author: TOOKEY, J.

text:
    Arlen Porter SMITH, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    A156552
    Court of Appeals of Oregon.
    Argued and submitted December 11, 2017. June 19, 2019
    Harrison Latto, Portland, argued the cause for petitioner. On the briefs was Arlen Porter Smith pro se.
    Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Petitioner, an inmate at Two Rivers Correctional Facility, challenges the validity of certain policies and administrative rules adopted by respondent, the Department of Corrections (DOC). For the reasons explained below, we conclude that the challenged policies that govern searches of dreadlocks and Native American medicine bags are not rules subject to the formalities of rulemaking because the policies set forth how DOC's validly adopted rules governing searches of religious and spiritual items, including hair and garments, necessarily operate in specific contexts; therefore, we lack jurisdiction to review the validity of either policy under ORS 183.400. Furthermore, we conclude that the challenged rules that reference the assignment of an "initial custody level" to inmates entering the prison system based on a Violence Predictor Score are valid.

I. STANDARD OF REVIEW

Our review of administrative rules is governed by ORS 183.400. "Under ORS 183.400(1), 'any person' may petition this court to determine the validity of a rule." Assn. of Acupuncture v. Bd. of Chiropractic Examiners , 260 Or. App. 676, 678, 320 P.3d 575 (2014). "In reviewing a challenge under [ ORS 183.400,] we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures." Id . (citing ORS 183.400(4) ).

II. SEARCHES OF DREADLOCKS AND NATIVE AMERICAN MEDICINE BAGS

Petitioner challenges the validity of two DOC policies describing guidelines and procedures for searching inmates' dreadlocks and Native American medicine bags, DOC Policy 90.2.1 and DOC Policy 90.2.2, respectively. Petitioner contends that those policies are rules that DOC adopted without complying with applicable rulemaking procedures.

A. Searches of Dreadlocks

Petitioner argues that DOC policy 90.2.1, which outlines the procedure for searching dreadlocks, is a rule that DOC adopted without complying with applicable rulemaking procedures because the "religious sincerity test" mentioned in OAR 291-041-0020 is, pursuant to DOC Policy 90.2.1, to be conducted by the prison chaplain, and "[n]o formally adopted rule requires or even suggests this delegation of responsibility." OAR 291-041-0020(9) (outlining procedures for searches of an inmate's hair, and providing for a "religious sincerity test" to determine what further action shall be taken if the "hair creates a significant security or operational concern"); DOC Policy 90.2.1.III.B.2. (the chaplain conducts the "religious sincerity test"). We disagree with petitioner.

First, we give a brief overview of the statutes regarding DOC's rulemaking authority and the statutes and rules regarding DOC's chaplains. Under ORS 179.375, DOC "shall ensure that adequate chaplaincy services, including but not limited to Protestant and Roman Catholic, are available at their * * * institutions" and, with respect to the inmates at such institutions, the chaplains must "[p]rovide for and attend to their spiritual needs," visit "them for the purpose of giving religious and moral instruction," and "[p]articipate in the rehabilitation programs affecting them." ORS 423.075(5)(b) and (c) provide, in part, that the director of DOC shall "[a]ppoint all subordinate * * * employees * * * of the department," "prescribe their duties," and "[d]elegate to departmental employees such responsibility and authority as the director determines to be necessary[.]" See Smith v. Dept. of Corrections , 276 Or. App. 862, 866-67, 369 P.3d 1213 (2016) (discussing the broad delegative authority granted to the director under ORS 423.075 when no statutory authority prohibits the director's delegation of the particular responsibilities or authority at issue). In addition, the director may "adopt rules for the government and administration of the department," including those related to chaplains.

ORS 423.075(5)(d) ; see also ORS 179.040(1)(d) (DOC shall "[m]ake and adopt rules for the guidance of [DOC] and for the government of [its] institutions.").

A chaplain is defined as a "person employed by [DOC] to facilitate and provide religious programming and services to inmates in [DOC] facilities." OAR 291-143-0010(2) ; see also OAR 291-117-0008 (defining a staff chaplain as "[a] person employed full-time or contracted by *** [DOC] to provide religious services to inmates in [DOC] facilities"). Because the chaplain is a person employed by DOC, and because no statutory authority prohibits the director's delegation of the authority and responsibilities at issue to the chaplain, the director can delegate that authority and those responsibilities to the chaplain as the director deems necessary.

Next, we give an overview of DOC's rules related to the chaplain's authority and responsibilities. OAR 291-143-0070 provides, in part, that a "chaplain in each [DOC] facility is responsible for coordination and facilitation of inmate religious activities" and that "[c]haplains shall attend to the religious requests of each inmate, regardless of the inmate's religious belief or affiliation." Furthermore, it is the stated policy of DOC to "establish department policy and procedures regarding inmate religious exercise and activities" and to "[p]rovide for the orderly management and supervision of inmate religious activities through the use of chaplains" that is within "the inherent limitations of resources and the need for facility security, safety, health and order." OAR 291-143-0005. See also OAR 291-143-0100 ("Items required for the conduct of a religious activity *** must be approved by the chaplain, may require security review, and are subject to search. Items not approved will be considered contraband and subject to confiscation."); OAR 291-143-0110 ("An inmate may be authorized to express his/her religious customs and beliefs in appropriate ways, consistent with facility security, safety, health and order through the use of approved religious items," and DOC "staff will treat all inmate religious property items with respect and will not destroy inmate religious property items without first consulting with the chaplain"); OAR 291-143-0120(1) ("All designated religious activity areas and religious items shall be subject to search conducted in accordance with the department's rule on Searches (Institutions) (OAR 291-041)," and staff "shall conduct searches in a manner that reflects an awareness of and sensitivity to individual religious beliefs, practices, and respect for the objects or symbols used in the religious practice.").

The statutes and rules set forth above demonstrate that, under ORS 423.075, the director may, and has, validly delegated the responsibility to provide for the orderly supervision, management, and approval of religious activities and items for religious practices to a departmental employee, the chaplain. OAR 291-143-0005. Additionally, that delegation of authority to the chaplain helps to ensure that other DOC staff comply with the requirement that searches involving religious items, including hair, be conducted in a manner that "reflects an awareness of and sensitivity to individual religious beliefs, practices, and respect for the authorized objects, symbols, and hairstyles used in the religious practice." OAR 291-041-0016 ; OAR 291-143-0110(7) (DOC "staff *** will not destroy inmate religious property items without first consulting with the chaplain.").

As explained below, the following DOC rules, considered as a whole, and the director's delegation of authority to the chaplain to supervise, manage, and approve religious activities and items, "necessarily require[ ]" the chaplain to administer the religious sincerity test. Smith v. TRCI , 259 Or. App. 11, 17, 312 P.3d 568 (2013). With regard to the religious sincerity test, DOC Policy 90.2.1.III.B. provides:

"B. Procedures for Conducting the Search
"1. When conducting a search of an inmate with dreadlocks, staff shall first ask the inmate if he or she is a practicing Rastafarian and if not, are dreadlocks being worn as part of the inmate's spiritual or religious tradition. If the inmate answers in the affirmative, staff must take into consideration the religious and spiritual significance of the dreadlocks.
"2. Religious Sincerity Test:
"a. If time and circumstances permit, staff should suspend the search and request the chaplain to conduct a sincerity test with the inmate. The chaplain shall decide, in consultation with the Administrator of Religious Services, if there is a legitimate interest to be accommodated .
"b. If the chaplain determines there is no religious significance to the dreadlocks, staff may direct the inmate to take the necessary steps to make the hair easily searchable, including the cutting of the dreadlocks.
"c. If time and circumstances do not permit a sincerity test, staff shall proceed as if there is a religious significance to the wearing of the dreadlocks.
"(1) After the search, staff shall ask a chaplain to conduct the sincerity test. The chaplain shall make a decision in consultation with the Administrator of Religious Services about whether the dreadlocks need to be accommodated in the future.
"(2) The chaplain shall make a note in the inmate's file whether or not the accommodation was approved ."

