concurring in part, dissenting in part.
I concur in the majority opinion in its holding that the trial court did not err in convicting and sentencing defendant separately for kidnapping, rape and sodomy. I dissent, however, from its holding that the trial court erred in entering separate judgments of *434conviction and sentences for each of the three counts of sodomy because: (1) That question is not properly before this court. It was not properly raised by the defendant and the state has had no fair opportunity to be heard on that question — the only question properly before the court being whether consecutive sentences were "excessive,” and thus subject to substantive appellate review under ORS 138.040. (2) The decision by the majority on that question to the effect that the trial court had no power to enter separate judgments of conviction and separate sentences for the separate acts of sodomy because they were "disproportionate” to defendant’s criminal responsibility for a single criminal episode is contrary to the probable intent of the legislature in such cases.
I. In considering the separate judgments of conviction and sentences for each of the three counts of sodomy, both the controlling statutes and the facts must be kept in mind. ORS 163.405(l)(a) provides that a person who "engages in deviate sexual intercourse with another person” is guilty of sodomy in the first degree if "[t]he victim is subjected to forcible compulsion by the actor.” "Deviate sexual intercourse” is defined in ORS 163.305(1) as "sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.”
The facts of this case relating to the acts of rape and sodomy upon the victim, following her kidnapping, as stated in defendant’s petition for review, are as follows:
"Upon reaching the side yard, the person told her to lie down on her back and not to make any noise. He held the knife to her throat and proceeded to fondle her after unbuttoning her shirt. The person laid down on his side and unzipped his pants and exposed himself to her and asked her to take his penis into her throat. He told her at that time, 'If you bite me, I will kill you.’ He told her to lie on her stomach. He put his body on top of hers after unbuttoning her pants. He then attempted to have anal intercourse with her. *435Ms. * * * told him if he did, it would make her cry out. He then engaged in sexual intercourse with her and after that again put his penis into her mouth. Later on he put his mouth to her genitals. * * * After the second incident of anal intercourse, he turned over on his side and told her she could stand up long enough to pull up her jeans. When she pulled up her jeans, she realized that his pants were around his knees and ran.”
That incident, from the time the victim was first abducted with a knife at her throat while walking down a street and forced to walk two blocks to a back yard where she was raped and sodomized three times, to the time when she escaped and ran away, lasted 40 minutes.
The indictment set forth three separate sodomy counts: one for deviate sexual intercourse "by causing the sex organs of the said defendant to be brought into contact with the mouth” of the victim, a second for deviate sexual intercourse "by causing the sex organs of the said defendant to be brought into contact with the anus” of the victim, a third for deviate sexual intercourse "by causing the sexual organs of (the victim) to be brought into contact with the mouth of the defendant.”
As stated by the majority, each of the three sodomy counts was submitted to the jury, which returned a verdict of guilty on each count, as well as on the separate counts for kidnapping and rape. The trial court then entered a judgment of conviction on each count and sentenced the defendant to a term not to exceed 20 years on each count, to run consecutively, and with directions that defendant was to serve a minimum of 10 years.
As stated by the majority, the defendant, in objecting to the three sentences, contended that the sodomies would merge and that judgment could be entered for "one sodomy.”1 The only assignment of *436error in defendant’s brief on appeal to the Court of Appeals, however, (other than that the trial court erred in its sentence for both rape and kidnapping) was that:
"[T]he circuit court erred in sentencing defendant on the five counts for a term not to exceed 100 years.” (Emphasis added)
In support of that assignment of error defendant’s contention was that:
"Defendant appeals this sentence pursuant to ORS 138.040 (which provides for substantive sentence review of excessive sentences by the Court of Appeals) on the grounds that it is excessive. "(Emphasis added)2
More specifically, defendant’s contention on its appeal to the Court of Appeals was that:
"In State v. Steele, 33 Or App 491, 577 P2d 524 (1978), the defendant was convicted of two counts of sodomy and sentenced to 20 years imprisonment on each count. The second sodomy conviction was to run concurrently with the first. This is precisely what the court should have done in this case with the three counts of sodomy and the rape. "(Emphasis added)3
*437The Court of Appeals apparently considered and rejected these contentions in affirming without opinion the separate judgments of conviction and the consecutive sentences for each of the three counts of sodomy.
