No. 1008 October 21, 2026 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN VIRGIL BENSON,
Defendant-Appellant.
Linn County Circuit Court
17CR32143; A181530
Brendan J. Kane, Judge.
Argued and submitted December 8, 2025.
Kali Montague, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Doug M. Petrina, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
EGAN, J.
Affirmed.
2 State v. Benson
Cite as 354 Or App 1 (2026) 3
EGAN, J.
This criminal appeal is before us for the second time
after it was reversed and remanded for resentencing in State v. Benson, 309 Or App 422, 483 P3d 689 (2021) (Benson I),
aff’d, 370 Or 58, 514 P3d 491 (2022) (Benson II). Defendant
raises three assignments of error, which reduce to two arguments: (1) that the trial court erred in entering a conviction for attempted first-degree sexual abuse (Count 3) because it was charged outside the statute of limitations, and (2) that it erred in imposing sentences of life without the possibility of release (“true-life sentences”) on Counts 1 and 3. As to the first argument, defendant raised the same issue in an unpreserved posture in Benson I, and we rejected it without discussion. 309 Or App at 424. He attempted to preserve that same
issue while on remand, but we conclude that the statuteof-limitations issue was outside the scope of remand and,
therefore, that our earlier resolution of that issue in Benson I controls. As to the second argument, which itself breaks
down into a handful of subarguments generally aimed at the
fairness and proportionality of the sentence, we ultimately
conclude that the trial court did not err in imposing true-life sentences on both convictions under ORS 137.719. We affirm.
I. STATUTE OF LIMITATIONS
We begin with the statute-of-limitations issue. In
May 2017, the grand jury indicted defendant with a single
count of attempted first-degree sexual abuse for conduct
he committed in May 2008. Defendant argues that ORS
131.125(8)(a) establishes a three-year statute of limitations for that offense and, therefore, on remand, the trial court
erred in reentering a conviction for that offense. The state responds, among other things, that we rejected that same
argument in an unpreserved posture in Benson I and that
seeking the dismissal of that conviction at resentencing was outside the scope of remand. We agree with the state.
In Benson I, defendant assigned error to the trial
court’s failure to dismiss Count 3 sua sponte because of the three-year statute of limitations. We rejected that argument without discussion. 309 Or App at 424. We ultimately
reversed defendant’s convictions on Counts 1 and 2 and
4 State v. Benson
remanded for entry of a single conviction, remanded for
resentencing, and otherwise affirmed. Id. at 440. Defendant
sought review, including our resolution of the statute-of-limitation issue, but the Supreme Court allowed review only of
a different issue and ultimately affirmed our opinion.
Therefore, when defendant returned to the trial
court on remand, his conviction on Count 3 had already been
affirmed on direct appeal, and the trial court’s authority with regard to Count 3 was limited to resentencing defendant.
Defendant’s attempts to preserve what is effectively a motion to dismiss Count 3 was outside the scope of remand. Postconviction relief proceedings may provide defendant with a
path to the relief he seeks. See Lamb v. Coursey, 238 Or App 647, 652, 656, 243 P3d 130 (2010), rev den, 250 Or 230 (2011) (holding that counsel had been constitutionally inadequate for failing to file a motion to dismiss for an offense charged outside the three-year statute of limitation set by ORS 131.125). But as the case stands before us now, we conclude that the
trial court did not err in resentencing defendant on Count 3.
II. TRUE-LIFE SENTENCES
We turn now to whether the trial court erred in
imposing the presumptive true-life sentences authorized by
ORS 137.719. Defendant presents one statutory and several
constitutional arguments, all premised upon the uncommon
timeline of defendant’s multiple prosecutions for felony sex offenses. Therefore, we begin by setting out in some detail
defendant’s relevant criminal history and the sentencing
proceeding in this case, and then we turn to our analysis of defendant’s legal arguments.
A. History of Prosecutions
The case before us was not prosecuted until 2017,
but it arose out of conduct committed in May 2008. We summarized that conduct, and the brief initial investigation into that conduct, in Benson I:
“In April 2009, B disclosed to her counselor at Rimrock
Trails Adolescent Treatment Center (Rimrock) that defendant had sexually assaulted her 11 months earlier. At
the time of the assault, defendant was 21 and B was 16.
Following her disclosure, the Prineville Police Department
Cite as 354 Or App 1 (2026) 5
(PPD) was notified and interviewed her on April 9. On
April 15, the case was transferred to Officer Webber of the
Lebanon Police Department (LPD), who assigned the case
to Detective Martinez and provided him with a short summary of the case attaching a detailed report from PPD with
the interview of B and the names of potential witnesses to
interview. * * *.
“Martinez interviewed B in April and another witness
shortly thereafter. He attempted to locate defendant but
was unable to, and the investigation halted within about a
month.”