(Emphases added.) As such, in conducting the "religious sincerity test," the chaplain determines "if there is a legitimate religious interest to be accommodated" before "staff may direct the inmate take the necessary steps to make the hair easily searchable, including the cutting of the dreadlocks." Id .

That religious sincerity test is consistent with the chaplain's responsibilities under OAR 291-143-0115, which delegates the responsibility to the chaplain and the Administrator of Religious Services to decide whether DOC should make a "religious accommodation" for an item. OAR 291-143-0115 provides:

"(1) An inmate may make a request for religious accommodation for the following:
"* * * * *
"(b) A religious item not currently approved by the department[.]
"* * * * *
"(2) The inmate shall submit the request for religious accommodation by writing to the facility chaplain or designee. The inmate shall clearly state the *** religious item *** requested.
"(3) The chaplain or designee will review the request to determine if it is covered by established rule or operational practice and respond to the inmate accordingly.
"(4) If the religious *** item *** is not covered by rule or operational practice, the chaplain or designee will have the inmate fill out a Religious Accommodation Request form (CD1571). The inmate must complete the form in the presence of the chaplain or designee.
"(5) The chaplain or designee may conduct an interview with the inmate to gain a better understanding of the inmate's specific request and to clarify the inmate's written responses.
"(6) The chaplain or designee will evaluate the request, and send written comments, together with the Religious Accommodation Request form and any necessary documents, to the Religious Services administrator.
"(7) The Religious Services administrator shall review the documents, and either approve or deny the inmate's request. The facility chaplain or designee and the inmate will be informed once a decision has been made."

See also OAR 291-143-0070(2) ("Chaplains shall attend to the religious requests of each inmate.").

Accordingly, when such a request is made, the chaplain must determine whether the item qualifies for a religious accommodation under a DOC rule or operational practice and, if the item qualifies for a religious accommodation, "respond to the inmate accordingly." OAR 291-143-0115 ; see also OAR 291-041-0016 (providing that "authorized religious or spiritual items *** includ[e] hair"); DOC Policy 90.2.1.III.A.1 ("The wearing of dreadlocks is an approved religious practice for Rastafarians. Dreadlocks may be approved for other religious or spiritual traditions."). Conversely, if the chaplain determines that the item is not covered by a rule or operational practice as a religious item, the chaplain must decide whether to approve such an accommodation, in consultation with the Religious Services administrator. OAR 291-143-0115(4)-(7). Moreover, the religious sincerity test is also consistent with the chaplain's authority to "conduct an interview with the inmate to gain a better understanding of the inmate's specific request and to clarify the inmate's written responses" to determine whether an inmate's hair should be approved for a religious accommodation. OAR 291-143-0115(5).

Additionally, such a religious accommodation determination by the chaplain is also compelled by the chaplain's responsibility under OAR 291-143-0100 to approve "[i]tems required for the conduct of a religious activity." See also OAR 291-117-0080(1)(g) (each inmate may only possess religious "[i]tems [that have been] authorized for religious use by [an] inmate in accordance with the rule on Religious Activities (Inmate) (OAR 291-143) that are purchased through the canteen or authorized in writing by the staff chaplain"); OAR 291-011-0050(8) ("Disciplinary-segregated inmates will be permitted religious items as approved by the chaplain and security manager in accordance with the rule on Religious Activities (OAR 291-143).").

Finally, the policy to have the chaplain administer a religious sincerity test before DOC staff can compel an inmate to cut off dreadlocks is necessitated by OAR 291-143-0110(7), which provides that DOC "staff will treat all inmate religious property items with respect and will not destroy inmate religious property items without first consulting with the chaplain." See also OAR 291-143-0100 (religious "[i]tems not approved [by the chaplain] will be considered contraband and subject to confiscation"); DOC Policy 90.2.1.III.B.2.b. ("If the chaplain determines there is no religious significance to the dreadlocks, staff may direct the inmate to take the necessary steps to make the hair easily searchable, including the cutting of the dreadlocks.").

Thus, the legislature provided that the director of DOC may delegate responsibilities and authority to DOC employees as the director deems necessary, which includes having the chaplain supervise, manage, and approve religious items. That delegation of authority to the chaplain over religious items, noted above in various DOC rules, "necessarily require[ ]," Smith , 259 Or. App. at 17, 312 P.3d 568, the chaplain to administer the "religious sincerity test," pursuant to DOC Policy 90.2.1, to decide whether an inmate's hair requires a religious accommodation, and that delegation of authority also ensures that DOC staff comply with the mandate that they "shall conduct the search [of an inmate's hair] if possible in the least intrusive manner." OAR 291-041-0020(9) ; see id . ("Based on the results of the sincerity test, the functional unit manager or designee will determine what further action shall be taken" and "[a]t no time shall staff cut an inmate's hair to complete a search WITHOUT approval of the functional unit manager or officer of the day."); DOC Policy 90.2.1.III.B.3. (DOC "staff shall not order or otherwise take any action that requires an inmate to cut or permanently remove his/her dreadlocks or any portion thereof, without the prior approval of the superintendent or officer-of-the-day" and, if there is a religious or spiritual significance to the dreadlocks, the dreadlocks may only be cut by the inmate or DOC staff if DOC staff has discovered, by less intrusive means, that the dreadlocks contain suspected contraband).

As such, DOC policy 90.2.1 is not subject to the formalities of rulemaking, because that policy merely "undertakes to explain the necessary requirements of [DOC's] existing rule[s]." Smith , 259 Or. App. at 17, 312 P.3d 568 (internal quotation marks omitted).

B. Searches of Native American Medicine Bags

For the same reasons, we also reject petitioner's argument that DOC Policy 90.2.2 "amplifies respondent's rules governing searches and covers entirely new ground." We conclude that DOC Policy 90.2.2 is not a "rule" under ORS 183.310(9), because DOC's policy outlining the procedures for searching inmates' Native American medicine bags "explain what is necessarily required by the existing rules" governing searches of religious and spiritual items. Smith , 259 Or. App. at 17, 312 P.3d 568 (brackets and internal quotation marks omitted). See OAR 291-041-0016 (outlining procedures for searches of "authorized religious or spiritual items (including *** garments worn)" and requiring that searches be conducted in a manner that "reflects an awareness of and sensitivity to individual religious beliefs, practices, and respect for the authorized objects, *** used in the religious practice"); OAR 291-143-0120 (staff shall conduct searches of religious items "in a manner that reflects an awareness of and sensitivity to individual religious beliefs, practices, and respect for the objects or symbols used in the religious practice"); DOC Policy 90.2.2.III.B.1. (searches of Native American medicine bags "shall be conducted in a manner that reflects an awareness for and sensitivity to individual religious or spiritual beliefs *** and with respect for the objects or symbols used in the religious practice").

C. Conclusion

In sum, DOC Policy 90.2.1 and DOC Policy 90.2.2 express the director's valid delegation of authority to the chaplain over religious items and explain the necessary requirements of the rules related to the orderly supervision, management, and approval of religious items and accommodations for those items in the specific context of searching inmates' dreadlocks or Native American medicine bags. Therefore, we conclude that the challenged policies are not rules subject to the formalities of rulemaking, and we lack jurisdiction to review the validity of either policy under ORS 183.400. See Smith v. Oregon Corrections Enterprises , 290 Or. App. 568, 569, 412 P.3d 276 (2018) (concluding that the court lacked jurisdiction under ORS 183.400 to review an administrative policy because the policy was not a "rule" as defined by ORS 183.310(9) ); see Smith , 259 Or. App. at 17, 312 P.3d 568 (an "agency's pronouncement of how a validly promulgated rule operates in a specific context need not itself be promulgated as a rule if the existing rule necessarily requires the result set forth in that pronouncement" (emphasis in original, internal quotation marks omitted)).

III. DOC'S USE OF A VIOLENCE PREDICTOR SCORE TO CALCULATE AN INMATE'S INITIAL CUSTODY LEVEL

Next, petitioner challenges certain rules that address the assignment of an "initial custody level" to inmates entering the prison system based on a Violence Predictor Score (VPS), which DOC calculates using a mathematical equation that DOC has not made publicly available. According to petitioner, the rules are invalid because they refer to a "published standard"-the equation used to calculate an inmate's VPS-that DOC has not filed with the office of the Secretary of State, or identified the location of the standard and the conditions of its availability to the public, as required by ORS 183.355. For the reasons explained below, we conclude that the challenged rules are valid.

