State v. Jimenez

                               221

           Submitted February 11, affirmed March 9, 2022


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               JAIME LEE JIMENEZ, SR.,
                  Defendant-Appellant.
               Marion County Circuit Court
                  19CR32153; A173510
                           

  Thomas M. Hart, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julie Glick, Assistant Attorney
General, filed the brief for respondent.
  Before James, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  PER CURIAM
  Affirmed.
222                                          State v. Jimenez

        PER CURIAM
         Defendant appeals from a judgment of conviction of
one count of attempted aggravated murder (ORS 163.095),
second-degree assault (ORS 163.175), felon in possession
of a firearm (ORS 166.270), delivery of methamphetamine
within 1,000 feet of a school (ORS 475.892), and delivery of
methamphetamine (ORS 475.890). The principal incident at
issue concerned defendant shooting a police officer during
a routine traffic stop. On Count 1, the trial court imposed
an upward departure sentence of 240 months in prison. On
appeal, defendant challenges that sentence. We affirm.
         At sentencing, the trier of fact must determine, as
a factual matter, whether alleged aggravating factors are
present. State v. Speedis, 

, 

(2011). On appeal, we will not disturb those factual findings
as long as they are supported by evidence in the record.
State v. Davilla, 

, 

 (2016);
ORS 138.105(8)(b). Once proven, whether facts constitute
“substantial and compelling reasons” required for a departure sentence is a question of law, reviewed for errors of law.
Davilla, 

.
         The trial court imposed an upward departure
sentence based on four aggravating factors and indicated
that any one of those factors would justify the departure.
Accordingly, we need not address all of the factors considered, as we conclude that, at a minimum, the trial court did
not err in concluding that prior criminal sanctions had not
deterred defendant.
         To find a failure to deter, a “factfinder must infer
that a defendant’s prior criminal sanctions should have
deterred the defendant from committing the current offense.”
State v. Lennon, 

, 

 (2010). The
factfinder may consider factors such as “the number of past
convictions or sanctions, when they occurred, and the kinds
of crimes that the defendant committed.” 

         In this case, the record shows that defendant had
a criminal history spanning more than 20 years, including
at least 12 criminal convictions, 32 arrest cycles in Oregon,
and three out-of-state arrests. Out of defendant’s 32 Oregon
Cite as 

 (2022)                             223

arrests, 17 of them were for parole sanctions. At the time of
the attempted murder offense, defendant already had four
convictions for assaultive “person” crimes. In short, evidence
supported the trial court’s finding that prior criminal justice
sanctions had not deterred defendant’s criminal behavior.
        Affirmed.