Maybe yes. First, a quick primer on vertical proportionality. From State v. Koch:
- On appeal, defendant argues that his sentences violate the proportionality requirement of Article I, section 16, of the Oregon Constitution. He asserts that, if he had committed Level 4 forgeries, the maximum durational departure sentence with a "B" criminal history score would have been 18 months in prison. Article I, section 16, prohibits the imposition of a sentence for a lesser offense that is greater than that available for a more serious offense. State v. Turner, 296 Or. 451, 456, 676 P.2d 873 (1984); Merrill v. Gladden, 216 Or. 460, 464, 337 P.2d 774 (1959); Cannon v. Gladden, 203 Or. 629, 631-33, 281 P.2d 233 (1955).
Second, State v. Haddon, which essentially held that ID Theft (a felony) can be a lesser-included of Fraudulent Use of a Credit Card (misdemeanor).
- In sum, proof of the elements of fraudulent use of a credit card proves the elements of the offense of identity theft, in the forms in which the offenses were alleged in this case. At least as is alleged here, identity theft does not require proof of an element that is not already included in fraudulent use of a credit card.
In other words, some ID Theft charges, by being charged as felonies, will violate Article I, section 16, because they carry a greater sentence than misdemeanors that describe more serious behavior.
The Haddon court found that the FUCC (the greater offense, measured by elements, but the lesser offense measured by crime seriousness) merged into ID Theft (the reverse). Even if that is the correct result in a merger analysis, that holding wouldn't solve the proportionality problem under the Oregon Constitution. The state can also defeat the merger argument by not charging FUCC, but that too would not have an impact on the proportionality challenge.
This argument will be limited to ID Thefts that fall into the Haddon category, but if they do, it's a powerful and fun argument to make. I would ask for either dismissal of the ID Theft or, failing that, immediate reduction to a misdemeanor. Can you raise it pre-trial? Probably not. Whether you'd want to alert the prosecutor to the issue as a part of negotiations will likely depend on how easy a problem it would be for them to fix.