309 Or App at 424.
In December 2010, defendant pleaded no contest to
attempted first-degree sodomy (a Class B felony sex offense) and fourth-degree assault based on allegations that, in
November 2010, when he was 24 years old, he attempted
to physically force his then-girlfriend, who was 17 years old at the time, to have anal sex against her will. He was sentenced to 36 months’ probation.
In February 2016, defendant pleaded no contest to
attempted first-degree sexual abuse (a Class C felony sex
offense) based on allegations that, in May 2015, when he was approximately 29 years old, defendant subjected a five-yearold child to sexual contact by touching her vaginal area. He was sentenced to prison for 24 months.
This case was prosecuted in 2017. In Benson I, we
summarized the lack of a satisfactory explanation for the
delay. 309 Or App at 425. Detective Martinez explained that
the investigation first lapsed at a time when he was transitioning into a new role and that the investigation was “somehow * * * overlooked in the process.” Id. It was not until the records department conducted a routine search through old
cases that the unfinished investigation was discovered and
resumed. Id. In the trial court, defendant moved to dismiss
based on the excessive preindictment delay, arguing that it
violated his federal constitutional right to due process. Id. He argued that he was prejudiced by the delay due to a loss of
evidence. Id. The trial court found that the state was “ ‘clearly culpable in the delay’ due to negligence,” but it found that the police did not act with recklessness or intent. Id. at 427. It 6 State v. Benson
ultimately denied the motion to dismiss because defendant
failed to prove nonspeculative prejudice from the delay. Id.
On appeal in Benson I, defendant reiterated his
argument made below and, for the first time on appeal, added that he was also prejudiced by the delay because it resulted in him receiving a recidivist true-life sentence for—what was in fact—his first-in-time sex offense. Id. at 428. We rejected that new argument as unpreserved and not plain error. Id.
at 436-37. And we agreed with the trial court that defendant did not establish actual prejudice from the potential loss of evidence. Id. at 439. In Benson II, the Supreme Court allowed review only on the question of whether defendant had established actual prejudice due to the loss of evidence—not for
any delay resulting from sentencing ramifications. 370 Or at 65. The court affirmed our decision. Id. at 77.
B. The Sentencing Court’s Rulings on Remand
On remand from Benson I and II, defendant argued
to the sentencing court that it should not impose a true-life sentence for a number of reasons, including that the preindictment delay constituted a substantial and compelling
reason to depart from the statutory presumptive true-life
sentence, that the sentencing statute violated the Equal
Protection Clause of the federal constitution, that it constituted a violation of his federal due process rights (arguing that the true-life sentence for a first-in-time offense constituted sufficient prejudice to establish a violation for excessive preindictment delay), and that a true-life sentence was unconstitutionally disproportionate under the state and federal constitutions. The sentencing court rejected defendant’s arguments and imposed consecutive true-life sentences for
the first-degree rape and attempted first-degree sexual
abuse convictions pursuant to ORS 137.719.
C. Analysis
1. Failure to Depart from the True-Life Presumptive
Sentence
We begin with defendant’s statutory argument that
the trial court erred in failing to depart from the presumptive true-life sentence provided for in ORS 137.719. It is not Cite as 354 Or App 1 (2026) 7
a standalone statutory argument that we typically encounter because, normally, we have no authority to review a trial court’s refusal to depart from a presumptive sentence. ORS
138.105(8)(a)(A) (providing that an “appellate court has no
authority to review” “[a] sentence that is within the presumptive sentence prescribed by the rules of the Oregon
Criminal Justice Commission.”). But that bar on reviewability does not apply to ORS 137.719’s presumptive truelife sentence because that statutory presumptive sentence is not prescribed by the rules of the Oregon Criminal Justice
Commission. State v. Althouse, 359 Or 668, 678, 375 P3d
475 (2016) (holding that former ORS 138.222(2)(a) (2015),
repealed by Or Laws 2017, ch 529, § 16, did not foreclose
reviewability of a presumptive true-life sentence because
ORS 137.719 was not a presumptive sentence established by
the Oregon Criminal Justice Commission).1 Nevertheless,
we are unaware of any prior case in which we have reviewed
for error a trial court’s refusal to depart from a presumptive sentence based upon statutory—rather than constitutional—grounds. So we discuss the applicable standard of
review before proceeding to our analysis.
