State v. Carlton

364 P.3d 347, 275 Or. App. 60, 2015 Ore. App. LEXIS 1435
CourtCourt of Appeals of Oregon
DecidedDecember 2, 2015
Docket10CR0836; A150855
StatusPublished
Cited by3 cases

This text of 364 P.3d 347 (State v. Carlton) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carlton, 364 P.3d 347, 275 Or. App. 60, 2015 Ore. App. LEXIS 1435 (Or. Ct. App. 2015).

Opinion

ORTEGA, P. J.

Defendant was convicted of three counts of first-degree sexual abuse and was sentenced to life in prison without the possibility of release or parole, a “true life sentence.” ORS 163.427;1 ORS 137.719(1).2 On appeal, defendant raises three assignments of error challenging his conviction and sentencing. We reject without further discussion defendant’s first and third assignments, which relate to his conviction, writing to address only his second assignment of error, which challenges his sentence. In that assignment, defendant argues that the trial court erred by relying on two prior felony offenses from California to impose a presumptive “true life sentence” under ORS 137.719. According to defendant, California Penal Code section 288 (CPC 288), the statute under which he was convicted in California, is not “comparable” to ORS 163.427 for sentencing purposes under ORS 137.719. We reject defendant’s contention and, accordingly, we affirm.

We review defendant’s sentence for legal error. ORS 138.222(4)(b); State v. Escalera, 223 Or App 26, 28, 194 P3d 883 (2008), rev den, 345 Or 690 (2009).

The pertinent facts are undisputed. After a jury trial, defendant was convicted of three counts of first-degree sexual abuse under ORS 163.427, an offense that carries a mandatory minimum sentence of 75 months in prison. ORS 137.700(2)(a)(P). Before sentencing, the state submitted a memorandum recommending that the trial court apply ORS 137.719, which provides:

“(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 [62]*62sex crimes that are felonies at least two times prior to the current sentence.
«* * * * *
“(3) For purposes of this section:
«* * * * *
“(b) A prior sentence includes:
“(A) Sentences imposed before, on or after July 31, 2001; and
“(B) Sentences imposed by any other state or federal court for comparable offenses.
“(4) As used in this section, ‘sex crime’ has the meaning given that term in ORS 181.805.”

(Emphasis added.) To show that the statute was applicable, the state cited defendant’s 1986 and 1993 convictions for felony lewd acts with a child under 14 (CPC 288).3 The state noted that defendant also had a 1991 California conviction for willful cruelty to a child and a 2001 Idaho conviction for attempted injury to a child.

In his written response and at the sentencing hearing, defendant argued that his conviction was not subject to the presumptive sentence imposed by ORS 137.719(1). Defendant claimed that CPC 288 and ORS 163.427 are not comparable offenses because, unlike the Oregon statute, the California statute does not have a “sexual contact”4 requirement, and is, therefore, much broader in scope. Defendant contended that in California, for example, “you can pat a child on the head and that gets you to lewd and lascivious conduct * * * if they find the other elements.”

[63]*63The trial court adopted the state’s recommendation. Relying on the definition of “comparable” in Escalera, the trial court concluded that the statutes were comparable because they were “aimed at the same wrong,” despite their clear differences in scope. Thus, it found that defendant had “been convicted [on] at least two prior occasions in other jurisdictions of comparable crimes and * * * [was] subject to ORS 137.719,” and imposed a true life sentence on each count.

On appeal, the parties reiterate the arguments made before the trial court. Defendant maintains that the trial court erred by imposing a true life sentence under ORS 137.719 because the California and Oregon statutes are “markedly different” in breadth. Defendant points out that, in Escalera, “comparable offenses” were defined as those “‘having enough like characteristics or qualities to make comparison between them appropriate.’” Thus, defendant claims that the question presented on appeal is whether the California and Oregon statutes share enough like characteristics or qualities to make their comparison appropriate. According to defendant, they do not; he argues that CPC 288 “proscribe [s] simple pats on a child’s head or placing an arm around a child’s shoulder if that conduct is performed with a sexual purpose,” whereas ORS 163.305(6) narrowly proscribes contact with “the sexual or intimate parts of the child or of the actor.” In support of that argument, defendant cites State v. Gunter, 187 Or App 461, 67 P3d 996 (2003), where we held that ORS 163.427 and CPC 288 were not “similar” for the purpose of determining a defendant’s criminal history score, given that ORS 163.427 requires sexual contact and CPC 288 does not.

The state’s response on appeal is two-pronged. First, the state argues that, for ORS 137.719 to apply, the defendant must have been previously sentenced for at least two felony “sex crimes,” which could be any of the crimes listed under ORS 181.805.5 Those crimes include rape, sodomy, unlawful penetration, sexual abuse, incest, kidnapping, etc. ORS 181.805(5)(a) - (f). According to the state, “so long [as] a defendant was sentenced at least twice [64]

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Related

State v. Baker
447 P.3d 526 (Court of Appeals of Oregon, 2019)
State v. Carlton
Oregon Supreme Court, 2017

Cite This Page — Counsel Stack

Bluebook (online)
364 P.3d 347, 275 Or. App. 60, 2015 Ore. App. LEXIS 1435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carlton-orctapp-2015.