State v. Cambron ( 2022 )

468
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted November 21, affirmed December 29, 2022, petition for
review denied May 18, 2023 (371 Or 106)
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL DALE CAMBRON,
Defendant-Appellant.
Lane County Circuit Court
20CR26812; A175096
Charles M. Zennaché, Judge.
Shawn Wiley, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Philip Thoennes, Assistant Attorney General.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Aoyagi, Judge.
LAGESEN, C. J.
Affirmed.
Nonprecedential Memo Op: 323 Or App 468 (2022) 469
LAGESEN, C. J.
Defendant was convicted of two counts of public
indecency, ORS 163.465. Because defendant previously had
been sentenced more than twice before for other felony sex
crimes, the trial court sentenced defendant to life imprison-
ment under ORS 137.719(1) on each count of conviction. The
court rejected defendant’s arguments that the sentence, as
applied to him, is unconstitutionally disproportionate under
Article I, section 16, of the Oregon Constitution, and the
Eighth Amendment to the United States Constitution; the
trial court also rejected defendant’s request for a downward
departure, as allowed under ORS 137.719(2). On appeal,
defendant renews his constitutional proportionality chal-
lenges to his sentence. We affirm.
We review a trial court’s determination of whether
a sentence was unconstitutional under Article I, section 16,
of the Oregon Constitution for legal error. State v. Ryan,
361 Or 602, 614-15, 396 P3d 867 (2017). 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 evi-
dence in the record. Id. at 615. Because defendant raises
arguments under Article I, section 16, and the Eighth
Amendment, we first analyze whether defendant’s sentence
was disproportionate under the Oregon Constitution, and
we consider defendant’s federal constitutional claim only if
we conclude that no state constitutional violation occurred.
State v. Newcomb, 359 Or 756, 764, 375 P3d 434 (2016).
In this case, defendant was convicted of two counts
of public indecency, ORS 163.465, pursuant to guilty pleas.
Prior to this case, he had been sentenced for two counts of
first-degree sexual abuse and at least five additional counts
of public indecency. Although defendant argues otherwise,
we, like the trial court, view this case as analogous to State
v. Althouse, 359 Or 668, 375 P3d 475 (2016), in which the
Supreme Court rejected as-applied constitutional propor-
tionality challenges to an ORS 137.719 life sentence on facts
similar to these. Accordingly, we conclude that, for reasons
similar to those given in Althouse, the life sentences at issue
do not violate Article I, section 16. Althouse, 359 Or at 686-
92 (applying State v. Rodriguez/Buck, 347 Or 46, 217 P3d
470 State v. Cambron
659 (2009)). For the same reasons, the sentences do not vio-
late the Eighth Amendment’s prohibition against cruel and
unusual punishment. Althouse, 359 Or at 693.
To the extent that defendant argues that the court
erred in its proportionality analysis with regard to evidence
related to defendant’s disabilities under Ryan, 361 Or at 621,
and State v. Fudge, 297 Or App 750, 443 P3d 1176, rev den,
365 Or 819 (2019), that argument is not preserved. The
record confirms the state’s contention that, although evi-
dence of defendant’s disabilities was introduced as grounds
for a discretionary departure from the ORS 137.719 sen-
tences, defendant did not argue, as he does now, that his
disabilities factor into the constitutional proportionality of
those sentences. On this record, any error in that regard is
not plain and, for that reason, does not provide a basis for
relief on appeal. See Ailes v. Portland Meadows, Inc., 312 Or
376, 381-82, 823 P2d 956 (1991).
Affirmed.