State v. Dearmitt

No. 182                        March 5, 2025             419

            IN THE COURT OF APPEALS OF THE
                    STATE OF OREGON

                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   STEVEN CLYDE DEARMITT,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       CR1401357; A180226

    Susie L. Norby, Judge.
    Argued and submitted April 24, 2024.
   Brett J. Allin, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   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 Aoyagi, Presiding Judge, Joyce, Judge, and
Walters, Senior Judge.*
    WALTERS, S. J.
    Remanded for resentencing; otherwise affirmed.




______________
   * Walters, S. J., vice Jacquot, J.
420   State v. Dearmitt
Cite as 

 (2025)                                                421

           WALTERS, S. J.
         Defendant appeals, for the third time, challenging the sentence that he received after he entered a guilty
plea on four counts of second-degree sexual abuse.1 In two
previous appeals—State v. Dearmitt, 

, 

 (2019) (Dearmitt I), and State v. Dearmitt, 

, 

 (2022) (Dearmitt II)—we remanded
for resentencing. In this appeal, we again remand for resentencing, concluding that the sentencing court erred in considering defendant’s prior convictions for failure to register
as a sex offender and in using facts not alleged by the state
to justify the departure sentence that it imposed.
                           I. BACKGROUND
         The following provides a general overview of the
undisputed background facts and the procedural posture of
this case. We discuss additional, specific facts as relevant to
particular arguments.
         In 2014, the Oregon State Police received letters that
defendant had written to a fellow inmate while incarcerated
in prison. The letters, the contents of which we detail later,
describe sexual acts between defendant and two children.
Detective Marquez interviewed defendant about the letters,
and he claimed that he had made up the described events;
that they were not true. On the day of the interview, defendant submitted to and failed a polygraph asking about the
contents of the letters. Marquez again interviewed defendant, and, at that time, he disclosed that he had abused the
minor victim in this case, C. Based on that disclosure, the
state charged defendant with five counts of second-degree
sexual abuse and one count of third-degree rape. The state
also alleged, as an enhancement fact, defendant’s “persistent involvement in similar offenses.” See OAR 213-008-
0002(1)(b)(D) (identifying, as part of a nonexclusive list of

    1
      The court entered three judgments—one in November 2022, an amended
judgment in December 2022, and a second amended judgment in February 2023.
The amended judgment entered in December 2022 imposed terms of post-prison
supervision that the court had omitted from the November 2022 judgment.
Those terms are not at issue here. For ease of reference, we therefore refer to the
February 2023 judgment as the “amended judgment” rather than as the “second
amended judgment.”
422                                                  State v. Dearmitt

aggravating factors for a sentence departure, “[p]ersistent
involvement in similar offenses”).
         In 2015, defendant pleaded guilty to four counts of
second-degree sexual abuse.2 Defendant admitted to unlawfully subjecting C to sexual contact without her consent by
penetrating her vagina with his finger and by sexual intercourse and anal penetration. He admitted doing so between
2003 and 2005, when defendant was 21 to 23 years old, and
C was 13 to 15 years old. With regard to the appropriate
sentence, the parties informed the court that defendant’s
presumptive prison sentence under the felony sentencing
guidelines was based on a grid block that classified each
offense as a “7.” However, because the state had alleged an
enhancement fact—persistent involvement—further factfinding was necessary. Defendant stipulated to admission of
the state’s evidence of that fact and waived his right to have
a jury decide it. Sentencing was set over to a later date.
          The original sentencing occurred in 2016. On three
of the four counts of second-degree sexual abuse, the court
imposed the maximum departure sentence of 60 months in
prison, and on the fourth, it imposed 18 months in prison
and 60 months of post-prison supervision, to be served consecutively. Defendant appealed, assigning error to, among
other things, the court’s failure to merge the guilty verdicts on two of the counts into a single conviction. Agreeing,
we reversed and remanded for merger and resentencing.
Dearmitt I, 299 Or App at 23.
         The second sentencing occurred in 2020. A different judge merged the guilty verdicts on the two counts as
ordered and, for each of the remaining convictions, imposed
the same maximum durational departure sentences.
         Defendant again appealed. He contended, among
other things, that, although the state had pleaded only
one enhancement fact (persistent involvement in similar
offenses), the resentencing court had imposed its departure
sentence based, not only on that fact, but also on a number
of other unpleaded enhancement facts (untreated substance

    2
      At sentencing, the rape count and remaining count of sexual abuse were
dismissed.
Cite as 

 (2025)                              423

abuse, defendant not being amenable to treatment, that a
lesser sentence would not deter defendant, and that defendant presented a danger to the community). Dearmitt II, 

. The state agreed that the only enhancement fact that it had alleged was persistent involvement.

