ENTRY FORM

CALENDAR STATUS: Active
SC Number:
S055720 AND S055721
CA Number:
A131050 AND A131973
Case Title:
State of Oregon v. Veronica Rodriguez and
State of Oregon v. Darryl Anthony Buck
Date:
11/04/2008
Time:
09:30 AM
Location:
Supreme Court
Attorneys:
Peter Garlan on behalf of petitioners on review, Veronica Rodriguez and Darryl Anthony Buck
Timothy Sylwester on behalf of respondent on review, State of Oregon
Comments:
Statement of Issues:
In both of these criminal cases, petitioners seek review of Court of Appeals decisions affirming their convictions for first-degree sexual abuse but reversing the trial courts' rulings that the Measure 11 sentences prescribed for those offenses would be unconstitutional under Article I, section 16, of the Oregon Constitution, based on the individual circumstances of each case.
ORS 163.427(1)(a)(A) provides that a person commits first-degree sexual abuse when that person "subjects another person to sexual contact and * * * [t]he victim is less than 14 years of age[.]" ORS 163.305(6) defines "sexual contact" as "any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party." First-degree sexual assault is a Measure 11 offense for which ORS 137.700(2)(a)(P) prescribes a 75-month mandatory minimum sentence.
The facts are taken from the Court of Appeals opinions. In both cases, petitioners were convicted of first-degree sexual assault in connection with incidents involving minors who were 13 years of age. The sexual contact charged in Buck consisted of petitioner, who was 36 years old at the time of the incident, touching the clothed buttocks of the female victim several times while the victim was fishing during a camping trip. In Rodriguez, the relevant sexual contact charged consisted of petitioner, who was 25 years old at the time of the incident and an employee of a boys-and-girls club, running her hands along the victim's face and through his hair while the back of the victim's head was pressed against petitioner's clothed breasts.
At the sentencings, both petitioners argued that, based on the particular circumstances of their cases, the 75-month Measure 11 sentences prescribed for their convictions would violate Article I, section 16, of the Oregon Constitution, which provides, in part: "Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense." The trial courts ultimately agreed with both petitioners and imposed sentences of shorter duration accordingly.
The state subsequently appealed, contending that the trial courts had erred in refusing to impose the Measure 11 sentences on constitutional grounds. Petitioners cross-appealed, asserting that there was insufficient evidence to support their convictions. The Court of Appeals rejected petitioners' arguments on cross-appeal without discussion.
In turn, after examining the totality of the circumstances underlying both offenses, the Court of Appeals held that the trial courts had erred in ruling that the Measure 11 sentences would violate Article I, section 16. In reaching its holdings, the Court of Appeals applied the test set forth in Sustar v. County Court for Marion Co., 101 Or 657, 201 P 445 (1921), determining that neither sentence would shock the moral sense of all reasonable people as to what is right and proper under the circumstances. The Court of Appeals rejected the state's argument in Buck that the particular circumstances of an offense cannot be considered when determining whether a sentence would violate Article I, section 16. Likewise, the Court of Appeals declined both petitioners' invitations to apply a different constitutional test under Article I, section 16.
On review, the issues are:
(1) What are the criteria for determining whether a sentence would violate Article I, section 16, as applied to a particular criminal defendant?
(2) What methodology should an appellate court apply when reviewing a sentencing court's determination that the imposition of a mandatory sentence would violate Article I, section 16, in a particular case?
(3) Should the court reconsider the standard of review for a motion for judgment of acquittal?

The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20.
Justice(s) NOT Participating:


Last Revised: 11/03/2008