State v. Phillips , 227 Or. App. 310 ( 2009 )

206 P.3d 215 (2009) 227 Or. App. 310

STATE of Oregon, Plaintiff-Respondent,
v.
Kenneth Wayne PHILLIPS, Defendant-Appellant.

020935355; A124805.

Court of Appeals of Oregon.

Submitted on Remand October 29, 2008. Decided April 8, 2009.

Daniel J. Casey 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.

BREWER, C. J.

This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Phillips, 213 Or.App. 122, 159 P.3d 1223 (2007) (Phillips 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. Phillips, 345 Or. 316, 195 P.3d 63 (2008). In Phillips I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed a departure sentence based on judicial findings. 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 Phillips I was erroneous. Accordingly, we affirm.

Defendant was convicted of first-degree assault with a firearm, second-degree kidnapping, and felon in possession of a firearm. The trial court imposed a durational departure sentence of 180 months' incarceration on the first-degree assault conviction. The court gave the following reasons for its decision to impose a departure sentence: "(1) Defendant was on supervision at time of crime; (2) permanent injury to victim."

In this case, the trial court did not explicitly state that it was relying on the departure factors it found either singly or in combination, and therefore we assume that the court did not consider each factor to be independently sufficient to support a departure. State v. Wilson, 111 Or.App. 147, 826 P.2d 1010 (1992). Thus, remand for resentencing may be warranted if either one of the factors relied on by the trial court is subject to legitimate debate. 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).

With regard to the departure factor of defendant's post-prison supervision status at the time he committed his current crime, as we explained in State v. Allen, 198 Or.App. 392, 396, 108 P.3d 651, adh'd to as clarified on recons., 202 Or. App. 565, 123 P.3d 331 (2005), rev. den., 342 Or. 46, 148 P.3d 915 (2006), an upward departure sentence based on a defendant's supervisory status "requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent." In this case, defendant was on post-prison supervision for a prior conviction for robbery, and the evidence adduced at trial showed that defendant had shot the victim during a dispute about defendant's plan to commit a new robbery. Given that evidence, we conclude that there is no legitimate debate that the jury would have drawn the inference required by Allen.

With regard to the departure factor of the victim's permanent injury, the victim testified at trial that he was paralyzed from the neck down; in closing argument, and again at sentencing, the prosecutor represented that the victim would never walk again. Although defendant now argues that no evidence conclusively established that the victim's condition was permanent, we conclude that there is no legitimate debate that the jury would have found that the victim suffered a permanent injury: he appeared at trial—15 months after defendant shot him-in a wheelchair and paralyzed from the neck down. Accordingly, we decline to exercise our discretion to review the assigned error.

Affirmed.