Filed: February 28, 2002

STATE OF OREGON,

Respondent on Review,

v.

CARLOS ROBERTO FERMAN-VELASCO,

Petitioner on Review.

On review from the Court of Appeals.*

Argued and submitted March 7, 2000.

Mary M. Reese, Deputy Public Defender, Salem, argued the cause for petitioner on review. Also on the petition and brief was David E. Groom, Public Defender for Oregon, Salem.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent on review. Also on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General, Salem.

Emily Simon, Portland, filed a brief of amicus curiae for Juvenile Rights Project, Inc.

David T. McDonald, Portland, filed a brief of amicus curiae for Parents Against Cruel and Unusual Punishment.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.**

CARSON, C.J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Washington County Circuit Court, Mark Gardner, Judge. 157 Or App 415, 971 P2d 897 (1998).

**Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the consideration or decision of this case; De Muniz and Balmer, JJ., did not participate in the consideration or decision of this case.

CARSON, C.J.

In this criminal case, defendant claims that his mandatory minimum sentences, which the trial court imposed under ORS 137.700 (popularly known as Ballot Measure 11 (1994)), (1) offend certain provisions of the state and federal constitutions. He also argues that the trial court erred when it ordered him to pay some of the prosecution's witness fees. A divided Court of Appeals, sitting en banc, rejected all defendant's arguments. State v. Ferman-Velasco, 157 Or App 415, 971 P2d 897 (1998). For the reasons that follow, we affirm the decision of the Court of Appeals and the judgment of the trial court.

In 1996, defendant was convicted of second-degree rape and first-degree sexual abuse for acts that he committed in the summer of 1995. The trial court sentenced defendant under ORS 137.700 to two concurrent, mandatory minimum sentences of 75 months' imprisonment and a post-prison supervision period of 10 years, less time served. (2) The trial court also ordered defendant to pay witness fees totaling $25 for two of the prosecution's witnesses.

Defendant appealed, arguing that his Measure 11 sentences violated the proportionality clause of Article I, section 16, of the Oregon Constitution, because those sentences exceeded penalties imposed for crimes that the legislature had deemed to be more serious than defendant's crimes. Defendant also argued that his Measure 11 sentences violated his federal constitutional rights to equal protection, allocution, and counsel; the federal constitutional guarantee to a republican form of government; and his federal constitutional right to be free from cruel and unusual punishments. Finally, defendant claimed that the trial court was not statutorily authorized to order him to pay the prosecution's witness fees.

A majority of the Court of Appeals held that defendant's challenges were without merit. Ferman-Velasco, 157 Or App at 418, 424. Three members dissented, concluding that defendant's sentence violated the proportionality clause of Article I, section 16. Id. at 424-25, 444 (Warren J., dissenting, joined by Armstrong and Wollheim, JJ.).

We allowed review to address defendant's state and federal constitutional challenges, and to determine whether the trial court had statutory authority to order defendant to pay the prosecution's witness fees.

II. OREGON CONSTITUTION

We address defendant's state constitutional challenge first. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (court generally resolves questions of state law before reaching federal constitutional arguments). Before addressing defendant's argument respecting Article I, section 16, however, we discuss the relevant statutes and rules that underlie the issue presented in this case.

A. Sentencing Guidelines and Measure 11

In Oregon, the Oregon Felony Sentencing Guidelines (sentencing guidelines) serve as the primary means through which courts determine an offender's sentence for felony offenses. The cornerstone of the sentencing guidelines is the concept that sentences be based upon a consideration of two factors: the seriousness of the crime and the defendant's criminal history.

That concept has yielded the 99-block Sentencing Guidelines Grid. This court has described that grid and its operation as follows:

"A 'Crime Seriousness Scale' serves as the vertical axis of the grid. Most felonies fall within one of the 11 categories on the Crime Seriousness Scale. A 'Criminal History Scale' serves as the horizontal axis of the grid. The Criminal History Scale is made up of nine categories, ranging from 'minor misdemeanor or no criminal record' to 'multiple (3+) felony person offender.' The appropriate sentence for a given felony conviction is determined by (1) locating the appropriate category for the crime of conviction on the Crime Seriousness Scale; (2) locating the appropriate category for the convicted offender on the Criminal History Scale; and (3) locating the grid block where the two categories intersect. Each grid block contains what is called a 'presumptive sentence' * * *."

State v. Davis, 315 Or 484, 487, 847 P2d 834 (1993) (footnote omitted). For 46 of the 99 grid blocks, the presumptive sentence is a term of probation. OAR 213-005-0007(1). (3) For the remaining grid blocks, the presumptive sentence is a range of months of imprisonment. OAR 213-005-0001(1). The "dispositional line" separates those blocks that set probation and those that set imprisonment. OAR 213-003-0001(7).

