State v. Althouse, 359 Or. 668

Defendant (Althouse) had multiple prior sex convictions dating to 1982 (sexual abuse of a child, sodomy, burglary related to child sexual assault) and multiple instances of public nudity and other sexual misconduct; treatment repeatedly failed.
In 2011 he was convicted of felony public indecency near a school; under ORS 137.719(1) (third felony sex conviction) the trial court imposed the presumptive sentence of life without parole.
Trial court declined to impose a downward departure; defendant did not contest the presentence report facts at sentencing.
State argued ORS 138.222(2)(a) bars direct appellate review of presumptive sentences; Court of Appeals affirmed without opinion; Oregon Supreme Court granted review on two questions: (1) whether ORS 138.222 bars direct review of an ORS 137.719 presumptive life sentence and (2) whether the sentence is constitutional as applied.
Supreme Court held: ORS 138.222(2)(a) does not bar direct appellate review of a presumptive life sentence under ORS 137.719(1); and the sentence is constitutional as applied under Article I, §16 and the Eighth Amendment given defendant’s extensive criminal history and uncharged conduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ORS 138.222(2)(a) bars direct appellate review of a presumptive life sentence imposed under ORS 137.719(1)	State: Commission rules define “presumptive sentence” to include statutory presumptives, so ORS 138.222(2)(a) precludes review	Althouse: ORS 138.222(2)(a) only shields presumptive sentences that are the grid-block ranges prescribed by the Commission	Held: ORS 138.222(2)(a) does not bar review — the statutory life term is not a grid-block presumptive sentence and the Commission cannot expand the statute’s scope by rule
Whether the life-without-parole sentence violates Article I, §16 of the Oregon Constitution (proportionality) as applied	Althouse: his public indecency offense was minor; life without parole is disproportionate to his conduct	State: must consider defendant’s full criminal history and uncharged conduct; legislature can enhance penalties for recidivists	Held: Sentence is not disproportionate as applied — defendant’s long, escalating sexual offenses and risk justify the repeat-offender sentence
Whether the sentence violates the Eighth Amendment (cruel and unusual) as applied	Althouse: life without parole is cruel and unusual for his offense	State: Eighth Amendment permits severe sentences for recidivists; must consider criminal history	Held: Sentence is not grossly disproportionate under Ewing/Harmelin framework — criminal history supports the sentence

State ex rel Huddleston v. Sawyer, 324 Or 597 (interpretation that ORS 138.222(2)(a) refers to grid-block presumptive sentences)
State v. Wheeler, 343 Or 652 (upholding ORS 137.719 sentence as constitutional in context of severe recidivist sex crimes)
Rodriguez/Buck, 347 Or 46 (three-factor as-applied proportionality test: penalty vs. crime, related crimes, defendant’s history)
State v. Lane, 357 Or 619 (legislative approval of Commission guidelines does not convert rules into statutes)
State v. Speedis, 350 Or 424 (description of sentencing guidelines grid-block structure)
Tuel v. Gladden, 234 Or 1 (principle that habitual-offender statutes may justify severe sentences to protect community)
Smith v. State, 128 Or 515 (repeat-offender history can justify life sentence for otherwise surprising offense severity)
Jensen v. Gladden, 231 Or 141 (upholding enhanced sentence for repeat sexual offenders; legislature may treat sexual recidivism as escalating risk)
Ewing v. California, 538 U.S. 11 (plurality: Eighth Amendment forbids only sentences that are "grossly disproportionate")
Harmelin v. Michigan, 501 U.S. 957 (Eighth Amendment proportionality principles)
Graham v. Florida, 560 U.S. 48 (framework for comparing gravity of offense and severity of sentence under Eighth Amendment)