State v. Smith , 225 Or. App. 303 ( 2009 )

201 P.3d 256 (2009) 225 Or. App. 303

STATE of Oregon, Plaintiff-Respondent,
v.
David Allen SMITH, Defendant-Appellant.

01FE0616AB; A119246.

Court of Appeals of Oregon.

Submitted on Remand October 28, 2008. Decided January 21, 2009.

Erin K. Galli and Chilton & Galli, LLC, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

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

BREWER, C.J.

This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Smith, 205 Or.App. 557, 134 P.3d 1109, rev. den., 341 Or. 198, 140 P.3d 581 (2006), (Smith 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. Smith, 345 Or. 316, 195 P.3d 64 (2008). In Smith I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed departure sentences based on a judicial finding that the victim was particularly vulnerable. 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 Smith I was erroneous. Accordingly, we affirm.

Defendant was convicted of two counts of first-degree sexual abuse and one count of coercion, committed against his then 10-year-old niece. The trial court imposed a durational departure sentence of 18 months' imprisonment on the coercion count, to be served consecutively to concurrent 75-month prison terms that the court imposed on the two first-degree sexual abuse convictions. The court imposed the consecutive departure sentence based on its finding that "the victim in this case was particularly vulnerable given the age of the victim who was the subject of this coercion and the relationship between you and the child. So I'm going to do a departure on that."

In State v. Ramirez, 205 Or.App. 113, 123, 133 P.3d 343, adh'd to on recons., 207 Or. App. 1, 139 P.3d 981 (2006), rev'd on other grounds, 343 Or. 505, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008), we concluded that the imposition of a departure sentence under similar circumstances to the imposition of the departure sentence in this case-that is, where the defendant stood silent during sentencing but had not explicitly waived his or her rights to a jury trial on at least one of the charged offenses-constituted "plain error." Although the Supreme Court reversed our decision in Ramirez on the ground that we did not properly exercise our discretion in determining whether to correct the error, the court did not disturb our conclusion that the error was plain. The state urges us to reconsider that conclusion; however, we decline to do so.

The question remains whether we should exercise our discretion to correct the error in this case. The state argues that we should decline to exercise our discretion because there is "no legitimate debate" that a jury would have found that the victim in this case was particularly vulnerable. See Ramirez, 343 Or. at 513, 173 P.3d 817 (if there is no legitimate debate about the existence of a sentence enhancement fact, the defendant's interest in a second sentencing hearing is minimal). We agree.

The trial court imposed a consecutive departure sentence on defendant's coercion conviction on the basis of its finding that the victim was particularly vulnerable, given her age and her relationship to defendant. As the Supreme Court explained in Ramirez, there is "no legitimate debate" that a jury would have found the departure factor where evidence in support of that factor was "overwhelming." Ramirez, 343 Or. at 513-14, 173 P.3d 817. Here, the victim testified that the abuse had occurred near her tenth birthday, and the undisputed evidence also showed that the victim was defendant's niece. That evidence was sufficient to remove any legitimate debate regarding the existence of the departure factor. As with the departure factor at issue in Ramirez, "on this record, no reasonable factfinder * * * could conclude anything other" than that the victim was particularly vulnerable by virtue of her age and her relationship to defendant. Id. at 513, 173 P.3d 817. Accordingly, we decline to exercise our discretion to correct the trial court's error.

Affirmed.