To comply with the rulemaking procedures set forth in ORS 183.355(2), an agency must file a copy of any "published standards" incorporated by reference into an adopted rule with the Secretary of State's office or, if the published standards are "unusually voluminous and costly to reproduce," the agency may identify "the location of the standards so incorporated and the conditions of their availability to the public" in the rule itself.

Petitioner contends that "[t]he VPS is obviously a set of standards employed to make determinations regarding prisoners' custody levels," and that DOC failed to comply with applicable rulemaking procedures when it adopted rules that incorporate by reference the VPS without providing access to the equation that DOC uses to calculate an inmate's VPS in the manner described in ORS 183.355(2). DOC responds that the equation used to calculate an inmate's VPS has not been "published," and, therefore, is not a "published standard" that is subject to that statutory requirement.

Petitioner challenges three DOC rules: (1) OAR 291-104-0116, which provides, in part, that DOC "shall assign inmates an initial custody level in accordance with the Custody Classification Guide *** or the inmate's Violence Predictor Score, whichever is higher," and that the VPS "is used as a classification scoring element only during the first twelve months of an inmate's incarceration;" (2) OAR 291-104-0111(21), which defines "Violence Predictor Score" as a "score based on a mathematical equation used to determine an inmate's potential risk for violence in an institutional setting during the first twelve months of incarceration *** [including] calculations based on an inmate's age, gender, prior incarcerations, type of crime, aggression, drug history, and certain personality disorders;" and (3) OAR 291-104-0125(1), which provides that an "inmate's classification level will be reviewed when new information is received that affects a classification scoring policy element or when an inmate's Violence Predictor Score has expired."

Those rules indicate that DOC will calculate both a VPS and a Custody Classification Guide score for every incoming inmate and assign each inmate an initial custody level based on the higher of the two scores. An inmate's initial custody level is used to determine, among other things, his or her "housing assignment" and the level of "independent responsibility" that DOC will allow the inmate to exercise while incarcerated. OAR 291-104-0106.

The Custody Classification Guide is a worksheet that DOC has made publicly available; it includes four scoring elements-escape history, prior institutional behavior, detainers, and remaining sentence length-along with criteria for scoring each inmate based on those elements. See OAR 291-104-0111 (the Custody Classification Guide is available from DOC); OAR 291-104-0116 (same).

By contrast, while OAR 291-104-0111(21) enumerates factors that are accounted for in an inmate's VPS, DOC has not set forth publicly how the VPS equation accounts for those factors, including the weight given to each, or how DOC quantifies concepts like "aggression" and "drug history" in order to enter those factors into the equation.

As explained, petitioner argues that the VPS equation is a "published standard" that DOC has not made publicly available in the manner required by ORS 183.355(2). DOC responds that neither DOC nor any other agency has "published" the VPS equation. The legislature has not defined what it means for a standard to be "published." Nevertheless, the legislature's choice to subject only "published" standards to the requirements of ORS 183.355(2) is telling. See Oregon Trucking Assns. v. Dept. of Transportation , 364 Or. 210, 220, 432 P.3d 1080 (2019) ("A statute's text is the best indicator of legislative intent, see State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009) [.]").

Although the legislature left the term "published" undefined, there is no indication that the legislature intended that word to mean something different from its plain, natural, and ordinary meaning in this context, and "we look to dictionaries in use at the time" ORS 183.355(2) was enacted to determine the "ordinary" meaning of its words. Smith v. Board of Parole , 272 Or. App. 493, 499, 356 P.3d 158 (2015). The legislature enacted the requirement that agencies must make available "published standards" incorporated by reference into the agencies' rules in 1979. See Or. Laws 1979, ch. 593, § 13. Contemporaneous definitions of "publish" include "to declare publicly," to "make generally known," "to place before the public (as through a mass medium)," and "to produce for publication or to allow to be issued for distribution or sale." Webster's Third New Int'l Dictionary 1837 (1976). Other definitions include "to make public," to "circulate," and "to make known to people in general." Black's Law Dictionary 1109 (5th ed. 1979).

Notably, common definitions of "publish" do not encompass limited disclosures of material to only select groups, including the internal circulation of material within a private or public organization. Rather, "published" material is widely understood to mean material that has already been made available to the public or made known to the general population. Additionally, the legislature's choice to require agencies to disclose "the conditions of the[ standard's] availability to the public " when a "published standard" is "unusually voluminous and costly to reproduce" also indicates that the legislature intended those common definitions of publish to apply. ORS 183.355(2)(b) (emphasis added). Cf. Smith v. Dept. of Corrections , 243 Or. App. 45, 47-51, 51 n. 5, 259 P.3d 42, adh'd to as modified on recons , 245 Or. App. 640, 262 P.3d 404 (2011) (rules adopted by DOC that referenced the "STATIC-99" actuarial risk assessment instrument that DOC used to determine whether an inmate is a "predatory sex offender" were invalid, because the "STATIC-99" had been made publicly available on DOC's website, and the DOC rules adopted that "published work by reference" without "refer[ing] to any exhibits or other material that might inform a person what 'STATIC-99' is" or where it "can be found" (citing State v. Rosado , 25 Misc.3d 380, 889 N.Y.S. 2d 369, 373-94 (N.Y. Sup. Ct. 2009) (discussing the history of the "Static-99" and noting its public availability at http://www.static99.org)). See also OAR 166-500-0040(2) ("Agencies adopting or amending rules incorporating published standards by reference may omit copies of the publications if applicable, under ORS 183.355 [.]").

The legislature could have, but did not, require agencies to comply with ORS 183.355(2) with respect to any standard that the agency refers to in a rule or uses internally to make decisions. Instead, the legislature's decision to require agencies to file or otherwise provide public access only to "published" standards indicates a narrower focus. Indeed, the term "published standard" cannot be read to refer to any standard employed by an agency, because such a broad reading would render the word "published" superfluous. See Hodges v. Oak Tree Realtors, Inc. , 363 Or. 601, 610, 426 P.3d 82 (2018) (we generally "avoid statutory interpretations that would render part of a statute redundant"). Thus, there may be certain standards that have not been not "published," but that are relied on by an agency internally to make decisions, that are not subject to ORS 183.355(2). Cf. Smith v. Dept. of Corrections , 283 Or. App. 425, 426-30, 388 P.3d 1118, rev. den. , 362 Or. 175, 406 P.3d 609 (2017) (DOC's rule that prohibited inmates from "participat[ing] in three-way calls or call forwarding" and the telephone service provider's associated rule that declared a fine of $ 25 for " '[a]ny attempt to make a 3-way call,' " did not violate ORS 183.355(2) 's filing requirement because the rules were "rules of conduct that are not subject to our review" under ORS 183.310(9) ).

In light of the foregoing analysis, we conclude that the equation used by DOC to calculate an inmate's VPS has not been "published." Although the factors that contribute to a VPS are listed in DOC's rules, nothing in this record suggests that DOC or any other entity has made the equation itself publicly available, and petitioner relies solely on the language of ORS 183.355 as the basis for his argument that the VPS equation must be disclosed because it is identified in some of DOC's rules. But the mere fact that the equation is identified in the rules and is used by DOC employees internally to calculate an inmate's VPS, but is not accessible to the general public, does not mean that DOC, or any other entity, has "published" the equation. Therefore, we reject petitioner's argument that the VPS is a "published standard" that is subject to ORS 183.355(2) 's filing requirement.

