S055809, Opinion — State v. Baker

1
Argued and submitted November 4, 2008, order of Court of Appeals reversed,
and case remanded to that court for further proceedings February 12, 2009
STATE OF OREGON,
Respondent on Review,
v.
BRYAN TIMMOTHY BAKER,
Petitioner on Review.
(CC 05FE0977MS; CAA132245; SC S055809)
202 P3d 174
CJS, Criminal Law§ 1681.
En Banc
On review from the Court of Appeals.*
David C. Degner, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With
him 	on 	the 	brief was 	Peter 	Gartlan, 	Chief Defender,
Appellate Division, Office of Public Defense Services.
Paul 	L. 	Smith, Assistant Attorney-in-Charge, 	Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
* On order of dismissal dated January 24, 2008.

2 	State v. Baker
KISTLER,J.
The order of the Court of Appeals is reversed, and the case
is remanded to that court for further proceedings.

Cite as 346 Or 1
KISTLER,J.
The question in this case is whether a criminal
defendant who pleads guilty may claim on direct appeal that
his or her sentence is unconstitutionally disproportionate.
The Court of Appeals held that a defendant may not do so
and, applying that rule, issued an order dismissing defen-
dant's appeal. We allowed defendant's petition for review and
now reverse the Court of Appeals order and remand for fur-
ther proceedings.
The state charged defendant with 21 counts of
second-degree sexual abuse and 54 counts ofincest. Pursuant
to a plea agreement, defendant pied guilty to five counts of
second-degree sexual abuse and five counts of incest. The
trial court sentenced him to 180 months in prison on the five
counts of sexual abuse. It sentenced him to 30 months in
prison on the five counts of incest, to be served concurrently
with his sentence on the sexual abuse convictions. The
trial court entered judgment accordingly, and defendant
appealed. In his opening brief, defendant argued that a
180-month sentence for five counts of second-degree sexual
abuse was not "proportioned to the offense" within the mean-
ing of Article I, section 16, of the Oregon Constitution.
The state moved to dismiss defendant's appeal, not-
ing that ORS 138.050(1) permits a defendant to appeal from
a guilty plea on two grounds.1 A defendant may appeal on the
ground that the sentence "(e]xceeds the maximum allowable
by law." ORS 138.050(1)(a). Alternatively, a defendant may
appeal on the ground that the sentence "[i]s unconstitution-
ally cruel and unusual." ORS 138.050(1)(b). The state argued
that the claim that defendant raised in his opening brief-
that his sentence was unconstitutionally disproportionate-
does not come within either of those two grounds for appeal. 2
1 ORS 138.050(1) provides that:
"Except as otherwise provided in ORS 135.335[, allowing conditional guilty
pleas], a defendant who has pleaded guilty or no contest may take an appeal
from a judgment or order described in ORS 138.053 only when the defendant
makes a colorable showing that the disposition:
"(a) Exceeds the maximum allowable by law; or
"(b) Is unconstitutionally cruel and unusual."
2 The state has not argued that defendant failed to "mak[e] a colorable show-
ing" that his claim comes within ORS 138.050(1)(a) or (b). Rather, the state has

4 	State v. Baker
As noted, the Court of Appeals agreed and dismissed defen-
dant's appeal. We allowed defendant's petition for review to
consider this recurring issue.
The issue in this case turns on a question of statu-
tory construction: does a claim that a sentence is unconstitu-
tionally disproportionate come within the terms of ORS
138.050(1)? To prevail, the state must show that a challenge
to a sentence as unconstitutionally disproportionate is not a
claim that the sentence either "[e]xceeds the maximum
allowable by law," ORS 138.050(1)(a), or is "unconstitution-
ally cruel and unusual," ORS 138.050(1)(b). We begin with
the latter phrase.
Textually, the phrase "unconstitutionally cruel and
unusual" identifies a set of claims that, by definition, find
their source outside the statute; that is, the text of ORS
138.050(1)(b) directs us to look to the state and federal con-
stitutions to determine which claims that phrase includes.
Article I, section 16, of the Oregon Constitution and the
Eighth Amendment to the United States Constitution pro-
hibit cruel and unusual punishment, and both this court and
the United States Supreme Court have issued decisions dis-
cussing claims arising under those constitutional provisions.
Those decisions provide the context for determining which
claims come within the phrase "unconstitutionally cruel and
unusual." See Weber and Weber, 337 Or 55, 67, 91 P3d 706
(2004) (explaining that "this court presumes that the legisla-
ture enacts statutes in light of existing judicial decisions that
have a direct bearing upon those statutes").
We begin with the Eighth Amendment to the United
States Constitution, which provides: "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and
unusual 	punishments 	inflicted." 	Although 	the 	Eighth
Amendment does not expressly prohibit disproportionate
sentences, the United States Supreme Court has explained
that "[t]he final clause [of the Eighth Amendment prohibiting
cruel and unusual punishments] prohibits not only barbaric
punishments, but also sentences that are disproportionate to
argued that, even if defendant has made a colorable showing that his sentence is
not proportionate, his proportionality claim still does not come within ORS
138.050(1)(a) or (b).

