State v. Ryan ( 2020 )

750
Submitted October 15, 2019; sentence vacated and remanded for resentencing,
otherwise affirmed August 12, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
STEVEN LEVI RYAN,
Defendant-Appellant.
Marion County Circuit Court
13C43883; A167593
473 P3d 90
Defendant, who is intellectually disabled, challenges his sentence following
resentencing. The trial court originally had imposed a mandatory sentence of 75
months’ imprisonment upon defendant’s guilty plea to first-degree sexual abuse.
The Oregon Supreme Court vacated and remanded for resentencing, concluding
that the trial court erred under Article I, section 16, of the Oregon Constitution in
failing to consider defendant’s intellectual disability when determining whether
the sentence was unconstitutionally disproportionate. State v. Ryan, 361 Or 602,
604, 396 P3d 867 (2017). On remand, the trial court imposed the same sentence,
emphasizing evidence that defendant was neither incompetent to stand trial nor
guilty except for insanity (GEI). Defendant appeals, arguing that the court again
failed to consider intellectual disability in a broad sense when determining pro-
portionality. Held: Although relevant, the standards for trial competency and
GEI do not fully consider the spectrum of intellectual disability and how it may
reduce, while not eliminate, criminal culpability or blameworthiness. Where the
trial court has found a defendant seriously intellectually impaired, it must con-
sider that intellectual disability in assessing the defendant’s culpability in order
to assure that the sentence is constitutionally proportionate.
Sentence vacated and remanded for resentencing; otherwise affirmed.
Claudia M. Burton, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Mooney, Judge.
Cite as 305 Or App 750 (2020) 751
DeVORE, J.
Sentence vacated and remanded for resentencing; other-
wise affirmed.
752 State v. Ryan
DeVORE, J.
Defendant, who is intellectually disabled, chal-
lenges his sentence following resentencing. The trial court
originally had imposed a mandatory sentence of 75 months’
imprisonment upon defendant’s guilty plea to first-degree
sexual abuse—one of the charges on which he was con-
victed. The Oregon Supreme Court vacated and remanded
for resentencing, concluding that the trial court erred under
Article I, section 16, of the Oregon Constitution in failing
to consider defendant’s intellectual disability in relation to
the age threshold for criminal liability when determining
whether the sentence was unconstitutionally disproportion-
ate. State v. Ryan, 361 Or 602, 624-25, 396 P3d 867 (2017).
On remand, the trial court imposed the same sentence
emphasizing evidence that defendant was neither incom-
petent to stand trial nor guilty except for insanity (GEI).
Defendant appeals, arguing that the court again failed to
consider intellectual disability in a broad sense when deter-
mining proportionality.
We agree that the evidence related to the GEI
defense and competency to stand trial is relevant, but that
those standards do not fully consider the spectrum of intel-
lectual disability and the potential that intellectual disabil-
ity may reduce, while not eliminate, criminal culpability
or blameworthiness. Where the trial court has found that
defendant is intellectually impaired, as here, the court must
consider defendant’s intellectual disability in order to assure
that the sentence is constitutionally proportionate—that
the sentence fits the crime. Accordingly, we are required to
vacate the sentence and remand for resentencing.
I. PROCEDURAL HISTORY
A. Standard of Review
“We review for legal error the trial court’s conclu-
sion that defendant’s sentence was constitutional under
Article I, section 16.” Ryan, 361 Or at 614-15. “In conducting
that review, we are bound by any findings of historical fact
that the trial court may have made, if they are supported by
evidence in the record.” Id. at 615.
Cite as 305 Or App 750 (2020) 753
B. Defendant’s First Sentencing
Prior to the offenses in this case, defendant com-
mitted criminal mischief by masturbating into an item of
children’s clothing in a store’s dressing room. He was on
probation for that offense when, in July 2013, defendant
engaged in sexual contacts with a nine-year-old girl and
a 14-year-old girl. He pleaded guilty to first-degree sexual
abuse of the younger child, ORS 163.427(1)(a)(A), and three
counts of third-degree sexual abuse as to the older child,
ORS 163.415.
Facing the prospect of a mandatory sentence of 75
months’ imprisonment on the charge of first-degree sex-
ual abuse, former ORS 137.700(2)(a)(P) (2013), renumbered
as ORS 137.700(2)(a)(Q) (2019), defendant argued that, due
to his intellectual disability, the sentence would shock the
moral sense of reasonable people and be unconstitutionally
disproportionate under Article I, section 16, of the Oregon
Constitution and the Eighth Amendment to the United
States Constitution as applied to him.1 To support that
argument, he provided the court with written reports from
four mental health evaluations performed between 2008
and 2013. The Supreme Court described those evaluations
in its opinion in the prior appeal of this case:
“All the evaluators diagnosed defendant with intellectual
disabilities. The first evaluator reported an IQ score of 50
for defendant, the most recent IQ test scored defendant at
60, and each evaluator found significant impairment in his
adaptive functioning. * * *
“More specifically, the first evaluation—performed when
defendant was 17 and living in an adolescent group home—
was part of an effort to secure services for defendant based
on his developmental delay. The evaluator, Dr. Sacks, noted
that defendant had a history of striking out at others and
that, between 2001 and 2006, he had engaged in miscon-
duct that ‘seemed to increase in severity.’ Sacks diagnosed
defendant with Conduct Disorder and Reactive Attachment
1
Those provisions provide, in relevant part, that “Cruel and unusual pun-
ishments shall not be inflicted, but all penalties shall be proportioned to the
offense,” Or Const, Art I, § 16, and that “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted,” US Const,
Amend VIII.
