STATE v. STEELE (2009)

 This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Steele, 205 Or.App. 469, 134 P.3d 1054 (2006) (Steele 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. Steele, 345 Or. 316, 195 P.3d 64 (2008).   In Steele 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 and that he was on probation when he committed his current crime.   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 Steele I was erroneous.   Accordingly, we affirm.

Defendant was convicted of first-degree burglary.   The trial court imposed a durational departure sentence of 68 months' imprisonment.   The court gave the following reasons for its departure:

“[Defendant], none of us have anything to say here.   It's all been said. 41 strikes and you're out.   You've heard three strikes. 41 and you're really out.

“You have told all of us in the system that if we don't lock you up you will continue to commit crimes.   That's all I can conclude.   I refuse to even waste a whole lot of energy getting incensed about this.

“ * * * * *

“If I don't lock you up, you are going to go into somebody's house and come out in a body bag.   That's the way I see it.   And nobody will care.   Nobody will care.   Maybe your family will care, but they're shrugging their shoulders saying, well gee, if the judge locked him up like we told him to, he would still be alive.   You will be shot in somebody's house some day, I'll guarantee it.   If I don't put you in prison.

“ * * * * *

 “This is obviously a case for departure based upon prior, persistent involvement in criminal similar activity.   The case is to depart based on the fact you were on probation when you committed this crime.   And that's what's called for.   Somebody is supposed to get the maximum sentence, it's guys like you.”

In this case, the trial court did not explicitly state that it was relying on the departure factors it found either singly or in combination, and therefore we assume that the court did not consider each factor to be independently sufficient to support a departure.  State v. Wilson, 111 Or.App. 147, 826 P.2d 1010 (1992).   Thus, remand for resentencing may be warranted if any one of the factors relied on by the trial court is subject to legitimate debate.   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).   We turn first to the court's departure based on defendant's persistent involvement in similar offenses.

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.”

On this record, we conclude that there is no legitimate debate that the jury would have found defendant to have been persistently involved in similar offenses.   While being cross-examined by the state, defendant admitted to having 30 convictions in the 11 years before the trial in this case, including 10 convictions for forgery, one conviction for attempted burglary, one for first-degree theft, and one for second-degree theft.   That evidence was uncontroverted and, to our mind, overwhelming to show that defendant had been persistently involved in similar offenses to his current crime of conviction.

We reach the same conclusion with regard to the departure factor of defendant's probation status at the time  he committed his crimes.   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 [probationary] status to serve as an effective deterrent.”

On this record, we conclude that there is no legitimate debate that the jury would have drawn the inferences required by Allen.   Defendant admitted on the stand to having been on probation or parole for most of his life.   At sentencing, the state informed the court that defendant was on probation for third-degree theft at the time he committed his current crime, and defendant did not contest that assertion.   Moreover, given that defendant admitted to having 30 convictions in the 11 years before the trial in this case, the jury, as discussed above, was aware of defendant's persistent involvement in similar offenses at the time he admitted to having been on probation or parole for most of his life.   Accordingly, the trial court did not err in imposing a departure sentence on defendant's conviction for first-degree burglary.

Affirmed.

BREWER, C.J.