State v. Rivera

Court remands for resentencing in the absence of factual findings on proportionality of a Measure 11 sentence as required by State v. Rodriguez/Buck.

A jury found Rene Antonio Rivera (Rivera) guilty of first-degree rape by forcible compulsion. Rivera climbed on top of his wife while they were in bed together. She protested that she did not want to have sex and struggled to free herself to no avail. The trial court found Rivera conpelled her to have sexual intercourse, and sentenced Rivera to a mandatory 100 months in prison under Measure 11. Rivera argued that the sentence was cruel and unusual because the facts of this case are not similar to other cases of this same charge and Measure 11 removes all discretion from the trial judge. The trial judge also thought that this sentence was disproportionate under Article 1, section 16 of the Oregon Constitution and the Federal Constitution based on other crimes covered by the category of rape in the first degree, but did not believe that she had the discretion to impose a lesser sentence. The Court held the trial court also did not have the benefit of the Supreme Court decision in State v. Rodriguez/Buck, which clarified the test for assessing the proportionality of Measure 11 sentences. Rivera should have the opportunity to present case-specific facts to allow the trial judge to make the factual findings on the issue of proportionality. Sentence vacated and remanded for resentencing; otherwise affirmed.