754 State v. Ryan
Disorder and stated that defendant needed a residential
setting with highly developed structure to avoid impulsive
and dangerous acts.
“The second evaluation was performed in 2012, when
defendant was 21, to determine whether he was able to aid
and assist in his defense on the criminal mischief charge.
The evaluator, Dr. Stoltzfus, diagnosed defendant with low
cognitive functioning, attention deficit hyperactivity dis-
order (ADHD), and Conduct Disorder. Stoltzfus reported
that defendant had been placed in foster care at age 12
for kissing a seven-year-old girl and that he primarily had
lived in group home settings between the ages of 12 and 21.
In his interview with Stoltzfus, defendant made repeated
references to aggression toward people who made him
angry. Stoltzfus opined that defendant had a high degree
of impulsivity and reactive hostility that could be amelio-
rated to some extent with psychotropic medication, but that
‘[h]is low cognitive and low adaptive functioning are not
amenable to treatment and will never change.’ Stoltzfus
concluded that defendant was not then capable of aiding
and assisting his defense. As a consequence, defendant was
placed in the Oregon State Hospital for further evaluation
and treatment.
“In December 2012, Dr. Corbett evaluated defendant at
the state hospital. He noted that defendant had been placed
in nonrelative foster care for extended intervals between
2005 and 2008, and that he had received services for his
developmental delay in Marion County from 2006 to 2009.
Defendant stated that he had been so angry at the hospital
that he wanted to hit people, but Corbett noted that defen-
dant had made some progress in ‘competency restoration
education.’ Corbett opined that defendant had made suffi-
cient progress that he was then able to aid and assist in his
defense.
“Finally, in December 2013, Dr. Nance evaluated defen-
dant for his sentencing in this case. Nance noted the alle-
gation that defendant had violated his probation on the
criminal mischief charge by possessing pornography and
engaging in improper internet use. Defendant was in jail
at the time of his evaluation and told Nance that he did
not feel safe there. He described suicidal and homicidal
thoughts, but denied that he would act on them.
“Nance diagnosed defendant with limited intellectual
functioning and as being immature, paranoid, and depressed,
Cite as 305 Or App 750 (2020) 755
and having questionable judgment. On account of his
intellectual deficiencies, defendant was unable to take
a useful polygraph examination, which was a concern to
Nance, because mandated polygraphs are a primary tool
of community supervision. According to Nance, defendant
was at high risk for re-offending, because he had a sense
of sexual entitlement with ‘rape attitudes,’ some hostility
toward women, and a lack of concern for others. So far,
Nance opined, defendant had expressed an attitude that
did not support probation. In Nance’s view, defendant posed
a high risk to commit a similar or more serious crime and
was not a suitable candidate for community supervision.
Defendant’s prognosis for ‘full rehabilitation’ was poor to
fair, Nance opined, but good for ‘some benefit from support-
ive therapy.’ Nance recommended a lengthy course of court-
mandated sex offender treatment and stated that the court
‘may consider’ a group home that would administer psy-
chotropic medications and ultimately support defendant’s
community supervision. Nance opined that the antisocial
aspect of defendant’s disorder would be exacerbated if he
were to be incarcerated.”
Ryan, 361 Or at 606-08. During that first sentencing hear-
ing, defendant’s attorney also argued to the court that
defendant’s aunt believed defendant functioned at a mental
age of about 10. Id. at 606. In its opinion, the Supreme Court
recited that argument as if it were evidence in the record.
Id.In his initial sentencing, the trial court found that
defendant was intellectually disabled, but the court con-
cluded that the statutorily mandated sentence was not dis-
proportionate. The court did not indicate that it had consid-
ered defendant’s intellectual disability in its determination.
Id. at 609-10. The court sentenced defendant to the 75-month
prison term. Id. at 609.
C. Defendant’s First Appeal
On appeal, defendant raised an as-applied chal-
lenge to the 75-month prison sentence under the state and
federal constitutions. Id. at 610. He argued that the trial
court erred in failing to sufficiently consider his intellectual
disability in assessing the proportionality of the mandatory
sentence. Id. Defendant highlighted, in part, his lessened
756 State v. Ryan
culpability and his heightened vulnerability to abuse and
other adverse effects in the prison setting. Id. We affirmed
without opinion. Id.On review, the Oregon Supreme Court concluded
that the trial court erred in its evaluation of the gravity of
defendant’s offense with the severity of the sentence, in vio-
lation of Article I, section 16, by “failing to consider evidence
of defendant’s intellectual disability when that evidence, if
credited, would establish that the sentence would be argu-
ably unconstitutional because it shows that defendant’s age-
specific intellectual capacity fell below the minimum level
of criminal responsibility for a child.”2 Id. at 625-26. In so
saying, the court relied on defense counsel’s argument that
defendant functioned as a 10-year old and referred to ORS
161.290(1), which makes age 12 the threshold for crimi-
nal liability of a minor.3 Id. at 623-24. The Supreme Court
vacated and remanded for resentencing. Id. at 626.
