State v. Ferman-Velasco

EDMONDS, J.

Defendant appeals from convictions of rape in the second degree, ORS 163.365, and sexual abuse in the first degree, ORS 163.427. Defendant was sentenced on each conviction to 75 months’ imprisonment pursuant to ORS 137.700 to be served concurrently and a post-prison supervision period of 10 years, less time served in prison. Defendant appeals, and we affirm.

In his first assignment of error, defendant argues that the trial court erred when it ordered him to pay witness fees in the amount of $25. ORS 161.665(1) now provides, in part:

“[T]he court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant shall pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount for expenses approved under ORS 135.055. * * * Costs shall not include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.”

At trial, three witnesses testified for the prosecution, only one of which was a police officer. Apparently, the trial court imposed the witness fees for the nonpolice witnesses. Defendant argues that the award of witness fees to the state for those witnesses falls within the ORS 161.665 prohibition for recovery of expenses inherent in providing a constitutionally guaranteed jury trial.

In State v. Hastings, 24 Or App 123, 544 P2d 590, rev den (1976), we held that costs incurred so that the state could prove an indictment against the defendant in the form of witness fees were not an expenditure within the exclusion of ORS 161.665. Defendant argues that Hastings was wrongly decided and that under ORS 136.602,¹ the state is financially responsible for its witnesses and a defendant is financially responsible only for his or her witnesses. We disagree with defendant’s arguments. Witness fees for witnesses called by the prosecution are not the kind of expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific crimes. Unlike general costs of prosecutions, such as district attorneys’ salaries, sheriffs’ salaries, jurors’ fees or police investigations, the costs of witness fees are costs specific to a defendant’s own case. As we said in Hastings, “[pjayment of witness fees in a particular case is not an expenditure made ‘irrespective of specific violations of law.’ ” 24 Or App at 125. Moreover, the language of ORS 136.602(1) does not require a contrary interpretation of ORS 161.665(1). ORS 136.602(1) provides that “[ejxcept as otherwise specifically provided by law” the state will initially pay the expenses of prosecution witnesses. When read in conjunction with ORS 161.665, it is clear that the trial court has the authority to order a defendant to repay witness fees that have been paid in the first instance by the state.

Next, defendant argues that ORS 137.700 violates Article I, section 16, of the Oregon Constitution, which provides that “all penalties shall be proportioned to the offense.” ORS 137.700 is a codification of Ballot Measure 11 adopted by the people in the 1994 general election. Or Laws 1995, ch 2 (amended by Or Laws 1995, ch 421, § 1; Or Laws 1995, ch 422, § 47). The measure adopted mandatory minimum sentences for certain felonies. Id. Defendant argues:

“Ballot Measure 11 as applied to the crime of rape in the second degree and sexual abuse in the first degree is disproportionate because ORS 137.700-mandated sentenced] for those crimes, Class B felonies, [are] greater than the greatest actual sentence that could be imposed for some Class A felonies.

“The legislature has classified all felonies within the criminal code into three categories of escalating seriousness. Those categories are Class C felonies (the least serious), Class B felonies and Class A felonies (the most serious barring murder, aggravated murder and treason). ORS 161.535.

“The sentences to be imposed upon these different classifications are set forth in other statues and rules. See e.g., ORS 161.605 (setting forth indeterminate sentences); Or Laws 1989, ch 790, § 87 (legislature approved the sentencing guidelines); Ballot Measure 11 (voters enacted determinate sentences for some crimes); ORS 137.700. Although the legislature and voters have changed the punishment for the different classification of felonies over the years, they have not changed the classification system itself.

í]í # if;

“Because defendant’s punishment for committing a Class B felony under ORS 137.700 exceeds the greatest punishment an offender with the same or greater criminal history could receive for committing some Class A felonies - more serious crimes according to the legislature’s classification system, the sentence mandated by ORS 137.700 for rape in the second degree and sexual [abuse] in the [first] degree is disproportionate to the offense. As such, it is unconstitutional.”² (Internal footnote omitted.)

Defendant cites no authority for his argument. In State v. Shumway, 291 Or 153, 630 P2d 796 (1981), Merrill v. Gladden, 216 Or 460, 337 P2d 774 (1959), and Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955), Article I, section 16, of the Oregon Constitution, was held applicable to situations where sentences for lesser included crimes were more severe than for their completed counterparts. The comparison was made between related crimes, and such comparisons demonstrated the irrationality of imposing a greater penalty for a less severe offense. In Cannon, the defendant was sentenced to life imprisonment for the crime of assault with intent to commit rape. Under the law that existed at the time, one found guilty of either statutory or forcible rape could not be imprisoned for more than 20 years. In Merrill, the plaintiff was convicted of the crime of assault with intent to rob and sentenced to serve a term of 20 years. When the plaintiff brought a habeas corpus proceeding in circuit court, the circuit court judge entered an order directing his release. At that time, the penalty for unarmed robbery was a maximum of 15 years, and the penalty for armed robbery had a maximum penalty of life because of the aggravating circumstance. The court held that “the legislature has full authority to provide a greater penalty for a crime committed in an aggravated manner than one that is not.” Merrill, 216 Or at 465. The court concluded:

“Since it was the legislative intent to include both an armed robbery and an unarmed robbery within the assault with intent to rob statute, and since the indictment was sufficient to describe an armed assault, it follows that the trial court was not prohibited by constitution from entering the sentence of 20 years, pronounced against the plaintiff.” Id. at 470.

