STATE v. HOWELL (2009)

 This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Howell, 206 Or.App. 515, 136 P.3d 1138, rev. den., 341 Or. 450, 143 P.3d 773 (2006) (Howell 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. Howell, 345 Or. 315, 195 P.3d 63 (2008).   In Howell I, we remanded for resentencing because the court had imposed an upward departure sentence based on judicial factfinding that the crime involved a “threat of actual violence” and that defendant had a history of “persistent involvement in similar offenses.”   206 Or.App. at 516, 136 P.3d 1138.   That factfinding constituted an error of law apparent on the face of the record, ORAP 5.45(1), under the rule of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and we exercised our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991), to correct it.   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 discretion under Ailes.   As explained below, we now conclude that it would not be proper to exercise discretion to correct that sentencing error.   Accordingly, we affirm.

 In this case, the sentencing court specifically found that either of the two bases for departure would be independently sufficient to support the sentence imposed.   Accordingly, to remand for resentencing, we must conclude that it would be a proper exercise of discretion to correct the error with regard to both of the two sentencing factors on which the court relied.   We do not discuss the “persistent involvement” factor, because we conclude that, on this record, there is no legitimate debate that a jury would have found beyond a reasonable doubt that the crime in question, an arson, involved a threat of actual violence.

An extended discussion of the facts of the case would not benefit the bench, the bar, or the public.   It suffices to say that the state presented evidence that defendant, who was angry at his former girlfriend, threatened to set fire to her trailer, and subsequently did set fire to a trailer she owned.   He later confessed to a police officer, stating that he had  burned the trailer because he was angry with his former girlfriend, and further stating that he “could become a lot more violent toward” her if she did not return certain property that he claimed belonged to him.

 In determining whether to exercise our discretion to correct a sentencing error, we are guided by a variety of considerations, including “the competing interests of the parties;  the nature of the case;  the gravity of the error;  the ends of justice in the particular case.”  Ailes, 312 Or. at 382 n. 6, 823 P.2d 956.   Under some circumstances, the “competing interests of the parties” factor is conclusive:  As the court noted in Ramirez, 343 Or. at 513, 173 P.3d 817, the state has “a significant interest in avoiding a second, unnecessary sentencing hearing.”   That is, where there is “no legitimate debate” that a jury would find the facts necessary to support an enhanced sentence, the defendant has no significant interest in resentencing, whereas the state does have a significant interest in avoiding an unnecessary resentencing.  Id.

That factor is conclusive here.   We decline to exercise our discretion in light of our conclusion that no legitimate debate exists that a jury would find the crime at issue involved threats of actual violence.

Affirmed.

HASELTON, J.