In defendant’s petition for review by this court defendant’s primary emphasis was upon the prosecution of the defendant for both kidnapping and rape and the only remaining contention, again, was that:
"The legislature, in amending ORS 138.040 and 138.050 intended to provide for substantive appellate review of sentences. ” (Emphasis added)4
and that the consecutive sentences imposed by the trial court were improper and should thus be reviewed under those statutes.
After the filing of defendant’s petition for review, this court decided State v. Cloutier, 286 Or 579, 596 P2d 1278 (1979), and heard argument in State v. Harris, 287 Or 335, 599 P2d 456 (1979), although Harris had not been decided when this case was argued in this court.
Defendant then filed a supplemental memorandum acknowledging that although the issue had been raised at trial, as in Harris, "he did not assign as error the trial court’s sentencing of defendant on those separate sodomy charges and a rape count.” Defendant contended, however, that "in light of Cloutierhe would "return to his original position that a single sentence on one count was appropriate” and that the separate sentences by the trial court were f!excessive. ”
As previously noted, defendant’s original position had been that the sentence was subject to substantive sentence review by the Court of Appeals under ORS 138.040 on the ground that it was an excessive sentence for the reason that consecutive sentences had *438been imposed, and that concurrent sentences should have been imposed. As also previously noted, defendant did not contest the separate judgments of conviction, but only the consecutive sentences.
The majority holds that the trial court erred "in imposing separate sentences for three counts of sodomy in a single [criminal] episode * * By its references to Cloutier, the majority obviously intended to apply to this case the holding by the majority of this court in Cloutier to the effect that when crimes of burglary and robbery arise from the same criminal episode, there can properly be only one judgment of conviction, as well as only one sentence. No such contention was made by this defendant either in his brief on appeal to the Court of Appeals or in his petition for review or supplemental memorandum to the court.
It follows, in my opinion, that the only question properly before this court relating to defendant’s conviction and sentencing on each of three counts of sodomy is the question whether the sentences were excessive in that they were consecutive, rather than concurrent and thus were subject to substantive sentence review under ORS 138.040. It also follows, in my opinion, that the question whether there would be only one judgment of conviction and only one sentence for the three separate acts of sodomy, as decided by the majority, is not properly before this court in this case.5
*439The majority holds that this question is properly before this court for decision in this case because it was raised at the time of trial by the defendant and was raised again by him in oral argument before this court, at which time the state attempted to respond to that contention, even though that question was not assigned as error in appellant’s brief to the Court of Appeals and was not urged in his petition for review to this court.
In other words, the majority holds that if a defendant in a criminal case raises some question on trial which he does not assign as error on appeal or urge by petition for review, he can wait until oral argument before this court and then raise the question again. The majority also holds that in such an event, if the state attempts to make some response to that contention on oral argument, this court, in its new role as a "law-making court” rather than an "error-correcting court,” can properly base its opinion, making "new law,” upon a decision of such a question, rather than upon a decision of the questions raised by appellant’s brief and petition for review.
This sets a new and important, if not dangerous, precedent for application in the consideration of petitions for review in future cases, both criminal and civil. It is a step that should only be taken deliberately and after full benefit of the adversary system — in this case only after the State of Oregon, through the Attorney General, has been afforded an opportunity to be *440heard on this important question by setting this case for further oral argument with or without further briefs.
