668	                            June 16, 2016	                           No. 36

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                    STATE OF OREGON,
                    Respondent on Review,
                               v.
              WILLIAM MICHAEL ALTHOUSE,
                     Petitioner on Review.
            (CC 11C48471; CA A152626; SC S062909)

    On review from the Court of Appeals.*
    Argued and submitted September 14, 2015.
   Shawn E. Wiley, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With
him on the brief was Ernest G. Lannet, Chief Defender,
Office of Public Defense Services.
   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 Anna M. Joyce, Solicitor General.
   Sara F. Werboff and Shauna M. Curphey, Portland, filed
the brief for amicus curiae Oregon Justice Resource Center.
  Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, Brewer, and Nakamoto, Justices.**
    KISTLER, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.




_____________
	**  On appeal from Marion County Circuit Court, Lindsay Partridge, Judge.
266 Or App 548, 339 P3d 470 (2014).
	   **  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case.
Cite as 359 Or 668 (2016)	669

     Case Summary: Defendant was convicted of felony public indecency after pre-
viously having been convicted of three other felony sex crimes. Pursuant to ORS
137.719, the trial court sentenced defendant to life in prison without parole. On
appeal, defendant argued that his sentence was disproportionate in violation of
Article I, section 16, of the Oregon Constitution and cruel and unusual in violation
of the Eighth Amendment to the United States Constitution. The state responded
that ORS 138.222 barred defendant from challenging his sentence on direct
appeal. The Court of Appeals affirmed without opinion. Held: (1) ORS 138.222
does not bar direct appellate review of a presumptive life sentence imposed under
ORS 137.719; and (2) defendant’s sentence does not violate Article I, section 16,
or the Eighth Amendment, considering defendant’s prior convictions for sexual
abuse and sodomy, his uncharged wrongful sexual offenses, and the legislature’s
decision that recidivist offenders warrant greater punishment than first-time
offenders.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
670	                                                      State v. Althouse

	        KISTLER, J.
	        Defendant was convicted in 2011 of felony public
indecency after previously having been convicted of three
other felony sex crimes. Pursuant to ORS 137.719(1), the
trial court sentenced him to life imprisonment without the
possibility of parole. Throughout this litigation, defendant
has argued that, as applied to him, a sentence of life impris-
onment without the possibility of parole violates Article I,
section 16, of the Oregon Constitution and the Eighth
Amendment to the United States Constitution. The Court of
Appeals affirmed the trial court’s judgment without opinion.
State v. Althouse, 266 Or App 548, 339 P3d 470 (2014). We
allowed defendant’s petition for review to consider two issues:
whether ORS 138.222(2)(a) bars direct appellate review of a
presumptive sentence imposed pursuant to ORS 137.719(1)
and, if not, whether defendant’s sentence is unconstitutional
as applied. We hold that defendant’s sentence is both review-
able and constitutional. We accordingly affirm the Court of
Appeals decision and the trial court’s judgment.
             I.  DIRECT APPELLATE REVIEW
	        We begin with the state’s argument that ORS
138.222(2)(a) forecloses direct appellate review of defen-
dant’s sentence. Two statutes are relevant to that argu-
ment. ORS 138.222(2)(a) provides that “[a]ny sentence that
is within the presumptive sentence prescribed by the rules
of the Oregon Criminal Justice Commission” may not be
reviewed on direct appeal.1 ORS 137.719(1) provides that
the presumptive sentence for a defendant’s third felony sex
conviction is life imprisonment without the possibility of
parole.2 A trial court may impose a lesser sentence if doing
	1
      The state acknowledges that defendant’s challenge to his sentence may
be reviewed on post-conviction, but it argues that ORS 138.222(2)(a) precludes
direct appellate review of that challenge.
	2
       ORS 137.719 provides, in part:
    	 “(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 section 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.”
Cite as 359 Or 668 (2016)	671

so is “authorized by the rules of the Oregon Criminal Justice
Commission” and if the trial court finds that there are sub-
stantial and compelling reasons for departing from the pre-
sumptive sentence. ORS 137.719(2).
	        In this case, the trial court did not impose a down-
ward departure sentence pursuant to ORS 137.719(2).
Rather, it imposed the presumptive sentence provided
in ORS 137.719(1). It follows, the state argues, that ORS
138.222(2)(a) precludes defendant from challenging that
sentence on direct appeal. In making that argument, the
state recognizes that ORS 138.222(2)(a) applies only to pre-
sumptive sentences “prescribed by the rules of the Oregon
Criminal Justice Commission.” It also recognizes that ORS
137.719(1) prescribed the presumptive sentence that the
trial court imposed. It argues, however, that the Oregon
Criminal Justice Commission’s rules define the term “pre-
sumptive sentence” as meaning both a presumptive sen-
tence specified in a sentencing guidelines “grid block” and
“a sentence designated as a presumptive sentence by stat-
ute.” See OAR 213-003-0001(16) (defining “presumptive sen-
tence”).3 The state reasons that, because the Commission’s
administrative rules designate a life sentence imposed pur-
suant to ORS 137.719(1) as a “presumptive sentence” and
because the Commission’s rules also direct trial courts to
impose presumptive sentences that the guidelines provide,4
a life sentence imposed pursuant to ORS 137.719(1) is a
“presumptive sentence prescribed by the rules of the Oregon
Criminal Justice Commission,” as that phrase is used in

	3
       As initially promulgated, the Commission’s rules provided:
    “ ‘Presumptive sentence’ means the sentence provided in a grid block for an
    offender classified in that grid block by the combined effect of the crime seri-
    ousness ranking of the current crime of conviction and the offender’s crimi-
    nal history.”
Former OAR 253-03-001(15) (1988). In 2001, the legislature enacted ORS
137.719, which specifies a presumptive sentence for a defendant’s third felony sex
conviction. See Or Laws 2001, ch 884, § 4. Afterwards, the Commission amended
and renumbered the definition of “presumptive sentence” in its administrative
rules to include statutorily designated presumptive sentences. See OAR 213-003-
0001(16) (2007) (adding the current phrase “or a sentence designated as a pre-
sumptive sentence by statute” to the definition of presumptive sentence).
	4
       OAR 213-008-0001 provides that, except as otherwise specified, a sentenc-
ing court “shall impose the presumptive sentence provided by the guidelines
unless the judge finds substantial and compelling reasons to impose a departure.”
672	                                                    State v. Althouse

