State v. Barrett , 134 Or. App. 162 ( 1995 )

894 P.2d 1183 (1995) 134 Or. App. 162

STATE of Oregon, Respondent,
v.
Dennis Edward BARRETT, Appellant.

92-2662; CA A76662.

Court of Appeals of Oregon.

Submitted on Remand March 3, 1995. Decided April 26, 1995. Review Denied July 5, 1995.

Sally L. Avera, Public Defender, argued the cause and filed the brief for appellant.

Timothy A. Sylwester, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

Defendant appealed from a departure sentence following his conviction for sexual abuse in the first degree, ORS 163.427, and we affirmed from the bench. 127 Or.App. 754, 875 P.2d 545 (1994). The Supreme Court has remanded for reconsideration in the light of State v. Kephart, 320 Or. 433, 887 P.2d 774 (1994), and State v. Martin, 320 Or. 448, 887 P.2d 782 (1994). 320 Or. 503, 887 P.2d 789 (1995).

Defendant's plea of guilty to sexual abuse in the first degree was pursuant to a plea bargain in which the state dismissed other charges and agreed not to recommend a departure sentence, and the parties stipulated to the applicable grid block. The sentencing court sua sponte imposed the departure sentence.

We conclude that, under Kephart and Martin, review is not precluded by ORS 138.222(2)(d) (1993). Our conclusion is dictated by Kephart's discussion of State v. Johnston, 120 Or.App. 165, 851 P.2d 1156, rev den 317 Or. 272, 858 P.2d 1314 (1993). In Johnston, the defendant had pleaded guilty pursuant to a plea bargain and stipulated to a grid block. The sentencing court imposed a departure sentence from which the defendant appealed, and we held that we could not review the claim of error under ORS 138.222(2)(d) (1989) and State v. Adams, 315 Or. 359, 847 P.2d 397 (1993).^[1] In Kephart, the Supreme Court stated that the legislative history of the 1993 amendment to ORS 138.222(2)(d) shows that it was drafted to "prevent such a result" as occurred in Johnston. 320 Or. at 446, 851 P.2d 1156. We turn to the merits.

Defendant argues that the trial court erred in imposing an upward departure because: (1) the court's finding that the victim suffered harm greater than typical for the offense, OAR 253-08-002(1)(b)(J), was impermissibly based on hearsay; and (2) defendant's admissions that, over a period of 20 years, he had engaged in "inappropriate sexual touching" and contact with at least 12 young women and girls, including family members, did not support a finding of "persistent involvement in similar offenses," OAR 253-08-002(1)(b)(D), in that such prior conduct had not resulted in criminal convictions.^[2] We need not, and do not, address defendant's first argument because, regardless of the propriety of the trial court's finding on the subparagraph (J) departure factor, the court treated the persistent involvement factor as an independently sufficient basis for departure, and we conclude that departure on that basis was not erroneous. State v. Williams, 131 Or.App. 85, 87, 883 P.2d 918 (1994), on recon 133 Or.App. 191, 891 P.2d 3 (1995).

At the sentencing hearing, the trial court considered the statement in the presentence investigation report (PSI), which detailed defendant's admission of a history of "inappropriate sexual contact," including intercourse, with young women and girls, including family members. Defendant testified at the hearing and denied that he had told the PSI's author about incidents of intercourse, but admitted that he had engaged in inappropriate touching. The author of the PSI then testified, reiterating that defendant had, in fact, made the admissions detailed in the PSI. The court expressly found the PSI's author to be credible and observed: "What we have here is a man that, over the course of 20 years, looks like he has a history of sexually abusing young women." That history, even in the absence of criminal convictions, warranted departure. State v. Wilson, 111 Or.App. 147, 153, 826 P.2d 1010 (1992).^[3]

Affirmed.

NOTES

[1] Before State v. Adams, 315 Or. 359, 847 P.2d 397 (1993), we reviewed claims of error similar to those at issue here as reviewable under ORS 138.222(4)(a), which permits review in "any appeal" of a claim that the sentencing court failed to comply with requirements of law in imposing sentence. In Adams, the Supreme Court held that ORS 138.222(4) applied only to ORS 138.222(2)(e). Id. at 365, 847 P.2d 397.

[2] In this case, defendant was convicted of molesting his 11-year old niece, while he was providing child care for her brothers.

[3] In Wilson, where the defendant was convicted of promoting prostitution, we held that the trial court could rely on defendant's admitted history of promoting prostitution, which had resulted in only one prior conviction, as establishing "persistent involvement in similar offenses" within the meaning of OAR 253-08-002(1)(b)(D):

"[Defendant] does not contend that his previous involvement was already reflected in his criminal history. The presumptive sentence would not reflect the extent of his involvement in promoting prostitution. The court relied on defendant's own admission that he had promoted prostitution by two other minor females and had long been involved in promoting prostitution in at least two states." Ill Or.App. at 153, 826 P.2d 1010.