State v. Galloway

• Decision Date: 07 January 2009
• Docket Number: 02FE0202.,A121922.
• Citation: 200 P.3d 175,225 Or. App. 67
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Nathan Wayne GALLOWAY, Defendant-Appellant.
• Court: Oregon Court of Appeals

200 P.3d 175

225 Or. App. 67

STATE of Oregon, Plaintiff-Respondent, v. Nathan Wayne GALLOWAY, Defendant-Appellant.

02FE0202.

A121922.

Court of Appeals of Oregon.

Submitted on Remand October 28, 2008.

Decided January 7, 2009.

George W. Kelly, Eugene, for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, Criminal Appeals, 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. Galloway, 202 Or.App. 613, 123 P.3d 352, rev. den., 340 Or. 201, 131 P.3d 195 (2006) (Galloway 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. Galloway, 345 Or. 315, 195 P.3d 62 (2008). In Galloway I, we vacated defendant's sentences and remanded for resentencing because the trial court had imposed a departure sentence based on a judicial finding that defendant's crime had created a serious risk to human life. That factfinding enterprise 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, under Ramirez, our exercise of discretion in Galloway I was erroneous. Accordingly, we affirm.

Defendant was convicted of nine counts of attempted aggravated murder; five counts of attempted murder; six counts of first-degree arson; two counts of first-degree burglary; four counts of recklessly endangering another person; and one count of arson in the second degree. Defendant assigns error to the trial court's imposition of an upward departure sentence on the second-degree arson conviction.¹ The trial court concluded that the presumptive sentence for arson in the second degree, 30 days in jail, was insufficient. The court explained:

"I'm shaking my head because, given all of this stuff that you've just been convicted of under the sentencing guidelines that are supposed to give us truth in sentencing, the presumptive sentence is 30 days in jail. And I'm not imposing that, but that's absolutely absurd in my mind under those circumstances and the potential risk to other human beings setting a fairly significant fire in the Crook County in the middle of August in one of the driest years in the history of recorded weather.

"And I'm going to impose a dispositional departure sentence of six months. That sentence is to run consecutively to the other sentences. And the basis for the departure sentence is that the presumptive guidelines sentencing is not reflective of the seriousness of the overall criminal episode that concluded with the Arson in the Second Degree."

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 circumstances similar to 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 defendant's crime created a serious risk to human life. Cf. 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). As explained below, we need not reach that question.

As the Supreme Court explained in Fults, where other, unchallenged sentences render the gravity of the sentencing error slight, it is unlikely that a remand would make any practical difference and, thus, we should decline to exercise our discretion to correct an otherwise...