ORS 138.222(2)(a). It follows, the state concludes, that ORS
138.222(2)(a) precludes our review of defendant’s challenge
to his sentence.
	        In analyzing the state’s argument, we follow our
customary methodology. We begin with the text and context
of ORS 138.222(2)(a) and, if appropriate, turn to the leg-
islative history of that statute. See State v. Walker, 356 Or
4, 13, 333 P3d 316 (2014) (describing statutory construction
methodology).
A.  Text
	          ORS 138.222 provides, in part:
    	 “(2)  Except as otherwise provided in subsection (4)(c)
    of this section, on appeal from a judgment of conviction
    entered for a felony committed on or after November 1,
    1989, the appellate court may not review:
    	 “(a)  Any sentence that is within the presumptive
    sentence prescribed by the rules of the Oregon Criminal
    Justice Commission.”
The text of ORS 138.222(2)(a) bars direct appellate review
of a sentence if three prerequisites are met. First, the chal-
lenged sentence must be a presumptive sentence.5 Second,
the challenged sentence must be “within [a] presumptive sen-
tence.” Finally, the challenged sentence must be “prescribed
by the rules of the Oregon Criminal Justice Commission.”
	        There is no dispute that the first prerequisite is sat-
isfied. A sentence of life imprisonment without possibility of
parole imposed pursuant to ORS 137.719(1) is a “presump-
tive sentence.” The statute designates it as such. See ORS
137.719(1) (providing that the “presumptive sentence” for a
defendant’s third felony sex crime is life imprisonment with-
out the possibility of parole).
	       The second prerequisite—that the sentence be
“within” a presumptive sentence—poses a bigger hurdle for
the state. ORS 137.719 imposes a presumptive sentence of

	5
     The text does not expressly require that the challenged sentence be a pre-
sumptive sentence. However, we presume that a sentence that is “within [a] pre-
sumptive sentence” will be a presumptive sentence.
Cite as 359 Or 668 (2016)	673

life imprisonment without parole for a third conviction of
certain felony sex crimes. However, life without parole is not
a sentence “within” another sentence; that is, life without
parole is not a sentence that falls within a range of possi-
ble sentences marked by minimum and maximum levels of
severity. Rather, life without parole is a fixed term of impris-
onment whereby a defendant remains incarcerated for the
remainder of his or her natural life, however long that may
be. While a sentence imposed pursuant to ORS 137.719(1)
is a presumptive sentence, it is not “within” a presumptive
sentence or range of presumptive sentences, as that term is
ordinarily understood.

	        The third prerequisite—that the sentence be within
the presumptive sentence “prescribed by the rules of the
Oregon Criminal Justice Commission”—also cuts against
the state’s position. Ordinarily, the Commission’s rules
establish “grid blocks” that prescribe a range of presump-
tive sentences for a crime, depending on the severity of
the crime and the offender’s criminal history. See State v.
Speedis, 350 Or 424, 427, 256 P3d 1061 (2011). Although
the grid blocks established by the Commission’s rules are
not effective until the legislature approves them, the legisla-
ture does not prescribe the presumptive sentences that the
Commission establishes by rule. See State v. Lane, 357 Or
619, 624, 355 P3d 914 (2015) (explaining that, in approving
the Commission’s sentencing guidelines rules, the legisla-
ture is not “formally adopting them as statutes”).

	        The presumptive sentence that the trial court
imposed in this case departs from that usual model in two
respects. First, in this case, a statute—ORS 137.719(1)—
prescribed the presumptive sentence that the court imposed,
and the statute did so independently of anything that the
Commission did or did not do. Second, the same thing can-
not be said for the Commission’s rule. Rather, the applicable
rule merely cross-references the statute. It defines a pre-
sumptive sentence, in part, as “a sentence designated as a
presumptive sentence by statute.” OAR 213-003-0001(16). If
the legislature repealed ORS 137.719, no presumptive life
sentence for a defendant’s third felony sex offense would be
prescribed by rule or otherwise.
674	                                        State v. Althouse

	        To be sure, it is possible to say, as the state does,
that the Commission’s rules prescribe by cross-reference the
same sentence that ORS 137.719(1) prescribes independently
of the rules. However, the state’s rule-based argument does
not fit comfortably with the usual understanding of the
phrase “prescribed by the rules of the Oregon Criminal
Justice Commission” found in ORS 138.222(2)(a). Moreover,
as explained above, it is difficult to describe a life sentence
prescribed either directly by ORS 137.719(1) or deriva-
tively by the Commission’s rules as being “within” a pre-
sumptive sentence or range of presumptive sentences. See
ORS 138.222(2)(a) (imposing that requirement). Focusing
solely on the text of the applicable statutes and rules, we
are doubtful that the state can shoehorn a presumptive sen-
tence imposed pursuant to ORS 137.719(1) into the prohibi-
tion on direct appellate review found in ORS 138.222(2)(a).
B.  Context
	         The context of ORS 138.222(2)(a) includes “ ‘the pre-
existing common law and the statutory framework within
which the law was enacted.’ ” Stevens v. Czerniak, 336 Or 392,
401, 84 P3d 140 (2004) (quoting Denton and Denton, 326 Or
236, 241, 951 P2d 693 (1998)). The legislature enacted what
is now codified as ORS 138.222(2)(a) in 1989. See Or Laws
1989, ch 790, § 21. Before then, Oregon statutes set a maxi-
mum indeterminate sentence for each class of felonies, and
trial courts were free in individual criminal cases to impose
a sentence anywhere within the statutory maximum. See
Thomas A. Balmer, Some Thoughts on Proportionality, 87
Or L Rev 783, 791-92 (2008) (describing shift from indeter-
minate to determinate sentencing schemes); ORS 161.605
(specifying maximum indeterminate sentences for Class
A, B, and C felonies). For example, aggravated first-degree
theft is a Class B felony, ORS 164.057(2), and the maximum
sentence for a Class B felony is 10 years, ORS 161.605(2).
Before 1989, if a defendant were convicted of that offense,
the sentencing court could impose an indeterminate sen-
tence anywhere within that 10-year range after considering
a broad array of evidence. See Speedis, 350 Or at 427.
	        The wide latitude of sentencing choices that charac-
terized indeterminate sentencing “sometimes led to disparate
Cite as 359 Or 668 (2016)	675

