State v. Ramirez

• Decision Date: 13 December 2007
• Docket Number: (CC C030767CR; CA A123657; SC S054267).
• Parties: STATE of Oregon, Petitioner on Review, v. Anastacio RAMIREZ, Respondent on Review.
• Court: Oregon Supreme Court

173 P.3d 817

343 Or. 505

STATE of Oregon, Petitioner on Review, v. Anastacio RAMIREZ, Respondent on Review.

(CC C030767CR; CA A123657; SC S054267).

Supreme Court of Oregon.

Argued and Submitted May 2, 2007.

Decided December 13, 2007.

On review from the Court of Appeals.^*

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jamesa J. Drake, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Before DE MUNIZ, Chief Justice, and GILLETTE, DURHAM, BALMER, KISTLER, and WALTERS, Justices.^**

GILLETTE, J.

This criminal case is the latest in a series of cases that reflect the efforts of the Court of Appeals and of this court to understand, follow, and apply 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 those cases, the Court held that a criminal defendant has a right under the Sixth Amendment to the United States Constitution to have a jury determine, beyond a reasonable doubt, virtually all facts legally essential to the sentence that a defendant receives.¹ No one at this point is quarreling respecting the meaning or scope of the Apprendi/Blakely rule. However, the parties are at odds over whether, on the facts of this case, an arguable Apprendi/Blakely violation that was not brought to the trial court's attention at the time that it occurred nonetheless is (or could be) "an error of law apparent on the face of the record" (i.e., "plain error"),² as that phrase is used in ORAP 5.45(1).³ The Court of Appeals determined that an Apprendi/Blakely violation was present in this case, resulting in defendant receiving a sentence in excess of that authorized by law. The court further determined that the error was plain. State v. Ramirez, 205 Or.App. 113, 123-25, 133 P.3d 343, adh'd to on recons., 207 Or.App. 1, 139 P.3d 981 (2006). The court then went on to hold that defendant's conviction should be reversed, stating: "The state has no valid interest in requiring defendant to serve an unlawful sentence; for defendant, * * * [on the other hand,] a significant liberty interest is at stake." Id. at 125, 133 P.3d 343. We allowed the state's petition for review to consider whether the Court of Appeals properly applied the rule of ORAP 5.45(1) respecting plain errors. We now hold that the Court of Appeals erred in considering the claimed error.

The procedural facts relevant to the legal issue before us are undisputed; it is their legal significance that causes debate. Defendant accosted a woman outside the building where she worked. He placed a handgun to her head and threatened to kill her. Defendant then ordered the victim onto her hands and knees, shot her in the head, and ran off. The victim survived, but lost her right eye and suffered other injuries. Defendant was charged with attempted murder, first-degree assault, and unlawful use of a weapon. He invoked his right to a jury trial, and a jury ultimately found him guilty on all counts.⁴ At the conclusion of that part of the trial, the court thanked the jurors for their time and effort and discharged them. Defendant did not object to that procedure. Neither, however, did he at that time execute a written waiver of jury trial respecting the fact-finding process that was yet to come.

The court then conducted a sentencing hearing without a jury. At the conclusion of that hearing, the court made factual findings to support an "upward departure" sentence for the first-degree assault conviction, i.e., a sentence of greater length than that which, under existing sentencing guidelines, could be imposed solely by virtue of the jury's verdict finding defendant guilty of that offense. Specifically, the court found that the defendant caused permanent injury to the victim, that the victim was particularly vulnerable, and that defendant was persistently involved in criminal activities. The court also stated that, in its view, any of the findings, standing alone, justified an upward departure sentence. Defendant did not object on the record to having those departure facts determined by the trial judge rather than by the jury. The court then imposed an upward departure sentence on the assault conviction, ordered that that sentence be served consecutively with the sentence imposed on defendant's attempted murder conviction, ordered that defendant's sentence on the unlawful use of a weapon conviction be served consecutive to the other two sentences, and denied defendant eligibility either for early release or sentence reduction programs.