We note that, because there is nothing in this record that indicates that the VPS has been published, for the VPS equation to be subject to the filing requirement in ORS 183.355(2), some source of law would need to place a legal obligation on DOC to publicly disclose the VPS equation because, if DOC is legally obligated to disclose the VPS equation to the public before assigning an inmate's "initial custody level," then the filing requirement in ORS 183.355(2) would apply. See Smith , 243 Or. App. at 50, 259 P.3d 42 (concluding that, "[n]ot only inmates, but members of the public as well, have an important interest in knowing what criteria * * * [DOC] uses in determining whether an individual is a predatory sex offender"). For example, we have observed that "[a] legislative delegation of power in broad statutory language * * * places upon the administrative agency a responsibility to establish standards by which that law is to be applied." Sun Ray Dairy v. OLCC , 16 Or. App. 63, 70, 517 P.2d 289 (1973) (citing ORS 183.355 ); see id . at 70-73, 517 P.2d 289 (discussing the requirement under ORS 183.355 that administrative agencies generally must establish "written, published standards" to "enable the decision-making body * * * to make its decisions by rule of law rather than for subjective or ad hominem reasons," to ensure that "the policies and practices of the agency are consistent with the legislative policies upon which the delegation of legislative power to the agency is based," and to ensure that courts will be able to perform meaningful judicial review)). See, e.g. , OAR 291-104-0135 (providing for administrative review of the accuracy of an inmate's custody classification score).

With respect to this rule challenge, whether another source of law legally obligates DOC to publish the VPS equation by rulemaking before assigning inmates an "initial custody level" is a distinct issue that was not developed by petitioner-whose argument is premised on the assumption that the VPS equation is a "published standard" subject to the filing requirement in ORS 183.355(2). Petitioner may be correct that the listing of the factors used to calculate an inmate's VPS without disclosing the actual VPS equation is a potential rulemaking problem. However, because petitioner has not meaningfully addressed whether and under what circumstances DOC is legally obligated to publish a particular standard used to reach individual decisions about custody classifications, rather than maintain it internally, we leave that issue for another day. See OTECC v. Co-Gen Co. , 168 Or. App. 466, 488, 7 P.3d 594 (2000), rev. den. , 332 Or. 137, 27 P.3d 1043 (2001) (we "decline to go in search of a substantive argument" when a party "sets forth no meaningful analysis").

IV. CONCLUSION

To summarize our analysis, DOC Policy 90.2.1 and DOC Policy 90.2.2 explain the necessary requirements of DOC's rules related to religious practices and activities in the specific context of searching an inmate's dreadlocks or Native American medicine bag. Thus, those policies are not rules subject to the formalities of rulemaking and we lack jurisdiction to review the validity of either policy under ORS 183.400. Furthermore, the VPS equation is not a "published" standard, as petitioner contends. ORS 183.355(2). Therefore, we reject petitioner's argument that DOC failed to comply with rulemaking procedures when it referenced the VPS in OAR 291-104-0116, OAR 291-104-0111(21), and OAR 291-104-0125(1) without filing the VPS equation with the Secretary of State's office or identifying the location of the equation and the conditions of its availability to the public.

OAR 291-104-0116, OAR 291-104-0111(21), and OAR 291-104-0125(1) held valid; petition for judicial review of Department of Corrections Policy 90.2.1 and Policy 90.2.2 dismissed.

      The full text of DOC Policy 90.2.1 and DOC Policy 90.2.2 are available at https://www.oregon.gov/doc/rules-and-policies/Pages/policies.aspx (accessed June 12, 2019).

      DOC Policy 90.2.1 and DOC Policy 90.2.2 both cross-reference "the DOC rules on Religious and Spiritual Activities (OAR 291-143) and Searches (Institutions) (OAR 291-041)." (Boldface in original.)

      ORS 423.075 is one of the statutes that OAR 291-143-0010 and OAR 291-117-0008 implement. Furthermore, all of the following rules in this discussion of DOC Policy 90.2.1 implement ORS 423.075.

      ORS 183.355(2)(a) provides: "Each agency shall file with the office of the Secretary of State each rule adopted by the agency." Additionally, ORS 183.355 (2)(b) provides that, "[u]nless otherwise provided by rule adopted by the Secretary of State, an agency adopting a rule incorporating published standards by reference is not required to file a copy of those standards with the Secretary of State if" the "standards adopted are unusually voluminous and costly to reproduce," and "[t]he rule filed with the Secretary of State identifies the location of the standards so incorporated and the conditions of their availability to the public." ORS 183.355(1) was renumbered as ORS 183.355(2) in 2017. Although petitioner filed his amended petition for judicial review in 2016, we cite the current version of ORS 183.355 because the 2017 amendments do not affect our analysis of this issue.

      An inmate's VPS is defined as:
      "A score based on a mathematical equation used to determine an inmate's potential risk for violence in an institutional setting during the first twelve months of incarceration. The equation includes calculations based on an inmate's age, gender, prior incarcerations, type of crime, aggression, drug history, and certain personality disorders."
      OAR 291-104-0111(21).


source: Caselaw Access Project

author: ORTEGA, P. J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Christopher Lee PAYTON, Defendant-Appellant.
    A163219
    Court of Appeals of Oregon.
    Argued and submitted April 30, 2018. June 12, 2019
    Erica Herb, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

Defendant appeals a judgment of conviction for one count of first-degree burglary, ORS 164.225, assigning error to the denial of his motion for judgment of acquittal. In defendant's view, there was insufficient evidence from which a rational trier of fact could find, as necessary to his burglary conviction, that he unlawfully remained in his niece's house or that he did so with intent to commit an assault. More specifically to the latter point, defendant asserts that, under State v. J. N. S. , 258 Or. App. 310, 318-19, 308 P.3d 1112 (2013), because he did not form the intent to commit the assault at the initial point when he unlawfully remained in the house, there was insufficient evidence to support a first-degree burglary conviction. We conclude that, despite sufficient evidence that defendant unlawfully remained in the house, there was nevertheless insufficient evidence that defendant formed the intent to commit the assault at the requisite time. Accordingly, we reverse defendant's conviction for first-degree burglary and remand for entry of a judgment of conviction for the lesser-included offense of first-degree criminal trespass and for resentencing.

We review the denial of a motion for judgment of acquittal to determine whether, viewing the evidence and all reasonable inferences from it in the light most favorable to the state, "a rational trier of fact * * * could have found the essential element[s] of the crime beyond a reasonable doubt." State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

Defendant and his family were staying with his niece for a week. One evening, after defendant began yelling and threatening to kill his niece, she asked him to leave. Defendant refused and said that he would leave the next day. Someone called for a taxi and left defendant's packed bags by the front door, but the taxi left without defendant. Defendant's father-in-law, who lived across the street, became aware of the incident and decided to go to the niece's house-without notifying anyone-to find out "what was going on." When he arrived, defendant emerged from a bedroom and punched his father-in-law in the face, and a fight ensued. The police arrived, and defendant was arrested. The state charged defendant with one count of first-degree burglary, two counts of fourth-degree assault, and one count of strangulation.

After the state presented its case-in-chief, defendant moved for a judgment of acquittal on the first-degree burglary charge, arguing that "the state failed to put on sufficient evidence to meet the standard to have this matter go to the jury." Defendant went on to argue that, to be convicted of first-degree burglary, defendant had to have

"knowingly * * * entered, or remained in [his house] with the intent to commit the crime of assault therein. * * * [T]he evidence is clear that he was attempting to leave at the time that this occurred, and that it was not his intent to stay * * *."

(Emphasis added). At that point, the court interrupted to say that the motion was denied, because there "was contradictory evidence to that, that he was told to leave and he said, 'I'm not leaving.' " Defense counsel attempted to interject, but the court cut him off again concluding,

"I know that the evidence [was] that he was eventually going to leave, but the evidence is also that he said, 'No, I'm not leaving.' Denied. Next?"

A person commits the crime of first-degree burglary if "the person enters or remains unlawfully in a building with the intent to commit a crime therein," ORS 164.215, and "the building is a dwelling," ORS 164.225. At issue here is whether the state proved that (1) defendant, after receiving authorization to enter his niece's house, unlawfully remained after that authorization was revoked-i.e. , defendant committed criminal trespass, and (2) defendant unlawfully remained with the intent to commit a crime therein. J. N. S. , 258 Or. App. at 318-19, 308 P.3d 1112. Specifically, as to the second element, under J. N. S. , a burglary conviction requires "criminal trespass for the purpose of committing a crime ." Id. (emphasis in original). As we explained:

"[T]he proper focus is on the defendant's intent at the initiation of the trespass. * * * If the trespass begins when a defendant remains in a building after authorization has expired or has been revoked, then we ask whether the defendant possessed the requisite criminal intent at the time of the unlawful remaining ."