sentences for similarly situated defendants.” Id. As a result of
that problem, the 1985 Oregon Legislature established what
is now known as the Oregon Criminal Justice Commission
and directed the Commission to develop recommendations
for criminal sentencing. See Or Laws 1985, ch 558, §§ 2-3. In
response to the legislature’s directive, the Commission cre-
ated a grid of presumptive sentences, where the appropri-
ate grid block for a conviction lies at the intersection of two
axes—one axis representing the seriousness of the crime
of conviction and the other axis representing a defendant’s
criminal history. See Speedis, 350 Or at 427 (describing sen-
tencing guidelines grid blocks); OAR 213-004-0001(1). Once
a sentencing court determines the grid block within which a
defendant’s conviction falls, the grid block specifies a range
of presumptive sentences for that conviction, and the sen-
tencing court may impose a sentence within that range. See
OAR 213-005-0001(1) (stating that “the presumptive sen-
tence shall be a term of imprisonment within the durational
range of months stated in the grid block”).6
	        In 1989, the Oregon legislature approved the sen-
tencing guidelines that the Commission had promulgated
and made them applicable to felonies committed on or after
November 1, 1989. See Or Laws 1989, ch 790, §§ 2, 87. The
legislature also provided that sentences within the sentenc-
ing grid blocks will “constitute presumptive sentences.” Id.
§ 95. A trial court need not impose a presumptive sentence,
however. Rather, the 1989 act also authorized trial courts to
impose departure sentences “outside the presumptive sen-
tence or sentence range made presumptive * * * for a specific
offense if it finds * * * there are substantial and compelling
reasons justifying a deviation from the presumptive sen-
tence.” Id. § 39; see id. § 95.
	       In the same bill in which the legislature approved
the sentencing guidelines and directed courts to impose a
presumptive sentence provided by the applicable grid block,

	6
        For example, aggravated first-degree theft is a Class B felony. Under the
sentencing guidelines, aggravated first-degree theft is ranked at “Crime Category
6” if the amount of loss is greater than $50,000. See OAR 213-018-0010(1). If a
defendant is convicted of aggravated first-degree theft and is classified in crim-
inal history category A, the sentencing guidelines prescribe a presumptive sen-
tence of 25 to 30 months in prison. See OAR ch 213, App 1.
676	                                        State v. Althouse

the legislature also enacted the statute that currently is
codified as ORS 138.222. See id. § 21. Specifically, the 1989
legislature precluded appellate review of “[a]ny sentence
that is within the presumptive sentence prescribed by the
rules of the [Oregon Criminal Justice Commission],” while
authorizing judicial review of departure sentences. Compare
id. § 21(2)(a) (precluding review of presumptive sentences),
with id. § 21(3) (authorizing review of departure sentences).

	       Read in the context of the larger bill of which it was
a part, the phrase in ORS 138.222(2)(a)—“[a]ny sentence
that is within the presumptive sentence prescribed by the
rules of the Oregon Criminal Justice Commission”—can
have only one referent: The phrase refers to a sentence that
comes within the range of presumptive sentences prescribed
by a sentencing guidelines grid block. Conversely, if a trial
court does not impose a sentence within the presumptive
sentence set out in a grid block but imposes a departure sen-
tence instead, then the departure sentence may be reviewed
on appeal. See ORS 138.222(3) (so providing).

	         That is the conclusion that this court drew from
the text and context of ORS 138.222(2)(a) in State ex rel
Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145, cert den,
522 US 994 (1997). As this court explained in Huddleston,
ORS 138.222(2)(a) “refers only to ‘the sentence provided
in a grid block for an offender classified in that grid block
by the combined effect of the crime seriousness ranking of
the current crime of conviction and the offender’s criminal
history.’ ” Id. at 605 (quoting OAR 253-03-001(16) (1995))
(emphasis added). The court in Huddleston drew the same
conclusion from the legislative history of ORS 138.222(2)(a).
See id. at 606-07 (discussing legislative history). If, as this
court held in Huddleston and the text, context, and legis-
lative history of ORS 138.222(2)(a) confirm, the phrase in
ORS 138.222(2)(a)—“[a]ny sentence within the presump-
tive sentence prescribed by the rules” of the Commission—
“refers only to ‘the sentence provided in a grid block for an
offender classified in that grid block,’ ” Huddleston, 324 Or
at 605, then ORS 138.222(2)(a) does not preclude review of
a presumptive sentence that is not contained within a grid
block. Specifically, ORS 138.222(2)(a) does not preclude
Cite as 359 Or 668 (2016)	677

review of a presumptive life sentence imposed pursuant to
ORS 137.719(1).
	        The state argues, however, that we should not take
Huddleston at face value, at least in the context of this case.
The state reasons that, when this court decided Huddleston,
the legislature had not yet enacted ORS 137.719, nor had the
Commission promulgated rules that defined a “presumptive
sentence” as meaning “a sentence designated as a presump-
tive sentence by statute.”7
	        In our view, that sequence of events cuts against
the state’s argument. Because the 1989 legislature intended
that ORS 138.222(2)(a) would apply only to presumptive
sentences contained within a grid block, Huddleston, 324 Or
at 605, the state’s argument necessarily depends on one of
two propositions: either (1) the 2001 legislature that enacted
ORS 137.719 intended that presumptive sentences imposed
outside of a grid block be included within the class of pre-
sumptive sentences that ORS 138.222(2)(a) shields from
direct review or (2) the 1989 legislature gave the Commission
authority to enlarge by rule the class of sentences to which
ORS 138.222(2)(a) applies.
	        The state does not identify anything in the text,
context, or legislative history of ORS 137.719 that suggests
that, in enacting that statute, the 2001 legislature intended
to expand the class of presumptive sentences that would be
shielded from direct appellate review, nor are we aware of
any basis for attributing that intent to the 2001 legislature.
	        The state’s argument accordingly appears to rest
on the second proposition noted above: that the Commission
has authority to alter the meaning of ORS 138.222(2)(a). On
that issue, the legislature has authorized the Commission to
amend presumptive sentences included within a grid block.
See ORS 137.667(1) (authorizing the Commission to adopt
“necessary modifications to the crime seriousness scale of
the guidelines” for new and legislatively modified crimes
	7
      The legislature enacted ORS 137.719 in 2001, 12 years after it enacted
ORS 138.222(2)(a). See Or Laws 2001, ch 884, § 4. Five years later, in 2006,
the Commission amended the definition of “presumptive sentence” to include the
current phrase “or a sentence designated as a presumptive sentence by statute.”
OAR 213-003-0001(16) (2007).
678	                                         State v. Althouse

