State v. Sokell

392 September 22, 2016 No. 63

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DOUGLAS WAYNE SOKELL,

Petitioner on Review.

(CC C131532CR; CA A156133; SC S063607)

En Banc

On review from the Court of Appeals.*

Argued and submitted May 9, 2016.

John J. Tyner, Hillsboro, argued the cause and filed the

brief for petitioner on review.

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 Paul L. Smith, Deputy Solicitor General.

BREWER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Case Summary: Defendant, who was convicted of first-degree sexual abuse

based on an incident in which he accosted an eight-year-old girl in a public

library, argued that the sentence of life imprisonment without the possibility of

parole violated Article I, section 16, of the Oregon Constitution. Held: Under the

circumstances of this case, the penalty of life imprisonment without the possibil-

ity of parole was not unconstitutionally disproportionate under Article I, section

16, of the Oregon Constitution.

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

are affirmed.

______________

*  On appeal from Washington County Circuit Court, Andrew Erwin, Judge.

273 Or App 654, 362 P3d 251 (2015).

Cite as 360 Or 392 (2016) 393

BREWER, J.

Defendant seeks review of a sentence of life impris-

onment without the possibility of parole, imposed pursuant

to ORS 137.719(1), for a conviction for first-degree sexual

abuse. Defendant argues that, as applied to his circum-

stances, the sentence is unconstitutionally disproportionate

under Article I, section 16, of the Oregon Constitution, which

provides in part that “all penalties shall be proportioned to

the offense.” The Court of Appeals rejected that challenge,

State v. Sokell, 273 Or App 654, 362 P3d 251 (2015), and

defendant petitioned for review, which we allowed.1 For the

reasons explained below, we affirm the judgment of the cir-

cuit court and the decision of the Court of Appeals that the

sentence did not violate Article I, section 16.2

I.  FACTS AND PROCEDURAL HISTORY

A.  Current Conviction

The crime for which defendant stands convicted in

the present case is first-degree sexual abuse, ORS 163.427,

based on a charge that defendant subjected a child under

the age of 14 to sexual contact by touching her buttocks and

hips. The offense took place at a public library in Hillsboro

in 2011. The victim, an eight-year-old girl, was looking

at books when defendant, a stranger, approached her and

talked to her about books. He then stroked the victim on the

buttocks and hips for several minutes, over her clothing, and

fled when her mother approached. Police obtained a video

from the library that showed the suspect, but they were

unable to determine his identity at that time. The following

summer, defendant returned to the children’s section of the

1

Defendant also argues that the trial court erred in admitting into evidence

parts of a presentence investigation report that contained hearsay and that the

sentence violates the Eighth Amendment to the United States Constitution.

However, defendant did not raise those arguments in the Court of Appeals; we

therefore do not consider them. See ORAP 9.20(2) (questions before the Supreme

Court include all questions that were properly before the Court of Appeals that

the petition or response claim were incorrectly decided).

2

As an initial matter, we note that the disproportionality challenge raised

by defendant is reviewable. See State v. Althouse, 359 Or 668, 678, 375 P3d 475

(2016) (holding that ORS 138.222(2)(a) does not preclude review of sentence of life

imprisonment without possibility of parole imposed pursuant to ORS 137.719);

State v. Davidson, 360 Or 370, ___ P3d ___ (2016) (same).

394 State v. Sokell

same library, and an employee recognized him as the sus-

pect and was able to photograph his vehicle’s license plate,

after which the police identified defendant as the suspect.

Based on that evidence, a jury convicted defendant of the

charged offense.

The state presented evidence at sentencing that

the victim was traumatized by the crime, was unwilling to

be out of the presence of her parents, needed to be home

schooled for a significant period of time after the crime was

committed, and was unable to sleep in her own bed alone for

approximately two years after the crime.

B.  Other Convictions

At defendant’s sentencing in this case, the following

evidence was adduced concerning his criminal history. In

1996, defendant was convicted of first-degree sexual abuse.

In that case, defendant approached a 12-year-old child in

a store and asked her to try on a backpack that he said he

was considering purchasing for his niece. As the child tried

on the backpack, defendant adjusted the shoulder straps

and then stroked and squeezed the child’s breasts. He was

apprehended at the store and admitted that he had deliber-

ately touched the child’s breasts. That conviction resulted in

a 75-month prison sentence.

