State v. Lara-Vasquez

A court has no discretion regarding a Measure 11 sentence other than the consideration that a sentence must not be cruel and unusual and must be proportioned to the offense. State v. Rodriguez/Buck, 347 Or 46, 52-57, 217 P3d 659 (2009). A sentence may be cruel and unusual if it “shock[s] the moral sense” of a reasonable person. Id. at 57-58.

Defendant was convicted of first-degree sexual abuse under ORS 163.427 and was sentenced to 18 months in prison with post-prison supervision. Defendant and the State appealed. Defendant argued that the post-prison supervision sentence should have been a determinate number of months. The State argued the trial court erred by not imposing the 75-month sentence required by Measure 11. A court has no discretion regarding a Measure 11 sentence other than the consideration that a sentence must not be cruel and unusual and must be proportioned to the offense. State v. Rodriguez/Buck, 347 Or 46, 52-57, 217 P3d 659 (2009). A sentence may be cruel and unusual if it “shock[s] the moral sense” of a reasonable person. Id. at 57-58. The Court held that the lower court should have imposed the mandatory sentence under Measure 11 because the offense here was proportionate when the gravity of the offense was weighed with the Measure 11 sentence. The Court reasoned that the victim had to scratch Defendant’s face to get away, Defendant was like a stepfather to the victim, and the victim was significantly traumatized. In A167432, reversed and remanded for resentencing; otherwise affirmed. In A167449, the appeal dismissed as moot.