State v. Ramirez
Decision Date | 18 June 2008 |
Docket Number | C030767CR.,A123657. |
Citation | 188 P.3d 305,220 Or. App. 470 |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Anastacio RAMIREZ, Defendant-Appellant. |
Court | Oregon Court of Appeals |
Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and David C. Degner, Deputy Public Defender, Office of Public Defense Services, for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, Erika L. Hadlock, Assistant Solicitor General, and Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals, for respondent.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
This case returns to us on remand from the Supreme Court. 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). After trial to the jury, defendant was convicted of attempted murder, first-degree assault, and unlawful use of a weapon. The court then conducted a sentencing hearing without the jury and imposed an upward durational departure sentence on Count 2, assault in the first degree, based on facts that defendant did not admit and that had not been found by a jury, in violation of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In our first decision, 205 Or.App. 113, 133 P.3d 343, adh'd to on recons., 207 Or.App. 1, 139 P.3d 981 (2006), we exercised our discretion under ORAP 5.45(1) to review defendant's unpreserved objection to that error. We vacated defendant's sentence and remanded for resentencing. In light of our disposition of that assignment, we did not address defendant's other Blakely-based assignments, relating to the sentencing court's imposition of a consecutive sentence on his conviction for unlawful use of a weapon and the sentencing court's decision to deny him consideration for sentence modification programs under ORS 137.750.
On the state's petition, the Supreme Court held that we erred in exercising our discretion to review the unpreserved error with respect to the upward departure sentence and remanded the case to us for consideration of defendant's remaining assignments. We turn to those assignments.
In his second assignment of error, defendant contends that the trial court erred in imposing a sentence on the conviction for unlawful use of a weapon that is to be served consecutively to the sentences imposed for attempted murder and assault in the first degree. For the reasons explained below, we agree with defendant that the trial court erred and affirmatively exercise our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991), to review and correct the unpreserved error.
Defendant's convictions for attempted murder, first-degree assault, and unlawful use of a weapon arise out of an incident in which he accosted a woman outside of the building where she worked, placed a handgun to her head and threatened to kill her, ordered her onto her hands and knees, shot her in the head, and ran off. Ramirez, 343 Or. at 508, 173 P.3d 817. Defendant was sentenced on January 14, 2004, five months before the United States Supreme Court decided Blakely. In imposing a sentence of 60 months on Count 3, the unlawful use of a weapon conviction, the court explained its findings and conclusion that defendant had completed the offense charged in Count 3 before he committed the attempted murder and first-degree assault:
In referring to "unlawful possession," the trial court no doubt was referring to defendant's conviction for unlawful use of a weapon. It seems from the trial court's comments that the court was purporting to rely on ORS 137.123(2) in imposing the consecutive sentence. Defendant objected to the imposition of a consecutive sentence, contending that the offense was committed as part of a continuous and uninterrupted course of conduct, but did not raise any constitutional objections.
Defendant contends now that the trial court's failure to submit to a jury the question whether Count 3 was "a separate matter" is reviewable as error apparent on the face of the record. ORAP 5.45(1). We agree with defendant that the trial court's failure to submit that question to a jury is plain error. State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), cert granted, ___ U.S. ___, 128 S.Ct. 1657, 170 L.Ed.2d 353 (2008); State v. Banks, 218 Or.App. 593, 597, 180 P.3d 726 (2008).
Ailes, 312 Or. at 382 n. 6, 823 P.2d 956. As we noted in Banks:
...
To continue reading
Request your trial