and to “classify offenses as person felonies or person misde-
meanors for the purposes of the rules”). However, the state
points to no statute that gives the Commission authority to
shield presumptive sentences that are not contained within
a grid block from appellate review. To be sure, the legisla-
ture must approve the sentencing guidelines for them to
be effective. However, legislative approval does not convert
the Commission’s rules into statutes, nor does it give the
Commission power to trump by rule what a statute provides.
See Lane, 357 Or at 624.
	        Whatever the Commission may have envisioned
when it expanded its rule-based definition of presump-
tive sentence in 2006, the Commission has no authority to
amend by rule the scope of ORS 138.222(2)(a). Because a
sentence imposed pursuant to ORS 137.719(1) does not come
within the class of sentences to which ORS 138.222(2)(a)
applies, we turn to defendant’s argument that a sentence of
life imprisonment without possibility of parole, as applied
to him, violates the proportionality clause of Article I, sec-
tion 16, of the Oregon Constitution, as well as the Eighth
Amendment to the United States Constitution.
         II.  CONSTITUTIONAL CHALLENGES
	        In considering defendant’s constitutional challenges
to his sentence, we first set out the relevant sentencing
facts. We then discuss the legal principles applicable to
defendant’s state constitutional challenge and explain why
his sentence is not constitutionally disproportionate in vio-
lation of Article I, section 16. Finally, we turn to defendant’s
Eighth Amendment challenge.
A.  Sentencing Facts
	        The facts relevant to defendant’s as-applied chal-
lenge to his sentence are not limited to the facts that gave
rise to his 2011 conviction for public indecency. That is so
for two reasons. First, the trial court sentenced defendant
pursuant to a repeat-offender statute, which authorizes an
enhanced sentence for a third felony sex conviction. When
a court imposes an enhanced sentence based on a repeat
offender statute, we consider a defendant’s criminal history
in determining whether the sentence is proportionate to
Cite as 359 Or 668 (2016)	679

the crime. See State v. Wheeler, 343 Or 652, 673, 175 P3d
438 (2007) (explaining that, for repeat offender sentences,
“the analysis must focus not only on the latest crime and its
penalty, but on the defendant’s criminal history”); State v.
Smith, 128 Or 515, 525-26, 273 P 323 (1929) (same). Second,
defendant has raised an as-applied challenge to his sentence,
which requires consideration not only of his past convictions
but also of his past instances of relevant uncharged miscon-
duct. See State v. Rodriguez/Buck, 347 Or 46, 78, 217 P3d
659 (2009) (“Traditional understandings of proportionality,
as well as this court’s cases, require us to consider whether a
defendant is a repeat offender by considering previous crim-
inal convictions and whether there is evidence of multiple
instances of uncharged wrongful conduct.”). We accordingly
summarize defendant’s history of charged and uncharged
sex offenses, which we take from the uncontested prelimi-
nary sentence investigation.8
	        In 1982, defendant was convicted of first-degree
sexual abuse for touching the vaginal area and buttocks of
his eight-year-old daughter. He later admitted that, during
the same time period, he fondled his five-year-old son and
that the abuse of his children occurred more than once.
As a result of his 1982 sexual-abuse conviction, defendant
initially was placed on probation for three years and par-
ticipated in a sex offender treatment program. In 1983, he
was terminated from the treatment program because “he
simply chose to maintain his dangerous patterns of deviant
thinking.” In 1985, defendant’s probation was revoked, and
he was sentenced to five years in prison. The presentence
report does not specify the grounds for revoking defendant’s
probation.
	        In 1993, a woman reported to the Seaside, Oregon
police that she had seen defendant talking to her five-year-
old son outside their home. Defendant had put his arm
around the boy “like he was going to pick him up.” When
asked what he was doing, defendant replied that “he was
just giving the child a hug.” Although defendant was asked
	8
       The trial court directed that a presentence report be prepared so that it
could decide whether to impose a downward departure sentence. At the sentenc-
ing hearing, defendant did not contest the accuracy of any fact set out in the
report.
680	                                                        State v. Althouse

to leave, he returned to the boy’s house twice. Later, the
boy told his mother that defendant had touched him on his
penis.
	        Two days later, defendant approached a family on
the beach at Seaside and told them he was trying to find
a lost dog. The parents went out in their boat, leaving one
of their children—a nine-year-old boy—alone. The boy went
back to his family’s motor home. Defendant followed and
asked if he could come inside to play a board game with the
boy. After the boy let defendant inside, defendant took off his
shirt. The boy became uncomfortable and tried to get out of
the house. Defendant stopped him, forced the boy into the
bathroom where he put a shirt over the boy’s mouth, and
orally sodomized him. Defendant then forced the boy to per-
form oral sex on him. The boy got out of the house and iden-
tified defendant to other persons in the motor home park.
	         As a result of those acts, defendant was convicted
of first-degree sodomy, first-degree sexual abuse, and first-
degree burglary. While defendant was waiting to be sen-
tenced on those convictions, he was involved in a separate
incident in Hillsboro, Oregon. A different nine-year-old
boy, whom defendant knew, saw defendant “looking at him
through the sliding glass door” of the boy’s home. Defendant
started to open the glass door, but the boy closed the door
and locked it. The boy called his mother, who saw defendant
running away from the bushes near their patio. The police
arrived and saw defendant “staggering through the parking
lot of the apartment complex with no pants on.” Defendant
was arrested for second-degree criminal trespass.9
	       After the incident in Hillsboro, the Clatsop County
Circuit Court sentenced defendant to approximately 10
years in prison for the convictions arising out of his assault
on the boy in Seaside. In 2001, defendant was released
from prison on post-prison supervision. Between 2001 and
2002, defendant violated the terms of his release five times.
	9
      It is unclear whether the Washington County District Attorney’s office pur-
sued the Hillsboro charge beyond reporting it to the sentencing court in Clatsop
County. Additionally, while defendant was waiting to be sentenced on the Clatsop
County charges, he was living within 500 feet of a school in violation of his release
agreement.
Cite as 359 Or 668 (2016)	681

