State v. Moore

For a sentence to be upheld, “[t]he record must affirmatively show that the court sentenced the defendant solely upon the facts of the case and his personal history, and not as punishment for his refusal to plead guilty.” State v. Fitzgibbon, 114 Or. App. 581, 587, 839 P.2d 154 (1992) (citing State v. Smith, 52 Or. App. 681, 629 P.2d 420 (1981)).

Defendant appealed the re-imposition of consecutive sentences and assigned a “plain error challenge” to the trial court’s reasoning for the sentence. Defendant argued his sentence must have been imposed only because of facts specific to his case and his own personal history. The State argued that several reasons were given by the trial court as to why Defendant received the sentence, and there is no way to tell if the impermissible reason was the explanation for the sentence. For a sentence to be upheld, “[t]he record must affirmatively show that the court sentenced the defendant solely upon the facts of the case and his personal history, and not as punishment for his refusal to plead guilty.” State v. Fitzgibbon, 114 Or. App. 581, 587, 839 P.2d 154 (1992) (citing State v. Smith, 52 Or. App. 681, 629 P.2d 420 (1981)). The Court held that because the record did not clearly show Defendant’s choice to go to trial did not affect the trial court’s imposition of consecutive sentences, the sentence could not be upheld. Remanded for resentencing.