learned that defendant was on post-prison supervision for

sex crimes and was not supposed to be at a park where chil-

dren congregate. They arrested him for public indecency.

Later, defendant admitted to his parole officer that, while

he was naked in the park, he had approached a child who

was fishing in the river. A Marion County Circuit Court con-

victed defendant of public indecency for that offense, but it

did not impose a presumptive sentence of life imprisonment

without possibility of parole. Rather, the court sentenced

defendant to 48 months in prison.

After serving that sentence, defendant was released

on post-prison supervision in October 2006. In November

2006, defendant violated the terms of his release by viewing

child pornography on the Internet and received a 10-day jail

sanction. Afterwards, he received 11 more jail sanctions for

violating the terms of his release. Among other things, he

was arrested in 2007 after several of his neighbors saw him

walking around nude. He was arrested again in 2009 for

doing yard work while nude. In 2010, he was seen walking

nude around a school for hearing impaired children. When

the police questioned defendant about that reported behav-

ior, defendant denied having been nude. A few days later,

he absconded from supervision only to be found at a rest

stop in Idaho. After being extradited to Oregon, defendant

admitted to his parole officer that he had been walking nude

around the children’s school. He also admitted that, before

he left for Idaho, he routinely walked nude in the alleys

around the transitional house in downtown Salem, Stepping

Out Ministries, where he had been living.

In 2011, defendant committed the offense that has

given rise to this case. He sat naked off to the side of a

682 State v. Althouse

popular jogging path in Salem, approximately 150 feet from

a middle school. The woman who reported defendant to the

police told the officer that “there were children walking in

the area.” After his arrest, defendant explained that he has

a sexual addiction and is aroused by sitting in public with-

out his pants.

As a result of his convictions for various sex offenses,

defendant frequently has engaged in sex offender treatment.

After defendant’s 1982 conviction for sexually abusing his

daughter, Oregon State Hospital staff evaluated defendant

and determined that he was a “sexually dangerous per-

son.”10 In light of that finding, defendant was accepted into a

sex-offender treatment program at the hospital, but he was

subsequently terminated from that program because he

“simply chose to maintain his dangerous pattern of deviant

thinking.” Between 1982 and 2012, defendant participated

in several sex-offender treatment programs. However, he

frequently discontinued his treatment in those programs

and failed “to gain control over his [s]exual [a]ggression.” In

2006, a psychologist concluded that defendant presented “a

high risk for [s]exual aggression,” noting that “he has esca-

lated his acting out from assaulting family members to sex-

ually assaulting complete strangers over the years.” Given

that history, the trial court declined to impose a downward

departure sentence on defendant’s fourth felony sex convic-

tion. Instead it imposed the statutory presumptive sentence

of life imprisonment without the possibility of parole.

B.  Defendant’s Constitutional Challenges

Defendant does not argue that a life sentence with-

out possibility of parole is facially unconstitutional; that is,

he recognizes that, for some repeat sex offenders, a life sen-

tence without possibility of parole is neither constitutionally

disproportionate nor cruel and unusual. See Wheeler, 343 Or

at 678-79 (holding that presumptive life sentence imposed

pursuant to ORS 137.719(1) is facially constitutional under

Article I, section 16). He argues, however, that, as applied

10

A “sexually dangerous person” is one “who because of repeated or com-

pulsive acts of misconduct in sexual matters, or because of a mental disease or

defect, is deemed likely to continue to perform such acts and be a danger to other

persons.” ORS 426.510.

Cite as 359 Or 668 (2016) 683

to the circumstances of his case, his sentence violates the

state constitutional requirement that sentences be propor-

tioned to the offense and the Eighth Amendment prohibi-

tion against cruel and unusual punishment. We begin with

defendant’s state constitutional challenge.

1.  Article I, section 16

Article I, section 16, provides, in part:

“Excessive bail shall not be required, nor excessive fines

imposed. Cruel and unusual punishments shall not be

inflicted, but all penalties shall be proportioned to the

offense.”

