State v. Saetern

No. 1044 October 28, 2026 271 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. SENFINH ANDREW SAETERN, Defendant-Appellant. Multnomah County Circuit Court 22CR28845; A183736 Amy M. Baggio, Judge. Submitted December 4, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Marc D. Brown, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Kyleigh Gray, Assistant Attorney General, filed the brief for respondent. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. SHORR, P. J. Affirmed. 272 State v. Saetern SHORR, P. J. Defendant appeals from a judgment of conviction for three counts of second-degree sodomy (Counts 8 to 10) and four counts of second-degree rape (Counts 15 to 18). The convictions were entered pursuant to a plea agreement under which defendant pleaded guilty to those charges in exchange for 22 other charges being dismissed. The trial court sentenced defendant to 75 months in prison on each count, pursuant to ORS 137.700, and 120 months of post- prison supervision minus time served pursuant to ORS 144.103. The court imposed the sentence on Count 9 consecu- tive to the sentence on Count 8 and the sentence on Count 15 consecutive to 66 months of the sentence on Count 9, result- ing in an aggregate prison sentence of 216 months, which is 18 years. On appeal, defendant raises two assignments of error, challenging the aggregate sentence as unconstitution- ally disproportionate in violation of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. As explained below, we affirm. We begin with preservation. Defendant acknowl- edges that he did not mention proportionality, Article I, section 16, or the Eighth Amendment below. He contends on appeal, however, that read as a whole, he argued in his sentencing memorandum and at the sentencing hearing, that the appropriate sentence for him was a 10-year term of imprisonment. He further asserts that prior to imposing the sentence, the trial court conducted an analysis similar to the analysis employed by us and the Oregon Supreme Court when determining whether a sentence is unconstitutionally disproportionate. Thus, according to defendant, although the argument was not couched in terms of Article I, sec- tion 16, or the Eighth Amendment, the argument paralleled that analysis and the court largely followed that framework. Additionally, he asserts that, for that reason, the trial court would not be taken by surprise to find itself reversed on this issue. The state argues in response that defendant’s argu- ment for a 10-year sentence was insufficient to preserve a challenge to the constitutional proportionality of defen- dant’s aggregate sentence, and that defendant never argued Nonprecedential Memo Op: 354 Or App 271 (2026) 273 that the imposition of the 18-year sentence requested by the state would be inappropriate, let alone unconstitutional. Under those circumstances, according to the state, the trial court would be “surprised” by defendant’s argument on appeal and a reversal of its decision on that basis. See State v. Rumler, 199 Or App 32, 41, 110 P3d 115 (2005) (concluding that the argument was unpreserved where the trial court would be surprised to learn of the argument and blindsided by a reversal). We agree with the state that defendant did not preserve the issue he raises on appeal. Defendant did not request plain-error review in the event that we determined his assignments of error to be unpreserved. Plain-error review is discretionary under ORAP 5.45(1)1 and “we normally will not exercise that dis- cretion in the absence of an explicit request for plain-error review and concomitant plain-error arguments.” State v. Atwood, 332 Or App 495, 498 n 2, 549 P3d 51 (2024). In addition, “[f]or an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). Here, it is not obvious that an aggregate sentence can be challenged under either Article I, section 16, or the Eighth Amendment, and therefore it is not plain. See State v. Licence, 340 Or App 716, 720-23, 572 P3d 1100, rev den, 374 Or 421 (2025) (rejecting plain-error review of whether an aggregate sentence can be unconstitutionally disproportionate under Article I, section 16, and the Eighth Amendment). We therefore reject defendant’s assignments of error. Affirmed. 1 ORAP 5.45(1) states, in part, that “[n]o matter claimed as error will be con- sidered on appeal unless the claim of error was preserved in the lower court * * *, provided that the appellate court may, in its discretion, consider a plain error.”