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Photo by Jim Craven Randy Dale Smith and his parents await his resentencing Wednesday in a Medford courtroom. He is among a number of defendants to face stiffer punishment for Measure 11 crimes. Now, sentence fits law But Measure 11 appeals leave a bad taste in some mouths By CHRIS BRISTOL Two years ago, Randy Dale Smith got lucky. Big time. Convicted of molesting his stepdaughter, the former White City man should have received more than six years in prison. Instead, thanks to now-retired Judge Loren Sawyer, he got only six months in jail. Then his luck ran out. Big time. Free since May 1997, Smith, now 31, was resentenced Wednesday to the mandatory minimum -- 75 months -- that he was supposed to serve in the first place. His only consolation: credit for time served. "This is an unfortunate situation for you," Jackson County Judge Ray White told Smith, "but that's the law." Whatever his misfortune, Smith is not alone. In his waning days on the bench, Sawyer repeatedly ignored or repudiated the get-tough-on-crime sentencing law known as Measure 11, and now several other defendants like Smith face stiffer punishments as a result. "It's a rotten deal," said Smith's public defender, Andrew Vandergaw, "and now the state wants its pound of flesh." Even District Attorney Mark Huddleston, who handled the case, questioned the wisdom of the sentence, although he defended the conviction. "He wanted (sex-offender) treatment, and he was getting it," Huddleston said. "Unfortunately that kind of help is no longer available in prison." The Oregon Court of Appeals already has reversed four of Sawyer's Measure 11 decisions, and appeals are pending for four other defendants. Measure 11 was passed by voters in 1994 and set mandatory minimum sentences for more than 20 violent crimes. From the moment it took effect, the measure was assailed by defense attorneys as unconstitutional. They complained that it treated all defendants the same, regardless of prior record, and made prosecutors too powerful. Many judges felt the same way, but only a couple challenged it -- and only in rare cases. One of those judges was Sawyer. In a handful of cases, Sawyer either refused to apply Measure 11 or ignored it altogether. Smith pleaded guilty Dec. 11, 1996, to a single count of first-degree sexual abuse involving his 12-year-old stepdaughter. He faced a mandatory 75 months in prison. But Sawyer gave Smith 180 days in jail and placed him on 10 years' probation, citing a pre-sentence investigation that was based on the old guidelines. Since then the state Supreme Court has upheld the constitutionality of Measure 11, and the state appealed everything Sawyer touched. Last month the Oregon Court of Appeals reversed the Smith sentence and sent it back to Jackson County. Only a couple other judges ever challenged Measure 11. According to the state attorney general's office, Sawyer refused Measure 11 more than all the other judges in the state combined. In court Wednesday, when asked by White if he had anything to say, Smith shrugged and said no. "I just want to get it over with," he said. White quickly pronounced sentence: the 75-month minimum. Smith had served about seven months, counting pre-trial custody. He has 68 months to go, or five years and eight months. As he was led from court, Smith's mother gave him a tearful hug goodbye. He won't be eligible for parole until the fall of 2004. While Huddleston questioned how well the controversial law worked in Smith's case, he said most Measure 11 sentences are deserved. "Whether or not this is the correct sentence in this case," he said, "is something the voters have decided." Courts take second look at Measure 11 cases Four of Judge Loren Sawyer's Measure 11 cases remain before the Oregon Court of Appeals. Two others have been reversed and await resentencing. Here's a look at all six: Terry Carruthers of Medford -- Convicted of second-degree manslaughter in 1996 for smothering 2-year-old Tre Chase, Carruthers served 26 months and was released Feb. 26 with time off for good behavior. Carruthers appealed the verdict, and the case is before the state Court of Appeals with no date set. Measure 11 minimum: 70 months. Daniel Robert Gee of Medford -- Convicted of first-degree robbery in 1996, Gee was sentenced to 51 months in prison. The state Court of Appeals reversed the conviction and sent the case back to Jackson County for resentencing. A date has not been set. Measure 11 minimum: 90 months. Russell Melillo of Huntington Beach, Calif. -- Convicted of first-degree robbery in 1996, he was sentenced to 38 months in prison. His case is set for argument before the Court of Appeals on March 31. Measure 11 minimum: 90 months. Jesus Mercado-Vasquez of Medford -- Convicted of two counts of second-degree rape in 1997, Mercado-Vasquez was sentenced to 16 months in prison. The case is set for argument before the Court of Appeals on March 31. Measure 11 minimum: 75 months. Samuel Arthur Silverman of Ashland -- Convicted of two counts of first-degree sexual abuse in 1997, he was sentenced to 120 days in jail and 10 years' probation. Set for argument before the Court of Appeals on March 17. Measure 11 minimum: 75 months. James Ricky Watson of Medford -- Convicted of first-degree assault and other charges in 1996, he was sentenced to five years in prison. The Court of Appeals reversed the decision and sent the case back to Jackson County. Resentencing is set for March 17. Measure 11 minimum: 90 months. Mail Tribune Copyright � The Mail Tribune 1999, Medford, Oregon USA