For the most part, this court has analyzed the requirement

that “penalties shall be proportioned to the offense” sepa-

rately from the related prohibition on cruel and unusual

punishments. Wheeler, 343 Or at 666. In considering that

constitutional provision, this court initially asked, without

engaging in an extended inquiry, whether the length of the

sentence shocked the moral sense of all reasonable people.

See, e.g., State v. Rogers, 313 Or 356, 380, 836 P2d 1308

(1992), cert den, 507 US 974 (1993) (death penalty for mur-

der committed during the course of attempted first-degree

sex abuse “would not shock the moral sense of reasonable

people”); State v. Teague, 215 Or 609, 611, 336 P2d 338

(1959) (per curiam) (18-years imprisonment for two separate

forgery convictions did not shock the moral sense of reason-

able people); Sustar v. County Court of Marion Co., 101 Or

657, 665, 201 P 445 (1921) (six-month jail sentence and $500

fine for possessing alcohol did not “shock the moral sense of

all reasonable men as to what is right and proper under the

circumstances”) (citing Weems v. United States, 217 US 349,

30 S Ct 544, 54 L Ed 793 (1910)).

In Wheeler, the court explained that the question

whether a punishment shocked the moral sense of all rea-

sonable people was not intended to be taken literally. 343

Or at 670. Rather, in stating that test, the court had sought

“to articulate a standard that would find a penalty to be

disproportionately severe for a particular offense only in

rare circumstances.” Id. That is, the standard that the court

articulated was intended to reflect the principle that the

684 State v. Althouse

legislature has primary authority to determine the gravity

of an offense and the appropriate length of punishment. Id.

at 671. Only in those rare instances when the legislature

has exceeded that authority may a court say that a particu-

lar punishment is unconstitutionally disproportionate. Id.

Two years later, in considering an as-applied con-

stitutional challenge to the punishment for a single offense,

this court identified three factors that bear on that inquiry:

“(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. Applying those factors, the

court noted that neither of the defendants in Rodriguez/Buck

had any prior criminal history, that each of their offenses

consisted of a single instance of inappropriate contact, that

the contact, while inappropriate, was limited in duration

and intensity, and that the conduct was at the “outer edge”

of what is prohibited. Yet, each defendant received the same

75-month mandatory sentence that a person who had com-

mitted far more egregious sexual abuse would receive.

Additional considerations come into play when a

court assesses the constitutionality of a statute that imposes

an enhanced sentence on repeat offenders. As this court

explained in Tuel v. Gladden, 234 Or 1, 6, 379 P2d 553

(1963),

“Habitual criminal [statutes] are based upon the belief

that the criminal, as well as the crime, is a material factor

to be considered in fixing the sentence. If the criminal is a

menace to the community, his sentence should be aimed at

offering the most protection to the community, regardless

of the relative innocuousness of the particular crime for

which he is now convicted.”

For example, the court explained in Smith that ordinarily a

sentence of life imprisonment for receiving stolen property

(the defendant’s most recent conviction that triggered the

repeat offender sentence) would be “astound[ing].” 128 Or

at 525. However, because the defendant in that case had

“been convicted at least four times for burglariously preying

upon the property and safety of others,” the court held that

Cite as 359 Or 668 (2016) 685

a life sentence was not constitutionally disproportionate.

Id. at 526; see Tuel, 234 Or at 6-7 (because repeat property

offender had proven that he was not likely to reform, sen-

tence of life imprisonment without possibility of parole did

not violate principle in Article I, section 15, that sentences

should be based on principles of reformation).

Similarly, in the context of a statute that autho-

rized enhanced sentences for repeat sexual offenders, this

court explained that the question whether an enhanced sen-

tence for that conduct would “shock the moral sense would,

of course, depend upon the seriousness of repetitive sexual

conduct of th[e] kind [punished by the statute] and the dan-

ger that it forecasts for others unless the defendant is segre-

gated from society.” Jensen v. Gladden, 231 Or 141, 144-45,

372 P2d 183 (1962). In Jensen, the defendant had been con-

victed of two sex offenses: contributing to the delinquency

of a minor and, two years later, indecent exposure. Id. at

142. As a result of the second offense, the trial court sen-

tenced the defendant under a repeat-offender statute to life

imprisonment with the possibility of parole. Id. at 142-43. In

upholding that sentence against a state constitutional pro-

portionality challenge, this court noted that the legislature

reasonably could have concluded that sex offenders “tend to

be recidivists” and “progress from minor to major crimes.” Id.

at 145. It also noted that the parole board retained author-

ity to release the defendant if it concluded that release was

appropriate “to effect psychiatric rehabilitation.” Id. at 147.