Among other things, he went to a park and “got nude” after
he saw a family a short distance away, he exposed himself in
a public hot tub, he looked at pictures of nude children, and
he “masturbate[ed] in front of his bedroom window on three
occasions, with the windows full[y] opened so someone could
see him through the open window.”
	        In 2002, defendant was walking naked, except for
a baseball cap, through a Marion County park. In investi-
gating a complaint about defendant’s behavior, the police
learned that defendant was on post-prison supervision for
sex crimes and was not supposed to be at a park where chil-
dren congregate. They arrested him for public indecency.
Later, defendant admitted to his parole officer that, while
he was naked in the park, he had approached a child who
was fishing in the river. A Marion County Circuit Court con-
victed defendant of public indecency for that offense, but it
did not impose a presumptive sentence of life imprisonment
without possibility of parole. Rather, the court sentenced
defendant to 48 months in prison.
	        After serving that sentence, defendant was released
on post-prison supervision in October 2006. In November
2006, defendant violated the terms of his release by viewing
child pornography on the Internet and received a 10-day jail
sanction. Afterwards, he received 11 more jail sanctions for
violating the terms of his release. Among other things, he
was arrested in 2007 after several of his neighbors saw him
walking around nude. He was arrested again in 2009 for
doing yard work while nude. In 2010, he was seen walking
nude around a school for hearing impaired children. When
the police questioned defendant about that reported behav-
ior, defendant denied having been nude. A few days later,
he absconded from supervision only to be found at a rest
stop in Idaho. After being extradited to Oregon, defendant
admitted to his parole officer that he had been walking nude
around the children’s school. He also admitted that, before
he left for Idaho, he routinely walked nude in the alleys
around the transitional house in downtown Salem, Stepping
Out Ministries, where he had been living.
	       In 2011, defendant committed the offense that has
given rise to this case. He sat naked off to the side of a
682	                                                      State v. Althouse

popular jogging path in Salem, approximately 150 feet from
a middle school. The woman who reported defendant to the
police told the officer that “there were children walking in
the area.” After his arrest, defendant explained that he has
a sexual addiction and is aroused by sitting in public with-
out his pants.
	         As a result of his convictions for various sex offenses,
defendant frequently has engaged in sex offender treatment.
After defendant’s 1982 conviction for sexually abusing his
daughter, Oregon State Hospital staff evaluated defendant
and determined that he was a “sexually dangerous per-
son.”10 In light of that finding, defendant was accepted into a
sex-offender treatment program at the hospital, but he was
subsequently terminated from that program because he
“simply chose to maintain his dangerous pattern of deviant
thinking.” Between 1982 and 2012, defendant participated
in several sex-offender treatment programs. However, he
frequently discontinued his treatment in those programs
and failed “to gain control over his [s]exual [a]ggression.” In
2006, a psychologist concluded that defendant presented “a
high risk for [s]exual aggression,” noting that “he has esca-
lated his acting out from assaulting family members to sex-
ually assaulting complete strangers over the years.” Given
that history, the trial court declined to impose a downward
departure sentence on defendant’s fourth felony sex convic-
tion. Instead it imposed the statutory presumptive sentence
of life imprisonment without the possibility of parole.
B.  Defendant’s Constitutional Challenges
	        Defendant does not argue that a life sentence with-
out possibility of parole is facially unconstitutional; that is,
he recognizes that, for some repeat sex offenders, a life sen-
tence without possibility of parole is neither constitutionally
disproportionate nor cruel and unusual. See Wheeler, 343 Or
at 678-79 (holding that presumptive life sentence imposed
pursuant to ORS 137.719(1) is facially constitutional under
Article I, section 16). He argues, however, that, as applied

	10
      A “sexually dangerous person” is one “who because of repeated or com-
pulsive acts of misconduct in sexual matters, or because of a mental disease or
defect, is deemed likely to continue to perform such acts and be a danger to other
persons.” ORS 426.510.
Cite as 359 Or 668 (2016)	683

to the circumstances of his case, his sentence violates the
state constitutional requirement that sentences be propor-
tioned to the offense and the Eighth Amendment prohibi-
tion against cruel and unusual punishment. We begin with
defendant’s state constitutional challenge.
     1.  Article I, section 16
	        Article I, section 16, provides, in part:
    “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.”
For the most part, this court has analyzed the requirement
that “penalties shall be proportioned to the offense” sepa-
rately from the related prohibition on cruel and unusual
punishments. Wheeler, 343 Or at 666. In considering that
constitutional provision, this court initially asked, without
engaging in an extended inquiry, whether the length of the
sentence shocked the moral sense of all reasonable people.
See, e.g., State v. Rogers, 313 Or 356, 380, 836 P2d 1308
(1992), cert den, 507 US 974 (1993) (death penalty for mur-
der committed during the course of attempted first-degree
sex abuse “would not shock the moral sense of reasonable
people”); State v. Teague, 215 Or 609, 611, 336 P2d 338
(1959) (per curiam) (18-years imprisonment for two separate
forgery convictions did not shock the moral sense of reason-
able people); Sustar v. County Court of Marion Co., 101 Or
657, 665, 201 P 445 (1921) (six-month jail sentence and $500
fine for possessing alcohol did not “shock the moral sense of
all reasonable men as to what is right and proper under the
circumstances”) (citing Weems v. United States, 217 US 349,
30 S Ct 544, 54 L Ed 793 (1910)).
	In Wheeler, the court explained that the question
whether a punishment shocked the moral sense of all rea-
sonable people was not intended to be taken literally. 343
Or at 670. Rather, in stating that test, the court had sought
“to articulate a standard that would find a penalty to be
disproportionately severe for a particular offense only in
rare circumstances.” Id. That is, the standard that the court
articulated was intended to reflect the principle that the
684	                                            State v. Althouse