Id . at 319, 308 P.3d 1112 (emphasis in original).

On appeal, defendant challenges the sufficiency of the evidence for a rational trier of fact to find that he unlawfully remained in his niece's house. Alternatively, defendant asserts that, under J. N. S. , even if we conclude that he unlawfully remained, there was insufficient evidence for a rational trier of fact to find that he did so with the intent to commit an assault because he did not form the intent to assault his father-in-law at the initial point that he unlawfully remained.

The state responds with two arguments. First, the state asserts that, although defendant preserved his challenge to the sufficiency of the evidence that he unlawfully remained, defendant failed to preserve his J. N. S. argument. Second, should we reach the merits, the state argues that the Supreme Court implicitly overruled J. N. S. in State v. Pipkin , 354 Or. 513, 316 P.3d 225 (2013), and that, under Pipkin , it is sufficient that the requisite intent was formed at any point while defendant unlawfully remained in his niece's house, even if not at the initiation of unlawfully remaining.

We agree with the state that there was sufficient evidence to find that defendant unlawfully remained after his niece asked him to leave. However, the evidence does not support a jury finding that defendant intended to commit an assault at the initiation of his unlawful trespass.

First, we address the state's preservation argument. The state asserts that "defendant did not argue that the state had failed to prove that he formed the intent to commit the assault contemporaneously with the act of unlawfully remaining inside [his niece's] home" and, therefore, we should not review that argument on appeal. Defendant responds that he preserved his argument because, when he moved for judgment of acquittal, the trial court "cut off defense counsel's argument and denied the motion," preventing him from making further arguments. We agree with defendant.

Generally, "if an issue has not been presented to the trial court, we will not consider it on appeal." State v. Sanelle , 287 Or. App. 611, 618, 404 P.3d 992 (2017) (citing Peeples v. Lampert , 345 Or. 209, 219, 191 P.3d 637 (2008) ); ORAP 5.45(1). One purpose of the preservation rule is to ensure that "positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument." Davis v. O'Brien , 320 Or. 729, 737-38, 891 P.2d 1307 (1995). We note that "the preservation rule is a practical one, and close calls * * * inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served." State v. Parkins , 346 Or. 333, 341, 211 P.3d 262 (2009).

Here, the purposes of preservation were met. Defendant, in moving for judgment of acquittal, began with the assertion that to convict him of first-degree burglary, the state had to prove that he "knowingly entered or remained in [his niece's house] with the intent to commit the crime of assault therein." However, before he could fully develop that argument, the court ruled on his motion and, when defendant attempted to interject, the court reiterated its conclusion and moved on. After the court prematurely ruled on the motion and cut him off a second time, defendant did not have an obligation to make a third attempt to flesh out his argument. See State v. Barajas , 247 Or. App. 247, 253, 268 P.3d 732 (2011) (concluding that the defendant was not required to do anything further to preserve her objection "when the trial court unequivocally ruled that it would not entertain closing argument and announced its decision, [making] any additional effort * * * futile"); see also State v. Olmstead , 310 Or. 455, 461, 800 P.2d 277 (1990) ("When the trial court excludes an entire class of evidence by declaring, in advance, that it is inadmissible as a matter of law, the ruling renders a further offer futile."). The preservation rules required nothing more of defendant under these circumstances.

We turn to the merits. Defendant contends that he lacked the requisite intent to commit an assault at the out-set of his trespass, as required by J. N. S. In contrast, the state contends that Pipkin implicitly overruled J. N. S. in that Pipkin established that the intent to commit the crime therein can occur at any point after defendant trespassed. In the state's view, " Pipkin stands for the premise that a defendant can commit the crime of burglary if he or she forms the intent to commit a crime at any point before or during his or her unlawful presence within a building, regardless of the particular moment at which the criminal intent arose." (Emphasis in original.)

In State v. McKnight , 293 Or. App. 274, 426 P.3d 669, rev. den. , 363 Or. 817, 432 P.3d 1093 (2018), we rejected that exact argument, concluding that the Pipkin decision did "not speak to the issue of whether a defendant's intent to commit a crime must coincide with the start of the defendant's trespass." Id. at 279, 426 P.3d 669. We explained that any "inconsistency between our decision in J. N. S. and the Supreme Court's decision in Pipkin " did not render plainly wrong our ultimate holding in J. N. S. on the issue of whether "a defendant must possess the intent to commit a crime at the start of the trespass underlying the charge of burglary[.]" Id. at 278-81, 426 P.3d 669. We once again adhere to our ultimate holding in J. N. S.

In doing so, we conclude that there was insufficient evidence for a rational factfinder to find that defendant remained unlawfully in his niece's house with the intent to commit an assault; the record lacks the necessary "temporal connection between the defendant's intent to commit a crime and the initiation of the defendant's trespass." McKnight , 293 Or. App. at 274, 426 P.3d 669. As we have explained,

" '[a] defendant's intent to commit a crime at the time of an unlawful entry is central to the crime of burglary. Without it a defendant's conduct cannot constitute burglary of any degree; that intent is, in fact, the essence of the offense.' (Emphasis added.)"

J. N. S. , 258 Or. App. at 319, 308 P.3d 1112 (quoting State v. Chatelain , 220 Or. App. 487, 492, 188 P.3d 325 (2008), aff'd , 347 Or. 278, 220 P.3d 41 (2009) (emphasis in original)). Here, the state does not offer evidence to challenge defendant's assertion that, even if he unlawfully remained in his niece's house, his intent to commit an assault did not occur at the initiation of the trespass. As a consequence, no reasonable factfinder could have found that defendant committed first-degree burglary. Therefore, the trial court erred in denying defendant's motion for judgment of acquittal, and we must reverse defendant's first-degree burglary conviction. However, because there is sufficient evidence to find that defendant unlawfully remained in his niece's house, we remand for entry of a judgment of conviction for first-degree trespass. See McKnight , 293 Or. App. at 281-82, 426 P.3d 669 (reversing and remanding for entry of judgment of first-degree criminal trespass where there was insufficient evidence to support a finding that defendant intended to commit a crime at the initiation of his trespass in his family friend's home); see also State v. Miranda , 290 Or. App. 741, 754, 417 P.3d 480 (2018) (reversing first-degree burglary conviction and remanding for entry of judgment of conviction for first-degree criminal trespass where there was insufficient evidence to support finding that the defendant intended to commit particular crime as charged in indictment).

Conviction for first-degree burglary reversed and remanded for entry of judgment of conviction for first-degree criminal trespass and resentencing; otherwise affirmed.

      Defendant does not challenge his conviction on one count of fourth-degree assault.

      ORS 164.225 provides, in relevant part:
      "(1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling[.]"


author: JAMES, J. Lagesen, P. J., concurring. LAGESEN, P. J., concurring.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Corey Thomas COOK, Defendant-Appellant.
    A159872
    Court of Appeals of Oregon.
    Argued and submitted May 8, 2018. June 5, 2019
    Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan Yorke, Assistant Attorney General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

Defendant appeals his conviction and sentence for first-degree sexual abuse, ORS 163.427, assigning error to the sentencing court's imposition of a mandatory 75-month sentence imposed pursuant to ORS 137.700 (Ballot Measure 11 (1994)) over his constitutional proportionality challenge relying on State v. Rodriguez/Buck , 347 Or. 46, 217 P.3d 659 (2009), and State v. Ryan , 361 Or. 602, 396 P.3d 867 (2017). In this case, the trial court found that defendant suffered from intellectual disability and considered that disability in relation to defendant's criminal culpability. However, the court specifically found that it could not consider the "the fact that [defendant] may be victimized in prison" as a result of that intellectual disability. Thus, this case presents a question going to the heart of what it means to consider intellectual disability in a proportionality challenge. If a trial court expressly finds that it cannot consider an intellectually disabled defendant's increased vulnerability within prison, has it truly "consider[ed] an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence? " Ryan , 361 Or at 620-21 (emphasis added). To put an even finer point on it, in considering intellectual disability in the context of the "severity" of a sentence, is a court limited to merely the quantitative severity of a sentence, i.e. , the length of incarceration, or is a court permitted to consider the qualitative nature of a sentence's severity as applied to an intellectually disabled defendant?