In Shumway, the defendant was convicted of intentional homicide and sentenced to life. Under the existing law, he was required to serve 25 years before becoming eligible for parole, as required by an initiative measure. Under other statutes governing intentional homicide and aggravating circumstances, the defendant would have been eligible for parole either 15 or 20 years after sentencing, depending on the particular aggravating circumstance. The court concluded:

“Under this statutory scheme, a defendant receives a lesser minimum sentence to be served before being eligible for parole for aggravated intentional homicide than he does for an unaggravated intentional homicide. This is in violation of Art[icle] I, [section] 16[,] of the Oregon Constitution and that provision in ORS 163.115(5) requiring the defendant to serve not less than 25 years before becoming eligible for parole is invalid and cannot be applied to the defendant * * Shumway, 291 Or at 164.

In State v. Turner, 296 Or 451, 455-56, 676 P2d 873 (1984), the defendant argued that a 15-year minimum imprisonment term of a 30-year dangerous offender sentence for attempted rape was disproportionate to the sentence for murder because there was no minimum term that could be imposed for murder at that time. He relied on the holdings in Cannon and Shumway. The com! noted first that in those cases, it had compared sentences for different degrees of the same crime where the sentence for the lesser crime was more severe than the sentence for the greater crime. The court said, “[t]hese cases[, Cannon, Merrill and Shumway,] are distinguishable from the present case because here we are asked to compare the sentences of unrelated crimes.” Turner, 296 Or at 456. The court went on to point out that upon a murder conviction, a sentence for the remainder of a person’s life is a greater sentence than a 30-year sentence with a 15-year minimum. The court concluded the 15-year minimum sentence imposed on the defendant for a crime where no homicide was involved was not disproportionate.

In Isom, 313 Or at 399-400, the defendant argued that the death penalty for aggravated murder after an escape was unconstitutionally disproportionate under Article I, section 16, of the Oregon Constitution, to the sentence for intentional murder during an escape. The defendant relied on the holdings in Cannon and Shumway. The court rejected his argument:

“Those cases, however, do not support defendant’s contention here. Each of those cases concerned a situation in which, due to definitional peculiarities, a lesser included offense carried a greater penalty than the principle offense. That is not the situation. * * * The legislature has chosen to subject all such persons to the maximum potential penalty. Defendant’s opinion makes sense, but so does that which we attribute to the legislature. There was a rational basis for the legislature to conclude that both classes of escapees are dangerous.” Isom, 313 Or at 400 (emphasis in original).

In light of these precedents, defendant’s argument is not well taken. On each occasion that the Supreme Court has had the opportunity to consider an argument under section 16, it has determined whether there is a rational basis for the severity of a particular penalty for a particular offense in comparison to the penalties imposed for other offenses. Under the current status of the law, there are some presumptive sentences that exceed the minimum sentences under Measure 11. In those cases, a court continues to sentence under the sentencing guidelines as enacted by the legislature. However, there are other crimes in which Measure 11 imposes a greater sentence than that imposed under the sentencing guidelines. In those cases, the trial court cannot impose both the Measure 11 sentence and the presumptive guidelines sentence because they conflict. Although both sentencing schemes exist concurrently, the enactment of Measure 11 means that the Measure 11 sentence trumps the guidelines sentence.³ State ex rel Huddleston v. Sawyer, 324 Or 597, 601-05, 932 P2d 1145, cert den_US_, 118 S Ct 557, 139 L Ed 2d 399 (1997).

In this case, defendant argues that Measure 11 is unconstitutional because it requires a 75-month sentence for the crimes of first-degree sexual abuse and second-degree rape. Both crimes are Class B felonies, and their Measure 11 sentences are in excess of the penalties allowed for some Class A felonies, such as first-degree burglary and first-degree arson.⁴ However, the guideline penalties for those Class A felonies are part of a different sentencing structure. First-degree sexual abuse and second-degree rape are not lesser-included offenses of first-degree burglary and first-degree arson. Rather, they are unrelated offenses for which the people through the initiative process have promulgated a different degree of severity than that imposed originally by the legislature. The people, as well as the legislature, are entitled to make determinations about what punishments should be imposed for crimes. See Or Const, Art IV, § 1(2).⁵ See also Vannatta v. Keisling, 324 Or 514, 528, 931 P2d 770 (1997) (holding that since the adoption of Article IV, section 1, of the Oregon Constitution, in 1902, “the people have shared with the Legislature Assembly the power to enact laws”). Thus, so long as there is a rational basis for the people of the State of Oregon to conclude that first-degree sexual abuse and second-degree rape deserve greater penalties than felonies such as first-degree burglary and first-degree arson, the requirement of section 16 is met. See Isom, 313 Or at 400.