D. Defendant’s Second Sentencing
On remand, the trial court had before it largely the
same evidence as before. In addition, defendant introduced
two evaluations by Dr. Stoltzfus from September 2013 and
November 2017. The 2017 assessment showed that defen-
dant’s full scale IQ was 72, representing a “minor and incon-
sequential” improvement in scores. The doctor opined that
defendant still met “the criteria for an intellectual disability
(previously labeled Mental Retardation).”
The trial court wrestled with the appellate directive
to evaluate defendant’s intellectual capacity in relation to a
minor’s threshold of criminal liability when evaluating the
gravity of the offense and severity of the penalty. The court
found that defendant had an intellectual disability. It pred-
icated that finding on Dr. Stoltzfus’s opinion in 2017, based
on the “entire picture,” that defendant had an intellectual
disability, and on evidence “throughout his evaluations.”
2
Given that disposition, the Oregon Supreme Court did not reach the Eighth
Amendment challenge.
3
That statute provides:
“A person who is tried as an adult in a court of criminal jurisdiction is not
criminally responsible for any conduct which occurred when the person was
under 12 years of age.”
Cite as 305 Or App 750 (2020) 757
The trial court was uncertain what evidence led the
Oregon Supreme Court to posit that defendant may function
at an age level below that of criminal responsibility, other
than reference to his low reading and mathematics profi-
ciency scores.4 The court asked whether there was “some
other evidence in the record that he functions below the
age at which one can be subject to criminal responsibility.”
Defense counsel pointed, generally, to his sentencing mem-
orandum and the evaluations. The court did not appear to
find support for the statement in the record that defendant
functioned like a 10-year old. But, based on the evaluations,
the court found that defendant “met the criteria for intellec-
tual disability.”
Despite that intellectual disability, the trial court
determined that the sentence was proportionate as applied
to defendant. To explain, the court cited determinations in
the 2013 and 2017 evaluations by Dr. Stoltzfus that defen-
dant “did not meet the criteria for what we would call guilty
except for insanity.” The court acknowledged that, “in this
case, we’re not talking about insanity,” but it found, “based
on those reports by Dr. Stoltzfus and in the absence of any
contrary evidence,” that defendant “was able to appreciate
the criminality of his conduct and was able to conform his
conduct to the requirements of the law, despite his intellec-
tual deficits.” The court noted that reports by Dr. Stoltzfus
in 2013 and the Oregon State Hospital in 2012 stated that
defendant was “able to aid and assist in his defense.” Based
on the Oregon State Hospital evaluation, the court also
found that defendant “scored 100 percent on a legal concepts
tests,” whereas the “average mentally retarded individual
scored 73.2 and 71.3 percent.” The court found that defen-
dant had “the ability to understand the charges against
him, to understand the nature of the proceedings in court,
to cooperate with his attorney and to assist his attorney,” to
4
We understand the Oregon Supreme Court to have been referencing the fol-
lowing representation by defense counsel to the trial court at defendant’s initial
sentencing:
“The person that’s probably been the most meaningful support for him, who I
believe was out of town, and couldn’t be here today—she was at our last court
appearance—is his aunt. She was his payee for his social security. I’ve had
several conversations with her. In her lay opinion, she puts [defendant] at,
you know, a mental age of 10.”
758 State v. Ryan
“identify the pleas that could be entered in court,” to “iden-
tify the roles and responsibilities of the major courtroom
participants,” and to “describe typical probation conditions
such as no alcohol.”
Speaking candidly, the trial court expressed uncer-
tainty about “what really is the relevance of his intellectual
disability, given that he does not meet the criteria for guilty
except for insanity.” The court elaborated, stating,
“I find that, notwithstanding his intellectual disability,
[defendant] is able to appreciate the criminality of his con-
duct. And he’s able to conform his conduct to the require-
ments of the law, should he choose to do so.
“So, you know, that being the case, it’s difficult for the
Court to understand why it would shock the conscience of
the Court to impose the same sentence on someone who
says criteria and is—has an intellectual disability as
opposed to someone who is also able to appreciate the crim-
inality of their conduct and able to conform their conduct to
the requirements of the law but has a higher IQ.
“I mean, the whole point of diminished capacity or of an
intellectual disability in the Court’s view in terms of culpa-
bility is can the offender understand what they’re doing. Can
they understand that it is wrong. Can they understand it
is a crime. And all of the evidence is that [defendant] could
and did.
“To the extent that the Supreme Court mentions that
there’s evidence in the record that [defendant] functions
again at an age level below the age of criminal responsi-
bility in the State of Oregon and again, as far as I can tell,
what they’re referring to in the record is the evidence as to
his reading and math scores where he consistently scores
in about the first and second grade.
“I guess I would say two things. I have no evidence in the
record from any of the experts indicating that his deficits in
terms of academic performance in terms of math or read-
ing and writing, that those deficits in any way impaired
his ability to understand the criminality of what he was
doing, to understand that what he was doing was wrong or
impaired his ability to conform his conduct to the law.
“* * * * *
Cite as 305 Or App 750 (2020) 759
“[T]here are different kinds of intelligence. And it is clear
that, you know, [defendant’s] not a good candidate to hire
for a job that’s going to require him to do Excel spread-
sheets and write letters. His math abilities and his write—
reading and writing abilities are extremely limited.
