"If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the Crime Seriousness Scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime." In State v. Nelson, 119 Or. App. 84, 849 P.2d 1147 (1993), we addressed a similar argument and concluded that although the amount of loss is taken into account in ranking a crime on the crime seriousness scale, the recognition of the amount of loss does not necessarily duplicate a factor already accounted for by the presumptive sentence. We held that even though value may be an element of an offense, the damages suffered by a victim could be significantly greater than is typical for the offense.
The state argues on reconsideration that we were wrong to treat as "plain error" the imposition of a departure sentence based solely on defendant's being on supervision. In support of its argument that there was no plain error, the state relies on State v. Williams, 133 Or App 191, 891 P2d 3, rev den, 321 Or 512 (1995); State v. Nelson, 119 Or App 84, 849 P2d 1147 (1993), State v. Berg, 115 Or App 254, 838 P2d 73 (1992), rev den, 315 Or 312 (1993); and State v. Mitchell, 113 Or App 632, 833 P2d 1324 (1992). The state asserts that in none of those cases did this court suggest that the trial court was required to make an additional factual finding that prior supervision had failed to deter the defendant from committing further offenses. From that assertion, the state goes on to posit that "a defendant's supervision status, by itself, warrants a departure."
The state argues on reconsideration that we were wrong to treat as "plain error" the imposition of a departure sentence based solely on defendant's being on supervision. In support of its argument that there was no plain error, the state relies on State v. Williams, 133 Or App 191, 891 P2d 3, rev den, 321 Or 512 (1995); State v. Nelson, 119 Or App 84, 849 P2d 1147 (1993), State v. Berg, 115 Or App 254, 838 P2d 73 (1992), rev den, 315 Or 312 (1993); and State v. Mitchell, 113 Or App 632, 833 P2d 1324 (1992). The state asserts that in none of those cases did this court suggest that the trial court was required to make an additional factual finding that prior supervision had failed to deter the defendant from committing further offenses.
See ORS 174.010. In State v. Nelson, 119 Or. App. 84, 849 P.2d 1147 (1993), we considered a similar sentencing record. In that case, we said:
Each factor concerns, in one way or another, whether current or prior judicial sanctions have failed to deter defendant from continuing to commit crimes and, if they have failed, whether an enhanced sentence is appropriate.See State v. Williams, 133 Or. App. 191, 195 n 2, 891 P.2d 3, rev den, 321 Or. 512 (1995) (crime committed while the defendant was on supervision); State v. Nelson, 119 Or. App. 84, 86-87, 849 P.2d 1147 (1993) (on release with other criminal charges pending); State v. Zavala-Ramos, 116 Or. App. 220, 223, 840 P.2d 1314 (1992) (disregard for laws and rules, making successful probation unlikely); State v. Hill, 112 Or. App. 213, 214, 827 P.2d 951 (1992) (prior criminal judicial sanctions failed to deter). With that background in mind, we turn to defendant's argument that the sentencing guidelines are vague in violation of Article I, sections 20 and 21, because they do not give defendants "fair notice" of the circumstances that will result in an enhanced sentence.
We accept the state's concession and remand the case for resentencing.We have held that the commission of a crime while a defendant was on probation or release in another criminal case may be a “substantial and compelling reason” for upward departure, indicating the defendant's failure to be deterred from committing crimes while on probation or release in pending criminal matters. See, e.g. , State v. Nelson , 119 Or.App. 84, 86–87, 849 P.2d 1147 (1993) (stating same and citing prior cases). However, we cannot conclude that the existence of an unserved arrest warrant, standing alone, is a “substantial and compelling reason” for an upward departure.
Additionally, the jury could find “persistent involvement” based entirely on crimes that the jury itself had found defendant guilty of committing, as long as the offenses were unrelated to each other. State v. Nelson, 119 Or.App. 84, 87–88, 849 P.2d 1147 (1993); see also State v. Ceballos, 162 Or.App. 477, 481, 986 P.2d 680 (1999), rev. den.,330 Or. 252, 6 P.3d 1099 (2000) (in determining whether the persistent involvement factor applies, “the sentence court may consider similar offenses committed after the current offense for which sentence is being imposed”). The state charged “persistent involvement” for only eight of the 42 counts of theft with which defendant was charged.
Therefore, a finding of persistent involvement is unsupported by the evidence. In its response to the petition for reconsideration, the state argues that the trial court could have nonetheless found persistent involvement because defendant was being sentenced to three unrelated UUVs at that hearing and that, under State v. Nelson, 119 Or App 84, 87, 849 P2d 1147 (1993), a sentencing court may consider "all similar offenses that are being sentenced at the same proceeding, if they are unrelated "to the offense for which a sentence is being imposed." However, the state did not make that argument at sentencing and that was not the basis for the trial court's departure sentence.
We have held that "a defendant's failure to be deterred from committing crimes while on probation or release demonstrates a substantial and compelling reason to depart." State v. Nelson, 119 Or. App. 84, 87, 849 P.2d 1147 (1993). That reasoning applies equally to crimes committed by a defendant while on parole, as defendant was in this case.