As we explain below, the issue raised by defendant is an interesting, and unresolved, issue of Oregon law. But, ultimately, we cannot reach a resolution here. Article VII (Amended), section 3, of the Oregon Constitution states that when we conclude, "after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial." Here, even assuming the trial court erred in failing to consider defendant's vulnerability within the prison, on this record that error was harmless. Accordingly, we affirm.

In considering a sentence proportionality challenge under Article I, section 16, "we review for legal error the trial court's conclusion that defendant's sentence was constitutional[.]" Ryan , 361 Or. at 614, 396 P.3d 867. "In conducting that review, we are bound by any findings of historical fact that the trial court may have made, if they are supported by evidence in the record." Id. at 615, 396 P.3d 867. In this case, defendant pleaded guilty to sexual abuse in the first degree, ORS 163.427, acknowledging that he knowingly subjected a child under the age of 14 to sexual contact by touching her genital area with his mouth.

During sentencing, defendant presented evidence that his cognitive abilities were about that of a 10-year-old child. One expert testified that defendant was "very, very slow. [Defendant's] processing speed is at the [0.3] percentile, meaning 99.7 percent of people do better than him." In addition, defendant offered testimony that he suffered from fetal alcohol syndrome (FAS). Defendant presented evidence that one of the effects of FAS is an impairment of one's ability to read social cues. Defendant's expert explained:

"[Those with FAS are] poor readers of social cues. And, as we know in prisons, one has to be very aware of social cues. *** [Defendant]'s going to have what's called bad papers, because he sexually abused a child. He's also intellectually impaired, socially dysfunctional. And, because of that he's going to be a target for predatory behavior."

When asked if that meant that defendant would be "[t]he prey," the expert responded, "Yeah. He will be victimized ." (Emphasis added.)

Another expert testified that:

"For people who are developmentally delayed, they are far more likely to be victimized [in prison] . And, specifically, I would go back to yesterday where [defendant] demonstrated extreme naïveté about his fellow prisoners and how they would help him.
"* * * * *
"That's very different than the prison culture that's going to see him as prey."

(Emphasis added.)

After testimony regarding defendant's cognitive abilities and the likelihood of victimization in a prison setting, the sentencing court made factual findings that defendant had a mental deficiency, had a diminished capacity, and suffered from FAS. The court found that it could take into consideration defendant's diminished capacity in assessing proportionality. However, as part of that consideration of intellectual disability, defendant argued that the sentencing court could consider defendant's vulnerability in the prison system. The sentencing court declined to do so, holding that it could not take into account defendant's potential for being victimized in prison due to his intellectual disabilities. The sentencing court stated:

"I generally accept the fact that he has a diminished capacity and * * * it's probably as low as what the testimony shows it is. What I don't think I can take into account is the fact that [defendant] may be victimized in prison. "

(Emphasis added.)

The sentencing court ultimately found that defendant was a high risk offender, that defendant's conduct was at the extreme end of sexual abuse in the first degree, had been opportunistic, and had occurred over a long period of time, and that defendant knew his actions were wrong when he was committing the abuse as evidenced by the fact that defendant plied the victim with treats to prevent her from disclosing the abuse. The sentencing court further found that defendant was able to distinguish between people he likes and dislikes, using the example of a letter from jail that defendant wrote to his family that requested his family crop a picture of his brother, the father of the victim, from a photo he wanted his family to send him. The court then considered the age of the victim and the victim's close family relationship to the defendant, the fact that the victim was permanently harmed, and noted that defendant had a prior juvenile adjudication for molesting a different young girl. The court also noted that defendant had pleaded down to sex abuse in the first degree from a charge of sodomy in the first degree, which carried a Measure 11 sentence of 300 months. Defendant was sentenced to 75 months of prison to be followed by post-prison supervision, the total duration of both not to exceed 10 years.

On appeal, defendant argues that the sentencing court erred when it declined to consider defendant's vulnerability in prison in assessing sentence proportionality under Article I, section 16, and the Eighth Amendment to the United States Constitution. The state argues that the sentencing court did not err in refusing to consider defendant's vulnerability in prison because, in considering sentence proportionality, the severity of a penalty is assessed solely as to the length of the sentence, not conditions of confinement. Further, the state argues that the 75-month sentence was constitutional. Finally, the state also argues that if the sentencing court did err in failing to consider defendant's vulnerability, the error was harmless.

Because defendant raises both a state and a federal constitutional challenge, we begin by briefly discussing the differences between the two. The Eighth Amendment, which applies to the states by virtue of the Fourteenth Amendment to the United States Constitution, Robinson v. California , 370 U.S. 660, 675, 82 S. Ct. 1417, 8 L.Ed. 2d 758 (1962), provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Although the Eighth Amendment does not directly address proportionality, the United States Supreme Court has held that [t]he concept of "proportionality is central to the Eighth Amendment." Graham v. Florida , 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L.Ed. 2d 825 (2010).

The nascent Eighth Amendment proportionality jurisprudence has denoted two individual qualities that warrant special proportionality concerns: youth, and intellectual disability. With respect to youth, the Supreme Court has held that "[t]he susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult."

Roper v. Simmons , 543 U.S. 551, 557, 125 S. Ct. 1183, 161 L.Ed. 2d 1 (2005). (Internal quotation marks omitted.) Consequently, "[a]n offender's age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham 560 U.S. at 76, 130 S.Ct. 2011.

The Supreme Court's treatment of intellectual disability under the Eighth Amendment shows some indications that it mirrors the treatment of juveniles under the Eighth Amendment, although the intellectual disability line of cases is less developed. The Court has held, like in Roper , that "[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses, [the intellectually disabled] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Atkins v. Virginia , 536 U.S. 304, 306, 122 S. Ct. 2242, 153 L.Ed. 2d 335 (2002). As a result, the death penalty is categorically prohibited from imposition upon the intellectually disabled, as it is against juveniles. Id . The Court has never held that sentencing schemes that fail to consider intellectual disability are flawed, as it has for youth. However, the Oregon Supreme Court has noted that "The Supreme Court in Atkins repeatedly emphasized the relevance of intellectual disability in determining both the gravity of an offense and the severity of its penalty." Ryan , 361 Or. at 620, 396 P.3d 867.

Turning to the proportionality inquiry under the state constitution, Article I, section 16, "closely parallels the Eighth Amendment." Billings v. Gates , 323 Or. 167, 173, 916 P.2d 291 (1996). However, unlike the Eighth Amendment, Article I, section 16, explicitly sets out the concept of proportionality:

"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.)

Thus, unlike the Eighth Amendment, where proportionality is an aspect of "cruel and unusual," Article I, section 16, divides the two into distinct concepts. In State v. Wheeler , 343 Or. 652, 665-66, 175 P.3d 438 (2007), the Oregon Supreme Court detailed the history of Article I, section 16, noting that

"[t]he framers combined the cruel and unusual punishment provision and the proportionality provision ***. As we have described above, those provisions have distinct histories and purposes-the proportionality provision has origins in Magna Carta and in Blackstone's argument in favor of punishments that were reasonably related to the severity of particular offenses, while the prohibition on cruel and unusual punishments was first articulated in the English Bill of Rights and focuses on prohibited methods of punishment. Those differences suggest that, when the drafters of the Oregon Constitution combined the two provisions with the word 'but' in Article I, section 16, they did not intend the proportionality provision to be an exception or qualification to the bar on cruel and unusual punishments. See 1 Noah Webster, An American Dictionary of the English Language 29 (1828) (giving 'excepting' as one meaning of 'but'). Rather, the sentence seems to use the word 'but' as the equivalent of 'and' and simply to combine in one sentence those two different rules for criminal penalties. *** In other words, the prohibition on cruel and unusual punishment and the requirement of proportionality appear to be independent constitutional commands, joined in one sentence because they both concern appropriate punishment for crimes."