Our review of a trial court’s decision to depart from
a presumptive sentence is typically limited by statute “to
whether the trial court’s findings of fact and reasons justifying a departure” are “supported by the evidence in the
record” and “[c]onstitute substantial and compelling reasons for departure.” ORS 138.105(8)(b). We review both of those
questions for legal error. See State v. Watkins, 146 Or App
338, 340, 932 P2d 107, rev den, 325 Or 438 (1997) (applying
that standard of review to claim brought under former ORS
138.222(3)). But where substantial and compelling reasons
to justify a departure could be supported by the record, the ultimate decision whether to depart is entrusted to the discretion of the sentencing court. Id. at 341 (recognizing that “[a] sentencing court has discretion to impose a departure
sentence whenever it finds substantial and compelling reasons to do so”); ORS 137.719(2) (“The court may impose * * * a departure sentence authorized by the rules of the Oregon
1
Although former ORS 138.222(2)(a) has been replaced by ORS 138.105, the text of the two statutes is remarkably similar, the state does not dispute reviewability, and we perceive no basis to distinguish the reasoning of Althouse. 8 State v. Benson
Criminal Justice Commission based upon findings of substantial and compelling reasons.” (Emphasis added.)).
Of course, here, we are not reviewing a court’s decision to depart from a presumptive sentence, we are reviewing its refusal to depart. Nevertheless, the same standard
of review should apply, meaning that we review for legal
error a court’s determination of whether the record could
support the finding of a “substantial and compelling reason” to depart, and we review for abuse of discretion its decision whether to depart.
We do not understand defendant to dispute that
standard of review. Instead, we understand him to argue
that the trial court committed legal error in ruling that
there was not a substantial and compelling reason to depart
because that ruling was based on a misunderstanding of
law, which consequently rendered its ultimate exercise of
discretion flawed. See State v. Stull, 296 Or App 435, 442,
438 P3d 471 (2019) (“[W]here a trial court’s purported exercise of discretion flows from a mistaken legal premise, its
decision does not fall within the range of legally correct
choices and does not produce a permissible, legally correct
outcome.”).
In summary, defendant argues that the legislature
intended ORS 137.719’s presumptive true-life sentence to
apply when a defendant commits a third felony sex offense
after being previously punished for felony sex offenses twice before. In other words, a defendant’s failure to reform after two prior punishments is, in defendant’s view, what justifies the statute’s presumptive true-life sentence. Given that understanding of the statute, defendant argues that the
trial court committed legal error by failing to recognize that the unique timeline of this case ran contrary to that legislative intent and amounted to a substantial and compelling
reason to depart.
To establish that the court misunderstood the legislative intent of the statute, defendant points to the trial court’s ruling, in which it explained that it would impose
the presumptive true-life sentence because defendant had
sufficient “notice,” by virtue of the enactment of applicable Cite as 354 Or App 1 (2026) 9
statutes, that repeated sex offenses could have dire consequences and that that notice did not dissuade his repeated
sex offenses. Defendant argues that the trial court’s focus on “notice” rather than prior chances at reformation betrays a
mistaken legal premise given that ORS 137.719 is premised
on prior chances at reformation.
The state responds that ORS 137.719 is not premised on prior chances at reformation and, thus, regardless
of whether the unique timeline of defendant’s prosecutions
might have constituted a sufficient basis to depart from
the presumptive true-life sentences, the sentencing court
was not working from a mistaken legal premise. Instead,
by referring to “notice” it was explaining why the unique
timeline of this prosecution had not persuaded the court to
depart from the presumptive true-life sentences.
To resolve defendant’s argument on appeal, we must
determine whether the legislature understood ORS 137.719’s
presumptive true-life sentence to be primarily justified by a defendant’s failure to reform after multiple chances to do
so—or whether it was more broadly justified by the repeated
sex offenses themselves. See State v. Rhoades, 210 Or App
280, 285, 149 P3d 1259 (2006) (explaining, in the context
of a presumptive guidelines sentence, that the propriety of
a departure sentence turns on whether the “circumstances
are so exceptional that the imposition of the presumptive
sentence would not accomplish the purpose” that the legislature envisioned when it established the presumptive sentence). Only then can we know whether the sentencing court
engaged in an improper legal analysis in considering departure sentences.
In deciphering the legislature’s intent for ORS
137.719, we apply our typical method of statutory construction, examining the text, context, and legislative history of the statute and resorting to canons of statutory construction only if necessary. See State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009) (describing statutory construction
methodology).
Beginning with the text, ORS 137.719 provides:
10 State v. Benson
“(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.
“(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 meaning given that term in ORS 163A.005.”
The parties put forward two competing rationales
for the way in which the legislature drafted that statute.
The state posits that the legislature intended to create what we would refer to as a “three strikes” framework, in which
a repeat sex offender presumptively receives a true-life sentence simply because they have been sentenced for felony sex offenses on three occasions. Defendant posits that the legislature created what we will call an “unreformed recidivist”
framework, in which it intended a repeat sex offender to get a true-life sentence only after two prior sentences have failed to reform them. That distinction matters because defendant
received his true-life sentence for his first-in-time felony sex offenses, which, as defendant points out, is obviously
contrary to an unreformed-recidivist approach because his
convictions for first-in-time offenses do not establish that prior opportunities for reformation have failed. On the other hand, under a three-strikes approach, the order in which
defendant committed the crimes and/or was sentenced is a
Cite as 354 Or App 1 (2026) 11
relevant—but not dispositive—concern because the true-life
sentence is intended to apply simply as a consequence for
repeat felony sex offenses. The text alone does not directly indicate which approach the legislature intended to take,
but it provides important clues, especially when compared
with contextual clues from other repeat offender sentencing
schemes.