“But I do not believe, in the absence—particularly in
the absence of any expert evidence making that connec-
tion, I do not believe that it therefore logically follows that
he has less criminal culpability again where the evidence is
that he can understand that this conduct is illegal and he
can conform his conduct to the requirements of the law.”
(Emphasis added.) In short, the trial court appears to have
determined that defendant’s intellectual disability does not
play a role in its assessment of the proportionality of the
mandated sentence.
That said, the court did assess other aspects of the
gravity of defendant’s conduct. The court observed that,
although the conduct was not “the worst thing you can do
and still be charged with sex abuse one,” it did not “resemble
the conduct in Rodriguez and Buck where you had very brief
* * * contact of which the victims may not even have been
aware.” The conduct involved violence, and it demonstrated
an intent to go farther. The court underscored the “signifi-
cant impact” on the victim; the young girl had to “fight to
defend herself,” and she testified to being “the most scared
that she had ever been.”
The court explained that its concern was “not so
much culpability in terms of retribution” as ensuring pub-
lic safety and the “protection of society.” The court discussed
evidence that defendant needed residential placement due to
the risk that he posed to himself and others, and the lack of
viable options that could provide sufficient security. It noted
an expert evaluation indicating that defendant’s behavior
“may escalate.” The court questioned the potential efficacy
of treatment as an alternative to incarceration, given defen-
dant’s prior failure to follow through, his lack of motivation to
engage, and his inability to take responsibility for his actions.
The court highlighted defendant’s criminal record,
which included a crime that, “although not technically a sex
offense,” had “a sexual offense component.” Defendant had
760 State v. Ryan
been “on probation with sex offender conditions,” with which
“he never complied.” “It’s clear,” the court found, that defen-
dant “didn’t take his probation seriously.”
Given all those considerations, the court determined
that the original sentence was proportionate. It reasoned
that, if defendant “doesn’t get the penalty that exists under
law for this behavior, the message is you don’t have to follow
the law. You don’t have to do what the law requires because
we understand that you have an intellectual disability.” The
court said, “sending that message to [defendant] is going to
do nothing but give him permission to reoffend and offend in
worse ways.” It concluded that the penalty did not shock the
conscience, and it again imposed the mandatory minimum
sentence of 75 months’ imprisonment.
E. Arguments on Appeal
On this second appeal, defendant challenges his
sentence again. He stresses that, under State v. Rodriguez/
Buck, 347 Or 46, 217 P3d 659 (2009), and Ryan, 361 Or 602,
a proper proportionality analysis requires broad consider-
ation of any intellectual disability because any intellectual
disability should reduce defendant’s culpability in relation
to the penalty. Defendant contends that the trial court con-
flated the criminal liability with culpability, when it rea-
soned that his competence to stand trial or his inability to
interpose a GEI defense meant that he could receive the
same sentence as a person with a “higher IQ.” Defendant
argues that the analyses for criminal liability and culpa-
bility must differ. He argues that the Supreme Court con-
templated that his reduced culpability may require a dif-
ferent sentence, despite his ability to stand trial, and that
intellectual disability reduces the relative culpability of
defendants who stand trial. Defendant argues that the trial
court should have focused, as the Supreme Court did, on
his deficits in adaptive functioning.5 Defendant concludes
5
The Ryan opinion explained,
“Impairment in adaptive functioning’ refers to significant limitations in
an individual’s effectiveness in meeting the standards of maturation, learn-
ing, personal independence, and/or social responsibility that are expected for
his or her age level and cultural group, as determined by clinical assessment
and, usually, standardized scales.”
361 Or at 606 n 1 (internal quotation marks and citations omitted).
Cite as 305 Or App 750 (2020) 761
that, because the trial court failed to appreciate the impact
of his intellectual disability on his potential culpability, its
proportionality analysis remained flawed, was inconsistent
with Ryan, and reached an unconstitutional conclusion.
The state responds that the trial court properly
imposed the sentence. The state argues that the trial court
did consider evidence of defendant’s intellectual disability
when examining his IQ score and adaptive functioning, and
when determining, as the state characterizes it, that defen-
dant’s “culpable mental state” was “on the borderline” for
criminal liability. The state notes that the court found that
defendant met the standard for competency and that he was
able to appreciate the criminality of his conduct and conform
his conduct to the law. The state notes other relevant factors
that the court considered—a prior offense and danger to
society—and concluded that, in the totality of the circum-
stances, the mandated 75-month sentence does not shock
the moral sense of reasonable people. The state asserts that
“the only question that is presented here reduces to this:
does the fact that defendant has an intellectual disability
mean that a 75-month minimum sentence mandated by
ORS 137.700(2)(a)(P) is necessarily unconstitutionally dis-
proportionate punishment as applied to him?” (Emphasis in
original.)
