STATE v. WALSTON (2009)

 This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Walston, 205 Or.App. 566, 134 P.3d 1114 (2006) (Walston 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).  State v. Walston, 345 Or. 316, 195 P.3d 64 (2008).   In Walston I, we remanded for resentencing, citing State v. Tarkington, 205 Or.App. 473, 134 P.3d 1104 (2006) (Tarkington I ), which concerned a codefendant.   In Tarkington I, the court had imposed an upward departure sentence based on judicial factfinding, in violation of the codefendant's rights under the Sixth Amendment to the United States Constitution as set forth in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).  Tarkington I, 205 Or.App. at 475, 134 P.3d 1104.   The present case, like Tarkington I, involves judicial factfinding in support of departure sentences.   That factfinding constituted plain error, and we exercised our discretion to correct it under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991).   After remand in Tarkington I, however, we declined to exercise our discretion to correct the sentencing error, concluding that no legitimate debate existed as to whether a jury would find the facts necessary to impose the departure sentences.  State v. Tarkington, 226 Or.App. 145, 203 P.3d 230 (2009) (Tarkington II ).

The issue on remand is whether, in light of Ramirez and State v. Fults, 343 Or. 515, 173 P.3d 822 (2007), we properly exercised our Ailes discretion.   The charges and convictions at issue in the present case are identical to Tarkington II. The record in this case is the same as in Tarkington II. Moreover, each departure factor used in this case was also the basis for a departure in Tarkington II. Under the circumstances presented here, we conclude, for the reasons stated in Tarkington II, that we should not exercise our discretion to correct the sentencing error.

Affirmed.

PER CURIAM.