State v. Decamp, 252 Or. App. 177

Defendant was convicted by a court trial on six counts of second-degree sexual abuse (ORS 163.425(1)(a)) and three counts of unlawful delivery of methamphetamine to a minor (ORS 475.890(3)).
Defendant appealed arguing the trial court erred by excluding evidence of a voluntary polygraph, and that his second-degree sexual abuse convictions should be reversed.
In a supplemental brief, defendant argued the sentencing calculation for the second-degree sexual abuse convictions contained plain error by applying a crime seriousness score of 7 instead of 6.
State disputed that Simonson’s reasoning was correct and argued that there was no obvious disproportionality on the face of the record.
The court agreed the error was plain and materially indistinguishable from Simonson, and reversed and remanded for resentencing; otherwise affirmed the convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the sentencing crime seriousness score for second-degree sexual abuse constitutionally improper due to vertical proportionality?	Defendant argues score 7 violates vertical proportionality.	State contends Simonson was wrongly decided and no proportionality problem.	Yes; plain error found and remanded for resentencing.
Should the court exercise its discretion to correct the plain error in sentencing?	Defendant seeks correction under Ailes factors.	State argues against discretionary correction.	Yes; court exercises discretion to correct the error.

State v. Simonson, 243 Or App 535, 259 P.3d 962 (2011) (vertical proportionality violated when 7 score used for older victims; allows correction on plain error)
Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P.2d 956 (1991) (factors for deciding whether to correct plain error; gravity of error and competing interests)