legislature has primary authority to determine the gravity
of an offense and the appropriate length of punishment. Id.
at 671. Only in those rare instances when the legislature
has exceeded that authority may a court say that a particu-
lar punishment is unconstitutionally disproportionate. Id.
	        Two years later, in considering an as-applied con-
stitutional challenge to the punishment for a single offense,
this court identified three factors that bear on that inquiry:
   “(1) a comparison of the severity of the penalty and the grav-
   ity of the crime; (2) a comparison of the penalties imposed
   for other, related crimes; and (3) the criminal history of the
   defendant.”
Rodriguez/Buck, 347 Or at 58. Applying those factors, the
court noted that neither of the defendants in Rodriguez/Buck
had any prior criminal history, that each of their offenses
consisted of a single instance of inappropriate contact, that
the contact, while inappropriate, was limited in duration
and intensity, and that the conduct was at the “outer edge”
of what is prohibited. Yet, each defendant received the same
75-month mandatory sentence that a person who had com-
mitted far more egregious sexual abuse would receive.
	       Additional considerations come into play when a
court assesses the constitutionality of a statute that imposes
an enhanced sentence on repeat offenders. As this court
explained in Tuel v. Gladden, 234 Or 1, 6, 379 P2d 553
(1963),
   “Habitual criminal [statutes] are based upon the belief
   that the criminal, as well as the crime, is a material factor
   to be considered in fixing the sentence. If the criminal is a
   menace to the community, his sentence should be aimed at
   offering the most protection to the community, regardless
   of the relative innocuousness of the particular crime for
   which he is now convicted.”
For example, the court explained in Smith that ordinarily a
sentence of life imprisonment for receiving stolen property
(the defendant’s most recent conviction that triggered the
repeat offender sentence) would be “astound[ing].” 128 Or
at 525. However, because the defendant in that case had
“been convicted at least four times for burglariously preying
upon the property and safety of others,” the court held that
Cite as 359 Or 668 (2016)	685

a life sentence was not constitutionally disproportionate.
Id. at 526; see Tuel, 234 Or at 6-7 (because repeat property
offender had proven that he was not likely to reform, sen-
tence of life imprisonment without possibility of parole did
not violate principle in Article I, section 15, that sentences
should be based on principles of reformation).
	        Similarly, in the context of a statute that autho-
rized enhanced sentences for repeat sexual offenders, this
court explained that the question whether an enhanced sen-
tence for that conduct would “shock the moral sense would,
of course, depend upon the seriousness of repetitive sexual
conduct of th[e] kind [punished by the statute] and the dan-
ger that it forecasts for others unless the defendant is segre-
gated from society.” Jensen v. Gladden, 231 Or 141, 144-45,
372 P2d 183 (1962). In Jensen, the defendant had been con-
victed of two sex offenses: contributing to the delinquency
of a minor and, two years later, indecent exposure. Id. at
142. As a result of the second offense, the trial court sen-
tenced the defendant under a repeat-offender statute to life
imprisonment with the possibility of parole. Id. at 142-43. In
upholding that sentence against a state constitutional pro-
portionality challenge, this court noted that the legislature
reasonably could have concluded that sex offenders “tend to
be recidivists” and “progress from minor to major crimes.” Id.
at 145. It also noted that the parole board retained author-
ity to release the defendant if it concluded that release was
appropriate “to effect psychiatric rehabilitation.” Id. at 147.
	        With that background in mind, we turn to defen-
dant’s argument that a life sentence without possibility of
parole, as applied to his circumstances, violates Article I,
section 16. Defendant argues, and we agree, that the three
factors identified in Rodriguez/Buck should guide our reso-
lution of his Article I, section 16, proportionality challenge.
However, as we explain below, the first and third of those
factors overlap in comparing the severity of the penalty
and the gravity of the crimes that gave rise to the repeat-
offender sentence. Additionally, the second factor identi-
fied in Rodriguez/Buck—the penalties imposed for related
crimes—can provide a helpful perspective in comparing
the severity of the penalty and the gravity of the crimes.
However, the various combinations of convictions that can
686	                                       State v. Althouse

give rise to an enhanced sentence can diminish the extent
to which a comparison of the penalty for a single related
offense will shed light on the proportionality analysis.
        a.  First and third Rodriguez/Buck factors
	         The first factor identified in Rodriguez/Buck is
a comparison of the severity of the penalty and the grav-
ity of the offense. 347 Or at 59-63. In this case, defendant
was sentenced as a repeat offender. As a result, we do not
focus solely on the last offense that he committed in con-
sidering the gravity of the offense; we focus on the gravity
of his criminal history. Wheeler, 343 Or at 673. Moreover,
because defendant has raised an as-applied challenge to
his sentence, we consider the specific circumstances of the
charged and uncharged offenses that make up his criminal
history in assessing its gravity. See Rodriguez/Buck, 347 Or
at 78. It follows that, in considering an as-applied challenge
to a sentence imposed under a repeat-offender statute, the
first and third factors identified in Rodriguez/Buck, in large
part, coalesce.
	         In analyzing the gravity of the offense, defendant
focuses on his most recent conviction for public indecency.
He notes that a first offense for public indecency is a misde-
meanor, and he contends that the specific conduct for which
he was convicted in 2011 was “not particularly serious or
harmful.” He observes that he was “fully clothed except for
his pants” when the woman on the jogging path spotted him,
and he says that she had to look closely to see his exposed
genitals. In defendant’s view, his most recent conviction does
not suggest that he poses a risk of harm to others. An amicus
brief filed in support of defendant makes the same point but
in a broader fashion. The amicus asserts that persons “con-
victed of public indecency simply do not pose the same risk
of violent or sexual recidivism when compared to sexual
offenders as a group or criminal offenders in general.”
	        We may agree with defendant that public indecency,
considered in isolation, is not as serious as some other sex
crimes. That much follows from the legislature’s classifi-
cation of that offense. The legislature has classified public
indecency as a misdemeanor unless the defendant previously
has been convicted of public indecency or another specified
Cite as 359 Or 668 (2016)	687

