State v. Derrick

                                 835

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
           Submitted October 21, 2022, affirmed May 10, 2023


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                KEVIN CHARLES DERRICK,
                     Defendant-Appellant.
               Clackamas County Circuit Court
                   20CR57132, 20CR55721;
                 A175657 (Control), A175658


   Jeffrey S. Jones, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Hellman, Judge,
and Landau, Senior Judge.
   HELLMAN, J
   Affirmed.
836                                          State v. Derrick

        HELLMAN, J.

        Defendant appeals the trial court’s imposition of
an upward departure sentence. For the reasons below, we
affirm.

         Defendant was convicted after a jury trial of failure
to perform the duties of a driver to injured persons, ORS
811.705, based on an incident in which defendant struck
and killed a pedestrian and drove away. The trial court sentenced him to an upward durational departure of 42 months
in prison under OAR 213-008-0002(1)(b)(D), based on a
finding that defendant was persistently involved in similar
offenses. The record contained evidence that defendant had
previously been convicted of approximately 20 motor vehicle offenses, including reckless driving, attempting to elude
police officers in a motor vehicle, and multiple violations for
driving while suspended and speeding.

         In his assignment of error, defendant argues that
the trial court erred in imposing the upward departure sentence. We disagree.

         “We review to determine whether the court’s findings of fact and reasons justifying the departure are supported by the evidence in the record and constitute substantial and compelling reasons to depart as a matter of law.”
State v. Davilla, 

, 

 (2016)
(quoting State v. Watkins, 

, 

, rev den, 

 (1997)). Defendant does not challenge the trial court’s legal determination that there were
substantial and compelling reasons to depart. Instead, his
challenge is limited to the trial court’s factual finding that
his prior offenses were sufficiently similar to the current
offense.

         Whether offenses are sufficiently similar involves
an examination of a defendant’s underlying criminal conduct. State v. Cornelius, 

, 

,
rev den, 

 (1992). The trial court found that defendant’s past conduct underlying his prior convictions and his
conduct in the instant case both involved “driving when he
Nonprecedential Memo Op: 

 (2023)           837

shouldn’t have been driving,” which resulted in criminal liability. The record supports that finding.
        Affirmed.