The differences between first-degree sexual abuse and second-degree rape and first-degree burglary and first-degree arson are apparent. The former involve injury to and the defilement of human beings. They are “person” crimes. A primary principle of criminal law is “the protection and safety of the people of the state.” Tuel v. Gladden, 234 Or 1, 6, 379 P2d 553 (1963). The latter are “property’ crimes. It is rational to consider property crimes less grievous than crimes against persons. Moreover, defendant fails to take into account that the legislature also considers crimes against persons to be more aggravated than crimes against property. For instance, if the crime of burglary in the first degree is committed when the burglar is armed with a deadly weapon or causes or threatens physical injury to the victim, it is classified as a 9 on the crime seriousness scale. OAR 253-04-002, Appendix 3.⁶ If the burglary cannot be classified as a 9 but the offense was committed in an occupied dwelling, it is classified as an 8 on the scale. OAR 253-04-002, Appendix 3. If the burglary is classified as a 9 and a substantial and compelling reason exists to depart from the presumptive sentence, a defendant’s maximum sentence authorized under the sentencing guidelines could be up to 144 months with a double departure. OAR 253-04-002, Appendix 3; OAR 253-08-001 to -004. Similarly, a burglar could be sentenced up to 90 months with a double departure if the offense was classified as an 8. OAR 253-04-002, Appendix 3; OAR 253-08-001 to -004. In addition, when the crime of arson in the first degree represents a threat of serious physical injury, the guidelines provide for a maximum allowable sentence of 260 months’ imprisonment with a double departure. OAR 253-04-002, Appendix 3; OAR 253-08-001 to -004. Under the circumstances, we conclude that the people of the State of Oregon rationally could believe that the just desserts for first-degree sexual abuse or second-degree rape is a 75-month sentence, and accordingly, we reject defendant’s argument.

In his final assignment of error, defendant argues on various grounds that Measure 11 violates the federal constitution. Those arguments have been rejected in Huddleston, 324 Or 597; State v. Skelton, 153 Or App 580, 589 nn 8-9, 957 P2d 585, rev den 327 Or 448 (1998); George, 146 Or App 449; and State v. Parker, 145 Or App 35, 929 P2d 327 (1996), rev den 324 Or 654 (1997). Defendant does not make an “as applied” challenge to Measure 11 on federal constitutional grounds.

Affirmed.

1 ORS 136.602 now provides, in part:

“(1) Except as otherwise specifically provided by law, the per diem fees and mileage and any expenses allowed under ORS 136.603 due to any witness in a grand jury proceeding, or any prosecution witness in a criminal action or proceeding in a circuit or justice court or before a committing magistrate shall be paid by the county in which the grand jury proceeding or criminal action or proceeding is held. * * *

“(2) The per diem fees and mileage due to any defense witness in a criminal action or proceeding in a circuit or justice court, or before a committing magistrate, and any expenses allowed the witness under ORS 136.603, shall be paid by the defendant. * * *”

2 In State v. George, 146 Or App 449, 456, 934 P2d 474 (1997) (quoting State v. Isom, 313 Or 391, 401, 837 P2d 491 (1992)), we addressed the defendant’s argument, under Article I, section 16, of the Oregon Constitution, that a penalty under Measure 11 violated the proportionality clause because it was “ ‘so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.’ ” In rejecting that argument, we noted that the defendant did not argue “that Measure 11 authorizes a more severe penalty for a lesser-included crime than for the greater offense.” George, 146 Or App at 456 n 4. Defendant does not make that argument here either.

3 A conflict exists between a guidelines sentence and a Measure 11 sentence if the Measure 11 sentence is greater than the guidelines sentence but does not exist when a guidelines sentence, with or without departure, exceeds the Measure 11 mandatory minimum. The dissent would hold that the legislature’s determination of crime seriousness in the sentencing guidelines is not trumped in circumstances where there is a conflict between a guidelines sentence and a Measure 11 sentence. 157 Or App at 441. It reaches that conclusion by focusing on the crime seriousness scale in the guidelines and posits that even if Measure 11 trumped the ultimate sentence under the guidelines, it did not trump the legislative determination of proportionality among crimes as expressed in the scale. Those who voted for Measure 11 could not have intended that the crime seriousness scale in the guidelines would continue in effect for Measure 11 crimes while at the same time enacting determinate minimum sentences that are greater than those available under the guidelines by using the scale. Necessarily, when the people enacted mandatory minimum sentences which trump a lesser guidelines sentence, they also trumped the rankings of crime seriousness that gave rise to that lesser guidelines sentence.

4 In 1997, arson in the first degree, when the offense represented a threat of serious physical injury, was added to the list of crimes in ORS 137.700. Or Laws 1997, eh 852, § 2. In July of 1995, when defendant committed his crimes, arson in the first degree was not listed as a crime under ORS 137.700.

5 Article IV, section l(2)(a), of the Oregon Constitution, provides:

“The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.”

6 The rules cited were the rules in effect in 1993 when defendant committed his crimes. They since have been renumbered.