# State v. Thorp

> Court of Appeals of Oregon · April 19, 2000 · 166 Or. App. 564

URL: https://www.frixlaw.com/law-library/cases/9797308

## Case

- **Full name:** STATE OF OREGON, Appellant, v. JUSTIN EDWARD THORP, Respondent
- **Court:** Court of Appeals of Oregon
- **Decided:** April 19, 2000
- **Citations:** 166 Or. App. 564; 2 P.3d 903; 2000 Ore. App. LEXIS 633
- **Precedential status:** Published
- **Opinion:** Concurrence by Brewer
- **Judges:** Muniz, Deits, Edmonds, De Muniz, Landau, Haselton, Armstrong, Linder, Wollheim, Brewer
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9797308

## How later opinions describe it (automated extraction)

- explaining that generally, recoverable fees under the UPA must be 3 separated from nonrecoverable fees “to ensure that only those fees for which there 4 is authority to award attorney fees are in fact awarded”
- acknowledging that belief that most people would consider the Measure 11 sentence in that case to be unreasonable “includes a subjective component that is the product of a beholder’s personal sense of fairness”
- stating that the morally shocking nature of some sentences may be self-evident

## Opinion text

BREWER, J.,
concurring.
Although I agree with the lead opinion’s conclusion that the minimum statutory sentence for defendant’s conviction does not, as applied, violate Article I, section 16, of the Oregon Constitution, I write separately to express a different view of the principles that guide our analysis.
I begin with my concern that neither the lead opinion nor the dissent has clearly identified the provision of Article I, section 16, that governs defendant’s challenge to the sentence mandated by Measure 11 in this case. Among other requirements, section 16 both prohibits cruel and unusual punishment and also commands that all penalties must be proportioned to the offense. Sustar v. County Court for Marion Co., 101 Or 657, 665 , 201 P 445 (1921). The choice of focus matters because, although those requirements have not always been analyzed separately, they embody distinct constitutional principles.
*582 The lead opinion, the dissent, and the parties appear to agree that the governing constitutional test is whether the required sentence is “so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” State v. Isom, 313 Or 391, 402 , 837 P2d 491 (1992) (emphasis added). The test implicates Article I, section 16’s, prohibition against cruel and unusual punishment but does not relate to its proportionality requirement. 1 State v. Ferman-Velasco, 157 Or App 415, 430-31 , 971 P2d 897 (1998) (Warren J., dissenting), rev allowed 328 Or 666 (1999). Therefore, I presume that both opinions mean to focus on the prohibition against cruel and unusual punishment, rather than on the proportional penalty command.
The challenge lies in the identification of a principled methodology for applying the test governing the prohibition against cruel and unusual punishment. That problem is exacerbated in this case because it seems probable that most people would consider the minimum sentence under Measure 11 to be unreasonable as applied to defendant’s circumstances. However, such an assessment is more than a statement of objective probability; it includes a subjective component that is the product of a beholder’s personal sense of fairness. Although I, for example, would like to think that my perplexity at the state’s decision to prosecute defendant under Measure 11 is the result of reasonable, if not enlightened judgment, a faint but persistent voice warns that my personal sense of fairness is a pitifully small spoke in the diverse wheel of community values. What, then, of principle?
The lead opinion and the dissent each follow the analytic framework discussed in Solem v. Helm, 463 US 277 , 103 *583 S Ct 3001 , 77 L Ed 2d 637 (1983), a case decided under the Eighth Amendment. Although that framework is certainly of interest, no previous decision of the Supreme Court or of this court has adopted it in the context of a constitutional challenge under section 16. And, of course, it is far from clear that the United States Supreme Court would follow that test today in resolving an Eighth Amendment problem, in light of the fact that at least two members of that court believe that “Solern was simply wrong; the Eighth Amendment contains no proportionality guarantee.” Harmelin v. Michigan, 501 US 957 , 965 111 S Ct 2680 , 115 L Ed 2d 836 (1991).