The proportionality clause of Article I, section 16, recognizes a limit on legislative power. Although the legislature sets criminal penalties, it cannot do so arbitrarily. The Oregon Constitution requires that it invest each legislatively enacted sentence with a rational basis. Jensen v. Gladden , 231 Or. 141, 146, 372 P.2d 183 (1962) ("It is the province of the legislature to establish the penalties for the violation of the various criminal statutes and if the penalties are founded upon an arguably rational basis we have no authority to hold that they are invalid."); see State v. Isom , 313 Or. 391, 400, 837 P.2d 491 (1992) ("The legislature has chosen to subject all such persons to the maximum potential penalty. Defendant's opinion makes sense, but so does that which we attribute to the legislature. There was a rational basis for the legislature to conclude that both classes of escapees are dangerous."). A proportionality inquiry under Article I, section 16, whether framed as a facial challenge or an as-applied challenge, asks if the imposition of the sentence would "shock the moral sense" of reasonable people "as to what is right and proper under the circumstances." Sustar v. County Court of Marion Co. , 101 Or. 657, 665, 201 P. 445 (1921). Answering that "shocks the conscience" question begins with a search for legislative purpose-the rational legislative basis behind the statutory sentence.

An examination of legislative purpose-the rational basis connecting the legislatively enacted sentence to the social harm that the legislature sought to penalize-is itself closely governed by the other constitutional obligation imposed on the legislature when enacting penalties-Article I, section 15, of the Oregon Constitution. That provision sets the permissible legislative purposes, requiring that "[l]aws for the punishment of crime shall be founded on these principles: protection of society, personal responsibility, accountability for one's actions and reformation."

In Rodriguez/Buck , the court set out three nonexclusive factors for consideration in as-applied challenges under Article I, section 16 :

"(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant."

347 Or. at 58, 217 P.3d 659.

The Supreme Court in Rodriguez/Buck explained:

"In considering a defendant's claim that a penalty is constitutionally disproportionate as applied to that defendant, then, a court may consider, among other things, the specific circumstances and facts of the defendant's conduct that come within the statutory definition of the offense, as well as other case-specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim."

Id. at 62, 217 P.3d 659.

Rodriguez/Buck did not define the precise contours of what "severity of the penalty" entailed. However, the court did note that "in contemporary criminal justice systems, including Oregon's, the primary determinant of the severity of a penalty is the amount of time that the wrongdoer must spend in prison or jail, if convicted of that offense." Id . at 60, 217 P.3d 659 (emphasis added). Rodriguez/Buck 's use of the phrase "primary determinant" left the door open for secondary, or nonprimary, determinants of severity that were not simply "the amount of time that the wrongdoer must spend in prison or jail."

The Oregon Supreme Court applied that same principle to intellectual disability, and concluded in Ryan that

"evidence of an offender's intellectual disability therefore is relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence. Accordingly, we conclude that, where the issue is presented, a sentencing court must consider an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender in a proportionality analysis."

Ryan , 361 Or. at 620-21, 396 P.3d 867. However, again, the court did not clarify whether severity was simply quantitative, or whether qualitative severity was a consideration.

With that background in mind, we turn to defendant's argument that the trial court erred in refusing to consider defendant's increased vulnerability in the prison system-i.e. , his qualitative experience. According to defendant, that qualitative experience is a necessary consideration in assessing the severity of a sentence. The state disagrees, arguing that the severity of a sentence is fundamentally a question of numbers, i.e. , the length of the term of incarceration, and not a defendant's qualitative experience of incarceration.

The answer to this question is not readily apparent. Ultimately, however, we are compelled to not weigh in on the issue. Defendant's argument before the trial court was premised on one essential fact: that defendant would be subjected to greater risk of abuse while incarcerated because of his intellectual disability, than if he were not incarcerated. A review of this record shows that, even though the trial court held that it could not consider defendant's argument, it explicitly rejected that necessary factual predicate. In giving its ruling, the trial court stated:

"All of us are subject to victimization. *** [T]he fact that [defendant] may be victimized-the prison isn't any different than our society . I can walk in the street and be shot down by some deranged person or by some person who just doesn't like me. All of us can be assaulted out in the community.
"Our-our system says that the people who are in charge of housing the people that we incarcerate are to protect them. We know that can't be done because we know people are killed in prison and assaulted in prison just like they are killed and assaulted outside of prison. So, there's no guarantee that anybody is going to be safe at any time."

(Emphasis added.)

Oregon's constitutional test for affirmance despite error-what we colloquially call "harmless error"-consists of "a single inquiry:" Is there little likelihood that the particular error affected the verdict? The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling." State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003). In this case, for defendant to have prevailed below required the trial court to accept that defendant was at an increased risk of victimization, and the trial court did not find that fact credible. We cannot conclude that the trial court's refusal to consider an argument based on a rejected necessary factual predicate likely affected the verdict in this case.

With respect to defendant's federal constitutional argument, the test for harm differs. See, e.g. , State v. Bray , 342 Or. 711, 725, 160 P.3d 983 (2007) ("A violation of a defendant's federal constitutional right is harmless only when a 'reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' Delaware v. Van Arsdall , 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L.Ed. 2d 674 (1986) (describing the test announced in Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed. 2d 705 (1967) )"). However, before us, defendant did not respond to the state's harmless error argument at all, let alone articulate how the result might differ under the federal harmless error test as opposed to the state test. In light of the factual determinations made by the trial court, we conclude that the issue is harmless under both the state and federal standards.

Accordingly, we leave for another day the issue of whether consideration of the severity of a sentence for an intellectually disabled defendant requires consideration of that defendant's qualitative experiences while incarcerated.

Affirmed.

Lagesen, P. J., concurring.

LAGESEN, P. J., concurring.

I concur in the majority opinion's disposition of this appeal, but not fully in its reasoning. The majority ultimately concludes that any legal error in failing to consider defendant's increased victimization in prison because of his intellectual disability is harmless on this record, because the trial court made an actual finding that defendant is not at any such increased risk of victimization. I do not read the trial court's ruling to encompass that factual finding, so I would consider the merits of defendant's proportionality challenges under Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution.

But in framing that legal question, I do not understand it to be quite as broad as the majority opinion suggests. I understand the question to be whether the trial court erred when it determined that the evidence that defendant's intellectual disability places him at an increased risk of victimization by other inmates while incarcerated does not bear on the inquiry of whether defendant's 75-month sentence is unconstitutionally disproportionate under either Article I, section 16 's proportionality clause, or the proportionality requirement that's been read into the Eighth Amendment. On that point, I would conclude that the trial court properly declined to take that evidence into account. That is because that evidence pertains to conditions of confinement that are not part of the sentence imposed by the trial court and are not, therefore, properly part of the calculus of whether that sentence is a proportionate "penalt[y]" for purposes of Article I, section 16, or a proportionate "punishment" for purposes of the Eighth Amendment. I therefore would affirm for that reason.

Defendant, who has an intellectual disability, orally sodomized his five-year-old niece. Admitting that conduct, he pleaded guilty to first-degree sexual abuse, a Measure 11 offense carrying a mandatory 75-month term of imprisonment. Rejecting defendant's contention that his intellectual disability made any term of imprisonment unconstitutionally disproportionate in violation of Article I, section 16, and the Eighth Amendment, the trial court sentenced defendant to the 75-month sentence required by Measure 11. In so doing, the court considered how defendant's intellectual disability affected his ability to understand the wrongfulness of his conduct and his judgment in general-concluding that defendant understood that his conduct was wrong and that he did not "lack judgment," despite his diminished capacity. However, the court declined to consider evidence that defendant's intellectual disability subjected him to an increased risk of victimization while incarcerated.

