392	                       September 22, 2016	                          No. 63

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                DOUGLAS WAYNE SOKELL,
                    Petitioner on Review.
          (CC C131532CR; CA A156133; SC S063607)

    En Banc
    On review from the Court of Appeals.*
    Argued and submitted May 9, 2016.
   John J. Tyner, Hillsboro, argued the cause and filed the
brief for petitioner on review.
   Rolf C. Moan, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. With
him on the brief were Ellen F. Rosenblum, Attorney General,
and Paul L. Smith, Deputy Solicitor General.
    BREWER, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
     Case Summary: Defendant, who was convicted of first-degree sexual abuse
based on an incident in which he accosted an eight-year-old girl in a public
library, argued that the sentence of life imprisonment without the possibility of
parole violated Article I, section 16, of the Oregon Constitution. Held: Under the
circumstances of this case, the penalty of life imprisonment without the possibil-
ity of parole was not unconstitutionally disproportionate under Article I, section
16, of the Oregon Constitution.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.




______________
	   *  On appeal from Washington County Circuit Court, Andrew Erwin, Judge.
273 Or App 654, 362 P3d 251 (2015).
Cite as 360 Or 392 (2016)	393

	          BREWER, J.
	        Defendant seeks review of a sentence of life impris-
onment without the possibility of parole, imposed pursuant
to ORS 137.719(1), for a conviction for first-degree sexual
abuse. Defendant argues that, as applied to his circum-
stances, the sentence is unconstitutionally disproportionate
under Article I, section 16, of the Oregon Constitution, which
provides in part that “all penalties shall be proportioned to
the offense.” The Court of Appeals rejected that challenge,
State v. Sokell, 273 Or App 654, 362 P3d 251 (2015), and
defendant petitioned for review, which we allowed.1 For the
reasons explained below, we affirm the judgment of the cir-
cuit court and the decision of the Court of Appeals that the
sentence did not violate Article I, section 16.2
          I.  FACTS AND PROCEDURAL HISTORY
A.  Current Conviction
	       The crime for which defendant stands convicted in
the present case is first-degree sexual abuse, ORS 163.427,
based on a charge that defendant subjected a child under
the age of 14 to sexual contact by touching her buttocks and
hips. The offense took place at a public library in Hillsboro
in 2011. The victim, an eight-year-old girl, was looking
at books when defendant, a stranger, approached her and
talked to her about books. He then stroked the victim on the
buttocks and hips for several minutes, over her clothing, and
fled when her mother approached. Police obtained a video
from the library that showed the suspect, but they were
unable to determine his identity at that time. The following
summer, defendant returned to the children’s section of the

	1
       Defendant also argues that the trial court erred in admitting into evidence
parts of a presentence investigation report that contained hearsay and that the
sentence violates the Eighth Amendment to the United States Constitution.
However, defendant did not raise those arguments in the Court of Appeals; we
therefore do not consider them. See ORAP 9.20(2) (questions before the Supreme
Court include all questions that were properly before the Court of Appeals that
the petition or response claim were incorrectly decided).
	2
       As an initial matter, we note that the disproportionality challenge raised
by defendant is reviewable. See State v. Althouse, 359 Or 668, 678, 375 P3d 475
(2016) (holding that ORS 138.222(2)(a) does not preclude review of sentence of life
imprisonment without possibility of parole imposed pursuant to ORS 137.719);
State v. Davidson, 360 Or 370, ___ P3d ___ (2016) (same).
394	                                            State v. Sokell

same library, and an employee recognized him as the sus-
pect and was able to photograph his vehicle’s license plate,
after which the police identified defendant as the suspect.
Based on that evidence, a jury convicted defendant of the
charged offense.
	        The state presented evidence at sentencing that
the victim was traumatized by the crime, was unwilling to
be out of the presence of her parents, needed to be home
schooled for a significant period of time after the crime was
committed, and was unable to sleep in her own bed alone for
approximately two years after the crime.
B.  Other Convictions
	        At defendant’s sentencing in this case, the following
evidence was adduced concerning his criminal history. In
1996, defendant was convicted of first-degree sexual abuse.
In that case, defendant approached a 12-year-old child in
a store and asked her to try on a backpack that he said he
was considering purchasing for his niece. As the child tried
on the backpack, defendant adjusted the shoulder straps
and then stroked and squeezed the child’s breasts. He was
apprehended at the store and admitted that he had deliber-
ately touched the child’s breasts. That conviction resulted in
a 75-month prison sentence.
	         While defendant was on supervision after serving
his prison sentence for the 1996 offense, he failed several
polygraph examinations and served a jail sanction for having
contact with a minor. The Board of Parole and Post-Prison
Supervision designated him as a predatory sex offender in
2003. While on supervision, defendant told his parole officer
that he had committed similar offenses in another state, tar-
geting victims who were between seven and 12 years of age.
He admitted during a polygraph examination that he had
forcibly raped a 10-year-old girl in 1980. He told his therapist
that he had had more than 120 underage victims and that
he had sodomized a female hitchhiker at knifepoint in the
1970s. He told another mental health professional during
an evaluation that, in the 1990s, he had approached young
girls in stores with the pretense of having them try some-
thing on, so that he could touch them. Defendant received
sex offender treatment three times between 1983 and 2005,
Cite as 360 Or 392 (2016)	395

