State v. Dearmitt

“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.”... “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, 339 Or at 681.”

Defendant appealed their sentencing of 60 consecutive months for three convictions of sexual abuse. Defendant argued that the lower court erred in resentencing because it incorrectly used "persistent involvement” as an enhancement factor. Defendant also argued that the court used unpleaded facts in his resentencing, which violated his state and constitutional rights. “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. ... '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.' State v. Upton, 339 Or 673, 681 (2005).

Defendant's first argument failed because the Court found sufficient evidence for persistent involvement. The Court reasoned that because a reasonable fact finder could find a letter Defendant wrote to an inmate about his sexual fantasies with children that alluded to several acts to be based on Defendant’s real abuse of children, the persistent involvement factor was satisfied. However, the Court agreed with Defendant's second argument that it was erroneous for the sentencing court to rely upon his prior convictions and unpleaded facts. The Court reasoned that his prior convictions included a juvenile adjudication and failure to register as a sex offender. Because failure to register is a regulatory crime, neither of these convictions was appropriate for the persistent involvement factor at sentencing. The Court also found it improper that the lower court relied on unpleaded facts to determine the length of the sentence. The Court reasoned that Defendant's Sixth Amendment rights were violated when the court failed to present particular facts to a jury when they were used against him for sentencing as “aggravating factors”. The Court remanded for new sentencing to determine, without his prior convictions and unpleaded facts, whether there was persistent involvement in sex crimes to justify his sentence. REMANDED FOR RESENTENCING.