. However, the state argued, the court’s imposition
of the departure sentence should be affirmed for either of
two alternative reasons: (1) the resentencing court had considered the unpleaded facts solely to support its finding of
persistent involvement; and (2) once a court finds a pleaded
enhancement fact, it is free to rely on additional, unpleaded
facts in deciding whether and how much to depart. 

.
         We were unable to resolve the parties’ dispute
because of ambiguities in the trial court record. We recognized that the resentencing court had made a finding of
persistent involvement, but we could not tell whether that
finding was the sole reason for the court’s decision to impose
its sentence. 

 Accordingly, we again remanded for resentencing. 

. In doing so, we noted that 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.” 

 at 631 n 3
(citing authority for the proposition that one prior conviction
or criminal episode did not establish persistent involvement).
         Defendant’s third sentencing hearing took place
in 2022 before the same judge who had resentenced him in
2020. The state filed a sentencing memorandum, in which
it incorporated by reference all of its prior sentencing memoranda, evidence, and arguments. The evidence on which
the state relied included defendant’s juvenile adjudication
for conduct that would constitute first-degree sexual abuse,
two prior convictions for failure to register as a sex offender,
and the letters that he wrote while in prison. The state
argued that “[a]ll that is necessary as a legal basis for a
court to have authority to impose an upward departure is
a single finding of an aggravating factor that was properly
alleged and proved” and that “[o]nce such a finding is made,
a sentencing court then properly may consider a myriad of
424                                                      State v. Dearmitt

other factors in deciding whether and the extent to which it
should depart.”
          At the 2022 sentencing hearing, the state reiterated
its written arguments, and defendant contended that the evidence that the state had proffered was insufficient to support
a persistent involvement finding. Defendant argued that the
state’s only proffered evidence of a “similar offense” was one
juvenile adjudication of conduct that would constitute sex
abuse and that that adjudication was neither an “offense” nor
sufficiently “similar” to adult conduct to permit it to be used
to support a finding of persistent involvement. The court and
defendant then discussed the state’s reliance on the letters
that defendant had written while in prison and the events
described in those letters. In the course of that discussion, the
court stated that it believed that the conduct described in the
letters had occurred. The court then went on to clarify that its
2020 departure sentence had been based only on its finding
of persistent involvement in similar offenses and said that its
intent in considering other factors was to do so in “determining the precise degree of the upward departure.” In November
2022, the court entered a judgment affirming its earlier persistent involvement finding and reimposing the same sentence
that it had imposed in 2020—a maximum departure sentence
of 60 months in prison on each of three convictions for second-degree sexual abuse to be served consecutively.3

    3
      Approximately three months later, defendant filed a pro se motion to correct
the judgment for reasons not relevant to this appeal, which the sentencing court
denied by order. In the same order, however, the court also reincorporated its
2020 departure findings. The court had not included those findings in its earlier
judgment and explained that its failure to do so had been a clerical error:
    “In November 2022, I ruled that the exact same findings, conclusions and
    sentences previously issued [in 2020] would be re-imposed. However, the
    2022 General Judgment only listed one of the six findings made on the record
    in 2020 for the departure sentences, i.e., Persistent involvement. The other
    five findings were omitted from the 2022 General Judgment.
    “NOW, THEREFORE, the Court orders that the 2022 General Judgement be
    corrected to incorporate all of the findings that were made on the record in
    2020, as listed above. Their omission in 2022 was a clerical error that must
    be corrected.”
    Accordingly, the court issued an amended judgment in February 2023 that
included the same six enhancement facts as had been included in the 2020
judgment. Here, defendant appeals both judgments. Our decision in this case is
not affected by the findings that the court described as a clerical error, and we
do not separately address the amended judgment.
Cite as 

 (2025)                            425

                      II. ANALYSIS
         On appeal, defendant contends that the sentencing
court erred in imposing its departure sentences. He contends that the evidence was insufficient to support a finding of persistent involvement, or, alternatively, that, even
if the evidence was sufficient the sentencing court erred
because it did not impose its sentence based solely on that
fact. Instead, defendant contends, the sentencing court used
unpleaded facts to determine and justify its departure sentence in violation of ORS 136.765 and the Sixth Amendment
to the United States Constitution. Finally, defendant argues
that the sentencing court erred in considering defendant’s
offenses to be level “7” offenses on the crime seriousness
scale in violation of State v. Simonson, 

