State v. Rice

836 P.2d 731, 114 Or. App. 101

• Court: Court of Appeals of Oregon
• Decided: July 8, 1992
• Docket: 90-20074, 90-20111, 90-20112 & 90-20137, CA A65744 (Control), CA A65745, CA A65746 & CA A65747
• Status: Published

Opinions

ROSSMAN, J.

Defendant pled guilty to seven counts of negotiating a bad check, a Class A misdemeanor. ORS 165.065.¹ The checks were negotiated in December, 1989, for a total amount of $814.88. On each conviction, he was sentenced to 90 days in the county jail, with the sentences to be served consecutively. Because defendant pled guilty, our review is limited to whether his sentences exceed the maximum authorized by law or constitute cruel and unusual punishment. ORS 138.050(1).

Defendant argues that the sentences both individually and cumulatively violate the constitutional requirement of proportionality.² He contends that each of the 90-day sentences and the total of 630 days for his misdemeanor convictions far exceed what could have been imposed under the felony sentencing guidelines, had he been convicted of, e.g., theft in the first degree, a Class C felony. ORS 164.055(3).³ His argument results from the 1989 enactments that require sentences for felonies to be imposed in accordance with sentencing guidelines. Or Laws 1989, ch 790, § 87; ORS 137.669; ORS 137.010(1). At this time, no comparable legislation applies to sentencing for misdemeanor convictions.

In the guidelines grid, felonies are classified according to severity and placed along the vertical axis. The criminal history of the offender is represented on the horizontal axis. OAR 253-04-001(1). The block formed by the intersection of the two establishes the mandatory and presumptively correct sentence. OAR 253-03-001(16); ORS 137.669. The guidelines grid is also divided by a “dispositional line.” OAR 253-03-001(7). For a defendant whose offense and criminal history intersect within a grid block that is above the dispositional line, the mandatory presumptive sentence is a term of imprisonment. OAR 253-05-001. For a defendant who falls below the dispositional line, the mandatory presumptive sentence is “a term of probation which may include custody and conditions of supervision,” unless the offense has a statutorily mandated sentence. OAR 253-05-007(1). Custody may consist of supervision in a correctional facility or a “custody program.” OAR 253-05-011; OAR 253-05-012. Thus, for felonies below the dispositional line, the mandatory sentence is probation; any term of incarceration is a result of exercise of the court’s discretion.

For misdemeanors, on the other hand, the legislature has generally refrained from establishing mandatory sentences of any type. The most notable exception to that rule is DUII. See ORS 813.020(2); State v. Oary, 109 Or App 580, 820 P2d 857 (1991), mod 112 Or App 296,829 P2d 90 (1992)⁴ For most misdemeanors, the sentence is entirely a matter of trial court discretion. The court may discharge the defendant without any condition. ORS 137.010(7)(d). It may conclude that it is in the best interests of the public to suspend the imposition of a sentence or to impose a sentence but not require its execution. ORS 137.010(3). It may place the defendant on probation. ORS 137.010(4). It may sentence the defendant to serve a term of incarceration, to pay a fine or to do both. ORS 137.010(7)(a)-(c). If the trial court determines that incarceration is warranted, the sentence cannot exceed certain maximum limitations that the legislature has established.⁵

In sum, incarceration for felonies below the guidelines’ dispositional line is not required; it is always a discretionary determination by the sentencing court, either as part of the probationary sentence or by departure. OAR 253-05-007(1); OAR 253-05-013(3); OAR 253-08-006(2); OAR 253-08-005. The presumptive sentence is one of probation. Thus, we are faced with a sentencing scheme that allows incarceration for misdemeanors while requiring only probation for some felony crimes.

It is fundamental that the legislature may classify criminal conduct in different ways and designate different penalties. See Brown v. Multnomah County District Ct., 280 Or 95, 570 P2d 52 (1977); State v. Spinney, 109 Or App 573, 577, 820 P2d 854 (1991), rev dismissed 312 Or 588 (1992). That legislative power is circumscribed by the constitutional requirement of proportionality. In Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955), the court held that a sentence of life imprisonment for assault with intent to commit rape was unconstitutionally disproportionate, because it was greater than the 20-year maximum sentence that could be imposed for an accomplished rape. In State v. Shumway, 291 Or 153, 630 P2d 796 (1981), the defendant was convicted of murder, sentenced to life imprisonment and required to serve 25 years before becoming eligible for parole. Had he been convicted of aggravated murder, he would have been required to serve only 15 or 20 years before becoming eligible for parole. The court held that a statutory scheme under which a defendant must serve a longer sentence for the less serious crime than he would be required to serve for the more serious crime violates the constitution’s requirement of proportionality. 291 Or at 164. In State v. Turner, 296 Or 451, 676 P2d 873 (1984), the court upheld a statute challenged as disproportionate, because it concluded that life imprisonment for murder was more onerous than the challenged 15-year minimum sentence for attempted rape.

