State v. Derrick ( 2023 )

835
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted October 21, 2022, affirmed May 10, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
KEVIN CHARLES DERRICK,
Defendant-Appellant.
Clackamas County Circuit Court
20CR57132, 20CR55721;
A175657 (Control), A175658
Jeffrey S. Jones, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Hellman, Judge,
and Landau, Senior Judge.
HELLMAN, J
Affirmed.
836 State v. Derrick
HELLMAN, J.
Defendant appeals the trial court’s imposition of
an upward departure sentence. For the reasons below, we
affirm.
Defendant was convicted after a jury trial of failure
to perform the duties of a driver to injured persons, ORS
811.705, based on an incident in which defendant struck
and killed a pedestrian and drove away. The trial court sen-
tenced him to an upward durational departure of 42 months
in prison under OAR 213-008-0002(1)(b)(D), based on a
finding that defendant was persistently involved in similar
offenses. The record contained evidence that defendant had
previously been convicted of approximately 20 motor vehi-
cle offenses, including reckless driving, attempting to elude
police officers in a motor vehicle, and multiple violations for
driving while suspended and speeding.
In his assignment of error, defendant argues that
the trial court erred in imposing the upward departure sen-
tence. We disagree.
“We review to determine whether the court’s find-
ings of fact and reasons justifying the departure are sup-
ported by the evidence in the record and constitute substan-
tial and compelling reasons to depart as a matter of law.”
State v. Davilla, 280 Or App 43, 59, 380 P3d 1003 (2016)
(quoting State v. Watkins, 146 Or App 338, 340, 932 P2d
107, rev den, 325 Or 438 (1997)). Defendant does not chal-
lenge the trial court’s legal determination that there were
substantial and compelling reasons to depart. Instead, his
challenge is limited to the trial court’s factual finding that
his prior offenses were sufficiently similar to the current
offense.
Whether offenses are sufficiently similar involves
an examination of a defendant’s underlying criminal con-
duct. State v. Cornelius, 112 Or App 98, 100, 827 P2d 937,
rev den, 314 Or 176 (1992). The trial court found that defen-
dant’s past conduct underlying his prior convictions and his
conduct in the instant case both involved “driving when he
Nonprecedential Memo Op: 325 Or App 835 (2023) 837
shouldn’t have been driving,” which resulted in criminal lia-
bility. The record supports that finding.
Affirmed.