State v. Walston

Court of Appeals of Oregon

State v. Walston

203 P.3d 273, 226 Or. App. 267, 2009 Ore. App. LEXIS 104

CourtCourt of Appeals of Oregon

DecidedFebruary 25, 2009

DocketC031921CR, A123519

StatusPublished

This text of 203 P.3d 273 (State v. Walston) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Walston, 203 P.3d 273, 226 Or. App. 267, 2009 Ore. App. LEXIS 104 (Or. Ct. App. 2009).

Pincite

Opinion

*268 PER CURIAM

This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Walston, 205 Or App 566, 134 P3d 1114 (2006) (Walston I), in light of State v. Ramirez, 343 Or 505, 173 P3d 817 (2007), adh’d to as modified on recons, 344 Or 195, 179 P3d 673 (2008). State v. Walston, 345 Or 316, 195 P3d 64 (2008) . In Walston I, we remanded for resentencing, citing State v. Tarkington, 205 Or App 473, 134 P3d 1104 (2006) (Tarkington I), which concerned a codefendant. In Tarkington I, the court had imposed an upward departure sentence based on judicial factfinding, in violation of the codefendant’s rights under the Sixth Amendment to the United States Constitution as set forth in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). Tarkington I, 205 Or App at 475. The present case, like Tarkington I, involves judicial factfinding in support of departure sentences. That factfinding constituted plain error, and we exercised our discretion to correct it under Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). After remand in Tarkington I, however, we declined to exercise our discretion to correct the sentencing error, concluding that no legitimate debate existed as to whether a jury would find the facts necessary to impose the departure sentences. State v. Tarkington, 226 Or App 145, 203 P3d 230 (2009) (Tarkington II).

The issue on remand is whether, in light of Ramirez and State v. Fults, 343 Or 515, 173 P3d 822 (2007), we properly exercised our Ailes discretion. The charges and convictions at issue in the present case are identical to Tarkington II. The record in this case is the same as in Tarkington II. Moreover, each departure factor used in this case was also the basis for a departure in Tarkington II. Under the circumstances presented here, we conclude, for the reasons stated in Tarkington II, that we should not exercise our discretion to correct the sentencing error.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

*268 PER CURIAM

This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Walston, 205 Or App 566, 134 P3d 1114 (2006) (Walston I), in light of State v. Ramirez, 343 Or 505, 173 P3d 817 (2007), adh’d to as modified on recons, 344 Or 195, 179 P3d 673 (2008). State v. Walston, 345 Or 316, 195 P3d 64 (2008) . In Walston I, we remanded for resentencing, citing State v. Tarkington, 205 Or App 473, 134 P3d 1104 (2006) (Tarkington I), which concerned a codefendant. In Tarkington I, the court had imposed an upward departure sentence based on judicial factfinding, in violation of the codefendant’s rights under the Sixth Amendment to the United States Constitution as set forth in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). Tarkington I, 205 Or App at 475. The present case, like Tarkington I, involves judicial factfinding in support of departure sentences. That factfinding constituted plain error, and we exercised our discretion to correct it under Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). After remand in Tarkington I, however, we declined to exercise our discretion to correct the sentencing error, concluding that no legitimate debate existed as to whether a jury would find the facts necessary to impose the departure sentences. State v. Tarkington, 226 Or App 145, 203 P3d 230 (2009) (Tarkington II).

The issue on remand is whether, in light of Ramirez and State v. Fults, 343 Or 515, 173 P3d 822 (2007), we properly exercised our Ailes discretion. The charges and convictions at issue in the present case are identical to Tarkington II. The record in this case is the same as in Tarkington II. Moreover, each departure factor used in this case was also the basis for a departure in Tarkington II. Under the circumstances presented here, we conclude, for the reasons stated in Tarkington II, that we should not exercise our discretion to correct the sentencing error.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

203 P.3d 273, 226 Or. App. 267, 2009 Ore. App. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walston-orctapp-2009.

Opinion

Related

Cite This Page — Counsel Stack