In addition to the importance of this question as one of proper appellate procedure, is the related question of whether, in this case, the state has had a fair opportunity to be heard on the contention by defendant which provides the basis for the decision by this court of this case. It is elemental, if not required as a matter of constitutional due process, that each party in a litigated case, at least at the appellate level, is entitled to notice before trial or hearing of the affirmative contentions of his opponent in order that he may have a fair opportunity to prepare and present opposing evidence or arguments.
That basic requirement cannot properly be said to be satisfied by the fact that some attempt is made at a hearing to respond to a contention by an opponent when the party had no notice that such a contention would be made at the hearing. Yet the majority would decide this important case on the basis of just such a contention and would justify its action in doing so by the fact that the attorney for the state attempted to respond to the contention on oral argument before this court.
In my opinion, the majority has denied the State of Oregon a fair opportunity to be heard on the question which provides the basis for its decision of this case. As a result, the least that should be done by this court is to set this case for reargument or request further briefs upon the question whether the three consecutive sentences for the three acts of sodomy were not only excessive, so as to require substantive sentence review, as urged by defendant in his brief and petition for review, but were also improper in that only one judgment of conviction and sentence can properly be entered, and for only one of the three acts of sodomy, as now held by the majority of this court.
*441It would be particularly appropriate to set this case for reargument or request further briefs because the court is so closely divided on the important questions involved in this case and because one of the decisive votes in favor of the majority is that of a member of the court who has resigned as of January 21, 1980. I can understand and do not question the reasons and motives of the majority in its desire to make and publish a decision in this case before that date. With all due respect to the majority, however, I believe that simple fairness to the State of Oregon, as a party to this case, is a far more basic and compelling consideration.
This court has held many times, in both civil and criminal cases, that it will not reverse judgments entered by trial courts on grounds not properly raised by proper assignments of error on appeal. In my opinion, this is a salutory rule and one which should be followed by the court in this case.
II. In support of its holding that the trial court erred in entering separate judgments of conviction and separate sentences for each of defendant’s three different offenses of sodomy, the majority appears to reason as follows:
(1) The "concern” of the court is "defendant’s criminal responsibility for a single criminal episode.” (Op. 425)
(2) In State v. Welch, 264 Or 388, 505 P2d 910 (1973), this court has "looked for legislative intent,” but "the facts of this case can be distinguished” and the rationale of Welch is that a defendant "should not be twice punished for one criminal episode unless the legislature has clearly prescribed additional penalties.” (Op. 426)
(3) "No statute in Oregon authorizes or prohibits multiple sentences where the same criminal statute is violated more than once in a single criminal episode.” (Op. 426)
(4) It follows that separate convictions and sentences in this case were in error because separate *442sentences for each deviate contact result in a punishment "disproportionate to the defendant’s criminal responsibility for a single criminal episode,” at least unless the defendant "after one act starts anew after a time for reflections.” (Op. 427)
With all due respect to the majority, it is my opinion that both its major premise and its reasoning, based upon that premise, is faulty. The majority of this court in State v. Cloutier, supra, under different facts, held that when the defendant in that case committed the offenses of burglary and robbery in the same criminal episode, only one judgment of conviction and one sentence is proper. Regardless of my disagreement with that decision by the majority of this court in Cloutier, for reasons as set forth in my dissent in that case,6 it is important to note that it is based primarily upon a finding that it was the intention or "policy” of the legislature, as revealed by recently enacted statutes, that there be "proportionality and rationality” in sentencing and that anything other than a single judgment of conviction and sentence in a burglary-robbery case would be contrary to that intent by the Oregon legislature. Such was the basis for the holding by the majority in Cloutier, rather than a holding that unless the legislature has clearly indicated a contrary intent, a defendant’s "responsibility” for a single "criminal episode” is such as to prohibit as "disproportionate” more than one judgment of conviction and sentence for all crimes committed in the course of a criminal episode unless after each crime the defendant "starts anew after a time for reflection,” as now held by the majority. In other words, the majority has "put the cart” (of criminal responsibility) "before the horse” (of legislative intent).