Once a trial court has determined the presumptive sentence, the sentencing guidelines allow the court to depart either upward or downward from the presumptive sentence if there are "substantial and compelling" reasons in aggravation or mitigation. OAR 213-008-0001. The degree to which a trial court may depart from the presumptive sentence is limited, however. See, e.g., OAR 213-008-0003 (setting upward durational departure for single conviction at double presumptive maximum); State v. Langdon, 330 Or 72, 74-76, 999 P2d 1127 (2000) (describing departure limits for consecutive sentences).

Unlike the sentencing guidelines, which set out a multi-factor methodology for determining sentences, Measure 11 sets mandatory minimum sentences for certain felony offenses. Measure 11, codified at ORS 137.700, provides, in part:

"(1) When a person is convicted of one of the offenses listed in subsection (2)(a) of this section and the offense was committed on or after April 1, 1995, * * * the court shall impose, and the person shall serve, at least the entire term of imprisonment listed in subsection (2) of this section. The person is not, during the service of the term of imprisonment, eligible for release on post-prison supervision or any form of temporary leave from custody. The person is not eligible for any reduction in * * * the minimum sentence for any reason whatsoever under ORS 421.121 or any other statute. The court may impose a greater sentence if otherwise permitted by law, but may not impose a lower sentence than the sentence specified in subsection (2) of this section."

(Emphasis added.)

All the offenses covered by ORS 137.700(2)(a) (Measure 11 crimes) also are governed and ranked by the sentencing guidelines. For some Measure 11 crimes, the Measure 11 mandatory minimum sentence is less than the maximum sentence that is possible under the sentencing guidelines. See State ex rel Huddleston v. Sawyer, 324 Or 597, 604, 932 P2d 1145 (1997) (noting same when departure considered). For a Measure 11 crime that carries a mandatory minimum term of imprisonment that is less than the maximum sentencing guidelines sentence, Measure 11 allows the trial court to impose the sentencing guidelines sentence. See ORS 137.700 ("The court may impose a greater sentence if otherwise permitted by law * * *.").

For other Measure 11 crimes, however, the Measure 11 mandatory minimum is greater than the maximum sentencing guidelines sentence for that particular defendant. See Huddleston, 324 Or at 604 (so noting). For offenders who commit Measure 11 crimes that carry a mandatory minimum sentence that is greater than the maximum sentencing guidelines sentence (such as defendant), Measure 11 requires the trial court to set the defendant's sentence at the Measure 11 mandatory minimum. See ORS 137.700(1) ("court * * * may not impose a lower sentence than the sentence specified"). (4)

A consequence of that situation -- in which the Measure 11 sentence is greater than the maximum sentencing guidelines sentence -- is that the Measure 11 sentence might be greater than the sentence that the sentencing guidelines assign to crimes with an equal, or even greater, crime-seriousness ranking. It is that disparity in sentences -- between Measure 11 crimes and non-Measure 11 crimes that carry the same or greater crime-seriousness rankings -- that defendant claims violates the proportionality requirement of Article I, section 16.

B. Discussion

With the foregoing in mind, we turn to the merits of defendant's argument that his Measure 11 mandatory minimum sentences violate Article I, section 16. Article I, section 16, provides, in part:

"Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. * * *"

(Emphasis added.) Defendant asserts his challenge under the emphasized "proportionality" requirement of that provision. Adopting the dissent's reasoning from the Court of Appeals' decision, defendant argues that the proportionality clause requires the legislature to set approximately equal sentences for crimes of equal severity and to set greater sentences for more serious crimes than those sentences set for less serious crimes. See Ferman-Velasco, 157 Or App at 426-39 (Warren, J., dissenting) (setting out reasons for that conclusion). Because his sentences under Measure 11 are greater than the presumptive sentence assigned to crimes ranked equally and more serious on the crime-seriousness scale of the sentencing guidelines, defendant claims that his Measure 11 sentences violate the proportionality requirement of Article I, section 16. (5)

We begin our analysis by examining a necessary statutory premise of defendant's argument. He assumes that the crime-seriousness rankings of the sentencing guidelines remained unchanged by the adoption of Measure 11 and that the sentencing guidelines represent an accurate, contemporary measure of the seriousness of his crimes for purposes of any constitutional proportionality analysis. (6) According to defendant,

"* * * Measure 11 does not by its plain terms either amend the alphabetical or numerical classifications already assigned to the covered felonies nor does it invent entirely new classifications for them. On its face, the statute focuses on punishment and it simply does not deal with niceties such as the classification of the crimes being punished."

Therefore, defendant submits, the crime-seriousness rankings for his crimes were unchanged by Measure 11.

Defendant is correct that Measure 11 does not adjust expressly the crime-seriousness ranking of the crimes that it covers. Nonetheless, it does not follow from that observation that Measure 11 simply superimposes a new set of sentences onto the sentencing guidelines sentences without having any effect upon the existing sentencing structure. What defendant has failed to consider -- which we address below -- is whether the laws governing the creation, adoption, and alteration of the sentencing guidelines require reclassification in light of subsequent legislative enactments, such as Measure 11.

In 1985, the legislature created the Oregon Criminal Justice Council (Commission) (7) to develop the sentencing guidelines. Or Laws 1985, ch 558,