State v. Althouse , 359 Or. 668 ( 2016 )


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  • 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 XXX-XX-XXXX(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, legislature enacted ORS 137.719,
    which specifies a presumptive sentence for a defendant’s third felony sex con-
    viction. 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
    life imprisonment without parole for a third conviction 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
    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 pre-
    sumptive sentences for a crime, depending on the sever-
    ity 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 legislature does not prescribe the presumptive sen-
    tences 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 legislature 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 char-
    acterized indeterminate sentencing “sometimes led to
    Cite as 
    359 Or 668
     (2016)	675
    disparate sentences for similarly situated defendants.” 
    Id.
     As
    a result of that problem, the 1985 Oregon Legislature estab-
    lished what is now known as the Oregon Criminal Justice
    Commission and directed the Commission to develop rec-
    ommendations for criminal sentencing. See Or Laws 1985,
    ch 558, §§ 2-3. In response to the legislature’s directive, the
    Commission created a grid of presumptive sentences, where
    the appropriate grid block for a conviction lies at the inter-
    section 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 sentencing 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 sentencing court may impose a sentence
    within that range. See OAR 213-005-0001(1) (stating that
    “the presumptive sentence 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
    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
    presumptive sentence provided by the applicable grid block,
    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 chal-
    lenges to his sentence, we first set out the relevant sentenc-
    ing 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 as 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
    regarding 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 pos-
    sibility 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 proportionate
    under Article I, section 16, only if the guidelines sentence
    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
    criminal history, not his conviction for public indecency,
    in deciding 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.