Assuming, however, as held by the majority in Cloutier, that the intention of the legislature is that there must be "proportionality and rationality” in sentencing, the question to be decided in this case is *443whether the legislature would regard separate judgments of conviction and separate sentences for each of the three separate and different "offenses” of sodomy committed by the defendant in this case as "disproportionate and irrational.”
The legislature, by ORS 161.505, has defined the term "offense” as follows:
"An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. * * *”
As previously stated, ORS 163.405 provides that:
"(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:
"(a) The victim is subjected to forcible compulsion by the actor; * *
As also previously stated, ORS 163.305(1) provides:
"'Deviate sexual intercourse’ means sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.”
In this case, as also previously stated, defendant was charged and convicted by a jury of sodomy in the first degree by "deviate sexual intercourse” of each of the three types specified in ORS 163.305(1). It necessarily follows that defendant was found guilty by the jury of three separate "offenses,” in addition to the offense of rape, even though committed during the same "criminal episode.”
The majority holds that it was not error for the trial court to enter a separate judgment of conviction and a separate sentence for rape, in addition to one judgment of conviction and sentence for sodomy. In other words, the majority holds that double convictions and sentences for rape and sodomy are not "disproportionate” or "irrational,” even though committed during, a single criminal episode.
*444Thus, the majority holds that when a defendant rapes a victim by "natural” sexual intercourse and then commits sodomy on the same victim by anal intercourse there can be two separate judgments of conviction and sentences, but that if a defendant commits an act of sodomy by "causing the sex organs of said defendant to be brought into contact with the mouth” of the victim (an act equally, if not more terrifying to the victim than rape by natural intercourse), followed by the same act of anal intercourse, the entry of two separate judgments of conviction and sentences, as in this case, is in error as "disproportionate” or "irrational.”
If such be the law, to paraphrase Dickens, then "the law is an ass.” And for the majority of this court to hold, as it must in order to justify such a distinction, that the legislature of Oregon intended such an absurd result is even more unbelievable.
To compound the confusion, as well as the "irrationality” of such a result, the majority, by its reliance upon Cloutier, necessarily approved of the submission by the trial court to the jury of each of the three separate counts for each of the three different types of "deviate sexual intercourse,” and yet held that despite the jury verdict of guilty on each of the three counts, the trial court had power to enter a judgment of conviction and sentence on only one of them. It is entirely possible, however, that an appeal may be taken from the judgment of conviction of that one act of sodomy, whereas if judgments of conviction had been entered for the other two acts of sodomy, and if appeals had been taken from those judgments of conviction, they would have been affirmed on appeal.
In my judgment, this is a further reason why it can hardly be said that because the legislature intended to adopt a "proportionate” and "rational” program for sentencing, it must necessarily follow in a case involving three separate and different acts of sodomy there can be only one judgment of conviction. The only *445answer to this problem by the majority would be to hold, as suggested in Cloutier (at 602), that because of the possibility of reversal of the judgment of conviction for the one act of sodomy, the jury verdicts of conviction for the other two and different acts of sodomy be held in a "state of suspended animation” so as to provide a basis for entry of a judgment of conviction on one of them in the event of an appeal and reversal of the prior judgment of conviction, presumably to be followed by another appeal, with continued bail and, if successful, by entry of judgment of conviction for the third act of sodomy, followed by yet another appeal, with continued bail. It is inconceivable to me that the legislature intended such an incongruous, complicated and time-consuming result.
To me, the legislative intent and plan to eliminate "disproportionate” sentences is far more simple and "rational.” Or. L. 1977 ch 372, enacted in 1977, although designed to reduce disparity in sentencing, is not inconsistent with the concept of separate judgments of conviction and sentences upon conviction by a jury for separate and different acts of sodomy, as in this case. Under that statute trial courts are provided with presentence reports and must state on the record the reasons for sentences imposed (ORS 144.790(1) and 137.120(2)). The sentences imposed by trial courts are for indeterminate periods of time, with the trial court stating only a maximum term to be served and, in his discretion, a minimum sentence up to one-half of that maximum sentence (ORS 137.120(2) and 144.110(1)).' Appeals may be taken from sentences claimed to be excessive, and such sentences must be reviewed by the Court of Appeals (ORS 138.040 and 138.050).