Cite as 346 Or 1 (2009) 	5
the crime." Solem v. Helm, 463 US 277, 284, 103 S Ct 3001,
77 L Ed 2d 637 (1983). Not only had "[t]he constitutional
principle of proportionality* * *been recognized explicitly in
th[e] Court for almost a century" before the decision in Solem,
id. at 286, but a majority of the Court since then has contin-
ued to adhere to the proposition that the Eighth Amendment
prohibition against cruel and unusual punishment includes a
requirement that sentences be proportioned to the offense.
See Ewing v. California, 538 US 11, 123 S Ct 1179, 155 L Ed
2d 108 (2003); Harmelin v. Michigan, 501 US 957, 111 S Ct
2680, 115 L Ed 2d 836 (1991). 3
The Oregon legislature enacted the current version
of ORS 138.050(1) in 1985. Or Laws 1985, ch 348, § 2. It did
so two years after the Court reaffirmed in Solem that the
Cruel and Unusual Clause of the Eighth Amendment "pro-
hibits not only barbaric punishments, but also sentences that
are disproportionate to the crime." Solem, 463 US at 284. It
follows that, when the legislature permitted a defendant who
pleads guilty to appeal on the ground that his or her sentence
is "unconstitutionally cruel and unusual," ORS 138.050(1)(b),
that phrase necessarily includes a claim that the sentence is
not proportioned to the offense in violation of the Eighth
Amendment.
We reach the same conclusion under Article I, sec-
tion 16, of the Oregon Constitution. That section provides, in
part, that "[c]ruel and unusual punishments shall not be
inflicted, but all penalties shall be proportioned to the
3 In Ewing, seven justices agreed that the Eighth Amendment contains a pro-
portionality requirement, although they disagreed about the scope of the constitu-
tional requirement and its application in that case. 538 US at 20-24 (opinion of
O'Connor, J., with whom Rehnquist, C. J., and Kennedy, J., joined); id. at 35-36
(Breyer, J., with whom Stevens, Souter, and Ginsburg, JJ.,joined, dissenting). Two
justices would have held that the Eighth Amendment contains no proportionality
requirement. Id. at 31 (Scalia, J., concurring in the judgment); id. at 32 (Thomas,
J., concurring in the judgment). In Harmelin, seven justices agreed that the Eighth
Amendment contains a proportionality requirement, although they also disagreed
about the scope of the requirement and its application in that case. 501 US at 997-
98 (Kennedy, J., with whom O'Connor and Souter, JJ., joined, concurring in part
and concurring in the judgment); id. at 1009-21 (White, J., with whom Blackmun
and Stevens, JJ., joined, dissenting); id. at 1024-27 (Marshall, J., dissenting). Two
justices would have held that "Solem was simply wrong; the Eighth Amendment
contains no proportionality guarantee" in noncapital cases. Id. at 965, 994 (opinion
of Scalia, J., with whom Rehnquist, C. J., joined).

State v. Baker
offense." Or Const, Art I, § 16. Unlike the Eighth Amend-
ment, Article I, section 16, prohibits cruel and unusual pun-
ishment and also explicitly requires that penalties be propor-
tioned to the offense. Since 1921, this court has described the
proportionality requirement as an aspect of the prohibition
against cruel and unusual punishment. Sustar v. County
Court for Marion Co., 101 Or 657, 201 P 445 (1921). In
Sustar, the defendant pled guilty to possessing intoxicating
liquor, and the trial court sentenced him to pay a fine of $500
and serve six months in the county jail. Id. at 659. On appeal,
this court considered the defendant's claim that the length of
his sentence was disproportionate to his crime in violation of
Article I, section 16. Id. at 663-66. The court reasoned:
"In order to justify the court in declaring punishment
cruel and unusual with reference to its duration, the pun-
ishment must be so proportioned to the offense committed
as to shock the moral sense of all reasonable men as to what
is right and proper under the circumstances."
Id. at 665. What is significant about Sustar, for the purposes
of this case, is that the court described the defendant's pro-
portionality argument as a claim that his sentence was "cruel
and unusual with reference to its duration"; that is, the court
described a proportionality claim as a type of cruel and unu-
sual punishment claim.
Since Sustar, this court repeatedly has grouped
state constitutional proportionality challenges under the
rubric of cruel and unusual punishment claims. See, e.g.,
State v. Rogers, 313 Or 356, 379-80, 836 P2d 1308 (1992)
(analyzing a proportionality challenge as a cruel and unusual
punishment claim); Cannon v. Gladden, 203 Or 629, 632, 281
P2d 233 (1955) (quoting Sustar for the proposition that a pro-
portionality challenge is a claim that the sentence is cruel
and unusual with reference to its duration); State v. Coffman,
171 Or 166, 173, 136 P2d 687 (1943) (analyzing a proportion-
ality challenge as a cruel and unusual claim). As this court
summarized those cases in Billings v. Gates, 323 Or 167, 916
P2d 291 (1996), "a punishment would be cruel and unusual
and, thus, unlawful, if it was 'so manifestly out of all propor-
tion to the offence as to shock the moral sense with its bar-
barity.'" Id. at 174 (quoting 2 Bouvier's Law Dictionary 796
(1897)).