A notable characteristic of ORS 137.719 is that its
presumptive sentence follows three “sentencing proceedings,” as opposed to three “convictions” or “criminal episodes.” Cf. ORS 137.690 (providing for a mandatory 25-year
minimum sentence for any person “who has one (or more)
previous conviction[s] [for] a major felony sex crime,” where “previous conviction” “includes a conviction in the same
sentencing proceeding if the conviction is for a separate
criminal episode”); ORS 137.717 (providing for increased
sentences for repeat property-crime “convictions” and containing special rules when those convictions arose out of
“the same conduct or criminal episode”); ORS 161.610(4)
(providing for increased sentences for repeat “conviction[s]” involving the use or threatened use of a firearm). At first
glance, that tends towards defendant’s unreformed-recidivist theory because it places emphasis on how many times
the offender has been sentenced—and, thus, potentially on
how many chances they have had at reformation. Indeed, we
have explained that many of our and the Supreme Court’s
opinions about disproportionate sentences start from the
premise that ORS 137.719’s true-life sentence is justifiable because the “legislature is entitled to provide enhanced sentences when a defendant has been proven highly resistant
to reform because the person has reoffended after the state
has previously punished him or her.” State v. Carey-Martin,
293 Or App 611, 625-26, 430 P3d 98 (2018); see State v.
Hernandez-Esteban, 330 Or App 34, 49, 543 P3d 154 (2024),
aff’d in part, rev’d in part, 374 Or 300, 577 P3d 761 (2025) (“[W]hen a reason is given for considering a defendant’s prior convictions in a constitutional proportionality analysis, it is invariably that the sentences imposed in the past failed to
deter further criminal activity.”). But that justification is not explicitly stated in the statute—that is, the statute does not explicitly require that a defendant have served two prior 12 State v. Benson
sentences before committing the offense subject to the truelife sentence. So while the opportunity to reform is no doubt a factor in determining whether to depart from a true-life
sentence and in determining whether a true-life sentence
is constitutionally disproportionate, the question remains
whether the lack of an opportunity to reform runs directly
contrary to the legislature’s intent with regard to the presumptive true-life sentence.
Returning to the text, another possibility for the
sentence-counting procedure is that the legislature was
attempting to account for common patterns seen in sex-offense prosecutions. Many sex-offense prosecutions either
involve multiple convictions for different forms of sexual
abuse arising out of the same criminal episode or involve
prolonged and episodic sexual abuse of a given victim. As a
result, multiple convictions often result from a single criminal episode, or a defendant will be charged, convicted, and sentenced in a single case for conduct that spanned many
criminal episodes. If the legislature had enacted a conviction- or criminal-episode-counting statute, then it would
frequently be the case that a defendant’s first ever felony
sex-offense prosecution would result in a true-life sentence. In counting sentencing proceedings, it is possible that the
legislature was attempting to avoid applying a presumptive
true-life sentence in such situations. After all, it is notable that there is only a loose association between the timing of criminal conduct and the resulting number of sentencing
proceedings. For example, in a single week, a defendant
could commit three felony sex offenses against three different victims in three different counties and quickly be subject to three separate sentencing proceedings before ever
serving any of their sentences. By focusing on sentencing
proceedings, the legislature certainly intended to group
together offenses that would be expected to be joined or consolidated for trial, but it did not necessarily intend to ensure that a defendant had two chances at reformation before a
true-life sentence was imposed.
Context lends further credence to the state’s threestrikes framework. That is because the legislature has created unreformed-recidivist frameworks in other statutes,
Cite as 354 Or App 1 (2026) 13
which demonstrates that it knows how to do so when it wants
to and makes its failure to do so in ORS 137.719 meaningful. The prime example of an unreformed-recidivist framework
is the mandatory minimum sentences for repeat firearm
offenders, which is set out in ORS 161.610(4):
“(4) The minimum terms of imprisonment for felonies
having as an element the defendant’s use or threatened
use of a firearm in the commission of the crime shall be as
follows:
“(a) Except as provided in subsection (5) of this section, upon the first conviction for such felony, five years,
except that if the firearm is a machine gun, short-barreled
rifle, short-barreled shotgun or is equipped with a firearms
silencer, the term of imprisonment shall be 10 years.
“(b) Upon conviction for such felony committed after
punishment pursuant to paragraph (a) of this subsection
or subsection (5) of this section, 10 years, except that if
the firearm is a machine gun, short-barreled rifle, shortbarreled shotgun or is equipped with a firearms silencer,
the term of imprisonment shall be 20 years.