With that background in mind, we turn to defen-

dant’s argument that a life sentence without possibility of

parole, as applied to his circumstances, violates Article I,

section 16. Defendant argues, and we agree, that the three

factors identified in Rodriguez/Buck should guide our reso-

lution of his Article I, section 16, proportionality challenge.

However, as we explain below, the first and third of those

factors overlap in comparing the severity of the penalty

and the gravity of the crimes that gave rise to the repeat-

offender sentence. Additionally, the second factor identi-

fied in Rodriguez/Buck—the penalties imposed for related

crimes—can provide a helpful perspective in comparing

the severity of the penalty and the gravity of the crimes.

However, the various combinations of convictions that can

686 State v. Althouse

give rise to an enhanced sentence can diminish the extent

to which a comparison of the penalty for a single related

offense will shed light on the proportionality analysis.

a.  First and third Rodriguez/Buck factors

The first factor identified in Rodriguez/Buck is

a comparison of the severity of the penalty and the grav-

ity of the offense. 347 Or at 59-63. In this case, defendant

was sentenced as a repeat offender. As a result, we do not

focus solely on the last offense that he committed in con-

sidering the gravity of the offense; we focus on the gravity

of his criminal history. Wheeler, 343 Or at 673. Moreover,

because defendant has raised an as-applied challenge to

his sentence, we consider the specific circumstances of the

charged and uncharged offenses that make up his criminal

history in assessing its gravity. See Rodriguez/Buck, 347 Or

at 78. It follows that, in considering an as-applied challenge

to a sentence imposed under a repeat-offender statute, the

first and third factors identified in Rodriguez/Buck, in large

part, coalesce.

In analyzing the gravity of the offense, defendant

focuses on his most recent conviction for public indecency.

He notes that a first offense for public indecency is a misde-

meanor, and he contends that the specific conduct for which

he was convicted in 2011 was “not particularly serious or

harmful.” He observes that he was “fully clothed except for

his pants” when the woman on the jogging path spotted him,

and he says that she had to look closely to see his exposed

genitals. In defendant’s view, his most recent conviction does

not suggest that he poses a risk of harm to others. An amicus

brief filed in support of defendant makes the same point but

in a broader fashion. The amicus asserts that persons “con-

victed of public indecency simply do not pose the same risk

of violent or sexual recidivism when compared to sexual

offenders as a group or criminal offenders in general.”

We may agree with defendant that public indecency,

considered in isolation, is not as serious as some other sex

crimes. That much follows from the legislature’s classifi-

cation of that offense. The legislature has classified public

indecency as a misdemeanor unless the defendant previously

has been convicted of public indecency or another specified

Cite as 359 Or 668 (2016) 687

sex crime, in which case the offense is classified as a Class C

felony. ORS 163.465(2). This is not a case, however, in which

defendant’s criminal history consists of a single conviction

for public indecency, nor is this a case in which the three con-

victions that resulted in a presumptive life sentence under

ORS 137.719(1) are three felony public indecency convictions.

Rather, this is a case in which defendant, over a 30-year

period, has been convicted of sexual abuse and sodomy of his

own and other people’s children, as well as public indecency.

And many of the charged and uncharged instances in which

defendant has engaged in public indecency during that

30-year period have been directed at or related to children.

Indeed, defendant’s most recent conviction for public inde-

cency occurred approximately 150 feet from a middle school,

and the woman who reported his behavior to the police told

the officer that there were children walking in the area.

