STATE v. FLORES (2009)

 This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Flores, 207 Or.App. 49, 139 P.3d 974 (2006) (Flores 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. Flores, 345 Or. 315, 195 P.3d 62 (2008).   In Flores I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed a departure sentence based on judicial findings that defendant was persistently involved in similar offenses.   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 conclude that our exercise of discretion in Flores I was correct.   Accordingly, we again remand for resentencing.

Defendant was convicted in two cases of a variety of drug offenses.   In case number 20-03-05629, defendant was convicted of unlawful delivery of a controlled substance, two counts of unlawful possession of a controlled substance, and two counts of unlawful delivery of controlled substances to a minor.   In case number 20-03-20422A, defendant was convicted of two counts of unlawful possession of a controlled substance.   On the first count in case number 20-03-20422A, the trial court sentenced defendant to a dispositional departure sentence of six months' imprisonment based on defendant's persistent involvement in similar offenses.   The court explained that, although defendant did not have a criminal record before his convictions in those two cases, the convictions in case number 20-03-05629 demonstrated defendant's “persistent involvement in similar offenses,” thus justifying the imposition of the departure sentence in case number 20-03-20422A.

As we explained in State v. Williams, 225 Or.App. 325, 328-29, 201 P.3d 267 (2009), under State v. Bray, 342 Or. 711, 724, 160 P.3d 983 (2007), there is no legitimate debate that a jury would have found a defendant to have been persistently involved in similar offenses where the number and  frequency of the defendant's prior convictions compels the inference that his or her criminal behavior has been “persistent.”   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 dispositional departure sentence in case number 20-03-20422A was imposed on defendant's conviction for unlawful possession of a controlled substance.   As the trial court observed, when defendant committed the crimes subject to case number 20-03-20422A, he had no prior convictions.   As Bray makes clear, a finding of persistent involvement is predicated on a defendant having two or more prior convictions.  Bray, 342 Or. at 724, 160 P.3d 983.   The trial court's reliance on defendant's convictions in case number 20-03-05629 to demonstrate persistent involvement was erroneous because those convictions were for criminal conduct defendant committed after he committed the offenses in case number 20-03-20422A.   Accordingly, we cannot conclude that there is no legitimate debate that the jury would have drawn the inference required by Bray.   Moreover, the gravity of the error in this case is not trivial.   Ailes, 312 Or. at 382 n. 6, 823 P.2d 956.   Imposition of the dispositional departure sentence in this case resulted in defendant receiving an incarceration term of six months, rather than the presumptive sentence of probation.

Remanded for resentencing;  otherwise affirmed.

BREWER, C.J.