State v. Brown , 132 Or. App. 443 ( 1995 )

DEITS, J.

Defendant was convicted of theft in the first degree. ORS 164.055. Under grid block 4-A, his presumptive sentence was 10 months of imprisonment; however, the sentencing court found an aggravating factor and imposed a departure sentence of 20 months of imprisonment. Defendant challenges that sentence, arguing that the aggravating factors cited by the court do not constitute substantial and compelling reasons for a departure. ORS 138.222(3).¹ We affirm.

Although defendant concedes that a trial court may base a departure sentence on factors other than those specifically set out in the guidelines, OAR 253-08-002(1), he argues that the court erred by considering factors that had already been taken into account in determining the presumptive sentence and by not considering the overall purposes of the guidelines when imposing the departure. The state contends that even though defendant may have adequately preserved an objection to departure based on a finding of “persistent involvement in similar crimes,” OAR 253-08-002(l)(b)(D), he did not specifically object to a departure based on aggravating factors outside the nonexclusive list in OAR 253-08-002-(l)(b). We agree with the state that defendant failed to preserve that claim of error.

At sentencing, defendant and the state discussed at length whether a departure was appropriate on the basis of the specific aggravating factor of persistent involvement in similar offenses or repetitive assaults. OAR 253-08-002-(l)(b)(D). Immediately following that discussion, defense counsel said:

“Very well, but I think, Your Honor, if we look at this offense that [defendant] is convicted of, there’s nothing in the nature of the offense that warrants an aggravated sentence, and if we look at any of— there are no other factors here that say — that indicate — this is a nonexclusive list, of course, but there are no other factors here that indicate that an aggravated sentence is appropriate for this crime in this case.” (Emphasis supplied.)

The court then issued its ruling:

“My analysis of the connection between this offense and the other offense is simply this. My task in large part in sentencing on theft is to prevent the defendant from committing further thefts in the community. If that can be done by rehabilitation, that’s the way it ought to be done for a variety of reasons.

* * * *

‘ ‘But the purposes of a sentence in a criminal justice — in a criminal case are, as far as I’m concerned, to protect the community either by isolating the offender for as much time as necessary to protect the community is available [sic] or to reform the offender so that the offender will no longer pose a threat ***[.] [A]s I’ve told people, if I could send you to Hawaii for a year to have a good time and know that you would come back a member of the community who would no longer pose a threat of violence or theft, as far as I’m concerned that’s what we ought to do * * *.

$ $ * *

“The relevance of the other crimes demonstrates that for whatever reasons, your values, at least those you act on, are so out of touch with those kinds of values, that people who don’t hurt each other or steal from each other rely on in their daily lives, that I have no assurance whatever that after ten months in prison you will come back less likely or unlikely to steal from people if you can get away with it or think you can.

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“[T]he fact that there is a connection in type between the two tractor thefts is of some relevance because it shows calculations, I did it once. I’m going to do it. Sure, that’s relevant, but the overall picture of the defendant is somebody whose values are so far from those [of law abiding] neighbors

“For that reason, I think ten months is insufficient. Twenty months is the maximum available, and it is, therefore, the minimum legally available to achieve those purposes which the criminal justice system is supposed to achieve, notwithstanding the sentencing guidelines, and those are community safety.

“So I will, for those reasons, having stated them on the record, having found them to be compelling and substantial reasons for an upward departure, I will depart. It’s a durational departure upward from ten to twenty months, grid block 4-A.”

In response, defense counsel said only, “Can we revisit the trip to Hawaii?”

We have previously held that if a defendant believes that the sentencing court’s reasons are not substantial and compelling and, therefore, do not justify departure, the defendant must indicate the basis of the objection with specificity so as to put the sentencing court “on notice that its explanation or analysis may be flawed.” State v. Orsi/Gauthier, 108 Or App 176, 180, 813 P2d 82 (1991); see also State v. Drake, 113 Or App 16, 832 P2d 44 (1992). Here, defendant made a very general objection, i.e. that none of the enumerated aggravating factors in OAR 253-08-002(1)(b) were appropriate in this case. As the state acknowledges, defendant did also make one specific objection, that the departure should not be based on OAR 253-08-002(1)(b)(D), persistent involvement in similar offenses. However, defendant does not argue on appeal that the sentencing court erred in relying on that, or any other factor listed in the guidelines, to justify the departure.² Rather, on appeal he contends that the court erred by considering his prior convictions and the nature of his offenses and that “[departure based on these considerations is improper.”

According to the dissent, “[a] careful reading of the transcript demonstrates that defendant’s argument to the trial court encompassed all possible reasons for a departure sentence, including those not listed in the nonexclusive list in the administrative rule. ” 132 Or App at 450. The dissent then asserts that even if defendant “did not make the particular argument to the trial court that he makes here, [State v. Hitz, 307 Or 183, 766 P2d 373 (1988)] says that is not essential to preserve error.” 132 Or App at 453. As discussed above, we do not believe that defendant was objecting to a departure on any possible ground; rather, we believe the objection was that none of the factors specified in OAR 253-08-002(1)(b) justified a departure.³

Further, even if we were to read defendant’s objection as broadly as the dissent does, such an objection would be too general to preserve the alleged error on appeal. Under the dissent’s reasoning, although a sentencing court has the authority to use any number of reasons to support a departure,⁴ a defendant could preserve an objection to a particular basis for a departure merely by stating to the court that no reason exists to justify such a sentence. On appeal, the defendant would then be free to make any argument that he or she chooses to challenge the court’s stated reasons. Such a rule is inconsistent with the requirement that a defendant put the sentencing court on notice of specific problems with the departure sentence, and denies the court the opportunity to cure the alleged defects. Because defendant failed to put the sentencing court on notice or specify the reason that its rationale or analysis was flawed, he did not preserve the claim of error that he raises on appeal.

Affirmed.

1 Under ORS 138.222(3), the scope of review of a departure sentence

“shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure from the sentence prescribed by the rules of the State Sentencing Guidelines Board:

“(a) Are supported by the evidence in the record; and

“(b) Constitute substantial and compelling reasons for departure.” •

Although defendant makes the general statement that the sentencing court’s findings of fact and reasons justifying a departure “are not supportedby the evidence in the record,” his argument on appeal is directed solely at whether those findings and reasons rise to the level of substantial and compelling. Accordingly, we address only that issue.

2 On appeal, defendant states that “[t]he [sentencing] court determined that aggravation was not appropriate under OAR 253-08-002(1)(b)(D) — Persistent involvement in similar offenses.”

3 Our disagreement with the dissent centers on defense counsel’s statement to the trial court that there were ‘ ‘no other factors’ ’ to support a departure. The dissent reads that phrase to refer to factors other than those listed in OAR 253-008-002(1). In contrast, we read the phrase, as defense counsel used it in the discussion, to refer to the enumerated factors other than the one the state and the defense had heen discussing, OAR 253-008-002(1)(b)(D) —persistent involvement in similar offenses.

4 As both defendant and the dissent note, the list of aggravating factors in OAR 253-08-002(1)(b) is nonexclusive.