This is not one of those rare instances in which

the enhanced sentence that the legislature authorized for

a repeat offender is constitutionally disproportionate to the

offender’s criminal history. See Wheeler, 343 Or at 671-72

(recognizing legislature’s primary role in setting punish-

ments for repeat offenders). Rather, as the record in this

case reveals, defendant’s most recent conviction for public

indecency reflects a deeply ingrained pattern of predatory

behavior that has persisted since 1982 when he was first

convicted for sexually abusing his eight-year-old daughter.

Given the seriousness of defendant’s repeated sexual miscon-

duct and the danger that it forecasts for others, we cannot

say that imposing a presumptive life sentence in response to

defendant’s pattern of criminal behavior violated Article I,

section 16. Cf. Jensen, 231 Or at 145-46 (upholding a life sen-

tence imposed as a result of two sex offenses: contributing to

the delinquency of a minor followed by public indecency).

Defendant makes two additional arguments regard-

ing the severity of the sentence and the gravity of the

offense, which we discuss briefly. First, defendant notes that

the sentence in Jensen was life with the possibility of parole

while the sentence in this case is life without the possibil-

ity of parole. However, as this court explained in Tuel, an

inability to reform one’s conduct despite repeated oppor-

tunities to do so—an inability that the record in this case

688 State v. Althouse

amply demonstrates—can justify the legislature’s decision

to impose a life sentence without the possibility of parole.

See Tuel, 234 Or at 7 (upholding life sentence without possi-

bility of parole as applied to a four-time offender). We are not

persuaded that, on these facts, the absence of the possibility

of parole makes defendant’s life sentence unconstitutionally

disproportionate, as applied.

Second, defendant notes that the life sentence that

he received under ORS 137.719(1) substantially exceeds

the guidelines sentence that he would have received for his

2011 conviction for public indecency. Relying on Wheeler,

he argues that the difference between the two sentences is

significant. Specifically, he contends that, the greater the

difference between the two sentences, the more likely it is

that his sentence under the repeat offender statute is dispro-

portionate in violation of Article I, section 16. In our view,

defendant reads too much into Wheeler.

The defendant in Wheeler previously had been con-

victed of two felony sex offenses. His third conviction resulted

from 18 separate felony sex offenses that involved three chil-

dren. 343 Or at 677. As a result of the third conviction, the

trial court imposed a presumptive life sentence on the defen-

dant pursuant to ORS 137.719(1). In holding that that sen-

tence was constitutional, as applied, this court noted that

the defendant could have received a guidelines sentence of

111 years in prison if the trial court had imposed guide-

lines sentences consecutively on each of his 18 offenses. Id.

at 677-78. Given that fact, the court observed that it was dif-

ficult for the defendant to argue that a life sentence imposed

pursuant to ORS 137.719(1) “would ‘shock’ anyone’s moral

sense.” Id. at 679.

Although Wheeler found the comparison between

the two sentences instructive in that case, we do not under-

stand the court to have either held or suggested that a

repeat offender sentence will be constitutionally proportion-

ate under Article I, section 16, only if the guidelines sen-

tence for the current crime is effectively the same as the sen-

tence imposed under the repeat offender statute. Similarly,

Wheeler does not support the proposition that defendant

urges us to draw from that decision—that, the greater the

Cite as 359 Or 668 (2016) 689

disparity between the two sentences, the more likely it is

that the repeat offender sentence is constitutionally dispro-

portionate. Indeed, that proposition would focus primarily

on the gravity of a defendant’s last offense—the one that

triggered the imposition of a repeat offender sentence—in

determining the constitutionality of the sentence. However,

as this court has long recognized, an analysis of the consti-

tutionality of a defendant’s repeat offender sentence “must

focus not only on the latest crime and its penalty, but on the

defendant’s criminal history.” Wheeler, 343 Or at 673; see

Jensen, 231 Or at 142, 144-45 (focusing on defendant’s crim-

inal history, not his conviction for public indecency, in decid-

ing constitutionality of repeat offender sentence); Smith, 128

Or at 525-26 (following same principle).

