State v. Wise , 226 Or. App. 251 ( 2009 )

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203 P.3d 237 (2009) 226 Or. App. 251
STATE of Oregon, Plaintiff-Respondent,
v.
Tracy Steven WISE, Defendant-Appellant.
200225723, A121787.
Court of Appeals of Oregon.
Submitted on Remand October 28, 2008. Decided February 25, 2009.
*238 Stephanie Hortsch, Deputy Public Defender, for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jeff J. Payne, Assistant Attorney General, for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge.

PER CURIAM.

This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Wise, 202 Or.App. 661, 123 P.3d 370 (2005) (Wise I), in light of State v. Ramirez, 343 Or. 505, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008), and State v. Fults, 343 Or. 515, 173 P.3d 822 (2007). State v. Wise, 345 Or. 317, 195 P.3d 64 (2008). In Wise I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed departure sentences based on judicial findings that defendant was persistently involved in similar offenses. That factfinding constituted plain error, and we exercised our discretion to correct it. The issue before us on remand is whether, in light of Ramirez and Fults, we properly exercised our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). We conclude that our exercise of discretion in Wise I was correct. Accordingly, we again remand for resentencing.

Among other offenses, defendant was convicted of two counts of unlawful possession of a controlled substance. The trial court imposed durational departure sentences on those convictions based on defendant's "persistent involvement in similar offenses."

As we explained in State v. Williams, 225 Or.App. 325, 328-29, 201 P.3d 267 (2009), under State v. Bray, 342 Or. 711, 724, 160 P.3d 983 (2007), there is no legitimate debate that a jury would have found a defendant to have been persistently involved in similar offenses where the number and frequency of the defendant's prior convictions compels the inference that his or her criminal behavior has been "persistent." See Ramirez, 343 Or. at 513, 173 P.3d 817 (setting out "legitimate debate" standard for exercise of discretion to review unpreserved challenges to departure sentences based on judicial findings of fact).

On this record, we cannot say that there is "no legitimate debate" that a jury would have found that defendant had been persistently involved in similar offenses. The only evidence of defendant's criminal history at sentencing was the state's representation that defendant had "at least 34 convictions," including manslaughter and driving under the influence of intoxicants. As noted, here, the trial court imposed durational departure sentences on the two counts of unlawful possession of controlled substances. However, the state did not assert that defendant had prior convictions for unlawful possession of a controlled substance or any other offenses involving controlled substances. Accordingly, the evidence in the record before us is insufficient to compel the inference that defendant was persistently involved in similar *239 offenses. See State v. Cornelius, 112 Or. App. 98, 100-01, 827 P.2d 937, rev. den., 314 Or. 176, 836 P.2d 1345 (1992) (explaining test for determining similarity of offenses for purposes of departure sentences).

Moreover, the gravity of the error in this case was not trivial. Ailes, 312 Or. at 382 n. 6, 823 P.2d 956. The imposition of the upward departure sentences on Counts 4 and 7 increased defendant's term of incarceration by 12 months.

For the above reasons, we exercise our discretion to correct that error. Ramirez, 343 Or. at 513, 173 P.3d 817.

Remanded for resentencing; otherwise affirmed.