, 

 (2011), rev den, 

 (2013).
A.   Imposition of Sentence Based on “Persistent Involvement”
     Factual Finding
         We begin our analysis with defendant’s contentions
that the sentencing court erred in imposing a departure
sentence because the evidence proffered by the state was
insufficient to support a finding of persistent involvement
and that, even if the letters were legally sufficient, we must
remand for the court to decide whether the letters, alone,
showed persistent involvement. The state’s first counterargument is that defendant’s claim of error is barred by the
“law of the case” doctrine. That doctrine bars consideration
of an issue when an appellate court previously “has made a
binding ‘ruling or decision’ ” on the issue. Rains v. Stayton
Builders Mart, Inc., 

, 

 (2018)
(quoting Kennedy v. Wheeler, 

, 

(2014)).
        As the state appears to recognize, that doctrine is
not directly applicable here: This court did not make a decision in Dearmitt I or Dearmitt II on the issue of whether
the state’s evidence was sufficient to support a persistent
involvement finding. The state’s argument is more correctly
understood as an argument from principles that underlie
the law of the case doctrine—principles of waiver. The state
seems to argue that, because defendant reasonably could
426                                                        State v. Dearmitt

have raised a sufficiency of the evidence challenge in his first
appeal, but failed to do so, he effectively waived that argument and cannot assert it here.4 See, e.g., State v. Herfurth,

, 

 (2020) (concluding that
the defendant did not, as the state argued, waive his right to
challenge the issue in his third appeal even though he had
not raised it in an earlier appeal, applying the “considerations that come into play in evaluating whether to consider
an issue that was not raised at the first available opportunity”); State v. Poston, 

, 

(2021) (our conclusion in Herfurth that the defendant did not
waive the issue that he challenged in his third appeal by
not raising it in an earlier appeal was based on “some of the
same prudential concerns that underlie the law of the case
doctrine”).
         The state is correct that defendant did not argue in
his first appeal that the sentencing court’s imposition of a
departure sentence was erroneous because the evidence was
insufficient to support a finding of persistent involvement.
However, after defendant’s first appeal and the remand we
ordered in Dearmitt I, the sentencing court conducted a second sentencing hearing and again found persistent involvement, and defendant brought a second appeal. In that second appeal, defendant changed course and argued that the
court’s imposition of a departure sentence was erroneous
because the evidence on which the court relied at the second
sentencing hearing was insufficient to support the court’s
persistent involvement finding; in response, though, the
state did not contend that defendant had waived his right
to raise that challenge. And, in our opinion in Dearmitt
II, we treated the sufficiency of the evidence as a pending
issue, noting, as indicated, that 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
    4
      At times the state refers to defendant’s failure to raise the challenge as a
lack of “preservation.” As the state conceded at oral argument, however, defendant raised the issue of the sufficiency of the evidence in the trial court. The
record demonstrates that, at each of his sentencing hearings, defendant challenged the sufficiency of the evidence to support a persistent involvement finding.
The issue before this court is not one of “preservation of error” in the trial court,
but, instead, an issue of waiver of a preserved challenge on appeal.
Cite as 

 (2025)                              427

offense would satisfy that enhancement factor, which would
be contrary to our case law.” 

 n 3.
          In this third appeal, defendant raises the same
legal issue that he raised in his second appeal. Given the
state’s failure to argue that defendant had waived the issue
of the sufficiency of the evidence and the fact that we, ourselves, flagged that issue for consideration on remand, we
cannot conclude that it would offend principles of fairness
to permit defendant to raise that issue here. In addition, we
note that, in this third appeal, the state responds to defendant’s argument that the evidence is insufficient to support
a finding of persistent involvement by pointing to an express
factual finding that the sentencing court made in the third
sentencing hearing that had not been made in either of the
two prior sentencing hearings. Given that new finding, the
argument before us now is not the same argument that we
could have considered in Dearmitt I, and we do not see a
prudential reason to refrain from considering it here.
         Proceeding, then, to the merits of defendant’s argument that the state did not present evidence sufficient to support the sentencing court’s finding of persistent involvement,
we note that a finding of persistent involvement requires
two or more instances of conduct. State v. Rodriguez, 