While defendant was on supervision after serving

his prison sentence for the 1996 offense, he failed several

polygraph examinations and served a jail sanction for having

contact with a minor. The Board of Parole and Post-Prison

Supervision designated him as a predatory sex offender in

2003. While on supervision, defendant told his parole officer

that he had committed similar offenses in another state, tar-

geting victims who were between seven and 12 years of age.

He admitted during a polygraph examination that he had

forcibly raped a 10-year-old girl in 1980. He told his therapist

that he had had more than 120 underage victims and that

he had sodomized a female hitchhiker at knifepoint in the

1970s. He told another mental health professional during

an evaluation that, in the 1990s, he had approached young

girls in stores with the pretense of having them try some-

thing on, so that he could touch them. Defendant received

sex offender treatment three times between 1983 and 2005,

Cite as 360 Or 392 (2016) 395

when he most recently completed treatment. Despite his

completion of a program in 2005, he was still considered to

be at high risk of re-offending, given his history.

In June 2012, before he was apprehended for the

crime at issue here, defendant committed a similar offense

in a public library in Newport. He approached a seven-year-

old girl and asked her to help him find a book. He then put

his hand under her dress and rubbed his hands on her sides

and crotch area, and told her that rubbing her was a “good

feeling.” A librarian saw defendant with his hand up the

girl’s dress and, as defendant was leaving, alerted other peo-

ple in the library to stop him. Defendant was apprehended

and convicted of attempted first-degree sexual abuse based

on that incident, for which he was sentenced to 18 months’

imprisonment.

C.  Sentence and Appeal

Based on the foregoing evidence and his conviction

for the current offense, the trial court sentenced defendant to

the presumptive sentence established by ORS 137.719(1)—

life imprisonment without the possibility of parole. On

appeal, defendant argued that, in light of asserted mitigat-

ing circumstances, the trial court should have imposed a

downward departure sentence pursuant to ORS 137.719(2)

and that the imposition of the presumptive sentence under

ORS 137.719(1) violated Article I, section 16. As noted, the

Court of Appeals rejected those arguments, and defendant

petitioned for review, which we allowed.

II. ANALYSIS

ORS 137.719 provides:

“(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 sec-

tion 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.

396 State v. Sokell

“(3)  For purposes of this section:

“(a)  Sentences for two or more convictions that are

imposed in the same sentencing proceeding are considered

to be one sentence; and

“(b)  A prior sentence includes:

“(A)  Sentences imposed before, on or after July 31,

2001; and

“(B)  Sentences imposed by any other state or federal

court for comparable offenses.

“(4)  As used in this section, ‘sex crime’ has the mean-

ing given that term in ORS 163A.005.”

In Althouse, 359 Or 668, we set out a framework

for the evaluation of as-applied proportionality challenges

to sentences imposed pursuant to ORS 137.719(1). We

explained that the factors identified by this court in State

v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009), are to be

considered:

“ ‘(1) a comparison of the severity of the penalty and the

gravity of the crime; (2) a comparison of the penalties

imposed for other, related crimes; and (3) the criminal his-

tory of the defendant.’ ”

Althouse, 359 Or at 684 (quoting Rodriguez/Buck, 347 Or at

58). We went on to observe that, where a challenged sentence

was imposed pursuant to a recidivist statute such as ORS

137.719, the first and third Rodriguez/Buck factors are con-

sidered together. Althouse, 359 Or at 685. We thus initially

examine the gravity of defendant’s crime as compared to the

severity of the penalty, and defendant’s criminal history.

Considering those initial factors, defendant argues

that a life sentence without the possibility of parole for his

current offense is unconstitutionally disproportionate.

Relying on Rodriguez/Buck, defendant asserts that the

degree of harm caused by first-degree sexual abuse is less

than the typical harm caused by other sex offenses that

are subject to ORS 137.719(1), such as forcible first-degree

rape. He also argues that three mitigating factors—

somewhat related to his criminal history—indicate that

his sentence is disproportionate. First, he asserts that

Cite as 360 Or 392 (2016) 397

his status as a Vietnam-era military veteran is a mitigat-

ing factor.3 He further argues that the fact that his three

sexual abuse convictions occurred over a span of 17 years

should be regarded as a mitigating factor, as should his

advanced age (he was 69 years old when he committed the

two most recent offenses). Finally, defendant notes, as we

recognized today in State v. Davidson, 360 Or 370, 387,

__ P3d __ (2016), that the penalty under ORS 137.719(1)—

life imprisonment without the possibility of parole—is

the second most severe criminal penalty available under

Oregon law.

