S057150, Opinion — State v. Lennon

148
Argued and submitted January 5, decision of Court of Appeals reversed; judgment
of circuit court affirmed April 8, 2010
STATE OF OREGON,
Petitioner on Review,
v.
CHARLES KAVIN LENNON,
aka Charles Cavin Lennon,
Respondent on Review.
(CC 02C46833; CA A122082; SC S057150)
229 P3d 589

Cite as 348 Or 148 (2010) 	149
CJS, Criminal Law§ 1479.
En Banc
On appeal from the Court of Appeals.*
Doug M. Petrina, Senior Assistant Attorney General,
Salem, argued the cause for petitioner on review. With him
on the briefs were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.
Meredith Allen, Senior Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause for respon-
dent on review. With her on the briefs were Peter Gartlan,
Chief Defender, and Louis R. Miles, Deputy Public Defender.
LINDER,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.
* Appeal from Marion County Circuit Court, Albin W. Norblad, Judge. 225 Or
App 318, 201P3d264 (2009).

150 	State v. Lennon
LINDER,J.
This case is before us a second time. In its first deci-
sion, the Court of Appeals determined that it was plain error
for the sentencing court not to have given defendant the
option of a jury trial to decide the facts on which the court
imposed an upward departure sentence for his conviction;
the Court of Appeals then exercised its discretion to correct
that error. State 	u. Lennon, 204 Or App 111, 129 P3d
209 (2008) (Lennon I). On review, this court vacated that
decision and remanded for reconsideration in light of State
u. Ramirez, 343 Or 505, 173 P3d 817 (2007), adh'd to as
modified on recons, 344Or195, 179 P3d 673 (2008). 1 State u.
Lennon, 345 Or 315, 199 P3d 63 (2008). On remand, the
Court of Appeals reconsidered whether it should exercise its
discretion to consider defendant's challenge to his sentence.
It determined that it should do so, and again remanded the
case for resentencing. State u. Lennon, 225 Or App 318, 320,
201P3d264 (2009) (Lennon In. We allowed the state's peti-
tion for review. For the reasons we explain below, we now
reverse the decision of the Court of Appeals and affirm the
judgment of the circuit court.
Defendant was convicted after a jury trial of unlaw-
ful delivery of a controlled substance (methamphetamine).
After the jury returned its verdict, the trial court discharged
the jury without objection. About one month later, the court
held a hearing to impose sentence. Based on the seriousness
of his current offense and the existence of two person-related
felony convictions in his criminal history, the presumptive
sentence for defendant's offense under the sentencing guide-
lines was 35 to 40 months of incarceration. The presentence
report prepared by the Department of Corrections for defen-
dant's sentencing catalogued a much more extensive crimi-
nal record for defendant than had factored into defendant's
presumptive sentence under the guidelines. Based on the
presentence report, the sentencing court imposed a dura-
tional departure sentence of an 80-month term of incarcera-
tion, followed by 36 months of post-prison supervision. The
1 In remanding, we also cited State u. Fults, '343 Or 515, 173 Pad 822 (2007),
which was a related case decided on the same date as Ramirez. For purposes of this
case, Ramirez is the more important precedent and we cite and discuss it without
considering Fults further.