On appeal, defendant contends that was error. Defendant's theory is that the conditions of his confinement, including the risk of harm posed by other inmates as a result of defendant's intellectual disability, are part of the "penalty" imposed by the trial court for purposes of the proportionality clause of Article I, section 16, and part of the "punishment" imposed for purposes of an Eighth Amendment proportionality analysis. He argues: "The severity of a prison sentence includes prison conditions and how a person will be treated in that environment. A defendant's vulnerability in prison is directly related to that." And he asserts: "Because of the punishment imposed on him by his fellow inmates, sending defendant to prison for 75 months is a much more severe penalty than sending an average adult to prison for the equivalent amount of time."

In my view, defendant's theory is contrary to Oregon and federal law in several respects, and I would reject it for that reason.

First, under Oregon law, a sentencing court does not-and cannot-impose conditions of confinement. ORS 137.010(7) ; State v. Potter , 108 Or. App. 480, 481, 816 P.2d 661 (1991) ("Defendant is correct that the trial court has no authority to impose conditions of incarceration or parole."). In other words, a defendant's eventual conditions of confinement are not encompassed within the sentence imposed by a trial court. For that reason, they are not, in my view, properly part of any assessment whether the sentence imposed by a trial court comports with Article I, section 16, or the Eighth Amendment. Perhaps that is why I've been unable to locate a single case that includes conditions of confinement in the assessment of whether a sentence imposed is disproportionate.

Second, to the extent that it is appropriate to consider conditions of confinement in evaluating proportionality at the time of sentencing, it seems to me that the proper approach would be to look to the statutory and constitutional standards governing those conditions and to assess the proportionality of a term of incarceration based on the premise that those standards will be met. That is, the question should be whether the sentence imposed, if executed in compliance with the law governing conditions of confinement, is disproportionate. And the law-the Eighth Amendment, no less-imposes on the Department of Corrections the obligation to take reasonable steps to ensure that the conditions in which defendant is incarcerated are safe ones. Farmer v. Brennan , 511 U.S. 825, 832-33, 114 S. Ct. 1970, 128 L.Ed. 2d 811 (1994). More to the point, "prison officials have a duty to protect prisoners from violence at the hands of other prisoners." Id . at 833, 114 S. Ct. 1970 (internal quotation marks and ellipses omitted).

Oregon statutes likewise impose upon prison officials an obligation to protect inmates from injury: "The person of an inmate sentenced to imprisonment in the Department of Corrections Institution is under the protection of the law and the inmate shall not be injured except as authorized by law." ORS 421.105(2). If that is the proper focus of proportionality analysis at the time of sentencing-whether the sentence imposed when carried out in accordance with governing law is disproportionate-defendant's evidence about the risk of harm he may face in prison does not bear on the analysis.

Third, in view of the foregoing law, even if I'm wrong that evidence of potential risks posed by conditions of confinement does not bear on proportionality analysis under the state and federal constitutions, in my view, the evidence nonetheless would have to show, at a minimum, that the officials will be unable to meet their constitutional and statutory obligations to confine the person in question under conditions designed to ensure the person's safety. In plainer terms, it would have to show, in effect, that it is a foregone conclusion that the Department of Corrections cannot provide conditions of confinement that comport with legal standards, thereby making it appropriate to take those legally deficient conditions into account when assessing proportionality at the time of sentencing, even though the sentencing court, itself, does not impose the conditions of confinement. The evidence presented by defendant does not tend to suggest that it is a foregone conclusion that the Department of Corrections cannot fulfill its legal obligations to protect defendant from harm during his sentence. Thus, even if evidence of conditions of confinement can bear on proportionality analysis in some circumstances, the trial court did not err when it concluded that the evidence presented by defendant did not bear on the inquiry under the circumstances of this case.

      Defendant raises a second and separate argument that the trial court erred in its proportionality analysis by failing to consider the availability of treatment options outside of prison. How, if at all, treatment availability factors into the proportionality analysis is a question expressly left open by the Oregon Supreme Court in Ryan :
      "We briefly turn to defendant's more particularized treatment-based argument. Before the Court of Appeals, defendant argued that the trial court erred in failing to consider evidence of 'an available treatment option that would be more effective and appropriate because of defendant's condition,' but defendant did not explain how that argument comported with the Rodriguez/Buck framework. Later, as noted, in his opening brief before this court defendant argued that the availability of rehabilitative treatment as part of an alternative sentence was relevant to the gravity of his offense, but he has not sufficiently explained how that argument comports with the Rodriguez/Buck framework to permit a carefully considered analysis of it. Accordingly, we decline to address it, and we express no opinion as to whether and, if so, how consideration of treatment options for an intellectually disabled offender as part of an alternative sentence could be relevant to a proportionality challenge under Article I, section 16."
      361 Or. at 622-23, 396 P.3d 867 (footnote omitted).
      We decline to reach that argument on preservation grounds. During the sentencing hearing, the trial court articulated its understanding of proportionality and indicated that would approach the question first by considering whether the 75-month mandatory minimum sentence was constitutional. As it explained, only if the court found that the mandatory minimum sentence was inapplicable because it shocked the conscience could it then consider whether to impose optional probation under the guidelines. And only in making that latter determination could the court consider the availability of a bed in a residential treatment home for intellectually disabled sex offenders. Defendant did not object to that analytical framework, or otherwise alert the trial court that treatment availability was a necessary component to the constitutional proportionality determination.

      The nature of the Eighth Amendment's proportionality protections has been a subject of considerable debate. In Solem v. Helm , 463 U.S. 277, 284, 103 S. Ct. 3001, 77 L.Ed. 2d 637 (1983), the United States Supreme Court held that the cruel and unusual punishment clause of the Eighth Amendment prohibits "not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem announced a proportionality analysis similar to Oregon's Rodriguez/Buck factors for reviewing a cruel and unusual punishment claim: (1) the gravity of the offense and the harshness of the penalty; (2) a comparison of the sentence imposed for more serious crimes in the same jurisdiction; and (3) a comparison of the sentences imposed for the same crime in other jurisdictions. Solem , 463 U.S. at 290-92, 103 S.Ct. 3001.
      The Solem decision was later called into doubt by Harmelin v. Michigan , 501 U.S. 957, 111 S. Ct. 2680, 115 L.Ed. 2d 836 (1991). There, two justices concluded that the Eighth Amendment contains no proportionality guarantee (id. at 965, 111 S. Ct. 2680 (opinion of Scalia, J., joined by Rehnquist, C. J.)), and three other justices concluded that the amendment forbids only those sentences that are " 'grossly disproportionate' to the crime" (id. at 1001, 111 S. Ct. 2680 (Kennedy, J., concurring)). Even those justices recognizing a guarantee of proportionality review stressed that outside the context of capital punishment, successful challenges to particular sentences are "exceedingly rare" because of the "relative lack of objective standards concerning terms of imprisonment." Id .

      Defendant does not argue that the record contains no evidence from which the trial court could make that factual determination, and we express no opinion on that factual determination by the trial court.

      To the extent that the majority opinion concludes, ultimately, that defendant's sentence does not violate either Article I, section 16, of the Oregon Constitution or the Eighth Amendment to the United States Constitution, I agree with that conclusion. I also agree with the conclusion that defendant failed to preserve his contention that the trial court was required to consider the availability of treatment options in conducting its proportionality analysis. I also agree with the general overview of the law provided in the majority opinion.

      That is not to say that it was not important for defendant to present that evidence at sentencing. Although a trial court lacks the authority to impose conditions of confinement, it does have the authority to recommend conditions of confinement. Potter , 108 Or. App. at 481, 816 P.2d 661. In the case of an intellectually disabled person such as defendant, such recommendations could provide the Department of Corrections with useful assistance in meeting its obligations to keep that defendant safe from other inmates while incarcerated by identifying the risks posed by the person's intellectual disability. And, of course, if the Department of Corrections fails to meet its obligations to an intellectually disabled inmate in conditions designed to discharge its obligation to protect the inmate from other inmates, the inmate may be entitled to habeas relief to secure removal from unconstitutionally unsafe conditions. See, e.g. , Barrett v. Peters , 360 Or. 445, 449, 383 P.3d 813 (2016) (explaining the function of habeas corpus in remedying unconstitutional conditions of confinement).