STATE v. WILLIAMS (2009)

 This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Williams, 202 Or.App. 659, 123 P.3d 376 (2005) (Williams 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. Williams, 345 Or. 316, 195 P.3d 64 (2008).   In Williams I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed a departure sentence based on a judicial finding that the victim was particularly vulnerable and that the harm defendant inflicted was greater than typical.   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 Williams I was correct.   Accordingly, we again remand for resentencing.

Defendant was convicted of the first-degree rape of a 17-year-old girl who had asked him for directions in downtown Portland at 2:00 a.m. The trial court imposed a durational departure sentence of 108 months, 100 months of which were imposed pursuant to ORS 137.700 (Measure 11).   The court gave the following reasons for its departure:

“The Court does find substantial and compelling reasons for an upward departure on the rape conviction.   The aggravating circumstances that the Court finds are both-that the victim here was a vulnerable victim.   The Court makes that finding based on her testimony at trial.   The Court also finds an aggravating circumstance of harm significantly greater than typical, also based on the victim's testimony at trial.”

The question is whether we should exercise our discretion to correct the error in this case, and we do so for two reasons.   In this case, the state concedes that there is a legitimate debate about whether the jury would have found the departure factors relied on by the trial court.   Our review of the record confirms the accuracy of that concession, and we accept it.   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).

Moreover, the gravity of the error in this case is not trivial.  Ailes, 312 Or. at 382 n. 6, 823 P.2d 956. The court's imposition of a departure sentence increased defendant's term of incarceration by eight months. Accordingly, we reverse and remand for resentencing.

Remanded for resentencing;  otherwise affirmed.

PER CURIAM.