Maurice K. Merten, Judge.
Sarah Laidlaw, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Benjamin Gutman, Solicitor General, argued the cause
for respondent. Also on the brief was Ellen F. Rosenblum,
Attorney General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
798 State v. Eggleston
PER CURIAM
Defendant challenges his judgment of conviction
for first-degree assault. After a jury found three aggravating factors, the trial court relied on all three to impose an
upward durational departure sentence without distinguishing among the factors. In his eighth assignment of error,
defendant argues that the trial court erred in imposing a
departure sentence based on the third aggravating factor—
that defendant committed the current crime “while another
criminal matter was pending.”1 The state concedes that the
evidence was insufficient for the court to find “substantial
and compelling reasons” to depart on that factor. See ORS
137.671 (authorizing court to depart from a presumptive
sentence if it finds “substantial and compelling reasons” to
justify the departure); OAR 213-008-0001 (same). We agree
and accept the state’s concession.
Our case in State v. Vaughan-France,
(2016) controls here. In
that case, we accepted a state concession that the trial court
had erred in imposing a departure sentence based on an
active out-of-state arrest warrant. We explained that “the
existence of an unserved arrest warrant, standing alone, is
[not] a ‘substantial and compelling reason’ for un upward
departure” because an arrest warrant is not an adjudication. Id. at 321-22. We further explained that, without some
evidence that the defendant was aware of the pending arrest
warrant, “it would not be accurate to state that [the] defendant engaged in any misconduct while aware that he was
facing potential criminal liability.” Id. at 322.
In this case, to prove the third aggravating factor,
the state presented evidence that (1) six months before the
incident in this case, a complaint was filed in the Eugene
Municipal Court charging defendant with harassment;
(2) one month after the incident date in this case, defendant
had failed to appear at his scheduled court appearance on
1
Defendant’s first through fifth assignments of error are rejected without
discussion. Additionally, defendant’s sixth and seventh assignments of error,
which challenge the trial court’s instruction to the jury that it could reach a
nonunanimous verdict and the trial court’s entry of a judgment of conviction
based on a nonunanimous jury verdict, are rejected without discussion.
Cite as
302 Or App 797
(2020) 799
the harassment charge; and (3) as a result of the failure
to appear on the harassment charge, an arrest warrant
issued on that same day. For the same reasons expressed in
Vaughan-France, that evidence was insufficient for the court
to find “substantial and compelling reasons” for an upward
departure in this case. The filing of a criminal complaint is
simply an allegation of wrongdoing. Further, because there
was no evidence that defendant was aware of the pending
harassment charge, the court could not infer that defendant
had committed the crime in this case with knowledge that
he had a pending criminal matter. As a result, we accept
the state’s concession that the trial court erred and remand
for resentencing. See State v. Gibson,
(2002) (remanding for resentencing where court’s
factual findings were inadequate to determine which factors
the court relied on in imposing a departure sentence).
Remanded for resentencing; otherwise affirmed.