We understand the question presented somewhat
differently than do defendant and the state. Contrary to
defendant, we already know from the prior Ryan decision
that the answer does not mean that any intellectual impair-
ment invariably reduces a defendant’s culpability or the
offense’s gravity. Ryan, 361 Or at 621 (rejecting one-size-
fits-all approach); id. at 625-26 (referencing the threshold
for criminal liability); see also id. at 626-27 (Balmer, J., con-
curring) (describing majority’s holding as being narrower
than defendant’s argument). In this case, however, the trial
court has accepted a record that indicates that the defen-
dant has a serious intellectual disability, including signifi-
cantly impaired adaptive functioning and an IQ score that
falls within the range which the United States Supreme
Court has recognized as potentially diminishing culpabil-
ity. Id. at 623 (citing Hall v. Florida, 572 US 701, 721-23,
134 S Ct 1986, 188 L Ed 2d 1007 (2014)). Contrary to the
762 State v. Ryan
state, defendant does not argue that intellectual disability
necessarily renders a sentence under ORS 163.427(1)(a)(A)
unconstitutional. We need not determine, as the state sug-
gests, whether defendant’s intellectual disability requires a
lesser sentence.
Rather, we are asked whether evidence of a defen-
dant’s competency to stand trial and his inability to inter-
pose a GEI defense suffice as consideration of intellectual
disability when assessing the defendant’s culpability and
the gravity of an offense in relation to severity of the penalty
in the proportionality analysis under Article I, section 16. As
we explain, we conclude that those measures do not suffice
to determine proportionality and, further, that the serious
intellectual disability that has been determined requires
evaluation of defendant’s relative culpability as part of the
gravity of the offense in determining proportionality. To put
the question in perspective, we visit the standards for pro-
portionality, Or Const, Art I, § 16, trial competency, ORS
161.360, and the GEI defense, ORS 161.295.
II. LAW
A. Proportionality and Intellectual Disability
The Oregon Constitution prohibits cruel and
unusual punishments, and it requires that all penalties be
proportioned to the offense. Or Const, Art I, § 16. In con-
sidering the proportionality of a sentence, we ordinarily
ask “whether the length of the sentence would shock the
moral sense of reasonable people.” Ryan, 361 Or at 612 (cit-
ing State v. Althouse, 359 Or 668, 683, 375 P3d 475 (2016)).
In Rodriguez/Buck, the Oregon Supreme Court articulated
three nonexclusive factors that bear on that inquiry: “(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 history of the
defendant.” 347 Or at 58.
The first factor requires the court to compare the
penalty’s severity with the crime’s gravity. Id. A “ ‘greater
or more severe penalty should be imposed for a greater or
more severe offense,’ ” and, conversely, “ ‘a less severe pen-
alty should be imposed for a less severe offense.’ ” Id. at 62
Cite as 305 Or App 750 (2020) 763
(quoting State v. Wheeler, 343 Or 652, 656, 175 P3d 438
(2007)). In an as-applied challenge, a court may consider
case-specific factors in making that assessment. Id. Gravity
of an offense encompasses both “the gravity of the defen-
dant’s particular conduct and the statutorily defined crime
itself.” Ryan, 361 Or at 616. “To the extent that an offender’s
personal characteristics influence his or her conduct, those
characteristics can affect the gravity of the offense.” Id.In defendant’s first appeal, the Oregon Supreme
Court determined that intellectual disability is one such
personal characteristic. Id. at 615-21. In reaching that con-
clusion, the court studied Atkins v. Virginia, 536 US 304,
122 S Ct 2242, 153 L Ed 2d 335 (2002), in which the United
States Supreme Court held that the Eighth Amendment
prohibits the execution of intellectually disabled offenders.6
The Oregon Supreme Court found significant Atkins’s con-
cern with diminished culpability, reciting that:
“The [Atkins] Court concluded that, for an intellectually
disabled offender, the case for retribution was diminished.
Further, it stated, the rationale of deterrence was dimin-
ished by the reduced ability of the intellectually disabled
‘to understand and process information, to learn from
experience, to engage in logical reasoning, and to control
impulses.’
“The Court explained:
‘Those intellectually disabled persons who meet the
law’s requirements for criminal responsibility should be
tried and punished when they commit crimes. Because
of their disabilities in areas of reasoning, judgment, and
control of their impulses, however, they do not act with
the level of moral culpability that characterizes the
most serious adult criminal conduct. Moreover, their
impairments can jeopardize the reliability and fairness
of capital proceedings against so diagnosed defendants.’
“Viewing an intellectually disabled offender’s culpability
in light of the ‘penological purposes served by the death
6
The court noted that “[b]ecause the test for proportionality under the
Eighth Amendment is similar to that under Article I, section 16, at least in its
comparison of the gravity of the offense and the severity of the penalty,” fed-
eral precedents addressing that constitutional provision could “shed light” on the
question presented. Ryan, 361 Or at 616-17.
764 State v. Ryan
penalty,’ the [Atkins] Court determined that such defen-
dants ‘should be categorically excluded from execution.’
Concerning retribution, the Court found that, because
‘severity of the appropriate punishment necessarily depends
on the culpability of the offender, an exclusion for the intel-
lectually disabled is appropriate.’ Culpability also was cen-
tral to the [Atkins] Court’s determination that execution
of the intellectually disabled did not serve the penological
purpose of deterrence, because ‘it is the same cognitive and
behavioral impairments that make these defendants less
morally culpable.’ ‘Construing and applying the Eighth
Amendment in the light of our “evolving standards of
decency,” the [Atkins] Court therefore concluded that such
punishment is excessive and that the Constitution “places
a substantive restriction on the State’s power to take the
life” of an intellectually disabled offender.’ ”
Ryan, 361 Or at 618-19 ((quoting Atkins, 536 US at 306-07,
317-21) (internal citations, brackets, and ellipses omitted)).