“(c) Upon conviction for such felony committed after
imprisonment pursuant to paragraph (b) of this subsection,
30 years.”
(Emphases added.) The italicized language makes clear
that the repeat-offender sentence is applicable only after
a defendant has failed to reform despite an earlier sentence. See State v. Allen, 285 Or App 667, 674, 398 P3d 497, rev den, 361 Or 886 (2017) (“[I]t is not the number of firearm minimum sentences previously imposed that trigger the
enhanced mandatory minimums in ORS 161.610 (4)(b) and
(c); it is whether the defendant has previously been ‘punished’ or ‘imprison[ed]’ pursuant to ORS 161.610(4)(a) or (b).” (Emphasis in original.)). And that language existed in materially similar form at the time that the legislature drafted the true-life sentencing provision in ORS 137.719, which
was part of Oregon Laws 2001, chapter 884. ORS 161.610(4)
(1999). The legislature’s choice not to follow that same path suggests that it was not intending to strictly follow an unreformed-recidivist framework in ORS 137.719. See State
v. Vasquez-Rubio, 323 Or 275, 281-82, 917 P2d 494 (1996)
14 State v. Benson
(relying on related statutes as context to demonstrate that
the legislature “knows how to create a defense or an affirmative defense” when it wants to, and concluding that its
deviation from the standard pattern indicated that it was
not creating a defense).
The legislative history that we are aware of adds
little to the discussion. The Supreme Court has summarized
the “sparse legislative history of ORS 137.719” as reflecting only “the legislature’s general intent that recidivist
sex offenders receive the second-most serious penalty that
Oregon law provides: a sentence of life without the possibility of parole.” State v. Carlton, 361 Or 29, 42-43, 388 P3d 1093 (2017) (citing Tape Recording, Senate Committee on
Judiciary, SB 370, May 10, 2001, Tape 132, Side B (statement of committee counsel Craig Prins)). The parties have
not pointed to any other legislative history to clarify the
approach intended by the legislature, nor are we aware of
any.
In light of the above, we conclude that the legislature intended ORS 137.719 to function more along the lines
of a three-strikes framework insofar as it was expected to
apply by virtue of the defendant being sentenced for the third time for a felony sex offense. We see no evidence that the
legislature was specifically intending to apply its presumptive sentence only where a defendant had been punished on
two prior occasions for felony sex offenses. The legislature’s choice not to follow the pattern seen in ORS 161.610(4) and
to omit any other explicit indication that it intended its presumptive true-life sentence to apply only after prior chances at reformation leaves us to conclude that the legislature did not specifically intend the timing of a criminal conviction
vis-à-vis prior sentencing proceedings to be the paramount
concern.
Accordingly, we hold that the trial court did
not commit legal error in the way that it construed ORS
137.719. In declining to depart from the presumptive truelife sentence, the sentence court explained that, although
defendant was being sentenced for his first-in-time felony
sex offenses, he had adequate “notice” of the serious sentencing ramifications of committing sex offenses, which did
Cite as 354 Or App 1 (2026) 15
not deter his repeated criminal conduct. Thus, viewing the
totality of defendant’s criminal history, it declined to find that the timing of his offenses in this specific case constituted a substantial and compelling reason to depart. Again,
defendant argues that that ruling betrays a legally incorrect understanding of ORS 137.719, but that argument is
premised upon ORS 137.719 being an unreformed-recidivist
statute. Because we disagree with defendant’s premise, we
disagree with his ultimate conclusion. We conclude that the
sentencing court properly understood the timeline at issue,
but it was unconvinced that it created a substantial and
compelling reason to depart in this case. Consistent with a
three-strikes approach, the court explained that defendant
had every reason not to commit three felony sex offenses—
especially because he was presumed to be on notice that
various sentencing statutes imposed extremely heavy sentences on sex offenses—but was not deterred. The court did
not commit legal error in failing to conclude that the timing irregularity in this case was so outside the realm of the legislature’s intent for the presumptive sentence as to require a departure sentence.
It is worth emphasizing here, however, that we are
not holding that future sentencing courts cannot or should
not consider timing irregularities in deciding whether to
depart from ORS 137.719’s true-life sentence. Based on the
sentence-counting nature of the statute, there are myriad
ways in which timing, joinder or consolidation decisions, and prosecutorial discretion can affect whether or not a truelife presumptive sentence is on the table. All of those factors may well be relevant when determining whether there
are substantial and compelling reasons to depart from ORS
137.719’s presumptive sentence.