This is not to say that the sentence that a defendant

would have received for the offense that triggered the impo-

sition of a repeat-offender sentence has no bearing on the

proportionality analysis. It reflects the legislature’s judg-

ment regarding the gravity of that single offense. However,

our cases have held that what matters in determining the

constitutionality of a repeat-offender sentence is the gravity

of a defendant’s criminal history. Given defendant’s crimi-

nal history, we conclude that the life sentence that the trial

court imposed is not unconstitutional, as applied.

b.  Comparison of the penalties for related offenses

We also consider the second factor that the court

noted in Rodriguez/Buck—a comparison of the penalties

imposed for related offenses. See Rodriguez/Buck, 374 Or

at 63-65 (discussing that factor). However, as the court cau-

tioned in Rodriguez/Buck, courts must be careful in assess-

ing whether one offense is more serious than another. Id. at

64. The legislature is primarily responsible for ranking the

severity of offenses, and it “may decide that certain crimes

should henceforth be considered more serious and subject

to more severe penalties than other crimes that previously

had been considered more serious.” Id. With that caution

in mind, we turn to the three comparative arguments that

defendant makes here.

Defendant argues initially that the mix of convic-

tions that can give rise to a presumptive life sentence under

690 State v. Althouse

ORS 137.719(1) results in disproportionate sentences in vio-

lation of Article I, section 16. Relying on Rodriguez/Buck,

he argues that three relatively low-level sex crimes can

give rise to the same presumptive life sentence under ORS

137.719(1) as three far more serious sex crimes. He contends

that the court found a similar disparity constitutionally sig-

nificant in Rodriguez/Buck.

Defendant’s initial argument is problematic for at

least two reasons. First, as explained above, the life sentence

that the trial court imposed in this case is not dispropor-

tionate in light of defendant’s particular criminal history. If

defendant’s sentence is proportionate to his criminal history,

it is difficult to see how it advances his as-applied challenge

to argue that other defendants with less serious criminal

histories might be able to raise successful as-applied chal-

lenges to their sentences. Cf. Harmelin v. Michigan, 501 US

957, 1005, 111 S Ct 2680, 115 L Ed 2d 836 (1991) (Kennedy,

J., concurring in part and concurring in the judgment) (com-

parative analysis of related crimes primarily helpful when

threshold comparison between crime committed and sen-

tence imposed leads to inference that sentence is constitu-

tionally disproportionate).

Beyond that, as we understand defendant’s argu-

ment, it partakes more of a facial than an as-applied chal-

lenge. He contends that ORS 137.719(1) is similar to the

statute at issue in Rodriguez/Buck in that it imposes the

same sentence for markedly different criminal conduct.

However, unlike the statute at issue in Rodriguez/Buck,

ORS 137.719(1) does not require the same life sentence no

matter how disparate the combination of convictions that

gives rise to a repeat-offender sentence under that statute.

Rather, ORS 137.719(1) authorizes only a presumptive life

sentence. A trial court may impose a downward departure

sentence under ORS 137.719(2) for less egregious combina-

tions of offenses. The facial disparity on which defendant’s

argument appears to rely is absent here.11

11

If a trial court imposes a life sentence under ORS 137.719(1) that is not

constitutionally proportionate to a defendant’s criminal history, the defendant

can always raise that constitutional issue on appeal, and the appellate courts can

correct it.

Cite as 359 Or 668 (2016) 691

Defendant raises a second comparative argument.

He notes that ORS 137.690 requires a 25-year mandatory

minimum sentence for a defendant’s second “major felony

sex crime.”12 He argues that, under ORS 137.719(1), a per-

son who has four convictions for public indecency is subject

to life imprisonment without the possibility of parole while,

under ORS 137.690, “a person who commits two brutal rapes

would only be subject to a mandatory sentence of 25 years in

prison.” Defendant’s argument appears to be more of a facial

challenge than an as-applied challenge. Viewed that way, it

does not advance his position. ORS 137.690 provides a man-

datory minimum sentence while a ORS 137.719 provides a

presumptive maximum sentence. There is nothing inconsis-

tent or disproportionate in saying that two major felony sex

crimes will result in a minimum sentence of 25 years, see

ORS 137.690, while three felony sex crimes can result in a

maximum sentence of life imprisonment without the possi-

bility of parole, see ORS 137.719.13

Defendant raises a third comparative argument. He

contends that the list of felony sex offenses that will give

rise to a presumptive life sentence under ORS 137.719(1)

omits some misdemeanor and felony sex crimes that, in his

view, are as serious as the felonies included in the list. It

follows, he reasons, that the absence of those offenses from

the list of felony sex crimes that will give rise to a presump-

tive life sentence under ORS 137.719(1) renders his sentence

disproportionate.