Drawing on that analysis, the Oregon Supreme
Court determined that serious intellectual disability is rel-
evant to determining both the gravity of an offense and the
severity of its penalty before imposing a prison sentence.
Id. at 620-21. It acknowledged that lower courts have gen-
erally limited Atkins’s reach to capital cases. Id. at 619.
Nevertheless, the court noted the growing consensus that
intellectual disability should be a major mitigating fac-
tor in determining appropriate sentences. Id. at 620. The
court observed that “evidence of an offender’s intellectual
disability therefore is relevant to a proportionality determi-
nation where sentencing laws require imposition of a term
of imprisonment without consideration of such evidence.”
Id. at 620-21. It recognized that, “where the issue is pre-
sented, a sentencing court must consider an offender’s intel-
lectual disability in comparing the gravity of the offense
and the severity of a mandatory prison sentence on such
an offender in a proportionality analysis under Rodriguez/
Buck.” Id. at 621.
The Oregon Supreme Court addressed “how that
consideration should affect the proportionality analysis,”
especially given the “broad spectrum of intellectual disabili-
ties that may reduce, but not erase, a person’s responsibility
Cite as 305 Or App 750 (2020) 765
for her crimes.” Id. A “one-size-fits-all approach is not appro-
priate,” the court said. Id. The court explained that
“a sentencing court’s findings, among other factual consid-
erations, as to an intellectually disabled offender’s level of
understanding of the nature and consequences of his or
her conduct and ability to conform his or her behavior to
the law, will be relevant to the ultimate legal conclusion
as to the proportionality—as applied to the offender—of
a mandatory prison sentence. See [Atkins, 536 US] at 319
(holding that ‘severity of the appropriate punishment nec-
essarily depends on the culpability of the offender’). The
length of the prescribed prison sentence also is relevant in
determining the severity of the penalty.”
Id. (footnote omitted). All things considered, such impair-
ments may make a defendant “less morally culpable.” Id. at
619 (quoting Atkins, 536 US at 320).
Turning to defendant’s case, the Supreme Court
concluded that the trial court had failed to sufficiently con-
sider his intellectual disability in addressing his proportion-
ality challenge. Id. at 623. The Supreme Court recounted:
“[D]efendant is an intellectually disabled offender who
has an IQ score between 50 and 60, a full ten to twenty
points below the cutoff IQ score for the intellectual func-
tion prong of the intellectual disability definition recog-
nized in Hall. Moreover, it is undisputed that defendant
has significantly impaired adaptive functioning, such that
he functions—as it pertains to standards of maturation,
learning, personal independence, and social responsibility—
at an approximate mental age of 10, two years below the
minimum age for establishing criminal responsibility of a
child under Oregon law. See ORS 161.290(1). That legisla-
tive pronouncement is relevant here because it is objective
evidence of a societal standard that eschews treating per-
sons with the attributes of a pre-teen child as if they were
normally abled adult offenders.”
Id. at 623-24 (some internal citations and footnote omitted).
The court stated that such evidence was relevant to both the
gravity of the offense as well as the severity of the penalty.
Id. at 625 n 14.
The Supreme Court observed that the trial court,
despite recognizing defendant’s intellectual disability, failed
766 State v. Ryan
to “address its implications in rejecting his proportionality
challenge.” Id. at 624. “That missing linkage is problem-
atic,” the high court explained, “although the [trial] court
appeared to grasp the factual foundation of defendant’s
argument, it did not fully appreciate its constitutional
implications.” Id. The Ryan decision concluded that the trial
court erred in comparing the gravity of defendant’s offense
and the severity of the mandatory sentence under the first
Rodriguez/Buck factor, because the trial court failed to con-
sider evidence of defendant’s intellectual disability “when
that evidence, if credited, would establish that the sentence
would be arguably unconstitutional because it shows that
defendant’s age-specific intellectual capacity fell below the
minimum level of criminal responsibility for a child.” Id. at
625-26.
The Supreme Court remanded the case for resen-
tencing. The court explained that, “in certain circumstances
where the record suggests that the trial court misappre-
hended the import of the defendant’s proportionality chal-
lenge,” vacating and remanding for a trial court to resen-
tence the defendant is appropriate because, otherwise “we
would have to speculate as to whether the court properly
considered the relevant case-specific factors and made any
necessary factual findings.” Id. at 625 n 15.
B. The GEI Defense
The concept that a defendant is guilty except for
insanity is reflected as an affirmative defense in Oregon
law. ORS 161.305. A person meets the criteria for GEI if,
as a result of a qualifying mental disorder at the time of
the criminal conduct, the person “lacks substantial capac-
ity either to appreciate the criminality of the conduct or
to conform the conduct to the requirements of law.” ORS
161.295(1).7 The word “appreciate” means that the offender
must be “ ‘emotionally as well as intellectually aware of the
7
ORS 161.295, as well as ORS 163.260 (discussed below), have seen revisions
in recent years and since the time of defendant’s conduct. Or Laws 2017, ch 634,
§§ 3, 14 (changing requirement for GEI and incapacitation from having a “men-
tal disease or defect” to having a “qualifying mental disorder”). However, those
changes have no bearing on our analysis.