Cite as 348 Or 148 	151
sentencing court expressly found that "prior incarcerations,
probations, 	paroles, 	sanctions 	haven't worked" to 	deter
defendant from continued criminal activities. Defendant did
not object to his sentence at the time of sentencing.
On appeal, defendant argued for the first time that,
under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159
L Ed 2d 403 (2004), andApprendi v. New Jersey, 530 US 466,
120 S Ct 2348, 147 L Ed 2d 435 (2000), the sentencing court
had committed plain error in imposing a departure sentence
based on facts that were neither admitted by defendant nor
found by a jury. The Court of Appeals agreed. The Court of
Appeals further agreed with defendant that it should exer-
cise its discretion to correct that error, and it reversed.
Lennon I, 204 Or App at 112.
The state petitioned for review and, while that peti-
tion was pending, this court issued its decision in Ramirez.
As we have noted, we thereafter allowed the state's petition
for review in this case, vacated the Court of Appeals decision,
and remanded for reconsideration in light of Ramirez. On
remand, the Court of Appeals adhered to its prior disposition.
Lennon II, 225 Or App at 320. The state again petitioned for
review, and we allowed the petition.
To provide context for our discussion of the Court of
Appeals decision on remand, we begin by briefly describing
our decision in Ramirez. In Ramirez, this court was pre-
sented with two issues. The first was whether it was plain
error for a sentencing court to make the factual findings sup-
porting a departure sentence. Under Blakely and Apprendi,
such findings must be made by a jury unless the defendant
waives his right to have the jury decide them. More specifi-
cally, the issue was whether it was plain error for the sen-
tencing court to make the departure findings, given that the
defendant had invoked his right to a jury trial to determine
guilt and then did not object when the jury was discharged
and the trial court imposed the departure sentence. Ramirez,
343 Or at 512. 2 The second issue was whether, if the sentenc-
ing court committed plain error, the Court of Appeals prop-
erly exercised its discretion to reach it. Id.
2 That issue in Ramirez arose in the aftermath of this court's decision in State
v. Gornick, 340 Or 160, 130 P3d 780 (2006). In Gornick, this court held that it was
not plain error for the sentencing court to make the findings that supported a

152 	State v. Lennon
This 	court 	declined to 	reach 	the first 	issue 	in
Ramirez, concluding that the more "expeditious" way to
resolve the case was to assume for purposes of that case that
it was plain error for the sentencing court to have discharged
the jury and made the findings necessary to support the
departure sentence. Id. This court instead resolved the case
based only on the second issue-i.e., whether the Court of
Appeals had properly exercised its discretion to correct the
error. 	Id. 	In Ramirez, 	the 	defendant was 	convicted 	of
attempted murder and first-degree assault after having shot
the victim in the head. The victim survived, but lost an eye.
At sentencing, the trial court imposed an upward departure
sentence, based in part on the fact that the victim had sus-
tained a permanent injury-a factor, the trial court con-
cluded, that alone was sufficient to support the departure.
After assuming that it had been error for the trial court,
rather than the jury, to make the factual findings supporting
the sentence, this court further concluded that the Court of
Appeals should not have exercised its discretion to correct the
error:
"If, as the record reveals, there is no legitimate debate that
the victim suffered a permanent injury as a result of the
shooting, then defendant's interest in a second hearing is
minimal, if not nonexistent: A second hearing would only
confirm that the departure sentence was warranted. The
state, for its part, has a significant interest in avoiding a
second, unnecessary sentencing hearing. Viewed in that
light, the competing interests of the parties establish that
this was not an appropriate case in which to consider defen-
dant's unpreserved error."
Id. at 513 (emphasis added).
departure sentence. This court concluded that defendant's failure to object to the
sentence permitted competing inferences as to whether the defendant waived his
right to have a jury decide the facts necessary to support the departure, and that
those competing inferences precluded treating the error as "plain."
In Gornick, the defendant, in advance of trial, had executed a valid written
waiver of his right to a jury trial to decide guilt. The "plain error" question in
Ramirez was whether the conclusion that this court reached in Gornick-viz., that
competing inferences could be drawn from defendant's failure to claim at sentenc-
ing that he was entitled to a jury trial on the departure findings--should follow in
a case in which the defendant, rather than having waived a jury at the outset of the
trial, had instead invoked his right to a trial by jury.

