STATE v. MUNIZ (2009)

 This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Muniz, 204 Or.App. 469, 130 P.3d 789 (2006) (Muniz 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. Muniz, 345 Or. 316, 195 P.3d 63 (2008).   In Muniz I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed departure sentences 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 Muniz I was correct.   Accordingly, we remand for resentencing.

Defendant was convicted of, among other offenses, second-degree escape for breaking out of a juvenile correctional facility.   The trial court imposed a durational departure sentence of 18 months' imprisonment based on its finding of “persistent involvement in similar offenses-runaways and escapes.”

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).

At sentencing, the trial court heard testimony from defendant's juvenile probation officer, who related several instances of defendant running away from juvenile detention facilities.   When asked if any of those instances had been charged or had resulted in a conviction for escape, the officer  answered, “[N]o.” Both the state and the trial court, as is apparent from the sentencing colloquy, were aware that defendant had no prior convictions for escape.   Nonetheless, the state argued, and the trial court agreed, that defendant's prior uncharged conduct qualified him for a departure sentence based on persistent involvement in similar offenses.   As Bray makes clear, however, a departure based on persistent involvement is predicated on drawing an inference about the defendant from the existence of two or more prior convictions.   Because defendant lacked the requisite prior convictions for similar offenses, it is debatable that a jury would or properly could find that factor.

Remanded for resentencing;  otherwise affirmed.

PER CURIAM.