Each of the Article I, section 16, proportionality determinations made in Cannon, Shumway and Turner was based on whether a statute required greater sentences for lesser offenses; they did not turn on whether the defendants might under some circumstances spend more time in jail for a lesser offense than for a greater offense. Here, presented with a scheme under which the imposition of any sentence for defendant’s misdemeanor offenses is discretionary, and the the imposition of a sentence of probation for lesser felonies is mandatory,⁶ we hold that the existence of felony sentencing guidelines does not render disproportionate a misdemeanant’s sentence of incarceration.⁷

We turn to the question of whether defendant’s sentences constitute cruel and unusual punishment. On December 5,13, 21 & 31,1989, he negotiated a total of seven checks that he knew would not be honored. He pled guilty, and a 90-day sentence was imposed for each of the bounced checks. The record before the sentencing judge showed that, since 1973, defendant has exhibited a pattern of committing check-related offenses in which he uses aliases, invalid addresses, different Social Security numbers and different dates of birth. He has repeatedly written checks on closed accounts, is wanted elsewhere on check-related charges and has several out-of-state convictions for similar offenses.

A 90-day sentence is well within the maximum authorized by ORS 161.545 and, under these circumstances, is not “so disproportionate to the offense as to shock the conscience” of fair-minded individuals. State v. Ronniger, 7 Or App 447, 461, 492 P2d 298 (1971); see also Cannon v. Gladden, supra, 203 Or at 632. Defendant does not challenge the trial court’s authority to require that the sentences run consecutively. See ORS 137.123(2).

Affirmed.

1 ORS 165.065 provides, in part:

“(1) A person commits the crime of negotiating a bad check if the person makes, draws or utters a check * * * for the payment of money, knowing that it will not be honored by the drawee.

if* * * * *

“(3) Negotiating a bad check is:

“(a) A Class A misdemeanor, except as provided in paragraph (b) of this subsection.

“(b) Enhanced from a Class A misdemeanor to a Class C felony if at the time of sentencing it is established beyond a reasonable doubt that the person has been convicted in this state, within the preceding five years, of the crime of negotiating a bad check or of theft by deception by means of a bad check.”

2 Article I, section 16, of the Oregon Constitution, provides, in part:

“Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”

3 Theft by deception can involve, among other things, creating certain false impressions or promising performance that one does not intend to deliver; it can be committed by means of a bad check. ORS 164.085(l)(a), (e), (4). First degree theft by deception involves a total property value of $500 or more. ORS 164.055(l)(a).

4 Defendant’s sentences were not imposed under any statutorily mandated provision. We express no opinion as to the proportionality of sentences imposed under those provisions.

5 ORS 161.615 and Oregon Laws 1989, chapter 790, section 51, as amended by Oregon Laws 1991, chapter 830, section 9, define the maximum terms of incarceration for Class A, Class B and Class C misdemeanors. The 1991 enactment, which is repealed on November 1, 1993, limits the maximum term of incarceration for a misdemeanor to six months unless substantial and compelling reasons are found.

6 We note that probation is but one of the consequences of a felony conviction. The sequella of such a conviction include enhancement of future penalties for subsequent felony convictions, restriction of one’s possession of weapons, ORS 166.270, and, with limited exceptions, an inability to set aside the conviction. ORS 137.225(5). Although defendant in the present case argues that a misdemeanor conviction with a sentence of 90 days in jail is more onerous than a year of probation for a felony offense, reasonable minds differ as to what is “more onerous.” Within some limits, that is a policy decision that can and has been made by the legislature.

7 Although the dissent does not address the ramifications of its holding, it is clear that, by applying its own reasoning, it would have to conclude that no term of incarceration for misdemeanors is constitutional, including jail time that is imposed as a condition of probation.