Beyond the question of its precedential value, however, I urge caution against primary reliance on the Solern test because it is not free from analytic pitfalls. The first part of the test is somewhat tautological — the search for the meaning of the term “cruel and unusual” is not boldly advanced by asking whether the penalty is “harsh.” That question will, for many, yield a preconceived answer. Of more fundamental concern, the second and third portions of the test weigh the validity of a new and sweeping change in sentencing philosophy such as Measure 11 only against existing comparators. That perspective is limited and ignores other fair considerations.
The fact, for example, that a wholesale modification of sentencing standards for certain classes of offenses may represent a significant departure from past levels for those offenses is relevant to the inquiry but should not, of itself, be deemed conclusive. Such a legislative decision may well represent a collective judgment by the people that the enacted change is an appropriate response to prevailing public welfare and safety concerns. That judgment, within constitutional limits that we must ascertain and safeguard, is entitled to considerable deference. See Ferman-Velasco, 157 Or App at 423 .
Although the Solem test is helpful, I am persuaded that our decision is better, albeit still incompletely, guided by a review of Oregon cases previously decided under section 16. My review discloses that only one criminal sentence has ever been reversed by an Oregon appellate court under section 16 because it violated the prohibition against cruel and unusual *584 punishments. The first and only reported example of such a decision appears to be State v. Ross, 55 Or 450 , 104 P 596 (1909), 106 P 1022 (1910), appeal dismissed sub nom Ross v. Oregon, 227 US 150 , 33 S Ct 220 , 57 L Ed 458 (1913). There, in separate decisions arising from a larceny conviction, the court first vacated a prison sentence of 790 years imposed in lieu of payment of a fine exceeding $500,000 and later struck the fine itself, because it simply could never be paid. 55 Or at 474, 480 . The comí concluded, without detailed analysis, that both features of the sentence were unconstitutional under section 16. Id. Other cases, such as Cannon, although employing the shock to the moral sense test, were actually straightforward proportionality cases. 203 Or at 632-33; see also Ferman-Velasco, 157 Or App at 432-33 (Warren, J., dissenting).
We have recently affirmed our understanding that, in order to constitute cruel and unusual punishment, a sentence must shock the moral sense of all reasonable persons, and that the test is not whether reasonable people disagree with the sentence. State v. Melillo, 160 Or App 332, 335-36 , 982 P2d 12 , rev den 329 Or 438 (1999) (test is not whether sentence shocks the conscience of “fair-minded” persons, because Cannon’s “all reasonable persons” formulation is the standard). Logic and history both show that that test erects an extremely high barrier for any constitutional challenge to surmount. The lead opinion cites several appellate decisions upholding sentences under that standard, despite the reviewing courts’ evident skepticism about the merits of the sentence. Other examples likewise exist. See, eg., State v. Boloff, 138 Or 568, 607-08 , 4 P2d 326 (1931) (defendant with no criminal history sentenced to 10 years’ imprisonment for criminal syndicalism); State v. Martin, 15 Or App 498, 505 , 516 P2d 753 (1973), rev den (1974) (defendant sentenced to three years’ imprisonment for taking money owed to him from a robbery); State v. Trujillo, 7 Or App 236, 241-42 , 489 P2d 977 (1971), overruled on other grounds by Martin, 15 Or App at 505 (59-year-old defendant sentenced to 15 years’ imprisonment for taking money owed to him in a robbery after he had attempted three times to collect it). Those examples involved challenges to sentences imposed by judges that were not statutory minimum sentences but were, instead, *585 severe sentences that were imposed within statutory limits. In fact, the appellate courts have sometimes upheld sentences that were shorter than the maximum statutory duration, with no more analysis than the observation that the trial court acted within its statutory authority. See, e.g., State v. Smith, 6 Or App 27, 32 , 487 P2d 90 , rev den (1971).
It is even more rare for an appellate court to uphold a constitutional challenge to a statutory minimum sentence because the punishment would be cruel and unusual. In fact, such a result is unprecedented under Article I, section 16. There is good reason for that unbroken history of judicial restraint. In Jensen v. Gladden, 231 Or 141 , 372 P2d 183 (1962), a post-conviction petitioner, sentenced to an indeterminate sentence of life imprisonment after separate convictions for contributing to the delinquency of a minor and indecent exposure, argued that his sentence was cruel and unusual and, therefore, invalid under section 16. The court dismissed that argument, stating
