State v. Sanders

206 P.3d 274 (2009) 227 Or. App. 495

STATE of Oregon, Plaintiff-Respondent,
v.
Gary Delano SANDERS, Jr., Defendant-Appellant.

980736177; A123098.

Court of Appeals of Oregon.

Submitted on remand October 28, 2008. Decided April 15, 2009.

Peter Gartlan, Chief Defender, Appellate Division, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services, for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, 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. Sanders, 202 Or.App. 225, 120 P.3d 1256 (2005) (Sanders 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. Sanders, 345 Or. 316, 195 P.3d 63 (2008). In Sanders I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed departure sentences based on judicial findings. 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 do not reach that question, however, because defendant has failed to designate a record adequate for our determination of whether to exercise our discretion to review his assigned error.

Defendant was originally sentenced in 1999 and, after we remanded the case, State v. Sanders, 189 Or.App. 107, 74 P.3d 1105 (2003), rev. den., 336 Or. 657, 92 P.3d 122 (2004), defendant was resentenced. A transcript of that resentencing hearing was designated and appears in the record before us; however, defendant failed to designate the transcript of his first sentencing hearing. At that sentencing hearing, the trial court presumably explained the factual findings that supported its imposition of the departure sentences. At defendant's resentencing, the court merely incorporated by reference, without explication, its earlier statements and reiterated the departure factors that it had identified. The court did not reiterate the findings of fact that supported those factors. The absence of a record of that sentencing hearing and of the trial court's factual findings deprives this court of the ability to determine whether any of the departure factors that the court identified were subject to "legitimate debate." 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).

The legitimate debate standard is a fact-driven standard and, thus, it is critical that this court have before it the arguments of the parties at sentencing, the court's findings relating to departure factors, and whatever reasoning it relied on, as well as the record at trial. Our recent cases applying the Ramirez test illustrate the crucial role that the record plays in our decision to exercise, or decline to exercise, our discretion. See, e.g., State v. Steele, 226 Or.App. 86, 88-89, 203 P.3d 246 (2009) (setting out trial court's reasoning in support of the identified departure factors); State v. Williams, 225 Or.App. 512, 515-17, 202 P.3d 899 (2009) (relying, in part, on the record of the defendant's testimony at trial to illustrate absence of legitimate debate).

The appealing party bears the burden of designating a record sufficient to demonstrate that the trial court erred. ORAP 3.05(1); Wade v. Mahler, 167 Or.App. 350, 355, 1 P.3d 485, rev. den., 331 Or. 334, 23 P.3d 986 (2000). Defendant has failed to do so here. Accordingly, we decline to exercise our discretion to review the assigned error.

Affirmed.