, 699 n 2, 

 (1992) (concluding “that
one prior criminal episode will not support a finding of ‘persistent involvement in similar offenses’ ”). The conduct must
constitute “offenses” and must be “similar” to the conduct
for which the defendant is being sentenced. OAR 213-008-
0002(1)(b)(D).
         Before this court, the state contends that it proved
two or more similar offenses by proffering evidence that
defendant engaged in the criminal acts that he described
in the letters that he wrote in prison. The state does not
argue, as it did in the trial court, that additional evidence
that it proffered there—defendant’s juvenile adjudication
for conduct that would constitute first-degree sexual abuse,
and his two prior convictions for failure to register as a sex
offender—meets that standard. Consequently, we focus on
the letters that defendant wrote and defendant’s contention
that the expressions in the letters do not constitute “offenses”
428                                         State v. Dearmitt

because the record does not support a nonspeculative inference that the conduct described in the letters actually
occurred. The “record” to which defendant refers includes
the letters themselves; Marquez’s report after talking with
defendant about the letters; interviews with defendant; an
interview with S, one of the children discussed in the letters; and portions of the transcript of a polygraph examination of defendant. Defendant did not stipulate to the truth
of that evidence, but he stipulated to its admission. With
regard to the sufficiency of that evidence, defendant argues
that the record “contains no evidence that any of the ‘acts’
described in the letters were based on real events,” and that,
prior to 2022, the prosecutor and court both acknowledged
not knowing whether anything described in the letters had
occurred.
         Defendant is correct that, at different points, the
prosecutor and court acknowledged that some of the conduct described in the letters could be fictional, as defendant
asserted. However, the sentencing court ultimately stated
that it believed that the conduct occurred. Consequently, the
question before us is whether a reasonable factfinder could
make that finding and all inferences necessary to that finding. See State v. Davilla, 

, 

(2016) (explaining that the appellate court reviews a trial
court’s factual findings justifying a sentencing departure
for whether they are “supported by evidence in the record”).
As in the context of a finding of guilt, the requirement that a
factfinder be convinced beyond a reasonable doubt does not
mean that the state must show that the inference it seeks
inevitably follows from the established facts. State v. Beason,

, 

 (2000), rev den, 

 (2001). “Rather, the established facts may support multiple reasonable inferences and, if they do, which inference
to draw is for the [factfinder] to decide.” State v. Bivins, 

, 

 (2004) (citing State v. Hall, 

, 

 (1998), and Beason, 

).
        In the letters he wrote, defendant described in
graphic detail abuse that he said he had committed against
a four-year-old child, T, whom defendant said was the
Cite as 

 (2025)                           429

daughter of his former girlfriend, K, and against K’s young
cousin, S. The additional evidence proffered by the state,
including Marquez’s report and interviews with defendant,
indicates that K, T, and S all exist, and that T would have
been four years old and S would have been about 10 years old
during the time that defendant was in a relationship with
K. The evidence also indicates that the event that defendant
described in his letters as occurring while he was riding in
the back of a car with K and T actually took place. In an
interview, defendant admitted that, during that drive, he
had been sexually aroused by T, although he denied assaulting her. Defendant also admitted that he had seen T running wet and naked in the house after a bath. Again, defendant denied touching T at that time. He did say, however,
that he had touched T’s butt at other times, but only in the
context of picking her up.
          Defendant also admitted to fantasizing about, and
masturbating to thoughts of other children, including S. The
police interviewed S, who said she was close to T and that
T had told her that defendant “touched her and she, like
she was embarrassed to say where.” S said that defendant
also had picked S up and slapped her butt; touching that
she did not consider sexual. However, when asked about the
descriptions defendant related in his letters, S confirmed
that the places described in the letters existed and told the
interviewer that, given the detail in the letters, “[i]f you
guys believe he did it, he probably did it when I was, like,
asleep or something, ‘cause I’m a heavy sleeper”; later, she
said that “I’m pretty sure he tried something when I was
sleeping,” again reiterating that she was a heavy sleeper.
She also stated that “if he did something I probably blocked
it out,” and described defendant as taking opportunities to
be near her. S also said that, on the way down to the garage
to get camping equipment, defendant had touched her “front
part,” and told her not to tell anybody.
        Here, the record before the sentencing court supported multiple reasonable inferences regarding the conduct
described in the letters. The sentencing court could have
found that defendant did not commit any of the described
acts, but, viewing the evidence as a whole—the details in
430                                         State v. Dearmitt

