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Oregon Supreme Court Case Limiting Mandatory Measure 11 Sentences

The Oregon Supreme Court case that limited mandatory measure 11 sentences and that garnered a lot of headlines and commentary in September, was:

STATE OF OREGON v. RODRIGUEZ / BUCK (SC S055720), filed September 24, 2009:

The decisions of the Court of Appeals are affirmed in part and reversed in part. The judgments of the circuit courts are affirmed.

De Muniz, C. J., concurred in part and dissented in part and filed an opinion in which Gillette and Walters, JJ., joined.

*Appeal from Washington County Circuit Court, Nancy W. Campbell, Judge. 217 Or App 351, 174 P3d 1100 (2007).

*Appeal from Linn County Circuit Court, Rick J. McCormick, Judge. 217 Or App 363, 174 P3d 1106 (2007).

Excerpt from the summary:

?? These two criminal cases, which we consolidated for argument and disposition, require us to interpret and apply the requirement in Article I, section 16, of the Oregon Constitution that "all penalties shall be proportioned to the offense."(1)

Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute. Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times. When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand. Each of those touchings was unlawful because a jury in Rodriguez's case and a judge in Buck's case found that they had been for a sexual purpose -- a fact that brought the physical contact within the definition of first-degree sexual abuse. ORS 163.427(1)(a)(A). Rodriguez and Buck were both convicted of that crime.

First-degree sexual abuse carries a mandatory sentence of six years and three months (75 months) in prison, under Ballot Measure 11 (1994). In each of these cases, however, the trial judge determined that the mandatory sentence was not "proportioned to the offense" committed by the defendant and therefore was unconstitutional under Article I, section 16. The trial courts imposed shorter sentences -- 16 months in the case of Rodriguez and 17 months in the case of Buck.(2) The state appealed the trial courts' sentencing rulings, and Rodriguez and Buck cross-appealed their convictions. The Court of Appeals affirmed the convictions, but agreed with the state that the trial courts should have imposed mandatory 75-month sentences. State v. Rodriguez, 217 Or App 351, 174 P3d 1100 (2007); State v. Buck, 217 Or App 363, 174 P3d 1106 (2007).

Defendants filed petitions for review, which we allowed. For the reasons that follow, we affirm defendants' convictions. However, we reverse the decisions of the Court of Appeals as to sentencing and affirm the sentences imposed by the trial courts. We conclude that the imposition of the mandatory 75-month sentence for first-degree sexual abuse, as applied to the facts of Rodriguez's and Buck's offenses, would violate the constitutional requirement that the penalty be proportioned to the offense?.? (Read the full case.)

Full post as published by Oregon Legal Research on September 29, 2009 (boomark / email).