Defendant appealed his sentences to the Court of Appeals. There, he argued that, under Blakely, the trial court erred in imposing a departure sentence based on facts that he did not admit and that had not been found by a jury.⁵ Defendant acknowledged that he had not made that argument in the trial court, but contended that the Court of Appeals should consider the matter as plain error under ORAP 5.45(1).

The Court of Appeals began by reviewing this court's case law explaining the procedure that an appellate court should follow before reaching an inadequately preserved or inadequately raised claim of error. It noted that our cases have identified three criteria that must be met for a claim of error to be considered plain error:

"`(1) [The claimed error] is an error of law; (2) the [claimed] error is obvious, not reasonably in dispute; and (3) it appears on the face of the record, i.e., the reviewing court need [not] go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.'"

Ramirez, 205 Or.App. at 115-16, 133 P.3d 343 (quoting State v. Reyes-Camarena, 330 Or. 431, 435, 7 P.3d 522 (2000), which, in turn, cites Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991)).

The Court of Appeals then extensively reviewed this court's recent decision in State v. Gornick, 340 Or. 160, 130 P.3d 780 (2006), a case in which a defendant, after waiving his right to a jury trial and being convicted by a trial court, claimed that the trial court committed plain error at sentencing by imposing an upward departure sentence based on aggravating facts that the trial court found. The Court of Appeals concluded that this court rejected that plain error argument in Gornick, because we believed that it was permissible to infer, from the fact that the defendant had waived his right to a jury trial respecting his guilt and had not objected when the trial court found departure facts, that the defendant did not wish to assert any right that he may have had to have a jury determine those departure facts. Ramirez, 205 Or.App. at 118-22, 133 P.3d 343. The Court of Appeals then stated, with respect to this court's decision in Gornick:

"Gornick stands for the proposition that, if we are able to draw at least two inferences from the defendant's failure to object, one of which suggests that the trial court erred and another of which suggests that the trial court did not err, then the error is not `plain' within the meaning of ORAP 5.45(1). It further seems fair to say that Gornick holds that, on the facts of that case — in which the defendant waived a jury trial and expressly consented to the trial court's authority to impose the maximum sentence — multiple inferences could be drawn from the defendant's failure to object to the trial court making aggravation findings. One of those inferences was that the defendant did not waive his right to a jury trial as to the departure sentence facts, in which case the trial court erred. A second of those inferences was that the defendant did waive his right to a jury trial as to those facts, in which case the trial court did not err. We do not read Gornick broadly to hold that, in all cases in which a defendant failed to object to the trial court's departure findings, we cannot properly conclude that the trial court plainly erred in violation of Blakely and Apprendi. Whether the trial court committed plain error will depend on the facts of each case."

Ramirez, 205 Or.App. at 123, 133 P.3d 343 (emphasis in original).

Turning to the present case, the Court of Appeals distinguished the facts from those in Gornick. The court emphasized that, in the present case, defendant had not waived his right to a jury before trial and had never expressly consented to the trial court's authority to proceed without the aid of a jury to find facts to support a departure sentence; neither had defendant admitted those departure facts. From that procedural history, the Court of Appeals concluded that, unlike in Gornick, it could not infer that defendant intended to forgo his right to have a jury determine whether departure factors were present in the case. It followed, the court held, that no competing inferences arose out of defendant's failure to object when the trial court made those findings. Accordingly, the Court of Appeals held that the trial court committed plain error when it made those findings itself and relied on them to impose a departure sentence. Ramirez, 205 Or.App. at 124-25, 133 P.3d 343. The court then elected to exercise its discretion to address that error, citing the interests of the parties and the gravity of the error. Having done so, the Court of Appeals vacated defendant's sentence and remanded the case to the trial court. Id. at 125, 133 P.3d 343. We allowed the state's petition for review.⁶

In reviewing the Court of Appeals' determination to consider the error at issue as plain error, we ordinarily would approach the matter using the same two-step...