State v. Lennon

• Citation: 229 P.3d 589,348 Or. 148
• Decision Date: 08 April 2010
• Docket Number: SC S057150).,CA A122082,(CC 02C46833
• Parties: STATE of Oregon, Petitioner on Review, v. Charles Kavin LENNON, aka Charles Cavin Lennon, Respondent on Review.
• Court: Supreme Court of Oregon

229 P.3d 589

348 Or. 148

STATE of Oregon, Petitioner on Review, v. Charles Kavin LENNON, aka Charles Cavin Lennon, Respondent on Review.

(CC 02C46833; CA A122082; SC S057150).

Supreme Court of Oregon, En Banc.

Argued and Submitted January 5, 2010.

Decided April 8, 2010.

Doug M. Petrina, Senior Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Meredith Allen, Senior Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With her on the briefs were Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender.

LINDER, J.

This case is before us a second time. In its first decision, the Court of Appeals determined that it was plain error for the sentencing court not to have given defendant the option of a jury trial to decide the facts on which the court imposed an upward departure sentence for his conviction; the Court of Appeals then exercised its discretion to correct that error. State v. Lennon, 204 Or. App. 111, 129 P.3d 209 (2008) (Lennon I). On review, this court vacated that decision and remanded for reconsideration 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).¹ State v. Lennon, 345 Or. 315, 195 P.3d 63 (2008). On remand, the Court of Appeals reconsidered whether it should exercise its discretion to consider defendant's challenge to his sentence. It determined that it should do so, and again remanded the case for resentencing. State v. Lennon, 225 Or.App. 318, 320, 201 P.3d 264 (2009) (Lennon II). We allowed the state's petition for review. For the reasons we explain below, we now reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

Defendant was convicted after a jury trial of unlawful delivery of a controlled substance (methamphetamine). After the jury returned its verdict, the trial court discharged the jury without objection. About one month later, the court held a hearing to impose sentence. Based on the seriousness of his current offense and the existence of two person-related felony convictions in his criminal history, the presumptive sentence for defendant's offense under the sentencing guidelines was 35 to 40 months of incarceration. The presentence report prepared by the Department of Corrections for defendant's sentencing catalogued a much more extensive criminal record for defendant than had factored into defendant's presumptive sentence under the guidelines. Based on the presentence report, the sentencing court imposed a durational departure sentence of an 80-month term of incarceration, followed by 36 months of post-prison supervision. The sentencing court expressly found that "prior incarcerations, probations, paroles, sanctions haven't worked" to deter defendant from continued criminal activities. Defendant did not object to his sentence at the time of sentencing.

On appeal, defendant argued for the first time that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the sentencing court had committed plain error in imposing a departure sentence based on facts that were neither admitted by defendant nor found by a jury. The Court of Appeals agreed. The Court of Appeals further agreed with defendant that it should exercise its discretion to correct that error, and it reversed. Lennon I, 204 Or.App. at 112, 129 P.3d 209.

The state petitioned for review and, while that petition was pending, this court issued its decision in Ramirez. As we have noted, we thereafter allowed the state's petition for review in this case, vacated the Court of Appeals decision, and remanded for reconsideration in light of Ramirez. On remand, the Court of Appeals adhered to its prior disposition. Lennon II, 225 Or.App. at 320, 201 P.3d 264. The state again petitioned for review, and we allowed the petition.

To provide context for our discussion of the Court of Appeals decision on remand, we begin by briefly describing our decision in Ramirez. In Ramirez, this court was presented with two issues. The first was whether it was plain error for a sentencing court to make the factual findings supporting a departure sentence. Under Blakely and Apprendi, such findings must be made by a jury unless the defendant waives his right to have the jury decide them. More specifically, the issue was whether it was plain error for the sentencing court to make the departure findings, given that the defendant had invoked his right to a jury trial to determine guilt and then did not object when the jury was discharged and the trial court imposed the departure sentence. Ramirez, 343 Or. at 512, 173 P.3d 817.² The second issue was whether, if the sentencing court committed plain error, the Court of Appeals properly exercised its discretion to reach it. Id.

