State v. Dearmitt

                                      628

Argued and submitted June 27; remanded for resentencing, otherwise affirmed
                           September 8, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   STEVEN CLYDE DEARMITT,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       CR1401357; A174662
                                  

    Defendant appeals from a judgment reimposing a sentence for three counts
of sexual abuse in the second degree, ORS 163.425. Defendant assigns error to
the imposition of departure sentences on all counts. The parties agree that the
state properly pleaded only a single enhancement fact, “persistent involvement in
criminal activity, similar offenses” in the indictment. Defendant argues that the
resentencing court improperly relied on additional enhancement facts to support
the upward departures. Held: A sentencing court may not rely on aggravating
facts that were not included either in the indictment or in written notice to the
defendant to support an upward departure. Because it was unclear whether the
resentencing court relied only on persistent involvement or, instead, used factors
beyond those pleaded in the indictment in deciding that there were substantial
and compelling reasons to support an upward departure, the Court of Appeals
remanded for resentencing.
    Remanded for resentencing; otherwise affirmed.



    Susie L. Norby, Judge.
   Kenneth A. Kreuscher argued the cause and filed the
brief for appellant.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Egan, Presiding Judge, and Kamins, Judge, and
Sercombe, Senior Judge.
    KAMINS, J.
    Remanded for resentencing; otherwise affirmed.
Cite as 

 (2022)                                            629

           KAMINS, J.
        Defendant appeals from a judgment reimposing
a sentence for three counts of sexual abuse in the second
degree, ORS 163.425. Defendant assigns error to: (1) the
decision to place defendant in restraints at a time when he
was without counsel; (2) the imposition of departure sentences on all counts; and (3) the imposition, as agreed to
by the parties in plea negotiations, of a sentence using the
crime seriousness score of “7” instead of “6.” We conclude
that the resentencing court may have improperly relied on
enhancement facts that were not pleaded by the state to
support its finding for an upward departure, and therefore
remand for resentencing. Given our resolution of the second assignment of error, we decline to address the merits of
defendant’s remaining assignments of error.1
         Defendant pleaded guilty and, after the original
sentencing, he appealed on a variety of grounds. We
remanded for resentencing due to the sentencing court’s
failure to merge two of the counts into a single conviction.
State v. Dearmitt, 

, 23, 

 (2019).
On remand, the state argued that the resentencing court
should impose an upward departure on each count based
on a list of enhancement facts that it argued amounted to
“substantial and compelling reasons” for a departure. ORS
137.671(1); OAR 213-008-0001.2 Defendant objected to the
use of enhancement facts that were not pleaded in the indictment or otherwise provided in written notice. After hearing
argument from defendant and the state, the resentencing
court found substantial and compelling reasons to impose
an upward departure for each count of sexual abuse in the
second degree and listed the following facts to support its
decision: defendant’s persistent involvement unrelated to
the current crime; defendant’s untreated substance abuse

    1
       In his first assignment of error defendant contends that the court erred
when it authorized that he be placed in restraints at a time when defendant was
without the benefit of counsel. Defendant acknowledged during oral argument
that a remand for resentencing would obviate the need to address the restraints
issue.
    2
       ORS 136.765 refers to the use of an “enhancement fact” while OAR 213-
008-0002 uses the phrase “aggravating factors.” Because the meanings are the
same for the purpose of this opinion, we use the terms interchangeably.
630                                        State v. Dearmitt

history; the fact that defendant was not amenable to supervision nor to treatment; the fact that a lesser sentence would
not deter defendant; and the fact that defendant presented
a danger to the community because of a history of sexual
deviance.
         As relevant for this appeal, the parties agree that
the state properly pleaded only a single enhancement
fact, “persistent involvement in criminal activity, similar
offenses” in the indictment. As part of the plea agreement,
defendant waived his constitutional right to a jury trial as
to that single factor. See State v. Lafferty, 

, 

 (2011) (defendant must make a knowing and intentional waiver of his right to a jury trial on
sentencing enhancement facts and must do so in writing).
The state argues that the court relied on the other facts the
court mentioned only as support for its finding of persistent
involvement. Alternatively, the state contends that resentencing is not required even if the court relied separately on
the factors the court mentioned but that were not pleaded,
as the court needed only one enhancement fact to impose an
upward departure.
         A sentencing court may not rely on aggravating
facts that were not included either in the indictment or in
written notice to the defendant to support an upward departure. ORS 136.765; State v. Davilla, 