“It is the province of the legislature to establish the penalties for the violation of the various criminal statutes and if the penalties are founded upon an arguably rational basis we have no authority to hold that they are invalid.” Id. at 146 (emphasis added).
In State ex rel Huddleston v. Sawyer, 324 Or 597, 627-28 , 932 P2d 1145 , cert den sub nom Sawyer v. Oregon, Huddleston, 522 US 994 (1997), the court, similarly applying a “rational basis” test, held that Measure ll’s sentencing scheme did not violate the Eighth Amendment prohibition against cruel and unusual punishment. Although Jensen and Huddleston each involved facial challenges to legislative sentencing schemes, there is no reason to conclude that as-applied challenges should be viewed through a different lens. If there is an arguably rational basis for the application of a mandatory sentence to a particular defendant, then, by force of logic, the moral sense of at least some reasonable people would not be shocked by the sentence.
The truth is, there is an arguably rational basis in the facts of this case to conclude that, as applied, the statutoiy minimum sentence is appropriate. New facts emerged in *586 this case that would have been unexpected in a facial challenge to Measure ll’s sentencing scheme for second-degree rape. Like the facts here, most statutory rape prosecutions involve consensual sex, and many are complicated by confused parental values. Admittedly, the most troubling dimension is defendant’s own youth. However, the record shows that defendant is highly manipulative, even in his dealings with adults. The victim, a 13-year-old girl, is convinced that she is in love with him. As much as others may disagree, there are reasonable people who would conclude that the three-year age difference between defendant and the victim is especially significant because the victim is a very young adolescent and, thus, despite defendant’s own youth, that the statutory minimum sentence is appropriate.
Whether we, as judges, agree with defendant’s sentence under Measure 11 is largely beside the point. It may well be that most people who voted for Measure 11 would have recoiled had they considered this particular application of the minimum sentence for second-degree rape. Undoubtedly, some people might believe that defendant should not have been prosecuted at all. Others might agree with the trial court’s sentence of 35 months’ imprisonment. But if nearly three years in prison is not cruel and unusual punishment in this case, by what measure do we conclude that three years and four months more is too much? I submit that there is no compelling answer to that question. We are not a community focus group, nor are we empowered to perform our own electoral recount. The law passed and our review requires a different test.
Although there are constitutional limits to the power of the legislature and the voters to establish minimum sentences for criminal offenses, there are also countervailing constitutional limits on judicial authority to nullify the legislative will. This is a close case, one in which we must tread softly at the margins in order to pay proper respect to the limits of our own authority under section 16. We cannot confidently proclaim that the moral sense of all reasonable people would be shocked by the minimum sentence required by law in this case. Therefore, the sentence required by the law is not unconstitutional as applied to defendant.
Landau, J., joins in this concurrence.
The proportional penalty command has generally been applied in so-called vertical disproportionality cases, to strike down sentences for lesser included crimes that were more severe than sentences permitted for a more serious offense. See, e.g., State v. Shumway, 291 Or 153, 157-60 , 630 P2d 796 (1981) (murder compared to aggravated murder); Merrill v. Gladden, 216 Or 460, 465-68 , 337 P2d 774 (1959) (assault with intent to rob compared to completed robbery); Cannon v. Gladden, 203 Or 629, 631-33 , 281 P2d 233 (1955) (assault with intent to commit rape compared to completed rape). The courts have been reluctant, on the other hand, to sustain proportionality challenges by comparing the penalties prescribed for unrelated offenses. See, e.g., State v. Turner, 296 Or 451, 455-56 , 676 P2d 873 (1984) (statutory sentence for murder not fairly compared with dangerous offender sentence appended to burglary conviction).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797308. Public record. Not legal advice.