Thus, if the sentences imposed are "disproportionate” in that they are excessive, they are subject to substantive sentence review. As previously stated, it was the contention of this defendant in his brief to the Court of Appeals that the sentences imposed in this *446case should be reviewed as excessive sentences, not because there were three separate judgments of conviction and sentences, but because the sentences should have been made to run concurrently, rather than consecutively.
Moreover, and regardless of the sentences imposed by the courts, the legislature has provided by ORS 144.780 and 144.785 that it is the Board of Parole that determines the actual duration of imprisonment and in doing so is to seek to achieve "[p]unishment which is commensurate with the seriousness of the prisoner’s conduct,” after considering "aggravating or mitigating circumstances.”
As conceded by the majority, nothing in this statutory plan prohibits multiple sentences when the same criminal statute is violated more than once in the same criminal episode. It is far more reasonable, in my opinion, to construe these statutes and the legislative intent which they embody as a legislative plan to eliminate "disproportionate” sentences by requiring presentence reports, statement of reasons for sentences, by providing for indeterminate sentences and substantive review of excessive sentences and by providing for a determination by the Parole Board of the actual time to be served, than to interpret these statutes as demonstrating a legislative intent to eliminate "disproportionate” sentences by prohibiting separate judgments of conviction and sentences in cases in which this court may be of the opinion that to do so would impose "disproportionate” sentences — in this case by prohibiting separate judgments of conviction and sentences for three different acts of sodomy in a single criminal episode, while permitting separate convictions and sentences for acts of rape and sodomy in the same criminal episode, as held by the majority.
Also, as previously stated, this question is not only one of importance, but one on which the State of Oregon has not had a fair opportunity to be heard, in my opinion, so as to entitle it to have this case set for *447reargument before this court makes a decision by which it adopts a finding of such an incongruous legislative intent.
The majority says that separate convictions and sentences are proper for rape and sodomy, but not for two different acts of sodomy because the legislature "has chosen to differentiate” between rape and sodomy to make them "two distinct offenses requiring differing elements of proof.” Under the terms of ORS 163.405 and 163.305, however, "differing elements of proof” are also required to establish the offense of oral sodomy, as "differentiated” from the separate offense of anal sodomy.
What the majority fails to recognize, in my opinion, is that this victim was held in a state of terror by this defendant for a period of 40 minutes, which, to a victim under such circumstances, is a long period of time. During that period, as previously stated, the defendant not only raped the victim, but before doing so committed both oral and anal sodomy upon her and after then raping her he again committed oral sodomy upon her.
As previously noted, the legislature, in 1975, defined the term "offense” as "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state.” ORS 163.405 and 163.305(1) provides that both oral and anal sodomy are Class A felonies for which terms of imprisonment are provided by ORS 161.605.
Surely, any woman who has been subjected to such conduct by a man over a period of 40 minutes would believe that three separate offenses of sodomy have been perpetrated upon her for which the offender would be subject to separate convictions and separate sentences of imprisonment, and that for a court to hold that such a defendant can be convicted and sentenced for only one of the three acts of sodomy would be the *448ultimate in male chauvinism. If, in such a case, sentences for the three acts of sodomy are excessive, they are subject to substantive sentence review under the statutes recently adopted by the legislature.
It is difficult for me to believe that the Oregon legislature, including its many women members, could have intended otherwise. Yet the majority necessarily must hold that to impose more than one judgment of conviction and more than one sentence for the three separate and different acts of sodomy in such a case would be "disproportionate” and therefore contrary to the intent of the Oregon legislature. I cannot agree and would hope that in the near future the legislature will make clear its intention on this subject.
