Real v. Nooth

In determining whether a sentence is disproportionate under Article I, section 16, of the Oregon Constitution, the Court considers three factors: a comparison of the severity of the penalty and the gravity of the crime; a comparison of the penalties imposed for other, related crimes; and the criminal history of defendant.

The post-conviction court concluded that petitioner was denied adequate assistance of counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Defendant appealed, arguing that the performance of petitioner’s trial counsel was not prejudicially deficient. First, Petitioner argued that his trial counsel performed inadequately by not making a motion for judgment of acquittal. Second, Petitioner claimed that his trial counsel performed inadequately by failing to object to the criminal penalty imposed on disproportionality grounds. In determining that the sentences were disproportionate under Article I, section 16, the Court considered three nonexclusive factors: a comparison of the severity of the penalty and the gravity of the crime; a comparison of the penalties imposed for other, related crimes; and the criminal history of Petitioner. The Court disagreed with the post-conviction court because, even if it was deficient for petitioner’s trial counsel not to raise a constitutional disproportionality challenge, petitioner did not suffer prejudice as a result, even if that challenge had been evaluated under State v. Rodriguez, the challenge would have failed. Reversed.