sex crime, in which case the offense is classified as a Class C
felony. ORS 163.465(2). This is not a case, however, in which
defendant’s criminal history consists of a single conviction
for public indecency, nor is this a case in which the three con-
victions that resulted in a presumptive life sentence under
ORS 137.719(1) are three felony public indecency convictions.
Rather, this is a case in which defendant, over a 30-year
period, has been convicted of sexual abuse and sodomy of his
own and other people’s children, as well as public indecency.
And many of the charged and uncharged instances in which
defendant has engaged in public indecency during that
30-year period have been directed at or related to children.
Indeed, defendant’s most recent conviction for public inde-
cency occurred approximately 150 feet from a middle school,
and the woman who reported his behavior to the police told
the officer that there were children walking in the area.
	        This is not one of those rare instances in which
the enhanced sentence that the legislature authorized for
a repeat offender is constitutionally disproportionate to the
offender’s criminal history. See Wheeler, 343 Or at 671-72
(recognizing legislature’s primary role in setting punish-
ments for repeat offenders). Rather, as the record in this
case reveals, defendant’s most recent conviction for public
indecency reflects a deeply ingrained pattern of predatory
behavior that has persisted since 1982 when he was first
convicted for sexually abusing his eight-year-old daughter.
Given the seriousness of defendant’s repeated sexual miscon-
duct and the danger that it forecasts for others, we cannot
say that imposing a presumptive life sentence in response to
defendant’s pattern of criminal behavior violated Article I,
section 16. Cf. Jensen, 231 Or at 145-46 (upholding a life sen-
tence imposed as a result of two sex offenses: contributing to
the delinquency of a minor followed by public indecency).
	        Defendant makes two additional arguments regard-
ing the severity of the sentence and the gravity of the
offense, which we discuss briefly. First, defendant notes that
the sentence in Jensen was life with the possibility of parole
while the sentence in this case is life without the possibil-
ity of parole. However, as this court explained in Tuel, an
inability to reform one’s conduct despite repeated oppor-
tunities to do so—an inability that the record in this case
688	                                         State v. Althouse

amply demonstrates—can justify the legislature’s decision
to impose a life sentence without the possibility of parole.
See Tuel, 234 Or at 7 (upholding life sentence without possi-
bility of parole as applied to a four-time offender). We are not
persuaded that, on these facts, the absence of the possibility
of parole makes defendant’s life sentence unconstitutionally
disproportionate, as applied.
	        Second, defendant notes that the life sentence that
he received under ORS 137.719(1) substantially exceeds
the guidelines sentence that he would have received for his
2011 conviction for public indecency. Relying on Wheeler,
he argues that the difference between the two sentences is
significant. Specifically, he contends that, the greater the
difference between the two sentences, the more likely it is
that his sentence under the repeat offender statute is dispro-
portionate in violation of Article I, section 16. In our view,
defendant reads too much into Wheeler.
	         The defendant in Wheeler previously had been con-
victed of two felony sex offenses. His third conviction resulted
from 18 separate felony sex offenses that involved three chil-
dren. 343 Or at 677. As a result of the third conviction, the
trial court imposed a presumptive life sentence on the defen-
dant pursuant to ORS 137.719(1). In holding that that sen-
tence was constitutional, as applied, this court noted that
the defendant could have received a guidelines sentence of
111 years in prison if the trial court had imposed guide-
lines sentences consecutively on each of his 18 offenses. Id.
at 677-78. Given that fact, the court observed that it was dif-
ficult for the defendant to argue that a life sentence imposed
pursuant to ORS 137.719(1) “would ‘shock’ anyone’s moral
sense.” Id. at 679.
	Although Wheeler found the comparison between
the two sentences instructive in that case, we do not under-
stand the court to have either held or suggested that a
repeat offender sentence will be constitutionally proportion-
ate under Article I, section 16, only if the guidelines sen-
tence for the current crime is effectively the same as the sen-
tence imposed under the repeat offender statute. Similarly,
Wheeler does not support the proposition that defendant
urges us to draw from that decision—that, the greater the
Cite as 359 Or 668 (2016)	689

disparity between the two sentences, the more likely it is
that the repeat offender sentence is constitutionally dispro-
portionate. Indeed, that proposition would focus primarily
on the gravity of a defendant’s last offense—the one that
triggered the imposition of a repeat offender sentence—in
determining the constitutionality of the sentence. However,
as this court has long recognized, an analysis of the consti-
tutionality of a defendant’s repeat offender sentence “must
focus not only on the latest crime and its penalty, but on the
defendant’s criminal history.” Wheeler, 343 Or at 673; see
Jensen, 231 Or at 142, 144-45 (focusing on defendant’s crim-
inal history, not his conviction for public indecency, in decid-
ing constitutionality of repeat offender sentence); Smith, 128
Or at 525-26 (following same principle).
	        This is not to say that the sentence that a defendant
would have received for the offense that triggered the impo-
sition of a repeat-offender sentence has no bearing on the
proportionality analysis. It reflects the legislature’s judg-
ment regarding the gravity of that single offense. However,
our cases have held that what matters in determining the
constitutionality of a repeat-offender sentence is the gravity
of a defendant’s criminal history. Given defendant’s crimi-
nal history, we conclude that the life sentence that the trial
court imposed is not unconstitutional, as applied.
        b.  Comparison of the penalties for related offenses
	        We also consider the second factor that the court
noted in Rodriguez/Buck—a comparison of the penalties
imposed for related offenses. See Rodriguez/Buck, 374 Or
at 63-65 (discussing that factor). However, as the court cau-
tioned in Rodriguez/Buck, courts must be careful in assess-
ing whether one offense is more serious than another. Id. at
64. The legislature is primarily responsible for ranking the
severity of offenses, and it “may decide that certain crimes
should henceforth be considered more serious and subject
to more severe penalties than other crimes that previously
had been considered more serious.” Id. With that caution
in mind, we turn to the three comparative arguments that
defendant makes here.
	        Defendant argues initially that the mix of convic-
tions that can give rise to a presumptive life sentence under
690	                                                      State v. Althouse

ORS 137.719(1) results in disproportionate sentences in vio-
lation of Article I, section 16. Relying on Rodriguez/Buck,
he argues that three relatively low-level sex crimes can
give rise to the same presumptive life sentence under ORS
137.719(1) as three far more serious sex crimes. He contends
that the court found a similar disparity constitutionally sig-
nificant in Rodriguez/Buck.
	          Defendant’s initial argument is problematic for at
least two reasons. First, as explained above, the life sentence
that the trial court imposed in this case is not dispropor-
tionate in light of defendant’s particular criminal history. If
defendant’s sentence is proportionate to his criminal history,
it is difficult to see how it advances his as-applied challenge
to argue that other defendants with less serious criminal
histories might be able to raise successful as-applied chal-
lenges to their sentences. Cf. Harmelin v. Michigan, 501 US
957, 1005, 111 S Ct 2680, 115 L Ed 2d 836 (1991) (Kennedy,
J., concurring in part and concurring in the judgment) (com-
parative analysis of related crimes primarily helpful when
threshold comparison between crime committed and sen-
tence imposed leads to inference that sentence is constitu-
tionally disproportionate).
	        Beyond that, as we understand defendant’s argu-
ment, it partakes more of a facial than an as-applied chal-
lenge. He contends that ORS 137.719(1) is similar to the
statute at issue in Rodriguez/Buck in that it imposes the
same sentence for markedly different criminal conduct.
However, unlike the statute at issue in Rodriguez/Buck,
ORS 137.719(1) does not require the same life sentence no
matter how disparate the combination of convictions that
gives rise to a repeat-offender sentence under that statute.
Rather, ORS 137.719(1) authorizes only a presumptive life
sentence. A trial court may impose a downward departure
sentence under ORS 137.719(2) for less egregious combina-
tions of offenses. The facial disparity on which defendant’s
argument appears to rely is absent here.11

