State v. Lee ( 1992 )

WARREN, P. J.,

dissenting.

I agree that the relevant comparison under OAR 253-08-002(2) is between defendant’s conduct and the crime of conviction. 110 Or App at 531.1 disagree, however, that we can tell what the trial court compared. The judge’s statement that “the violence involved * * * was greater than the violence that is normally found in shoplifts that turn into robbery II’s because of violence” does not indicate that he considered the usual criminal conduct that is involved in robbery II. Robbery II can include use of force or threat of use of force to complete a theft. It also involves a representation that the defendant is armed with a dangerous or deadly weapon. ORS 164.405. I cannot tell whether the court was comparing defendant’s conduct only to robberies that begin as shoplifts or to the “usual” robbery II. We cannot conduct meaningful review without knowing that. We should remand for the trial court to make the relevant comparison specific.¹ Accordingly, I dissent.

1 Without a specific comparison, we cannot tell whether the court intended to impose an upward departure because it thought that defendant caused or attempted to cause serious physical injury to the victim, a fact that might not bean appropriate aggravating factor. See Commentary, Oregon Sentencing Guidelines Implementation Manual 125 (1989).