when he most recently completed treatment. Despite his
completion of a program in 2005, he was still considered to
be at high risk of re-offending, given his history.
	         In June 2012, before he was apprehended for the
crime at issue here, defendant committed a similar offense
in a public library in Newport. He approached a seven-year-
old girl and asked her to help him find a book. He then put
his hand under her dress and rubbed his hands on her sides
and crotch area, and told her that rubbing her was a “good
feeling.” A librarian saw defendant with his hand up the
girl’s dress and, as defendant was leaving, alerted other peo-
ple in the library to stop him. Defendant was apprehended
and convicted of attempted first-degree sexual abuse based
on that incident, for which he was sentenced to 18 months’
imprisonment.
C.  Sentence and Appeal
	        Based on the foregoing evidence and his conviction
for the current offense, the trial court sentenced defendant to
the presumptive sentence established by ORS 137.719(1)—
life imprisonment without the possibility of parole. On
appeal, defendant argued that, in light of asserted mitigat-
ing circumstances, the trial court should have imposed a
downward departure sentence pursuant to ORS 137.719(2)
and that the imposition of the presumptive sentence under
ORS 137.719(1) violated Article I, section 16. As noted, the
Court of Appeals rejected those arguments, and defendant
petitioned for review, which we allowed.
                         II. ANALYSIS
	        ORS 137.719 provides:
    	 “(1)  The presumptive sentence for a sex crime that
    is a felony is life imprisonment without the possibility of
    release or parole if the defendant has been sentenced for
    sex crimes that are felonies at least two times prior to the
    current sentence.
    	 “(2)  The court may impose a sentence other than the
    presumptive sentence provided by subsection (1) of this sec-
    tion if the court imposes a departure sentence authorized
    by the rules of the Oregon Criminal Justice Commission
    based upon findings of substantial and compelling reasons.
396	                                              State v. Sokell

   	   “(3)  For purposes of this section:
   	 “(a)  Sentences for two or more convictions that are
   imposed in the same sentencing proceeding are considered
   to be one sentence; and
   	   “(b)  A prior sentence includes:
   	 “(A)  Sentences imposed before, on or after July 31,
   2001; and
   	 “(B)  Sentences imposed by any other state or federal
   court for comparable offenses.
   	 “(4)  As used in this section, ‘sex crime’ has the mean-
   ing given that term in ORS 163A.005.”
	In Althouse, 359 Or 668, we set out a framework
for the evaluation of as-applied proportionality challenges
to sentences imposed pursuant to ORS 137.719(1). We
explained that the factors identified by this court in State
v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009), are to be
considered:
   “ ‘(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 his-
   tory of the defendant.’ ”
Althouse, 359 Or at 684 (quoting Rodriguez/Buck, 347 Or at
58). We went on to observe that, where a challenged sentence
was imposed pursuant to a recidivist statute such as ORS
137.719, the first and third Rodriguez/Buck factors are con-
sidered together. Althouse, 359 Or at 685. We thus initially
examine the gravity of defendant’s crime as compared to the
severity of the penalty, and defendant’s criminal history.
	        Considering those initial factors, defendant argues
that a life sentence without the possibility of parole for his
current offense is unconstitutionally disproportionate.
Relying on Rodriguez/Buck, defendant asserts that the
degree of harm caused by first-degree sexual abuse is less
than the typical harm caused by other sex offenses that
are subject to ORS 137.719(1), such as forcible first-degree
rape. He also argues that three mitigating factors—
somewhat related to his criminal history—indicate that
his sentence is disproportionate. First, he asserts that
Cite as 360 Or 392 (2016)	397

