State v. Wright

Under OAR 213-008-0002(1)(b), it is plain error for a trial court to rely on departure factors which “were already captured as elements of the offense or in a consecutive sentence.”

Defendant was convicted of four counts of aggravated animal abuse in the first degree under ORS 167.322(1)(a). On appeal, Defendant argued “that the trial court plainly erred in relying on four aggravating factors to impose upward durational departure sentences” under OAR 213-008-0002(1)(b). Under OAR 213-008-0002(1)(b), it is plain error for a trial court to rely on departure factors which “were already captured as elements of the offense or in a consecutive sentence.” The State conceded “that the court improperly relied on three of those factors (i.e., (A), (G), and (I)), because they were already captured as elements of the offense or in a consecutive sentence.” The Court of Appeals remanded for resentencing, instructing “the trial court to determine whether to impose the departure sentences on the remaining, ‘vulnerable victim’ factor alone.” Remanded for resentencing; otherwise affirmed.