the letters themselves and the corroboration of certain of
those details—the court reasonably could have inferred
that defendant had committed acts of sexual abuse on more
than one occasion, as opposed to only fantasizing about that
abuse.
         Even assuming that defendant embellished some
of the acts in the letters or that the letters include some
fantasized abuse, the evidence before the sentencing court
supports a nonspeculative inference that T and S actually
existed, that defendant had opportunities to abuse them,
and that he, in fact, committed multiple acts of child sexual abuse as opposed to merely fantasizing about touching
them.
          Given that available inference, we reject defendant’s
argument that the evidence was insufficient to demonstrate
that the described child abuse actually occurred. We note
that an “offense” can be based on conduct that did not result
in a conviction. See State v. Summerlyn, 

,

 (2021), rev den, 

 (2022) (“[U]nadjudicated conduct may constitute one of the offenses necessary
to establish persistent involvement.”); State v. Cam, 

, 

, adh’d to as modified on recons, 

, 

, rev den, 

 (2013) (“In
determining persistent involvement, a jury may consider a
defendant’s prior criminal conduct, even if that conduct did
not result in a criminal conviction.”). And we also note that
defendant does not argue that, even if there was evidence
from which the court could conclude that defendant engaged
in multiple acts of child abuse, that evidence was not sufficient for the court to find that defendant’s conduct of sexually
assaulting young children was so continuous and recurring
as to constitute persistent involvement. See State v. Bray,

, 

 (2007) (“The trier of fact must
infer from the number and frequency of those prior convictions whether the defendant’s involvement in those offenses
is ‘persistent.’ ”).
        What defendant does argue, alternatively, is that a
remand is nevertheless required. Defendant contends that,
in reaching the factual conclusion that defendant’s involvement in child sexual assault was “persistent,” the court
Cite as 

 (2025)                             431

incorrectly considered evidence in addition to the conduct
described in the letters—two prior convictions for failure
to register as a sex offender and one juvenile adjudication
for conduct that would constitute first-degree sexual abuse.
The state does not argue that the convictions for failure to
register are “similar” to the convictions in this case, and we
conclude that they are not. Whether prior offenses are “similar” “requires consideration of the nature of the offenses[.]”
State v. Cornelius, 

, 

, rev den,

 (1992). Here, sexual abuse is a “person crime,”
State v. Kelly, 

, 

, rev den,

 (2014), and is statutorily defined as a “sex crime,”
ORS 163A.005(5)(d). Failure to register as a sex offender is
not a “sex crime”; it is a “regulatory” crime. State v. MacNab,

, 

 (2002). Those offenses are not
“similar.”
         As to the juvenile adjudication, the state takes
the position that, due to the many instances of child abuse
described in defendant’s letter, the juvenile adjudication
“does not matter.” The state relies only on the acts of child
abuse described in defendant’s letters and does not respond
to defendant’s arguments that a juvenile adjudication does
not constitute an “offense,” is not “similar” to an adult conviction, and cannot be used for collateral purposes.
        Given the state’s position in this case and our conclusion that the sentencing court incorrectly considered defendant’s convictions for failure to register as a sex offender,
we agree with defendant that, under these particular circumstances we must remand for the sentencing court to
reconsider its finding that defendant’s involvement in child
sexual assault was “persistent.”
B.   Imposition of Sentence Based on Other Aggravating
     Facts
         That conclusion does not end our inquiry, however.
Even if the sentencing court adheres to its finding of “persistent involvement,” we think it appropriate to take up
defendant’s second argument; that is, that the sentencing
court erred because, in imposing its departure sentence,
it used not only the pleaded enhancement fact—persistent
432                                                   State v. Dearmitt

involvement—but also additional, unpleaded facts, in violation of statutory and constitutional law. As we explained
in Dearmitt II, “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.”

 (citing 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.”)).
          In Dearmitt II, this court set out the principle that
“[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.” 