his status as a Vietnam-era military veteran is a mitigat-
ing factor.3 He further argues that the fact that his three
sexual abuse convictions occurred over a span of 17 years
should be regarded as a mitigating factor, as should his
advanced age (he was 69 years old when he committed the
two most recent offenses). Finally, defendant notes, as we
recognized today in State v. Davidson, 360 Or 370, 387,
__ P3d __ (2016), that the penalty under ORS 137.719(1)—
life imprisonment without the possibility of parole—is
the second most severe criminal penalty available under
Oregon law.
	        Initially, we disagree with defendant’s assessment
of the gravity of his current offense. Although Rodriguez/
Buck, like this case, involved convictions for first-degree
sexual abuse, and this court held that mandatory minimum
sentences imposed pursuant to ORS 137.700 were unconsti-
tutionally disproportionate under the circumstances there,
that case does not stand for the proposition that first-degree
sexual abuse should be regarded as a minor sex offense. The
convictions in those cases involved fleeting touching—not
including fondling—of young teens over their clothing. 347
Or at 50-52, 70. The court noted that the offense of first-
degree sexual abuse encompasses a “wide swath of conduct”
that can result in varying degrees of harm. Id. at 69-70.
The court contrasted the defendants’ conduct in those cases
to circumstances in which there was touching of a younger
child or where there was deliberate or persistent rubbing or
fondling. Id. at 72.
	         Defendant’s conduct in this case bears little resem-
blance to the conduct at issue in Rodriguez/Buck. While it is
possible that, under some circumstances, first-degree sexual
abuse might not cause extremely serious harm to a victim,
that is not the circumstance here. Defendant’s victim was
a young child whom he targeted while she was in a public
library, then fondled on the buttocks and hips for several
minutes. The state presented evidence that the victim suf-
fered from severe trauma that affected her school and home
life for years after the abuse occurred. In short, we disagree
with defendant’s assertion that the gravity-of-the-offense
	3
     Defendant does not elaborate on the relevance of that circumstance.
398	                                           State v. Sokell

factor identified in Rodriguez/Buck weighs in his favor in a
disproportionality analysis.
	        Because defendant was sentenced under a recidi-
vist statute, we also attach considerable significance to his
criminal history. See Davidson, 360 Or at 382. That is so
because the constitutionality of an enhanced sentence based
on recidivism depends, in part, on the “ ‘seriousness of repet-
itive sexual conduct’ ” and “ ‘the danger that it forecasts for
others unless the defendant is segregated from society.’ ”
Althouse, 359 Or at 586 (quoting Jensen v. Gladden, 231 Or
141, 144-45, 372 P2d 183 (1962)). In Althouse, we rejected
a proportionality challenge by a defendant who was sen-
tenced under ORS 137.719(1) for public indecency, which we
acknowledged could be viewed as “not as serious as some
other sex crimes.” 359 Or at 687. We nevertheless upheld
the presumptive true-life sentence imposed in that case, in
light of the defendant’s significant history of sexual abuse,
sodomy, and public indecency, much of which involved and
targeted child victims. Id.
	        This case, like Althouse, features a defendant who
has an extensive history of committing sexual abuse offenses
against young children, and each of his offenses included
fondling of the victim’s private parts. Despite the consid-
erable sex offender treatment that defendant has received
over the course of several decades, he has continued to
re-offend. Rather than mitigate the circumstances of his
current offense, the passage of time and defendant’s advanc-
ing age have failed to diminish the danger that he poses
to children; as noted, defendant was 69 years old when he
committed each of his last two felony sex crimes. Contrary
to defendant’s view, we conclude that his criminal history
and the circumstances of his current crime indicate that he
would pose a significant danger to children in the commu-
nity if he is not segregated from society.
	        The remaining Rodriguez/Buck factor involves
comparison of the penalty here with penalties imposed for
other, related crimes. 347 Or at 58. Crimes that are rele-
vant to our analysis include other offenses designated as
“sex crimes” that are subject to enhanced sentences under
ORS 137.719(1), as well as the offenses identified as sexual
Cite as 360 Or 392 (2016)	399

offenses in ORS chapter 163. See Davidson, 360 Or at 388-
90; Rodriguez/Buck, 347 Or at 64-65. An extensive reitera-
tion of the penalties for other sex offenses under Oregon law
is not required here, in light of our previous decisions that
have discussed those penalties at length. See, e.g., Davidson,
360 Or at 388-90; Althouse, 359 Or at 690-91; Rodriguez/
Buck, 347 Or at 74-76. Suffice it to say that the penalties
for committing physical sexual offenses against young child
victims are uniformly significant under Oregon law, gener-
ally carrying mandatory minimum sentences under ORS
137.700 and being ranked in the highest three crime catego-
ries under the Oregon Sentencing Guidelines. See, e.g., OAR
213-017-002 - 213-017-0011.
	        As defendant observes, and as was the circumstance
in Althouse, the sentence imposed in this case is the sec-
ond harshest criminal penalty under Oregon law. However,
in light of the circumstances of defendant’s current offense
and his history of committing similar offenses against other
young children, we conclude that the sentence of life impris-
onment without the possibility of parole that the trial court
imposed pursuant to ORS 137.719(1) is not disproportionate
under Article I, section 16.
	       The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