Cite as 348 Or 148 	153
After this court remanded this case to the Court of
Appeals for reconsideration in light of Ramirez, the Court of
Appeals began by declining to reconsider whether the sen-
tencing court had committed plain error by discharging the
jury and judicially finding the facts on which the departure
sentence was based. In that regard, the Court of Appeals
noted that Ramirez had not disturbed the Court of Appeals'
plain error determination; instead, Ramirez had reversed
only on the conclusion that the Court of Appeals should not
have exercised its discretion to reach the error. Lennon II,
225 Or App at 321.
Consequently, the Court of Appeals on reconsidera-
tion revisited only whether it should exercise its discretion in
this case to correct the error. It concluded that it should. Id.
Its decision in that regard was predicated on its view of what
factual inferences are legally required to support a departure
sentence on the ground that the trial court relied on in this
case-viz., that prior criminal sanctions had failed to deter
defendant from further criminal conduct. Relying on its own
precedent, the Court of Appeals concluded that "failure to
deter" could not be inferred from a defendant's criminal his-
tory alone. Rather, a defendant's criminal history must sup-
port the further factual inference that the defendant pos-
sessed a "malevolent quality" as part of his character:
"[T]he determination of whether a defendant had been
undeterred by prior sanctions involves more than merely
recounting the defendant's criminal history. There also
must be evidence that is sufficient to allow a factfinder to
draw an inference about 'the malevolent quality of the
offender,' and the failure of probation to serve as an effec-
tive deterrent."
Id. at 323 (quoting State v. Allen, 198 Or App 392, 396, 108
P3d 651, adh'd to as clarified on recons, 202 Or App 565, 123
P3d 331 (2005), disposition withdrawn, 207 Or App 295, 140
P3d 1135, rev den, 342 Or 46 (2006)) (emphasis added). The
Court of Appeals thus held that "a finding that a defendant
has not been deterred by prior probations or incarcerations
depends on inferences about the defendant's personal char-
acteristics and circumstances that are subject to the jury trial
right[.]" Lennon II, 225 Or App at 322.

154 	State v. Lennon
Taking guidance from Ramirez, the Court of Appeals
examined the record in this case to determine if there was "no
legitimate debate" as to the inferences that the Court of
Appeals believed the factfinder must draw. In particular, the
Court of Appeals reviewed defendant's extensive criminal
history of prior incarcerations, arrests, other sanctions, and
parole and probation violations, most of which were not con-
sidered in calculating the presumptive sentence for defen-
dant's current crime of conviction. The Court of Appeals was
unable to conclude that there was "no legitimate debate" as to
whether the jury would have found the departure factor that
the sentencing court relied on. As noted, the court reasoned
that determining whether a defendant has been undeterred
by prior criminal sanctions required "more than merely
recounting the defendant's criminal history" and instead
required a further inference "about the malevolent quality of
the defendant." In the Court of Appeals' view, "the record
here-which consists merely of defendant's criminal history
and the state's characterization of defendant's performance
while on probation-does not satisfy that standard." Lennon
II, 225 Or App at 324. 3
On review, the parties take issue with whether the
Court of Appeals correctly determined that, for a departure
sentence to be based on "failure to deter," a factfinder must
specifically infer that there is a separate "malevolent quality"
to defendant's character. The state contends that, as an
upward departure sentencing factor, "failure to deter" may
be permissibly inferred from the extensiveness and nature of
a defendant's history. According to the state, when that infer-
ence is drawn, it is a sufficient basis for a departure sentence;
a further inference of a separate "malevolent quality" is not
The Court of Appeals decision may reflect some misunderstanding of our
holding in Ramirez. The Court of Appeals appears to have used the "no legitimate
debate" standard in Ramirez as the test for whether to exercise its discretion to
reach the error. That is an incorrect understanding of the holding in Ramirez, The
"no legitimate debate" criterion, if satisfied, places the error outside the universe of
what the Court of Appeals may consider as a discretionary matter. An opposite con-
clusion-i.e., that there is a legitimate debate about what factual conclusion a jury
might reach-means only that the error is one that the Court of Appeals may con-
sider; it does not mean that the court must do so. In other words, in the latter cir-
cumstance, the Court of Appeals may, in the exercise of its sound discretion, make
either choice-i.e., not to reach and correct the error or, alternatively, to reach and
correct the error.