As we recently observed in State v. Moore, 352 Or
App 15, 39, ___ P3d ___ (2026), there is legislative history suggesting that, “in enacting ORS 137.719, the legislature anticipated that half of all defendants sentenced as
repeat felony sex offenders would be given departure sentences.” (Emphasis in original; Citing Budget Report and
Measure Summary, Joint Committee on Ways and Means,
SB 370, June, 23, 2001, at 3.) So there is reason to believe 16 State v. Benson
that the legislature assumed that many factual variables
could make its rather rigid three-strikes framework inappropriate for individual cases. Thus, it is not unreasonable to assume that the unique timeline in this case could have
provided a legally sufficient basis to depart if the trial court had chosen to do so. We are holding only that the sentencing court here did not approach the departure issue based upon
a legally mistaken premise and did not abuse its discretion
in failing to depart. Again, the trial court never explicitly ruled whether or not the timing irregularity in this case
was legally sufficient to constitute a substantial and compelling reason to depart—it merely exercised its discretion
not to depart. Nothing in our opinion should be read to foreclose the availability of a departure sentence in future cases based on timing irregularities.
Before turning to defendant’s constitutional arguments, we address defendant’s argument that the sentencing court “did not adequately consider defendant’s childhood as a mitigating circumstance” in determining whether to
depart from the presumptive true-life sentence. The state
disputes preservation, but even assuming the error is preserved, we disagree with defendant on the merits. The court
acknowledged defendant’s “very tragic” childhood and recognized the “long-lasting consequences of one being in the
foster care system.” The court concluded, however, that that was not a substantial and compelling reason to depart. We
cannot say that that constituted legal error or that the court was required to give any further explanation for not finding that circumstance a substantial and compelling reason to
depart.
2. True-Life Sentences as an Equal Protection Violation
Next, defendant argues that “ORS 137.719 violates
the Equal Protection Clause because it provides for a life
sentence depending on the state’s arbitrary decisions
concerning when and how the state wants to prosecute the
case. Moreover, similarly situated defendants are made subject to vastly different outcomes depending on the whims of
the state.” That is, because ORS 137.719 bases its presumptive sentence on the number of prior sentencing proceedings
Cite as 354 Or App 1 (2026) 17
that the defendant has been subject to, defendant argues
that the state’s ability to manipulate charging and joinder
decisions means that it can manipulate who is or is not subject to the presumptive sentence. The state defends the sentencing court’s rejection of that challenge, arguing that the statute survives rational basis review. We review for legal
error. See City of Klamath Falls v. Winters, 289 Or 757, 769-77, 619 P2d 217 (1980), appeal dismissed, 451 US 964 (1981)
(applying standard).
The Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution provides that
no state shall “deny to any person within its jurisdiction the equal protection of the laws.” That clause establishes a basis for challenges when (1) “legislative classifications * * * treat one group of persons as inferior or superior to others,” or
(2) “general rules are being applied in an arbitrary or discriminatory way.” Jones v. Helms, 452 US 412, 423-24, 101
S Ct 2434, 69 L Ed 2d 118 (1981). As defendant acknowledges, the “rational basis” standard is applicable here.
“[L]aws subject to rational-basis scrutiny will be upheld ‘so long as [the classification] bears a rational relation to some legitimate end.’ ” State ex rel Huddleston v. Sawyer, 324 Or 597, 630, 932 P2d 1145 (1997) (quoting Romer v. Evans, 517
US 620, 631, 116 S Ct 1620, 134 L Ed 2d 855 (1996) (brackets in Sawyer)). A law that is “so overinclusive or underinclusive that no rational relationship can be detected” violates the constitutional guarantee of equal protection. Id. at 629.
The essence of defendant’s argument is that defendants who have committed substantially similar crimes
along similar timelines may be subject to highly variable
outcomes based on the way that the state charges the
offenses. So long as offenses are sentenced at one time, they only count as a single predicate. If sentenced at different
times, then they become multiple predicates. Such a scheme
has no rational relation to a legitimate end in defendant’s
view. We are not convinced.
As explained above, the sentence-counting
nature of ORS 137.719 is rationally related to ensuring
that the presumptive true-life sentence is not overinclusive. Again, if the legislature made it a conviction- or
18 State v. Benson
criminal-episode-counting provision, then far more defendants might come within the prerequisites of the presumptive true-life sentence. Although there are surely other ways that the legislature could have accomplished the same goal,
a rational relationship to a legitimate end can be detected.
Furthermore, insofar as defendant correctly notes
the impact that charging decisions could have on exposing
some defendants to a true-life sentence and not others, the
legislature explicitly provided a way to depart from that presumptive sentence—allowing sentencing courts to ensure
that defendants are not receiving lifetime sentences due to
charging manipulations. The sentencing court did not err in
rejecting defendant’s equal protection argument.