Cite as 305 Or App 750 (2020) 767
significance of his conduct.’ ” State v. J. C. N.-V., 359 Or 559,
581, 380 P3d 248 (2016) (quoting Commentary to Criminal
Law Revision Commission Proposed Oregon Criminal Code,
Final Draft and Report § 36 (July 1970)).
The GEI statute ensures that a qualifying defen-
dant will not be held criminally responsible. When enacted
in 1971, the law permitted a finding that a defendant was
“not responsible by reason of mental disease or defect.” State
v. Olmstead, 310 Or 455, 463, 800 P2d 277 (1990) (discussing
Or Laws 1971, ch 743, § 36). That defense, which became ORS
161.295, “excuse[d] responsibility for a crime of any sort.”
Id. at 464 (internal quotation marks omitted). Likewise,
under the current statute, “the concept of the defense is that
people who establish it are not criminally responsible for
the crime that they otherwise have committed.” Id. ((citing
Minutes, Senate Committee on Judiciary, HB 2070, June 29,
1983) (internal quotation marks omitted)).
The GEI issue is not synonymous with culpability
in determining the constitutionality of a sentence under
Article I, section 16. A defendant who invokes the GEI
defense successfully has a complete defense to all criminal
liability. By contrast, a defendant whose intellectual disabil-
ity reduces culpability in determining the proportionality of
a sentence does not escape criminal liability. Consideration
of intellectual disability only assures that the court arrives
at a sentence that is not unconstitutionally disproportionate.
To be sure, the Ryan decision recognized that a trial court’s
findings, such as “an intellectually disabled offender’s level
of understanding of the nature and consequences of his or
her conduct and ability to conform his or her behavior to
the law, will be relevant to the ultimate legal conclusion as
to the proportionality.” 361 Or at 621. But the GEI ques-
tion and the culpability question are not the same. Indeed,
if intellectual disability were to be considered only when the
GEI defense is proven, there would be no criminal liabil-
ity and no constitutional question about the proportionality
of the sentence. Put another way, to find that the evidence
would not have supported a GEI defense only begs the ques-
tion of proportionality. It does not render evidence of intel-
lectual disability immaterial.
768 State v. Ryan
C. Fitness to Proceed
Under Oregon law, a defendant may be deemed unfit
to proceed in his criminal case by reason of incapacity. ORS
161.360(1). A court may find a defendant to be incapacitated
if, as a result of a qualifying mental disorder, he is unable
to understand the nature of the proceedings against him,
assist and cooperate with his counsel, or participate in his
own defense. ORS 161.360(2).
Fitness to stand trial is not necessarily determined
by intellectual disability. State v. Ward, 295 Or App 636,
646, 437 P3d 298, rev allowed, 365 Or 556 (2019). For exam-
ple, in Ward, we affirmed a trial court’s determination that
an intellectually disabled defendant was competent to stand
trial. Id. at 646. In that case, the defendant suffered from
a “lifelong intellectual disability.” Id. at 639. The trial court
determined that the defendant was fit to proceed in his case,
based predominantly on the testimony and evaluations of a
doctor at the state hospital. Id. at 641. That doctor had eval-
uated the defendant on multiple occasions and noted mean-
ingful improvement to the defendant’s ability to communi-
cate and display rational and autonomous decision-making,
as shown through the defendant’s responses to hypothetical
legal scenarios and his interactions with his attorneys. Id. at
643-44. The doctor concluded that, although the defendant
had a “very real disability” and would need accommoda-
tions at trial, he “possessed the ability to adequately process
information, communicate with his attorneys, and assist in
his defense.” Id. at 644. On appeal, we concluded that the
record supported the findings that the defendant had the
ability to communicate with his counsel in meaningful way,
to understand the nature of the proceedings against him,
to intelligently make decisions affecting his case, and to
adequately remember the incident and things that would
happen in course of trial so as to participate in his defense.
Id. at 646-47. Accordingly, we affirmed. Id. at 661.
Fitness to stand trial is determined by a statutory
standard involving the ability to understand and assist.
That standard poses a different question than the assess-
ment of intellectual disability as may affect the culpability
Cite as 305 Or App 750 (2020) 769
of the defendant or the gravity of the offense. Like evidence
on the GEI defense, evidence about defendant’s competence
to stand trial did not serve to answer the question of the
import of defendant’s intellectual disability for purposes of
the proportionality of his sentence.
III. ANALYSIS
When this case was returned for resentencing, the
trial court was left to determine how intellectual disabil-
ity affected its assessment of the culpability of defendant
or the gravity of the offense in relation to the severity of
a mandated term of imprisonment. The Ryan decision had
considered that evidence of defendant’s intellectual disabil-
ity, seemingly indicated that defendant, with low IQ scores,
may function on the level of a 10-year old, below the age at
which a minor could be criminally liable. The Ryan decision
resolved that, if true, the trial court must consider such seri-
ous intellectual disability in evaluating defendant’s culpa-
bility or the gravity of the offense.