 (citing ORS 136.765 and Davilla, 

). In that earlier appeal, however, we could not determine
whether the 2020 sentencing court had adhered to that principle. As described above, the state had presented and the
court had considered unpleaded facts, including defendant’s
untreated substance abuse history, defendant’s not being
amenable to supervision or treatment for sex abuse or substance abuse, the fact that a lesser sentence would not deter
defendant, and the fact that defendant presented a danger
to the community. We could not tell if or how the sentencing
court had used those facts, and we reversed and remanded
for clarification and resentencing. On remand, the 2022 sentencing court again imposed a departure sentence and said
that it was doing so based solely on its finding of persistent
involvement. The court also said, however, that it had considered other, unpleaded facts, but only in “determining the
precise degree of the upward departure.”
         Defendant now argues that that use of unpleaded
facts violates Oregon statute and the Sixth Amendment.5

    5
      Defendant notes that after issuing its original sentencing judgment,
the sentencing court issued an amended judgment that reincorporated the
unpleaded aggravation facts. See 338 Or App at 424 n 3. Defendant contends
that the amended judgment establishes that the court’s sentence was improperly
based on those unpleaded aggravating facts. We do not address that argument
because defendant’s challenge to the court’s original judgment is dispositive.
Cite as 

 (2025)                             433

Specifically, defendant argues that ORS 136.765 “requires
the state to plead enhancement facts in the charging instrument or give written notice of them within 60 days of arraignment ‘[i]n order to rely on an enhancement fact to increase
the sentence that may be imposed in a criminal proceeding[.]’ ” Further, he argues that “the Sixth Amendment entitles a defendant to have a jury determine any aggravating
factor that a court may then use to justify a sentence that
exceeds the presumptive range.” State v. Upton, 

, 

 (2005). Defendant contends that the sentencing court’s use of unpleaded aggravating facts to justify
the departure sentence that it imposed, including the length
of that sentence, was legally impermissible.
         The state disagrees. The state takes the position
that as long as it alleges and proves a single sentence-enhancement fact that is legally sufficient to justify the sentence imposed, the sentencing court does not violate statutory or constitutional dictates by also considering other,
additional facts in imposing that sentence. Those additional
facts, the state contends, are not sentence-enhancement
facts under ORS 136.765 or facts that are subject to the
right-to-jury rule announced in Apprendi v. New Jersey, 

, 

, 

 (2000), and Blakely
v. Washington, 

, 

, 

(2004). Thus framed, the issue is one of first impression. See,
e.g., Davilla, 

 n 10 (explaining that we did
not need to “decide in this case whether a sentencing court,
having concluded that substantial and compelling reasons
support an upward departure sentence, can consider factors
other than an aggravating factor proved beyond a reasonable doubt to decide the length of any upward departure
sentence”).
         And, thus framed, we agree with defendant. The
state is correct that a finding of substantial and compelling reasons to depart from the presumed sentence can be
based on a single enhancement fact. Upton, 

(“A sentence that exceeds, or is below, a presumptive sentencing range may be based on a single factor, as long as the
court concludes that the factor represents a substantial and
compelling reason to impose a sentence that departs from
434                                        State v. Dearmitt

the presumption range.”). But a sentencing court does not
make an abstract decision to depart from a presumed sentence; rather, it makes a decision to impose a particular sentence—either the presumptive prison term or a departure
sentence. And in Oregon, a departure sentence is not a sentence of a particular, prescribed length, although it is subject to a prescribed maximum length—no more than twice
the prescribed sentence. OAR 213-008-0003(2) (“A durational departure from a presumptive prison term shall not
total more than double the maximum duration of the presumptive prison term. In no case may the sentence exceed
the statutory maximum indeterminate sentence described
in ORS 161.605.”). A departure sentence is the particular
sentence selected by the sentencing court that exceeds the
presumptive sentence but is no more than the maximum
sentence. And it is that particular sentence, not the abstract
decision to depart, that must be supported by facts that the
state alleges and proves.
         In Apprendi, the Court held that “[o]ther than the
fact of a prior conviction, 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.” 

. And in Blakely, the Court clarified that “the ‘statutory maximum’ for Apprendi purposes
is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted
by the defendant.” 