This court declined to reach the first issue in Ramirez, concluding that the more "expeditious" way to resolve the case was to assume for purposes of that case that it was plain error for the sentencing court to have discharged the jury and made the findings necessary to support the departure sentence. Id. This court instead resolved the case based only on the second issue — i.e., whether the Court of Appeals had properly exercised its discretion to correct the error. Id. In Ramirez, the defendant was convicted of attempted murder and first-degree assault after having shot the victim in the head. The victim survived, but lost an eye. At sentencing, the trial court imposed an upward departure sentence, based in part on the fact that the victim had sustained a permanent injury — a factor, the trial court concluded, that alone was sufficient to support the departure. After assuming that it had been error for the trial court, rather than the jury, to make the factual findings supporting the sentence, this court further concluded that the Court of Appeals should not have exercised its discretion to correct the error:

"If, as the record reveals, there is no legitimate debate that the victim suffered a permanent injury as a result of the shooting, then defendant's interest in a second hearing is minimal, if not nonexistent: A second hearing would only confirm that the departure sentence was warranted. The state, for its part, has a significant interest in avoiding a second, unnecessary sentencing hearing. Viewed in that light, the competing interests of the parties establish that this was not an appropriate case in which to consider defendant's unpreserved error."

Id. at 513, 173 P.3d 817 (emphasis added).

After this court remanded this case to the Court of Appeals for reconsideration in light of Ramirez, the Court of Appeals began by declining to reconsider whether the sentencing court had committed plain error by discharging the jury and judicially finding the facts on which the departure sentence was based. In that regard, the Court of Appeals noted that Ramirez had not disturbed the Court of Appeals' plain error determination; instead, Ramirez had reversed only on the conclusion that the Court of Appeals should not have exercised its discretion to reach the error. Lennon II, 225 Or.App. at 321, 201 P.3d 264.

Consequently, the Court of Appeals on reconsideration revisited only whether it should exercise its discretion in this case to correct the error. It concluded that it should. Id. Its decision in that regard was predicated on its view of what factual inferences are legally required to support a departure sentence on the ground that the trial court relied on in this case — viz., that prior criminal sanctions had failed to deter defendant from further criminal conduct. Relying on its own precedent, the Court of Appeals concluded that "failure to deter" could not be inferred from a defendant's criminal history alone. Rather, a defendant's criminal history must support the further factual inference that the defendant possessed a "malevolent quality" as part of his character:

"The determination of whether a defendant had been undeterred by prior sanctions involves more than merely recounting the defendant's criminal history. There also must be evidence that is sufficient to allow a factfinder to draw an inference about `the malevolent quality of the offender,' and the failure of probation to serve as an effective deterrent."

Id. at 323, 201 P.3d 264 (quoting 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), disposition withdrawn, 207 Or.App. 295, 140 P.3d 1135, rev. den., 342 Or. 46, 148 P.3d 915 (2006)) (emphasis added). The Court of Appeals thus held that "a finding that a defendant has not been deterred by prior probations or incarcerations depends on inferences about the defendant's personal characteristics and circumstances that are subject to the jury trial right." Lennon II, 225 Or.App. at 322, 201 P.3d 264.

Taking guidance from Ramirez, the Court of Appeals examined the record in this case to determine if there was "no legitimate debate" as to the inferences that the Court of Appeals believed the factfinder must draw. In particular, the Court of Appeals reviewed defendant's extensive criminal history of prior incarcerations, arrests, other sanctions, and parole and probation violations, most of which were not considered in calculating the presumptive sentence for defendant's current crime of conviction. The Court of Appeals was unable to conclude that there was "no legitimate debate" as to whether the jury would have found the departure factor that the sentencing court relied on. As noted, the court reasoned that determining whether a defendant has been undeterred by prior criminal sanctions required "more than merely recounting the defendant's criminal history" and...