The trial court reviewed the evidence. At most, the
record revealed that the statement about defendant func-
tioning like a 10-year-old was no more than defense coun-
sel’s representation, made in argument in the first sentenc-
ing hearing, about what defendant’s aunt believes. Asked
for such an indication in the record, defense counsel at the
second sentencing hearing could offer nothing more. The
trial court surmised that the Supreme Court had made an
assumption from unusually low scores on tests of reading
and mathematics, and the court found better evidence in
other measures.
The trial court determined that defendant remained
at the level of intellectual impairment that was indicated in
the psychological evaluations provided. At the time of the
first sentencing, defendant’s IQ scores had been 50 to 60.
In the 2017 evaluation, his composite results indicated an
IQ of 72. Stolzfus had concluded that, taken together, the
scores over the past five years continued to place defendant
in the deficit range of intellectual capability. The trial court
did not make a specific determination regarding the relative
level of intellectual disability.
770 State v. Ryan
The trial court did, however, equate the evidence
about competency to stand trial or about a GEI defense
as the determinants of defendant’s relative culpability. As
noted above, the court commented,
“I mean, the whole point of diminished capacity or of an
intellectual disability in the Court’s view in terms of cul-
pability is can the offender understand what they’re doing.
Can they understand that it is wrong. Can they understand
it is a crime. And all of the evidence is that [defendant]
could and did.”
After reviewing other factors, the trial court returned to
the question of intellectual disability and commented that,
if the court did not impose the sentence dictated by statute,
then the court would send the message that, if you are intel-
lectually disabled, then “you don’t have to follow the law.”
We respectfully disagree. “The whole point” of
intellectual disability is not simply to ask whether defen-
dant knows the nature of the offense or whether he can
conform his conduct. It is to determine the degree of cul-
pability of defendant’s conduct. Because intellectually dis-
abled offenders have reduced abilities “ ‘to understand and
process information, to learn from experience, to engage in
logical reasoning, and to control impulses,’ ” they “ ‘do not
act with the level of moral culpability that characterizes the
most serious adult criminal conduct.’ ” Ryan, 361 Or at 618(quoting Atkins, 536 US at 306). The lessened culpability of
intellectually disabled offenders brings into question the
goals of retribution and deterrence that may justify punish-
ments of particular severity. An offense may be relatively
less reprehensible, even if equally harmful, when committed
by an intellectually disabled offender as opposed to a high-
functioning one.
Unlike the tests for incapacity and GEI, the purpose
of Article I, section 16, is not to determine whether a per-
son minimally qualifies to stand trial or assume criminal
responsibility. Instead, proportionality analysis requires the
court to consider the “constitutional implications” of a defen-
dant’s diminished culpability, id. at 624, specifically, the fit
between the offense and the penalty, Rodriguez/Buck, 347
Or at 62 (a more severe penalty should be imposed for a more
Cite as 305 Or App 750 (2020) 771
severe offense, and a less severe penalty should be imposed
for a less severe offense). Unlike incapacity or a GEI deter-
mination, intellectual disability does not necessarily fore-
close altogether the possibility of a prison sentence. Instead,
the “broad spectrum of intellectual disabilities may reduce,
but not erase, a person’s responsibility for her crimes.” Ryan,
361 Or at 621 (emphases added).8
We acknowledge that our trial courts are often given
the difficult task of applying new constitutional standards,
in the first instance, without detailed guidance beforehand.
If, thereafter, an appellate court finds error, the trial court
has nonetheless assisted the appellate court through devel-
opment of the record, allowing the appellate court to reach a
more developed answer in the end.
We conclude that the trial court erred in failing to
consider the effect, if any, of defendant’s serious intellectual
disability in determining his culpability for the offense as
culpability relates to the severity of the mandated term of
imprisonment. We understand that the trial court accepted
the determination of the evaluations. Although the court
found little, if any, support for the representation that defen-
dant functioned like a 10-year-old, the trial court, by finding
intellectual disability, seems to have accepted the findings
that defendant had impaired adaptive functioning and that
his IQ scores had ranged from 50 to 72 over five years. We
note that the Ryan decision recognized that intellectual dis-
ability with IQ scores in the range of 70-75 trigger consti-
tutional review in cases threatening capital punishment.
Id. at 617 (citing Atkins, 536 US at 309 n 5). Here, the trial
court seems to have accepted evidence of intellectual disabil-
ity that puts defendant in that range of potentially dimin-
ished culpability. It is a threshold that is different from the
threshold of criminal liability of a juvenile, ORS 161.290(1),
but it is a fundamental threshold of intellectual disability. It
8
As the Ryan decision observed:
“[O]n remand the sentencing court, after considering evidence of defen-
dant’s intellectual disability, may impose a lesser sentence than the pre-
scribed Measure 11 sentence if the court properly concludes that the pre-
scribed sentence is constitutionally disproportionate to the offense based on
evidence in the record.”
361 Or at 624 n 13.
772 State v. Ryan
is an indication of such serious intellectual disability that, if
true, requires the trial court in sentencing to consider intel-
lectual disability, among all other factors, in the determina-
tion of proportionality.
IV. CONCLUSION
Because the trial court erred under Article I, sec-
tion 16, in imposing the mandatory sentence of 75 months’
imprisonment without considering defendant’s intellectual
disability beyond evidence of trial competency and a GEI
defense, we vacate the sentence and remand for resentencing.
Sentence vacated and remanded for resentencing;
otherwise affirmed.