Cite as 348 Or 148 (2010) 	155
required by law, makes little sense, and should be discarded. 4
In 	response, 	defendant 	acknowledges 	that 	the 	phrase
"malevolent quality" may be a less-than-ideal way to describe
what a factfinder must infer to support a departure sentence
in this case. Defendant argues, however, that the Court of
Appeals was correct in requiring more than a finding of"fail-
ure to deter." Defendant reasons that, under ORS 137.671(2),
a sentencing court may impose a departure sentence only if
"there are substantial and compelling reasons" for the depar-
ture. According to defendant, it is a "truism" that prior crim-
inal sanctions have not deterred a defendant whenever that
defendant commits a 	subsequent crime. Defendant thus
argues that something more than a defendant's criminal his-
tory is required to establish a "failure to deter" sufficient to
provide a substantial and compelling basis for a departure. 5
This court's decision in State v. Bray, 342 Or 711,
160 P3d 983 (2007), provides guidance in resolving the issue
framed by the parties' arguments. One of the issues in Bray
was whether a departure factor-"persistent involvement in
similar offenses"-fell within the prior conviction exception
to the rule in Apprendi. If so, then the factor was not subject
4 The state also presents, as a second question for this court's review, whether
the sentencing court committed plain error at all. Specifically, the state asserts
that, as this court concluded in Gornick, 340 Or 160, and State v. Perez, 340 Or 310,
131P3d168 (2006), unpreservedApprendi!Blakely claims are susceptible to com-
peting inferences as to whether a defendant may have deliberately failed to raise
the claim, and they therefore do not qualify as error apparent on the record. We
decline to reach that issue, for two reasons. First, as we have already noted, in
remanding this case for reconsideration, we expressly did so citing Ramirez, a case
in which we declined to resolve the plain error issue and instead considered only
whether the Court of Appeals properly exercised its discretion to correct that
"assumed" error. In light of the terms of our remand, the Court of Appeals under-
standably did not revisit its plain error conclusion in this case. Second, and in all
events, our reasons for approaching the problem as we did in Ramirez remain
valid. Statutory changes have diminished the extent to which the issue will arise in
future cases, and it remains more expeditious to resolve this case based on whether
this is a circumstance in which the Court of Appeals had discretion to correct the
perceived error. See Ramirez, 343 Or at 512 (discussing those considerations).
" Defendant raises several other issues in his brief on the merits, some of which
present constitutional challenges to aspects of Oregon's sentencing guidelines.
Those additional issues were not raised at sentencing, were not presented to the
Court of Appeals, and therefore are not properly before this court. See ORAP
9.20(2) (reviewable questions before Supreme Court include all questions properly
before the Court of Appeals that the petition or the response claims were errone-
ously decided by that court).

State v. Lennon
to the Blakely I Apprendi jury trial right; if not, then defen-
dant was entitled to have a jury decide his "persistent
involvement in similar offenses" unless he waived a jury trial
on the issue.
This court held that, in determining whether the rec-
ord establishes a defendant's "persistent involvement in sim-
ilar offenses," a sentencing court "must do more than find
that a defendant has two or more prior convictions for similar
offenses." Bray, 342 Or at 724. Rather, the trier of fact "must
infer from the number and frequency of those prior convic-
tions whether the defendant's involvement in those offenses
is 	'persistent[.]' " 	Id. 	In 	determining 	what 	"persistent"
entails, this court drew from the ordinary understanding of
that term-i.e., recurring or continuing. Id. (citing dictionary
definition). Given the particular record in Bray, this court
concluded that more than one inference could have been
drawn from the defendant's criminal history as to whether
his criminal conduct was recurring or continuing because,
although defendant had 10 offenses in his criminal history
that were similar to his current crime of conviction, all had
arisen out of a single prior criminal incident involving two
victims. As a result, this court determined that the failure to
submit the issue of"persistent involvement" to a jury-which
was a preserved claim of error in Bray-was not harmless.
Id.
Bray is significant here, because this court required
no further inference to support a departure, beyond the infer-
ence of "persistent involvement" that a factfinder might per-
missibly draw from a defendant's criminal history. In con-
trast, the Court of Appeals had held, in a series of cases that
preceded Bray, that "persistent involvement" entailed a fur-
ther inference that defendant's criminal history reflected a
"separate malevolent quality" in his character. 6 In the wake
of Bray, the Court of Appeals recognized that requiring a
6 See State v. Kennedy, 113 Or App 134, 137-38, 831P2d712 (1992)("persistent
involvement in similar offenses," as ground for departure sentence, was intended
to capture "a separate malevolent quality in the offender" represented by repetitive
nature of offender's criminal history); see also State v. 	196 Or App 364, 372-
73, 102 P3d 705 (2004) ("persistent involvement" ground 	departure sentence
requires factfinder to infer separate malevolent quality, over and above counting
the number of offenses in a criminal offender's history).

