State v. Thomas , 225 Or. App. 199 ( 2009 )

200 P.3d 611 (2009) 225 Or. App. 199

STATE of Oregon, Plaintiff-Respondent,
v.
Antonio Lamar THOMAS, Defendant-Appellant.

010634545; A118915.

Court of Appeals of Oregon.

Submitted on Remand October 28, 2008. Decided January 7, 2009.

Louis R. Miles, Deputy Public Defender, for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge.

PER CURIAM.

This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Thomas, 204 Or.App. 109, 129 P.3d 212 (2006), adh'd to as modified on recons., 205 Or.App. 399, 134 P.3d 1038 (2006) (Thomas 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. Thomas, 345 Or. 316, 195 P.3d 64 (2008). In Thomas I, we vacated defendant's sentences and remanded for resentencing, because the trial court had imposed dangerous offender sentence enhancements on the basis of its own factfinding. 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 we properly exercised our discretion in Thomas I, and, accordingly, we again remand for resentencing.

Defendant was convicted of attempted murder with a firearm, felon in possession of a firearm, and assault in the first degree with a firearm after he shot a man multiple times in the head and chest. On both the attempted murder and assault convictions, the trial court imposed 30-year indeterminate maximum dangerous offender sentences under ORS 161.725(1)(a). In support of those sentences, the court found that "defendant suffers from a severe personality disorder with a propensity toward crimes that seriously endanger the life or safety of another," thus warranting an extended period of incarceration. The trial court also imposed consecutive 90-month "required incarceration terms" on both of those convictions. On the felon-in-possession conviction, the court imposed a presumptive sentence of 60 months' imprisonment, to be served consecutively to the 90-month prison terms that it imposed on the other convictions.

For the reasons set out in State v. Shelters, 225 Or.App. 76, 200 P.3d 598 (2009), we conclude that the trial court erred in sentencing defendant as a dangerous offender in the absence of a jury finding to that effect, and we exercise our discretion to correct that error.

Remanded for resentencing; otherwise affirmed.