State v. Rambo , 227 Or. App. 356 ( 2009 )

206 P.3d 212 (2009) 227 Or. App. 356

STATE of Oregon, Plaintiff-Respondent,
v.
Bo J. RAMBO, Defendant-Appellant.

04103; A125023.

Court of Appeals of Oregon.

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

Peter Gartlan, Chief Defender, and David Ferry, Deputy Public Defender, Office of Public Defense Services, for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jeremy C. Rice, 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. Rambo, 209 Or.App. 598, 149 P.3d 172 (2006) (Rambo 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. Rambo, 345 Or. 316, 195 P.3d 63 (2008). In Rambo I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed a departure sentence 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 Rambo I was erroneous. Accordingly, we affirm.

Defendant was convicted of two counts of first-degree robbery, two counts of second-degree assault, felon in possession of a firearm, and possession of a controlled substance. The court imposed a dispositional departure sentence of 18 months' imprisonment on the felon in possession of a firearm conviction, explaining that it was defendant's "fourth conviction for being a felon in possession of a firearm since 1991."

On this record, we readily conclude that there is no legitimate debate that the jury would have found defendant to have been persistently involved in similar offenses. 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). 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." As the trial court observed, defendant's current conviction for felon in possession of a firearm was his fourth conviction for that offense in 13 years. That evidence was uncontroverted and, in our view, overwhelming. Accordingly, we decline to exercise our discretion to review the assigned error.

Affirmed.