STATE v. RUSSELL (2009)

 This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Russell, 200 Or.App. 725, 117 P.3d 301 (2005) (Russell 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. Russell, 345 Or. 316, 195 P.3d 63 (2008).   In Russell I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed a departure sentence 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 conclude that our exercise of discretion in Russell I was proper.   Accordingly, we again remand for resentencing.

Defendant was convicted of first-degree burglary, and the trial court imposed a durational departure sentence of 68 months' imprisonment.   The court identified defendant's persistent involvement in similar offenses and the fact that he was on probation at the time he committed his current offense as departure factors, and specified that either would have been sufficient to support its decision to impose a departure sentence.

On this record, we cannot conclude that there is no legitimate debate that the jury would have found either of the departure factors identified by the trial court because the record reveals nothing about defendant's criminal history.   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 only representation of defendant's criminal history that the prosecutor made at sentencing was that “defendant has a lot of recent criminal history.   He just seems to keep going and going.   I don't know what the answers are to turn him around.”   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.”   Because the record in this case does not disclose the number, the date, or the nature of defendant's “recent criminal history,” or if that criminal history produced any convictions, we cannot say that the jury necessarily would have drawn the inference of persistence required by Bray.

With regard to the second departure factor, although defense counsel conceded at sentencing that defendant was on probation at the time he committed his current offense, as we explained in State v. Allen, 198 Or.App. 392, 396, 108 P.3d 651, adh'd to as clarified on recons., 202 Or.App. 565, 123 P.3d 331 (2005), rev. den., 342 Or. 46, 148 P.3d 915 (2006), an upward departure sentence based on a defendant's supervisory status “requires further inferences about the malevolent quality of the offender and the failure of his [supervisory] status to serve as an effective deterrent,” inferences which must be based on evidence of the defendant's individual characteristics adduced at trial or sentencing.   The record in this case is devoid of such evidence.   It follows that we cannot conclude that there is no legitimate debate that the jury would have found the departure factor.

We exercise our discretion to correct the trial court's error in this case for two reasons.   First, as discussed, there is a legitimate debate regarding whether a jury would have found either of the departure factors the court relied on.   Second, 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 departure sentence increased defendant's term of incarceration by 38 months.   Accordingly, we remand for resentencing.

Remanded for resentencing;  otherwise affirmed.

BREWER, C.J.