3. True-Life Sentences as a Due Process Violation
On remand, defendant also argued that imposing
true-life sentences for his first-in-time felony sex offenses was a violation of his federal due process rights because it was caused by the 91-month preindictment delay attributable to the state’s negligence (the argument that he raised
in an unpreserved posture in Benson I). But for the delay, he reasoned, his first-in-time convictions would not be eligible for true-life sentences. The sentencing court rejected that
argument, reasoning essentially that defendant was presumed to know the sentencing consequences of repeated sex
offenses and that, regardless of the order in which his convictions were entered and sentenced, defendant was aware
of the number of times he had committed felony sex offenses. Therefore, defendant’s choices to engage in the criminal conduct were the cause of the sentence and not the delay.
On appeal, defendant challenges that ruling, reiterating his argument that the true-life sentences are constitutionally significant prejudice caused by the state’s negligent pretrial delay and, therefore, it violates his federal right to due process to enter a true-life sentence resulting from that delay. We review for legal error. See Benson II, 370 Or at 65 (applying standard on review of the denial of a motion to
dismiss for excessive preindictment delay).
“The United States Supreme Court has recognized
that a preindictment delay may implicate a defendant’s
Cite as 354 Or App 1 (2026) 19
Fifth and Fourteenth Amendment due process rights.” Id.
But, typically, such a due process violation is conceived of as infecting the fairness of the trial itself, and thus, the remedy is usually dismissal of the case. As the court noted
in Benson II, “[D]ismissal of a case based on preindictment
delay is appropriate only where the defendant establishes
actual, substantial prejudice that outweighs the government’s reasons for the delay.” Id. at 68. “[T]o succeed on a claim of a due process violation caused by a preindictment
delay, a defendant must show that the delay actually prejudiced the defendant and that the government culpably
caused the delay.” Id. at 68-69 (internal quotation marks
omitted). “A court must weigh the government’s reason for
the delay against the prejudice to determine whether the
delay violated our society’s fundamental conceptions of justice, fair play, and decency.” Id. at 69 (internal quotation marks omitted).
The United States Supreme Court has not established whether the due process right against excessive preindictment delays can provide for a remedy at sentencing,
where dismissal of the case itself is not otherwise merited. And some jurisdictions have questioned whether the Due
Process Clause protects against the sentencing consequences
of preindictment delay. See United States v. Brockman, 183
F3d 891, 896 (8th Cir 1999), cert den, 528 US 1080 (2000)
(“It is questionable whether an increased sentence is the
type of prejudice against which the Fifth Amendment is
intended to protect[.]”); State v. Higa, 102 Hawai’i 183, 189, 74 P3d 6, 12, recons den, 102 Hawai’I 333, 76 P3d 576 (2003) (“[L]ost opportunities for concurrent sentencing, parole, and loss of parental rights, as asserted herein, do not affect a defendant’s ability to present an effective defense, and thus, do not constitute actual substantial prejudice to a defendant’s due process right to a fair trial.”). Other jurisdictions have understood that the Due Process Clause would protect against the state’s intentional delays that were aimed
at affecting the defendant’s sentencing exposure. See State
v. Trompeter, 555 NW2d 468, 471 (Iowa 1996) (the state
violated due process by deliberately delaying prosecution to effectively obtain a consecutive criminal sentence
in what would have otherwise been a concurrent juvenile
20 State v. Benson
adjudication); State v. Sunclades, 305 NW2d 491, 495 (Iowa
1981), overruled on other grounds by State v. Williams, 895
NW2d 856 (Iowa 2017) (explaining that, if a prosecution
were delayed “solely to avoid the possibility of concurrent
sentencing, we would not condone such a late prosecution”);
State v. Lussier, 695 NW2d 651, 655-56 (Minn Ct App 2005)
(to prevail on a due process claim based on an excessive
preindictment delay that resulted in a harsher sentence a
defendant must establish “improper state motive”). Finally,
other jurisdictions have concluded that any prejudice that
arises from a sentencing scheme that allows for departure
sentences is necessarily too speculative. See United States
v. Martinez, 77 F3d 332, 336-37 (9th Cir 1996) (“Because
the district judge could avoid any unfairness to [the defendant] under the guidelines by using permitted departures,
prejudice caused by delay, even if we assume that it would
otherwise implicate the due process clause, is speculative.
The prejudice will only occur if the district judge does not exercise her discretion to depart. That is not likely, if she determines that justice requires departure.”).
We need not definitively choose which of those
approaches to follow because none of them favors defendant here. Certainly, there is no evidence that the state
intentionally delayed its investigation to artificially inflate defendant’s sentence. And, under the third approach, any
sentencing prejudice that resulted from the delay was
too speculative in this case. ORS 137.719 itself explicitly
states that a sentencing court may depart for substantial
and compelling reasons. Thus, where preindictment delay
would cause manifest unfairness, a sentencing court can
avoid that prejudice by departing. So the question becomes
whether the preindictment delay in this case caused manifest unfairness. We conclude that it did not.
