STATE v. ALLEN (2005)

 The state petitions for reconsideration of our decision in State v. Allen, 198 Or.App. 392, 108 P.3d 651 (2005), in which we reversed and remanded for resentencing of defendant's convictions for three drug offenses.   Defendant asserted that the imposition of a departure sentence on two of those convictions based on a judicial finding that he was on supervision at the time of the crime violated the Sixth Amendment as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).   We agreed that, although the argument was unpreserved, the sentence was plainly erroneous.  Allen, 198 Or.App. at 395-96, 108 P.3d 651.   In response to the state's argument that the finding fell within the Blakely exception for facts admitted by the defendant, we noted that, although defendant had testified and identified the person serving as his parole officer at the time of the offenses, “an upward departure based on * * * parole status requires further inferences about the malevolent quality of the offender and the failure of his parole status to serve as an effective deterrent.   Defendant did not admit those further facts.”  Id. at 396, 108 P.3d 651 (citing State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005)).   Thus, we concluded that, although defendant had admitted that he was on supervision, he “was entitled to have a jury determine whether those inferences were appropriate to draw by a standard of proof beyond a reasonable doubt.”  Allen, 198 Or.App. at 396, 108 P.3d 651.

On reconsideration, the state argues that whether additional factfinding was required for imposition of a departure sentence based on supervision status is “reasonably in dispute,” Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991), and thus cannot constitute plain error.   We allow reconsideration and adhere to our previous opinion as clarified below.

In Perez, we noted that the defendant acknowledged at sentencing that he had been on supervision at the time of the offenses, that the court had imposed departure sentences based on findings that the defendant had been persistently involved in similar offenses, that the defendant had been on supervision at the time of the offenses, and that previous  supervision had failed to deter him from engaging in further crimes.  196 Or.App. at 367, 102 P.3d 705.   We held that being on supervision falls outside the exception for “the fact of a prior conviction.”  Id. at 369-72, 102 P.3d 705.   We did not, however, discuss the relevance of the defendant's admission at sentencing that he had been on supervision.   But in this case that issue was squarely presented.   Here, it could be inferred from defendant's testimony that he was on parole at the time of the offenses, and the court expressly imposed a departure sentence based on a finding that defendant was on parole when he committed the offenses.  Allen, 198 Or.App. at 395-96, 108 P.3d 651.   Nevertheless, as noted above, we concluded that the upward departure sentence constituted plain error because defendant's admission did not encompass the required inferences as to “the malevolent quality of the offender and the failure of his parole status to serve as an effective deterrent.”  Id. at 396, 108 P.3d 651.

The state argues on reconsideration that we were wrong to treat as “plain error” the imposition of a departure sentence based solely on defendant's being on supervision.   In support of its argument that there was no plain error, the state relies on State v. Williams, 133 Or.App. 191, 891 P.2d 3, rev. den., 321 Or. 512, 900 P.2d 509 (1995);  State v. Nelson, 119 Or.App. 84, 849 P.2d 1147 (1993), State v. Berg, 115 Or.App. 254, 838 P.2d 73 (1992), rev. den., 315 Or. 312, 846 P.2d 1161 (1993);  and State v. Mitchell, 113 Or.App. 632, 833 P.2d 1324 (1992).   The state asserts that in none of those cases did this court suggest that the trial court was required to make an additional factual finding that prior supervision had failed to deter the defendant from committing further offenses.   From that assertion, the state goes on to posit that “a defendant's supervision status, by itself, warrants a departure.”  (Emphasis in original.)   As explained below, we agree with the state's first point but not its second point.

In Williams, we rejected a defendant's argument that probationary status at the time of the commission of a new crime warranted a dispositional departure from a probationary sentence to a sentence of incarceration but did not warrant a durational departure on the length of incarceration:

 “Our holdings [in prior cases concerning this factor] were not dependent on whether the departure was durational or dispositional, but rather on the defendants' disregard for any laws and inability to be deterred from committing new criminal activity.”

133 Or.App. at 195 n. 2, 891 P.2d 3. In Nelson, we approved a departure based on a finding that the defendant was on pretrial release when the crime was committed, noting that, in Mitchell and State v. Hill, 112 Or.App. 213, 827 P.2d 951 (1992), we had held that “a defendant's failure to be deterred from committing crimes while on probation or release demonstrates a substantial and compelling reason to depart.”  Nelson, 119 Or.App. at 87, 849 P.2d 1147.   In Mitchell, we upheld the use of that factor because the essence of the court's rationale for using the factor was that the “defendant is not deterred from committing crimes unless he is actually incarcerated.”   113 Or.App. at 634, 833 P.2d 1324.   In Hill, likewise, we upheld the use of that factor because the court had determined that, in light of past probationary terms, the defendant “would not be deterred from criminal activity by being placed on probation, which is the presumptive sentence under the guidelines.”  112 Or.App. at 214, 827 P.2d 951.   See also Berg, 115 Or.App. at 256, 838 P.2d 73 (“[A] dispositional departure is supported by substantial and compelling reasons when a defendant is on probation and probation does not deter her from committing new criminal activity.”).   Thus, in all of those cases, we upheld the use of a departure sentence based on the defendant's supervision status under the rationale that the commission of a new crime demonstrated that supervision had not deterred the defendant.   We did not, however, as the state correctly notes, require an explicit or formal finding to that effect by the trial court.

Perez is not inconsistent with that line of cases and casts no doubt on them.   In Perez, the trial court actually made an explicit finding that “repeated previous supervision had failed to deter [the] defendant from engaging in further criminal conduct.”  196 Or.App. at 367, 102 P.3d 705.   In rejecting the state's argument that such findings fit within the Blakely/ Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] exception for the “fact of a prior conviction,” we stated:

“[T]he allegation that [the] defendant was on probation or parole when he committed the offenses of conviction has not been proved to a jury beyond a reasonable doubt, so the  same ‘procedural safeguards' had not attached to that ‘fact’ when he was sentenced.   Moreover, the issue whether a previous term of parole or probation ‘failed to deter’ [the] defendant from committing further offenses is even more removed from any previous factual determination by a jury.”

Id. at 371-72, 102 P.3d 705 (emphasis added).   In our original opinion in this case, we cited that language from Perez and reached the same conclusion about the otherApprendi/Blakely exception-facts admitted by the defendant-that a defendant's admission of his supervision status does not constitute an admission that an upward departure sentence is warranted because supervision failed to deter further criminal activity.   That conclusion flowed inexorably from Perez and from all of our prior case law concerning the use of that departure factor.

In sum, the state is incorrect that our prior case law leaves open to reasonable dispute whether a defendant's supervision status is-“by itself and as a matter of law,” as the state puts it-sufficient grounds for imposition of a departure sentence.   All of our prior case law concerning that departure factor supports our conclusion that a departure based on it is warranted only if the factfinder can draw an inference as to “the malevolent quality of the offender and the failure of his parole status to serve as an effective deterrent.”  Allen, 198 Or.App. at 396, 108 P.3d 651.   Because defendant's admission did not encompass such an inference, his sentence cannot be upheld.

Reconsideration allowed;  opinion clarified and adhered to as clarified.

LINDER, J.