Finally, the almost identical question presented in this case was presented in State v. Steele, 33 Or App 491, 577 P2d 524 (1978). In that case, as in this case, defendant contended that his convictions for oral and anal sodomy in the first degree were improper on authority of State v. Welch, supra. That same contention was rejected by the Court of Appeals in an opinion by Schwab, C.J., as follows (at 499):
"Nothing in the legislative history of ORS 163.405 indicates whether a merger is appropriate in the situation presented here. As Welch points out, there is no precise formula for determining legislative intent in situations such as this. It tells us, citing Bell v. United States, 349 US 81, 75 S Ct 620, 99 L Ed 905 (1955), that we read statutes 'with the saving grace of common sense.’ 264 Or at 393. We do not believe that the convictions for oral and anal sodomy in the first degree merge as constituting but one crime. The victim was exposed to additional fear, humiliation and danger during the second sodomy. We see no reason why we should hold that a man who commits one sodomy may do so again and again to the same victim with impunity. * * * The defendant’s two acts of sodomy constituted two separate crimes, separately punishable.”
*449This court denied defendant’s petition for review in Steele, and properly so. (285 Or 195). In my view, the opinion by Schwab, C.J., is a sound opinion and one in full accord with what I believe to have been the probable intention of the legislature in such cases.
For these reasons, I must respectfully dissent from the holding by the majority that it was error for the trial court to enter separate judgments of conviction and separate sentences for three separate offenses of sodomy committed by this defendant. I cannot agree with the holding by the majority that to do so was "disproportionate” to defendant’s criminal responsibility for that criminal episode.
HOWELL, J., joined in this opinion.
PETERSON, J., joined in part and filed opinion.
There was no "merger” of offenses in this case for reasons stated in footnote 5.
ORS 138.040 provides, in part:
"The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court, including a judgment where the court imposes a sentence which is cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the offense. * * * If in the judgment of the appellate court the punishment imposed by the sentence appealed from is cruel, unusual or excessive, the appellate court shall direct the court from which the appeal is taken to impose the punishment that should be administered.” (Emphasis added)
Defendant also cited Article I, Section 15 of the Oregon Constitution, which provides:
"Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice.”
Defendant also contended that:
"The ABA Standards of Criminal Justice Relating to Sentencing Alternatives and Procedures disapprove of consecutive sentences, referring to them as 'rarely appropriate.’ ” Standard 2.4(b).
For the provisions of ORS 138.040, see note 2 above. ORS 138.050 sets forth similar provisions relating to sentences of defendants who have pleaded guilty or "no contest.”
The decision by this court in State v. Harris, supra, neither compels nor supports a different result. Harris held (at 340) that when one offense, such as sodomy, necessarily includes another offense, such as sexual abuse, there is a merger of the two offenses, with the result that a sentence for both offenses is subject to judicial review under ORS 138.040 as "excessive” even if not properly raised by assignment of error. The court was careful to point out, however, (at 341) that this is not true of an offense which may be committed without committing another offense and (at 342) affirmed separate sentences for such offenses.
In this case, each of the three acts of sodomy were separate offenses, were separately committed and could not have been committed at one and the same time. Defendant’s briefs, petition and supplemental memoran-
(Continued on following page)
*439 (Continued, from previous page)
dum do not contend that separate judgments of conviction and separate sentences for each of these then separate acts of sodomy were improper, but only that the consecutive sentences imposed were "excessive,” and thus subject to substantive sentence review under ORS 138.040.
The majority, however, upon holding that the three separate sentences for sodomy were improper, has declined to consider that question — the only question properly raised by defendant relating to the sentences for sodomy. As a result, the majority also declined to consider the further question whether this court is empowered by ORS 138.040 to conduct an independent sentence review since that statute, by its terms, confers that power upon the Court of Appeals.
See State v. Cloutier, supra, 286 Or at pp 604 to 617.