As we described above, ORS 137.719 appears to
operate more as a three-strikes scheme than an unreformed-recidivist scheme. Under such a scheme, the timing
of any particular criminal offense is not necessarily pivotal in determining whether the presumptive sentence is merited. Thus, whether it was this criminal offense or defendant’s prior 2016 conviction that was sentenced third, the
Cite as 354 Or App 1 (2026) 21
presumptive sentence would have been applicable all the
same. The delay affected which sentence received the presumptive sentence, not whether defendant would have been
eligible for it. Thus, we cannot see any manifest unfairness in the fact that the true-life sentence happened to be
imposed on the first-in-time offense rather than the thirdin-time. Nor does defendant demonstrate that such a statutory scheme itself is manifestly unfair.
Of course, as defendant points out, had defendant
been prosecuted and convicted in a timely manner, he may
not have been physically able to commit one or both of the
later predicate sex offenses because he would have been in
prison. However, that is not a type of cognizable prejudice
that can be attributable to preindictment delay—rather,
it is attributable to defendant’s choices. See United States v. Spears, 159 F3d 1081, 1086 (7th Cir 1998), cert den, 528
US 896 (1999) (“There is no evidence that the government
delayed its prosecution of [the defendant] so that he could
commit more crimes, thus increasing his number of criminal history points. The government is under no obligation to arrest an individual before he commits a crime. * * * Nor is the government obligated to save the defendant from himself. Any sort of prejudice [the defendant] may have suffered was the result of his own criminal conduct, and not from
any government misconduct.” (Internal quotation marks
omitted.)). Therefore, we conclude that the sentencing court did not err in rejecting defendant’s due process argument.
4. True-Life Sentences as Constitutionally
Disproportionate Sentences
Finally, defendant argues that his true-life sentences
are unconstitutionally disproportionate under the state and
federal constitutions. He acknowledges that he raised—and
we rejected without discussion—this same argument in
Benson I, 309 Or App at 424. And, to the extent he raises
the same arguments that he did before, we reject them in
conformance with Benson I. However, we address one new
argument that he makes for the first time in this appeal.
Relying on State v. Bartol, 368 Or 598, 496 P3d 1013 (2021), defendant argues that “[l]egislative inconsistencies within
a single statute can inform a proportionality analysis.” The 22 State v. Benson
inconsistency that defendant identifies in ORS 137.719 is the sentence-counting basis for the presumptive true-life sentence. He reasons that the purpose behind the statute is “to sentence irredeemable people to life in prison” but, due to
the sentencing-counting structure, that redeemability turns
more on the randomness of timing, joinder rules, and prosecutorial discretion than on the recidivist qualities of a defendant. Like the statute at issue in Bartol, defendant argues, “the statute here creates a timing discrepancy that allows for one defendant to receive a true-life sentence and another to receive a less severe sentence, depending on when the defendant is sentenced, regardless of when the crimes were committed.” The state disputes preservation. But, even assuming the argument is preserved, we disagree that Bartol is
sufficient to support the weight defendant puts on it.
In Bartol, the Oregon Supreme Court held that
the defendant’s death sentence was unconstitutionally disproportionate under Article I, section 16, of the Oregon
Constitution because, after the defendant was sentenced,
the legislature amended the aggravated murder statute
such that the defendant’s crime—if committed today—would
not be subject to the death penalty. 368 Or at 624-25. The
court explained that proportionality is a question of current societal standards and, based on the legislature’s change in the law, the legislature determined that conduct formerly
punishable by death no longer falls within the narrow category of crimes for which the death penalty is appropriate. Id. Although the legislature did not make its change in law retroactive to judgments imposed before its effective date, the Supreme Court reasoned that the law itself reflected current societal standards and, thus, the defendant’s death sentence was no longer proportionate. Id. The court reasoned that the fact that a defendant was sentenced before the effective date of the new law versus afterwards should not affect whether
or not the death sentence itself is acceptable under current societal standards. Id.
We are not persuaded by defendant’s analogy to
Bartol. There, the issue was whether the death sentence
was proportionate to the defendant’s conduct. The court concluded it was not, using the change in law as evidence of a
Cite as 354 Or App 1 (2026) 23
change in societal standards. That is not the scenario here. In this particular argument, defendant is not arguing that
a change in law has revealed a shift in societal standards
away from true-life sentences for repeat felony sex offenses. He is arguing that the sentence-counting structure can lead
to arbitrary results in situations where prosecutions occur
out of order. For that reason, we conclude that his reliance on Bartol does not provide defendant a path to reversal.
III. CONCLUSION
In short, we conclude that the sentencing court did
not err in rejecting defendant’s statute-of-limitation argument because it was outside the scope of remand and that it
did not err when it imposed consecutive true-life sentences.
Affirmed.