Cite as 346 Or 1 (2009) 	7
It follows from those cases that, when the legislature
enacted the current version of ORS 138.050 in 1985, it would
have regarded claims under Article I, section 16, and the
Eighth Amendment in the same way. It would have under-
stood that the rubric "unconstitutionally cruel and unusual"
included claims brought under both the state and federal con-
stitutions challenging the length of a sentence as well as the
manner of punishment. The text of ORS 138.050(1)(b), con-
sidered in context, makes it clear that the phrase "unconsti-
tutionally cruel and unusual" includes a claim that a sen-
tence is not proportioned to the offense in violation of Article
I, section 16.
The state, however, advances one contrary argu-
ment in a footnote. Citing State v. Wheeler, 343 Or 652, 175
P3d 438 (2007), the state contends that a state constitutional
claim that a sentence is disproportionate is "clearly distinct"
from a claim that the sentence is cruel and unusual and thus
does not come within ORS 138.050(l)(b). Wheeler does not go
as far as the state perceives. In Wheeler, this court reexam-
ined the standard for determining when a sentence is propor-
tioned to the offense. As part of that task, the court discussed
the text of Article I, section 16, its history, and the case law
surrounding it. See Priest u. Pearce, 314 Or 411, 415-16, 840
P2d 65 (1992) (explaining that, in interpreting an original
constitutional provision, the court considers ''[i]ts specific
wording, the case law surrounding it, and the historical cir-
cumstances that led to its creation").
In discussing the history of Article I, section 16, the
court focused primarily on the historical sources and under-
standing of the proportionality requirement. Wheeler, 343 Or
at 657-66. It also noted that, historically, the prohibition
against cruel and unusual punishment had focused on unu-
sual 	methods 	of punishment 	while 	the 	proportionality
requirement had focused on the length of the sentence in
relation to the nature of the offense. Id. at 661-66. The court
observed that "the prohibition on cruel and unusual punish-
ment and the requirement of proportionality appear to be
independent constitutional commands, joined in one sen-
tence because they both concern appropriate punishment for
crimes." Id. at 666.

State v. Baker
Consistent with the methodology set out in Priest,
the court then turned to the cases construing Article I, sec-
tion 16. It began with this court's opinion in Sustar and
quoted the portion of that decision, which we have quoted
above, that describes a proportionality challenge as a claim
that a sentence is " 'cruel and unusual with reference to its
duration.'" Wheeler, 343 Or at 668 (quoting Sustar, 101 Or at
665). 	The 	court 	neither 	addressed 	nor 	disapproved 	of
Sustar's description of a proportionality claim as a type of
cruel and unusual punishment claim. Rather, it quoted that
description without comment. Later in the opinion, the court
adhered, with some clarification, to the "shocks the moral
sense" standard that the court had announced in Sustar to
determine when a sentence will be disproportionate to the
offense. Id. at 670-77.
In the course of discussing the standard for deter-
mining when a sentence will be disproportionate to the
offense, the court explained in Wheeler that proportionality
and cruel and unusual punishment address different con-
cerns. The court, however, did not expressly discuss, much
less depart from, this court's consistent use of the rubric
"cruel and unusual punishment" to describe both a claim that
a sentence is disproportionate as well as barbaric. We are
hesitant to read Wheeler for the proposition that it disap-
proved a classification that this court consistently has artic-
ulated and that Wheeler itself quoted.
In any event, the question before us is what the leg-
islature meant in 1985 when it authorized a defendant who
pleads guilty to challenge his or her sentence on the ground
that it is unconstitutionally cruel and unusual. In our view,
the correct interpretation of ORS 138.050(1)(b) derives from
the context that existed when the legislature enacted that
provision in 1985; that is, for the purposes of interpreting
ORS 138.050(1)(b), the statutory phrase "unconstitutionally
cruel and unusual" includes a claim that a sentence is not
proportioned to the offense in violation of Article I, section 16.
It follows 	that defendant's constitutional proportionality
challenge comes within ORS 138.050(1)(b). In reaching that
conclusion, we express no opinion on the merits of defen-
dant's constitutional challenge, nor do we express an opinion
on defendant's alternate argument that his proportionality

Cite as 346 Or 1 (2009) 	9
challenge comes within ORS 138.050(1)(a), which permits a
defendant to challenge his or her sentence on the ground that
it "[e]xceeds the maximum allowable by law." We hold only
that the Court of Appeals erred in dismissing defendant's
appeal on the ground that his challenge did not come within
ORS 138.050(1)(b).
The order of the Court of Appeals is reversed, and
the case is remanded to that court for further proceedings.