Initially, we disagree with defendant’s assessment

of the gravity of his current offense. Although Rodriguez/

Buck, like this case, involved convictions for first-degree

sexual abuse, and this court held that mandatory minimum

sentences imposed pursuant to ORS 137.700 were unconsti-

tutionally disproportionate under the circumstances there,

that case does not stand for the proposition that first-degree

sexual abuse should be regarded as a minor sex offense. The

convictions in those cases involved fleeting touching—not

including fondling—of young teens over their clothing. 347

Or at 50-52, 70. The court noted that the offense of first-

degree sexual abuse encompasses a “wide swath of conduct”

that can result in varying degrees of harm. Id. at 69-70.

The court contrasted the defendants’ conduct in those cases

to circumstances in which there was touching of a younger

child or where there was deliberate or persistent rubbing or

fondling. Id. at 72.

Defendant’s conduct in this case bears little resem-

blance to the conduct at issue in Rodriguez/Buck. While it is

possible that, under some circumstances, first-degree sexual

abuse might not cause extremely serious harm to a victim,

that is not the circumstance here. Defendant’s victim was

a young child whom he targeted while she was in a public

library, then fondled on the buttocks and hips for several

minutes. The state presented evidence that the victim suf-

fered from severe trauma that affected her school and home

life for years after the abuse occurred. In short, we disagree

with defendant’s assertion that the gravity-of-the-offense

3

Defendant does not elaborate on the relevance of that circumstance.

398 State v. Sokell

factor identified in Rodriguez/Buck weighs in his favor in a

disproportionality analysis.

Because defendant was sentenced under a recidi-

vist statute, we also attach considerable significance to his

criminal history. See Davidson, 360 Or at 382. That is so

because the constitutionality of an enhanced sentence based

on recidivism depends, in part, on the “ ‘seriousness of repet-

itive sexual conduct’ ” and “ ‘the danger that it forecasts for

others unless the defendant is segregated from society.’ ”

Althouse, 359 Or at 586 (quoting Jensen v. Gladden, 231 Or

141, 144-45, 372 P2d 183 (1962)). In Althouse, we rejected

a proportionality challenge by a defendant who was sen-

tenced under ORS 137.719(1) for public indecency, which we

acknowledged could be viewed as “not as serious as some

other sex crimes.” 359 Or at 687. We nevertheless upheld

the presumptive true-life sentence imposed in that case, in

light of the defendant’s significant history of sexual abuse,

sodomy, and public indecency, much of which involved and

targeted child victims. Id.

This case, like Althouse, features a defendant who

has an extensive history of committing sexual abuse offenses

against young children, and each of his offenses included

fondling of the victim’s private parts. Despite the consid-

erable sex offender treatment that defendant has received

over the course of several decades, he has continued to

re-offend. Rather than mitigate the circumstances of his

current offense, the passage of time and defendant’s advanc-

ing age have failed to diminish the danger that he poses

to children; as noted, defendant was 69 years old when he

committed each of his last two felony sex crimes. Contrary

to defendant’s view, we conclude that his criminal history

and the circumstances of his current crime indicate that he

would pose a significant danger to children in the commu-

nity if he is not segregated from society.

The remaining Rodriguez/Buck factor involves

comparison of the penalty here with penalties imposed for

other, related crimes. 347 Or at 58. Crimes that are rele-

vant to our 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

Cite as 360 Or 392 (2016) 399

offenses in ORS chapter 163. See Davidson, 360 Or at 388-

90; Rodriguez/Buck, 347 Or at 64-65. An extensive reitera-

tion of the penalties for other sex offenses under Oregon law

is not required here, in light of our previous decisions that

have discussed those penalties at length. See, e.g., Davidson,

360 Or at 388-90; Althouse, 359 Or at 690-91; Rodriguez/

Buck, 347 Or at 74-76. Suffice it to say that the penalties

for committing physical sexual offenses against young child

victims are uniformly significant under Oregon law, gener-

ally carrying mandatory minimum sentences under ORS

137.700 and being ranked in the highest three crime catego-

ries under the Oregon Sentencing Guidelines. See, e.g., OAR

213-017-002 - 213-017-0011.

As defendant observes, and as was the circumstance

in Althouse, the sentence imposed in this case is the sec-

ond harshest criminal penalty under Oregon law. However,

in light of the circumstances of defendant’s current offense

and his history of committing similar offenses against other

young children, we conclude that the sentence of life impris-

onment without the possibility of parole that the trial court

imposed pursuant to ORS 137.719(1) is not disproportionate

under Article I, section 16.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.