Defendant’s third argument is problematic for the

same reason that his first argument is. If, as explained

12

ORS 137.690(b) defines “major felony sex crime” as first-degree rape, first-

degree sodomy, first-degree unlawful sexual penetration, and using a child in a

display of sexually explicit conduct.

13

It may be that defendant is arguing that the guidelines sentence for two

convictions for felony public indecency is substantially less than the 25-year

minimum sentence under ORS 137.690 for two convictions for “major felony sex

crimes.” To the extent that is defendant’s point, the difference reflects the legisla-

ture’s judgment that two convictions for felony public indecency are not as serious

as two convictions for “major felony sex crimes.” However, we fail to see how that

comparison advances defendant’s as-applied argument. It does not explain why

a life sentence is unconstitutionally disproportionate, as applied to defendant’s

criminal history, which is not limited to convictions for public indecency but also

includes sexual abuse and sodomy of children.

692 State v. Althouse

above, defendant’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. See Harmelin,

501 US at 1005 (Kennedy, J., concurring in part and concur-

ring in the judgment) (reasoning that comparison of related

offenses is less helpful when sentence appears proportion-

ate to crime). Beyond that, defendant’s argument assumes a

proposition that this court has never suggested—that there

must be a perfect proportionality among the sentences for

all related offenses before an individual sentence will be

proportioned to the offense within the meaning of Article I,

section 16. When, as explained above, defendant’s sentence

appears proportionate to his particular criminal history,

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.

2.  Eighth Amendment

Defendant argues that, as applied to him, a sen-

tence of life imprisonment without the possibility of parole

violates the Eighth Amendment’s prohibition against cruel

and unusual punishment. Justice O’Connor explained in

Ewing v. California, 538 US 11, 123 S Ct 1179, 155 L Ed 2d

108 (2003), that the “ ‘Eighth Amendment does not require

strict proportionality between crime and sentence[,]’ ” but

“ ‘forbids only extreme sentences that are “grossly dispropor-

tionate” to the crime.’ ” Id. at 23 (plurality opinion) (quoting

Harmelin, 501 US at 1001 (Kennedy, J., concurring in part

and concurring in the judgment)).14

To determine whether a sentence is grossly dis-

proportionate to a crime, the inquiry starts “by comparing

the gravity of the offense and the severity of the sentence.”

Graham v. Florida, 560 US 48, 60, 130 S Ct 2011, 176 L Ed

14

Justice Thomas and Justice Scalia concurred in the judgment in Ewing.

See 538 US at 31-32 (Scalia, J., concurring in the judgment); id. at 32 (Thomas, J.,

concurring in the judgment). Because Justice O’Connor’s plurality opinion rep-

resents the narrowest ground on which the judgment rests, her opinion controls

our application of the Eighth Amendment. See Marks v. United States, 430 US

188, 193, 97 S Ct 990, 51 L Ed 2d 260 (1977) (explaining which opinion controls

when no opinion commands a majority).

Cite as 359 Or 668 (2016) 693

2d 825 (2010). Of importance here, determining the “gravity”

of a given offense in the context of a sentence imposed under

a recidivist statute includes consideration of the defendant’s

criminal history. See Ewing, 538 US at 17-20 (plurality opin-

ion) (recounting defendant’s criminal history); id. at 29 (plu-

rality opinion) (examining defendant’s criminal history in

context of evaluating sentence imposed under California’s

“three-strikes” law). Applying the principles stated in the

plurality opinion in Ewing, we conclude that defendant’s

sentence does not violate the Eighth Amendment’s prohi-

bition against cruel and unusual punishment for the same

reason that it does not violate the requirement in Article I,

section 16, that punishment should be proportioned to the

offense.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.