Cite as 348 Or 148 	157
"separate malevolent quality" to be inferred from a defen-
dant's criminal history placed a "gloss" on the operative
departure standard that had no place in the analysis. State u.
Schenewerk, 217 Or App 243, 247, 174 P3d 1117 (2007), rev
den, 344 Or 671, 189 P3d 26 (2008). The Court of Appeals
acknowledged, instead, that imposing a departure sentence
on 	the 	ground 	of "persistent 	involvement" 	was 	more
"straightforward." Id. at 246. In particular, the factfinder
was entitled to determine, from the "number and frequency"
of a 	defendant's 	prior 	convictions 	for 	similar offenses,
whether the defendant's involvement in those offenses was so
"continuous or recurring" as to be "persistent." Id. at 247; see
also State u. Agee, 223 Or App 729, 196 P3d 1060 (2008)
(same).
We agree with the Court of Appeals' reconsideration
of its former "separate malevolent quality" analysis in the
context of the "persistent involvement in similar offenses"
ground for a departure sentence. A similar analysis applies
here. To find a failure to deter, the factfinder must infer that
a defendant's prior criminal sanctions should have deterred
the defendant from committing the current offense. Whether
that inference follows from the defendant's prior criminal
sanctions will depend on such factors as the number of past
convictions or sanctions, when they occurred, and the kind of
crimes that the defendant committed. A finding that those
past criminal sanctions have not deterred a defendant from
committing further crimes thus requires something beyond a
conclusion that a defendant has one or more criminal convic-
tions in his past. 7 But a finding of a "separate malevolent
quality" is not necessary. If the record supports the factual
inference that a defendant's prior criminal convictions or
sanctions should have, but did not, deter the defendant from
committing his new offense or offenses, that factual finding
can, in a proper case, support a departure sentence. It is then
for the sentencing court to decide, based on that predicate
factual determination, whether there is a "substantial and
7 For example, a defendant might have a 15-year-old conviction for an assault
that he committed as a young man during an argument over a girlfriend. Years
later, he may have become involved with drugs and have a current conviction for a
drug offense. The single 15-year-old assault conviction would be a weak basis for a
"failure to deter" inference in such a circumstance.

158 	State v. Lennon
compelling" reason to impose an upward departure sentence
in a particular defendant's case. See State v. Upton, 339 Or
673, 681, 125 P3d 713 (2005) (defendant has right under
Blakely to have jury decide existence of facts that sentencing
court then may consider to determine whether substantial
and compelling reasons exist to impose sentence that exceeds
presumptive range). 8
In this case, the record of defendant's criminal his-
tory provides "no legitimate debate" that prior criminal sanc-
tions have failed to deter defendant from engaging in crimi-
nal activity. The presentence report, on which the sentencing
court relied, shows that defendant's criminal history spans
two decades, without a significant lapse of time between his
criminal activities. He has been convicted of 37 criminal
offenses; has received supervision terms in 22 cases, and has
violated supervision at least 34 times. His parole and proba-
tion record includes over 1,500 entries that detail repeated
instances 	of arrest and 	incarceration, 	illegal 	drug use,
restraining order violations, failing to report or keep contact
with parole and probation officers, and failing to undergo or
complete court-ordered drug treatment. What is more, defen-
dant committed the drug offense in this case while awaiting
sentencing on a drug-related conviction for which he had
been tried only about two weeks earlier. Based on those facts,
we conclude that there is no legitimate debate that past crim-
inal sanctions have failed to deter defendant from engaging
in criminal conduct. The Court of Appeals erred in reaching a
contrary conclusion, based on the erroneous legal premise
that the record must also establish that defendant possessed
a separate malevolent quality. The Court of Appeals should
not have exercised its discretion to correct any error in the
imposition of defendant's departure sentence.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
" Defendant's argument appears in certain respects to take issue with whether
the "failure to deter" ground for a departure sentence can, without more, legally
constitute "substantial and compelling" grounds for a departure sentence. How-
ever, defendant raised no objection to the sentencing court's decision to depart on a
"failure to deter" ground. If defendant believed that "failure to deter," once a fac-
tual basis for it is found, is nevertheless not a ground that legally supports a depar-
ture sentence, he needed to preserve that argument by objecting on that theory at
the time of sentencing. Defendant did not do so in this case.