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Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Thomas Rae BRUCE, Defendant-Appellant.

021264;  A122026.

Decided: April 29, 2009

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge. Erin Galli and Chilton & Galli, LLC, for appellant. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, for respondent.

 This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Bruce, 201 Or.App. 295, 118 P.3d 279 (2005) (Bruce 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. Bruce, 345 Or. 315, 195 P.3d 62 (2008).   In Bruce I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed departure sentences based on a judicial finding 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 Bruce I was erroneous.   Accordingly, we affirm.

 Defendant was convicted of first-degree theft and felon in possession of a firearm.   The trial court imposed a durational departure sentence of 60 months' imprisonment.   The court gave the following reason for its decision to impose the departure sentence:

“On Count 4 which is the felon in possession of a firearm * * * I'm going to do an upward departure on that.   I think that's appropriate considering your history which is captured in the sentencing grids.   But this conviction comes about when you were on supervision, postprison supervision.

“ * * * * *

“ * * * But for that being on supervision, I think that's a basis to go up.   So it's going to be 60 months.”

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.”   Here, it is uncontested that defendant was on supervision at the time he committed his current offense.   Defendant had previously been convicted of three felony sex offenses and was on supervision following his release on those convictions;  before committing his current offenses, defendant had absconded from supervision and failed to register as a sex offender as required by the terms of his supervision.   On this record, we conclude that there is no legitimate debate that the jury would have drawn the inferences of malevolence and failure to be deterred required by Allen.   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).   Accordingly, we decline to exercise our discretion to review the assigned error.



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