State v. Robertson , 226 Or. App. 234 ( 2009 )

203 P.3d 254 (2009) 226 Or. App. 234

STATE of Oregon, Plaintiff-Respondent,
v.
Anthony Scott ROBERTSON, Defendant-Appellant.

99C56280; A117093.

Court of Appeals of Oregon.

Submitted on Remand October 28, 2008. Decided February 25, 2009.

Rankin Johnson IV, Portland, for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, 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. Robertson, 207 Or.App. 464, 142 P.3d 113 (2006), rev. den., 342 Or. 254, 149 P.3d 1213 (2006), cert. den. sub nom. Robertson v. Oregon, 549 U.S. 1310, 127 S. Ct. 1886, 167 L. Ed. 2d 373 (2007) (Robertson 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. Robertson, 345 Or. 316, 195 P.3d 63 (2008). In Robertson I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed departure sentences based on judicial findings that the victim was particularly vulnerable and that defendant had participated in organized crime activity. 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 Robertson I was correct. Accordingly, we again remand for resentencing.

Defendant was convicted of first-degree robbery with a firearm, second-degree robbery, unlawful use of a weapon, and felon in possession of a firearm arising from his armed robbery of a retail establishment. The trial court imposed a durational departure sentence of 110 months' imprisonment on the first-degree robbery conviction. The court gave the following reasons for its departure:

"I find there are substantial and compelling reasons to durationally depart from the 51 to 55 month presumptive sentence, that being, specifically, the vulnerability of the victim[.] * * * She was a young woman alone, by herself, in a very vulnerable position in an establishment late at night.

"Also, I do find there was an organized criminal activity ongoing, the planning and preparation and execution of this crime."

The court also imposed a 60-month "gun minimum" sentence under ORS 161.610.

The question is whether we should exercise our discretion to correct the error in this case, and we do so for two reasons. The state concedes that there is a legitimate debate about whether the jury would have found the departure factors relied on by the trial court. Our review of the record confirms the accuracy of that concession, and we accept it. 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).

Moreover, the gravity of the error in this case is not trivial. Ailes, 312 Or. at 382 n. 6, 823 P.2d 956. The court's departure sentence increased defendant's term of incarceration by 50 months. Accordingly, we reverse and remand for resentencing.

Remanded for resentencing; otherwise affirmed.