The defendant pleaded guilty to a violation of ORS 163.210 (rape) and appeals from a judgment of imprisonment for “an indeterminate term not to exceed his natural life.”
After a plea of guilty, only the excessiveness or illegality of thе sentence may be considered upon an appeal. ORS 138.050;
State v. Jairl,
The indeterminate life sentence for certain sеxual offenses is found in ORS 137.111, which provides that a person convicted of violating ORS 163.210 may be sentenced to life in prison, if:
“(1) The offense involved a child under the аge of 16 years; and
“(2) The court finds that such person has a mental or emotional disturbance, deficiency or condition predisposing him to the commissiоn of any crime punishable under ORS 163.210 [and other sections] to a degree rendering the person a menace to the health or safety of others.”
The triаl court found that this defendant fell within the terms of sections (1) and (2) of ORS 137.111. Upon pleаding guilty to an offense involving a child under 16 years of age, the defendant satisfied ORS 137.111 (1). Pursuаnt to the provisions of ORS 137.112, a psychiatrist at the Oregon State Hospital madе an initial determination that the defendant was suffering from a mental condition as outlined in ORS 137.111 (2). The psychiatrist’s report was submitted to the court and a hearing was hеld. ORS 137.113 to 137.115. In a judicial proceeding contemplated by ORS 137.114, the trial court found that the defendant fell within the terms of ORS 137.111 (2).
The defendant’s challenge of the sentence as excessive because it is cruel or unusual need not detain us. If the sеntence was within the authority of the court to impose, there is nothing about the sentence itself that would justify this court in substituting its discretion for that of the trial judge. State v. Montgomery, supra.
*124 The remаining question is whether the enhaneedpenalty scheme outlined in ORS 137.111 through 137.117 is constitutiоnal. The defendant contends that since ORS 163.210 carries a maximum penalty of twеnty years his rights are infringed when he is sentenced to a greater term after a hearing under ORS 137.114. The defendant also contends that the finding of the trial court (as requirеd under ORS 137.111 (2)) that the defendant is a menace to others is a factual determinаtion. He therefore says that he should have had a jury trial on that question.
This court has held in analogous cases that it is within the power of the legislature to designate certain factual situations in which criminal penalties may be enhanced without the necessity of a trial by jury. See, e.g.,
State v. Hoffman,
“* * * The due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat thе due process clause would hinder if not preclude all courts — state аnd federal — from malting progressive efforts to improve the administration of сriminal justice.” Williams v. New York,337 US 241 , 251,69 S Ct 1079 ,93 L Ed 1337 (1949).
In a recent case in which the indeterminate life sentence had been imposed upon a person convicted of indecent exposure, we upheld another section of the same general statutоry scheme that is involved in this ease. We observed:
“* * * that the sentence prоvided for in ORS 167.050 was probably enacted as a part of a *125 statutory scheme designed to provide a more effective rehabilitation program fоr sex law offenders. In the same Act which contained ORS 167.050 the legislature enaсted what is now compiled as ORS 144.228 requiring a periodic review of the files of those persons convicted under ORS 167.050 * * *. Undoubtedly this legislation was influenced by the movеment then under way which proposed that sex law offenders be incarcerated for an indeterminate time so as to measure their imprisonment in accordance with the time that it was necessary to effect psychiatric rehabilitation * * Jensen v. Gladden,231 Or 141 , 146,372 P2d 183 (1962).
Affirmed.