 (emphasis omitted). Under
Blakely, a defendant’s right “to have the jury find the existence of ‘any particular fact’ that the law makes essential to
his punishment” is “implicated whenever a judge seeks to
impose a sentence that is not solely based on ‘facts reflected
in the jury verdict or admitted by the defendant.’ ” United
States v. Booker, 

, 

, 

 (2005) (quoting Blakey, 

). “Under
Blakely, the Sixth Amendment entitles a defendant to have
a jury determine any aggravating factor that a court may
then use to justify a sentence that exceeds the presumptive
range.” Upton, 

.
        Thus, in this case, the sentencing court could have
based its decision to impose the selected sentence solely
Cite as 

 (2025)                            435

on the single enhancement fact alleged by the state—persistent involvement. However, it did not do so. Rather, the
sentencing court used and relied on additional, unpleaded
facts to determine and justify the particular sentence that
it imposed. Those facts were not reflected in the jury verdict
or admitted by defendant, and the sentencing court erred in
using them as it did. On remand, the court may not rely on
any unpleaded facts to justify the sentence.
C. Imposition of Sentence Based on Crimes Seriousness
   Score “7”
         Defendant asks that we address one final issue—
whether the sentencing court erred in determining the presumptive sentence for the offenses for which defendant was
convicted. To determine defendant’s presumptive sentence,
the original sentencing court applied a crime seriousness
score of 7. On appeal, defendant argues that the court erred
in doing so because, under the proportionality requirement
of Article I, section 16, of the Oregon Constitution and State
v. Simonson, 

, 

 (2011), rev den,

 (2013), a crime seriousness score of 6 must apply
to his convictions.
          The state contends that this assignment of error is
not reviewable, citing ORS 138.105(9) for the proposition that
that statute bars appellate review of “any part of a sentence
resulting from a stipulated sentencing agreement between
the state and the defendant.” Defendant argues, as he did
at trial, that he did not “stipulate” to sentencing under grid
block 7; he only “acknowledged that the state would advocate for a score of 7, but he understood he would be going
to an ‘open’ sentencing hearing.” Defendant contends that
the record does not support the sentencing court’s determination that the parties “stipulated” to that score, and he
cites portions of the transcript indicating that the state did
not “rely” on the stated grid block in making the agreement
reflected in the plea petition.
         As noted, defendant filed a plea petition and entered
a guilty plea on four counts of child sex abuse. In his plea
petition, defendant identified the grid block—grid block
7—for each of the four offenses to which he pleaded guilty
436                                         State v. Dearmitt

and indicated that the state had agreed to dismiss the two
remaining charges. Defendant did not agree to a specific
sentence, and, in his plea petition, defendant stated that he
knew that his sentence would be an “open sentence”—”up to
the Court to decide.”
         In his sentencing memorandum and at sentencing, defendant argued that the proportionality requirement of Article I, section 16, and Simonson, 

, required that a crime seriousness score of 6 apply to
his offenses. The state responded that defendant had stipulated to a crime seriousness score of 7. The sentencing court
agreed with the state, noting that the parties’ agreement, as
it was presented to the court at the change-of-plea hearing,
included an agreement that the convictions would be ranked
in crime-seriousness category 7.
         The parties treat the issue of whether the appropriate grid block was “part” of a “stipulated sentencing agreement” as a question of fact determined by the sentencing
court, and we do not see the issue differently. Defendant
pleaded guilty to four offenses and, in his plea petition,
referenced an agreement with the state to dismiss the two
remaining charges. Defendant informed the court that the
offenses to which he had pleaded guilty were grid block 7
offenses, and he set out the consequent presumptive sentences for each. Defendant informed the court that he was
aware that the maximum sentence that the court could
impose was five years in prison on each charge, but that he
was leaving the decision about what particular sentence to
impose to the court.
         Although defendant did not enter into an agreement
to have the court impose a sentence of a specific length, the
court found that he entered into a sentencing agreement
that included an agreement as to the specific grid block classification. Under State v. Rusen, 

, 

 (2022), ORS 138.105(9) precludes review of a sentencing
challenge not only when the parties agree to a specific sentence, but also when they agree to “a specific component that
the court used to calculate the sentence—such as the grid
block classification.” Thus, based on the sentencing court’s
finding of fact, we conclude that defendant’s claim of error is
Cite as 

 (2025)                            437

not reviewable under ORS 138.105(9). See Rusen, 

 (explaining that the bar in ORS 138.105(9) applies “to
preclude review only of the part of the sentence on which the
parties agreed”).
                   III.   CONCLUSION
         For the reasons given, we conclude that the sentencing court erred in considering defendant’s prior convictions for failure to register as a sex offender and in using
unpleaded enhancement facts to determine and justify the
departure sentence that it imposed. We remand for the court
to reconsider its finding that defendant’s involvement in
child sexual assault was “persistent” and for resentencing.
        Remanded for resentencing; otherwise affirmed.