	11
       If a trial court imposes a life sentence under ORS 137.719(1) that is not
constitutionally proportionate to a defendant’s criminal history, the defendant
can always raise that constitutional issue on appeal, and the appellate courts can
correct it.
Cite as 359 Or 668 (2016)	691

	         Defendant raises a second comparative argument.
He notes that ORS 137.690 requires a 25-year mandatory
minimum sentence for a defendant’s second “major felony
sex crime.”12 He argues that, under ORS 137.719(1), a per-
son who has four convictions for public indecency is subject
to life imprisonment without the possibility of parole while,
under ORS 137.690, “a person who commits two brutal rapes
would only be subject to a mandatory sentence of 25 years in
prison.” Defendant’s argument appears to be more of a facial
challenge than an as-applied challenge. Viewed that way, it
does not advance his position. ORS 137.690 provides a man-
datory minimum sentence while a ORS 137.719 provides a
presumptive maximum sentence. There is nothing inconsis-
tent or disproportionate in saying that two major felony sex
crimes will result in a minimum sentence of 25 years, see
ORS 137.690, while three felony sex crimes can result in a
maximum sentence of life imprisonment without the possi-
bility of parole, see ORS 137.719.13
	         Defendant raises a third comparative argument. He
contends that the list of felony sex offenses that will give
rise to a presumptive life sentence under ORS 137.719(1)
omits some misdemeanor and felony sex crimes that, in his
view, are as serious as the felonies included in the list. It
follows, he reasons, that the absence of those offenses from
the list of felony sex crimes that will give rise to a presump-
tive life sentence under ORS 137.719(1) renders his sentence
disproportionate.
	      Defendant’s third argument is problematic for the
same reason that his first argument is. If, as explained

	12
        ORS 137.690(b) defines “major felony sex crime” as first-degree rape, first-
degree sodomy, first-degree unlawful sexual penetration, and using a child in a
display of sexually explicit conduct.
	13
        It may be that defendant is arguing that the guidelines sentence for two
convictions for felony public indecency is substantially less than the 25-year
minimum sentence under ORS 137.690 for two convictions for “major felony sex
crimes.” To the extent that is defendant’s point, the difference reflects the legisla-
ture’s judgment that two convictions for felony public indecency are not as serious
as two convictions for “major felony sex crimes.” However, we fail to see how that
comparison advances defendant’s as-applied argument. It does not explain why
a life sentence is unconstitutionally disproportionate, as applied to defendant’s
criminal history, which is not limited to convictions for public indecency but also
includes sexual abuse and sodomy of children.
692	                                                       State v. Althouse

above, defendant’s sentence is constitutionally proportionate
as applied to his criminal history, it is difficult to see how it
advances his as-applied challenge to his sentence to argue
that the legislature also could have imposed a life sentence
on others who commit additional sex crimes. See Harmelin,
501 US at 1005 (Kennedy, J., concurring in part and concur-
ring in the judgment) (reasoning that comparison of related
offenses is less helpful when sentence appears proportion-
ate to crime). Beyond that, defendant’s argument assumes a
proposition that this court has never suggested—that there
must be a perfect proportionality among the sentences for
all related offenses before an individual sentence will be
proportioned to the offense within the meaning of Article I,
section 16. When, as explained above, defendant’s sentence
appears proportionate to his particular criminal history,
the comparisons that defendant invites us to make provide
no reason to hold that a life sentence, as applied to him, is
disproportionate in violation of Article I, section 16.
     2.  Eighth Amendment
	         Defendant argues that, as applied to him, a sen-
tence of life imprisonment without the possibility of parole
violates the Eighth Amendment’s prohibition against cruel
and unusual punishment. Justice O’Connor explained in
Ewing v. California, 538 US 11, 123 S Ct 1179, 155 L Ed 2d
108 (2003), that the “ ‘Eighth Amendment does not require
strict proportionality between crime and sentence[,]’ ” but
“ ‘forbids only extreme sentences that are “grossly dispropor-
tionate” to the crime.’ ” Id. at 23 (plurality opinion) (quoting
Harmelin, 501 US at 1001 (Kennedy, J., concurring in part
and concurring in the judgment)).14
	       To determine whether a sentence is grossly dis-
proportionate to a crime, the inquiry starts “by comparing
the gravity of the offense and the severity of the sentence.”
Graham v. Florida, 560 US 48, 60, 130 S Ct 2011, 176 L Ed
	14
       Justice Thomas and Justice Scalia concurred in the judgment in Ewing.
See 538 US at 31-32 (Scalia, J., concurring in the judgment); id. at 32 (Thomas, J.,
concurring in the judgment). Because Justice O’Connor’s plurality opinion rep-
resents the narrowest ground on which the judgment rests, her opinion controls
our application of the Eighth Amendment. See Marks v. United States, 430 US
188, 193, 97 S Ct 990, 51 L Ed 2d 260 (1977) (explaining which opinion controls
when no opinion commands a majority).
Cite as 359 Or 668 (2016)	693

2d 825 (2010). Of importance here, determining the “gravity”
of a given offense in the context of a sentence imposed under
a recidivist statute includes consideration of the defendant’s
criminal history. See Ewing, 538 US at 17-20 (plurality opin-
ion) (recounting defendant’s criminal history); id. at 29 (plu-
rality opinion) (examining defendant’s criminal history in
context of evaluating sentence imposed under California’s
“three-strikes” law). Applying the principles stated in the
plurality opinion in Ewing, we conclude that defendant’s
sentence does not violate the Eighth Amendment’s prohi-
bition against cruel and unusual punishment for the same
reason that it does not violate the requirement in Article I,
section 16, that punishment should be proportioned to the
offense.
	       The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