, 

 (2016). That requirement serves to safeguard a
defendant’s Sixth Amendment right to have a jury determine certain facts that increase a defendant’s sentence.
Apprendi v. New Jersey, 

, 

, 

 (2000) (any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt);
Blakely v. Washington, 

, 

,

 (2004) (extending Apprendi’s “statutory”
maximum to sentencing guidelines); State v. Frinell, 

, 

 (2018) (recognizing that the
undisputed purpose of ORS 136.760 to 136.792 was to safeguard the Sixth Amendment right to jury trial on sentence
enhancement facts); ORS 136.760(2) (an enhancement fact
is “constitutionally required to be found by a jury” in order
to increase the sentence imposed).
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 (2022)                                                  631

         Because it is unclear whether the resentencing
court relied only on persistent involvement or, instead, used
factors beyond those pleaded in the indictment in deciding
that there were substantial and compelling reasons to support an upward departure, we must remand for resentencing. See Davilla, 

 (remanding for resentencing was necessary when the record was unclear whether the
court used the additional facts as the basis for the departure or as reasons for the length of the departure). As to
the state’s argument that the resentencing court considered
unpleaded enhancement facts solely to support its finding
of persistent involvement, the record is ambiguous. At the
original sentencing hearing, upon which the resentencing court relied, the court found that “certain aggravated
circumstances exist” and then listed off multiple factors,
including persistent involvement. The most recent judgment
also provides that, “[t]his departure is pursuant to the following aggravating or mitigating factor(s),” listing six factors, one of which is persistent involvement. That those facts
were included in a list alongside “persistent involvement”
suggests that the court may have considered them as separate bases for departure that, in combination, amounted to
substantial and compelling reasons, not merely as support
for an overarching finding of persistent involvement. Due to
that ambiguity, we must remand for resentencing.3
         In the alternative, we understand the state to argue
that, because a single sentence enhancement factor can justify an upward departure, once a court makes a finding of
an enhancement fact that was properly pleaded and proved
and is legally sufficient to justify the departure, the court is
free to rely on additional unpleaded aggravating factors in

    3
      To satisfy the departure factor of persistent involvement in similar offenses,
the trier of fact must determine “whether the defendant’s involvement in similar
offenses is sufficiently continuous or recurring to say that it is persistent.” State
v. Bray, 

, 

 (2007) (internal quotation marks omitted).
The ambiguity regarding the basis for the departure sentence is compounded
by the fact that the record is unclear whether the sentencing court found that a
single prior adjudication for a similar sexual offense would satisfy that enhancement factor, which would be contrary to our case law. See State v. Rodriguez, 

, 

 (1992) (one prior conviction does not establish
persistent involvement); State v. Clark, 

, 

(1992) (one prior criminal episode involving alcohol use did not establish persistent involvement).
632                                         State v. Dearmitt

its discretionary decision whether and how much to depart.
See State v. Upton, 

, 

 (2005) (“A
sentence that exceeds, or is below, a presumptive sentencing
range may be based on a single factor[.]”). However, once
an aggravating factor is pleaded and proved, the trial court
must then determine if that factor amounts to a substantial and compelling reason to depart. See State v. Speedis,

, 

 (2011) (“If the trier of fact
finds beyond a reasonable doubt that an aggravating factor
that the prosecutor has identified exists, then the trial court
may enhance a defendant’s sentence if it concludes that
that aggravating factor provides a substantial and compelling reason for doing so.”). When making that decision, “the
court [is] limited to consideration of the only aggravating
factor that was alleged and proved by the state[.]” Davilla,

.
        The same uncertainty in the record precludes us
from addressing the state’s alternative argument. It is not
clear whether the court found that the single appropriately
pleaded enhancement fact of persistent involvement itself
amounted to a substantial and compelling reason to depart.
See State v. Enemesio, 

, 

,
rev den, 

 (2010) (resentencing required if any of
the departure factors were incorrectly applied and the trial
court did not indicate whether it was relying on the factors
it found singly or in combination). Accordingly, we cannot
address whether a court may consider unpleaded facts in
determining the extent of the departure after it makes
the necessary finding that persistent involvement alone
amounts to a substantial and compelling reason to depart,
because it is unclear whether the court in this case did, in
fact, make such a finding.
       In light of our remand, we do not reach the merits of
the remaining assignments of error.
        Remanded for resentencing; otherwise affirmed.