S054267, Opinion — State v. Ramirez

505
Argued and submitted May 2, decision of Court of Appeals reversed; judgment of
circuit court affirmed December 13, 2007, reconsideration allowed; final sentence
of opinion amended to read as follows: "The case is remanded to the Court of
Appeals for consideration of defendant's remaining assignments of error"
February 13, 2008
See 344 Or 195, 179 P3d 673 (2008)
STATE OF OREGON,
Petitioner on Review,
v.
ANASTACIO RAMIREZ,
Respondent on Review.
(CC C030767CR; CA A123657; SC 8054267)
173P3d817
On review from the Court of Appeals.*
Jonathan H. Fussner, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
* Appeal from Washington County Circuit Court, Mark Gardner, Judge. 205
Or App 113, 133 P3d 343, adh'd to on recons, 207 Or App 1, 139 P3d 981 (2006).

506 	State v. Ramirez
With him on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
Jamesa J. Drake, Deputy Public Defender, Salem, argued
the cause and filed the brief for respondent on review. With
her on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
GILLE'ITE, J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.
** Linder, J., did not participate in the consideration or decision of this case.

Cite as 343 Or 505 	507
GILLETTE, J.
This criminal case is the latest in a series of cases
that reflect the efforts of the Court of Appeals and of this
court to understand, follow, and apply the United States
Supreme Court's decisions inApprendi v. New Jersey, 530 US
466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Blakely v.
Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403
(2004). In those cases, the Court held that a criminal defen-
dant has a right under the Sixth Amendment to the United
States Constitution to have a jury determine, beyond a
reasonable doubt, virtually all facts legally essential to the
sentence that a defendant receives. 1 No one at this point is
quarreling respecting the meaning or scope of the Apprendi I
Blakely rule. However, the parties are at odds over whether,
on the facts of this case, an arguable Apprendi I Blakely vio-
lation that was not brought to the trial court's attention at
the time that it occurred nonetheless is (or could be) "an error
oflaw apparent on the face of the record" (i.e., "plain error"), 2
as that phrase is used in ORAP 5.45(1). 3 The Court of Appeals
determined that an Apprendi I Blakely violation was present
in this case, resulting in defendant receiving a sentence in
excess of that authorized by law. The court further deter-
mined that the error was plain. State v. Ramirez, 205 Or App
113, 123-25, 133 P3d 343, adh'd to on recons, 207 Or App 1,
139 P3d 981 (2006). The court then went on to hold that
defendant's conviction should be reversed, stating, "The state
has no valid interest in requiring defendant to serve an
1 More specifically, the Court held in Apprendi that,
"[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt."
530 US at 490. In Blakely, the Court clarified its ruling, making clear that, by the
phrase "statutory maximum," the Court meant the "maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant." Blakely, 542 US at 303 (emphasis in original).
2 We hereafter use the phrase "plain error" in order to spare the reader endless
repetition of the phrase, "an error of law apparent on the face of the record."
3 ORAP 5.45(1) provides, in part:
"No matter claimed as error will be considered on appeal unless the claimed
error was preserved in the lower court and assigned as error in the opening
brief***, provided that the appellate court may consider an error of law
apparent on the face of the record."

508 	State v. Ramirez
unlawful sentence; for defendant, * * * [on the other hand,] a
significant liberty interest is at stake." Id. at 125. We allowed
the state's petition for review to consider whether the Court
of Appeals properly applied the rule ofORAP 5.45(1) respect-
ing plain errors. We now hold that the Court of Appeals erred
in considering the claimed error.
The facts relevant to the legal issue before us are
undisputed; it is their legal significance that causes debate.
Defendant accosted a woman outside the building where she
worked. He placed a handgun to her head and threatened to
kill her. Defendant then ordered the victim onto her hands
and knees, shot her in the head, and ran off. The victim sur-
vived, but lost her right eye and suffered other injuries.
Defendant was charged with attempted murder, first-degree
assault, and unlawful use of a weapon. He invoked his right
to a jury trial, and a jury ultimately found him guilty on all
counts. 4 At the conclusion of that part of the trial, the court
thanked the jurors for their time and effort and discharged
them. Defendant did not object to that procedure. Neither,
however, did he at that time execute a written waiver of jury
trial respecting the fact-finding process that was yet to come.
The court then conducted a sentencing hearing with-
out a jury. At the conclusion of that hearing, the court made
factual findings to support an "upward departure" sentence
for the first-degree assault conviction, i.e., a sentence of
greater length than that which, under existing sentencing
guidelines, could be imposed solely by virtue of the jury's ver-
dict finding defendant guilty of that offense. Specifically, the
court found that the defendant caused permanent injury to
the victim, that the victim was particularly vulnerable, and
that defendant was persistently involved in criminal activi-
ties. The court also stated that, in its view, any of the find-
ings, standing alone, justified an upward departure sentence.
Defendant did not object on the record to having those depar-
ture facts determined by the trial judge rather than by the
jury. The court then imposed an upward departure sentence
" At trial and at sentencing, defendant never disputed that someone shot the
victim and caused her to lose sight in her right eye. The only dispute that he raised
was whether he was the person who shot her. The jury found beyond a reasonable
doubt that defendant caused that injury when it convicted him of attempted mur-
der and first-degree assault.

Cite as 343 Or 505 	509
on the assault conviction, ordered that that sentence be
served consecutively with the sentence imposed on defen-
dant's attempted murder conviction, ordered that defen-
dant's sentence on the unlawful use of a weapon conviction be
served consecutive to the other two sentences, and denied
defendant eligibility either for early release or sentence
reduction programs.
Defendant appealed his sentences to the Court of
Appeals. There, he argued that, under Blakely, the trial court
erred in imposing a departure sentence based on facts that he
did not admit and that had not been found by ajury. 5 Defen-
dant acknowledged that he had not made that argument in
the trial court, but contended that the Court of Appeals
should consider the matter as plain error under ORAP
5.45(1).
The Court of Appeals began by reviewing this court's
case law explaining the procedure that an appellate court
should follow before reaching an inadequately preserved or
inadequately raised claim of error. It noted that our cases
have identified three criteria that must be met for a claim of
error to be considered plain error:
"'(1) [The claimed error] is an error oflaw; (2) the [claimed]
error is obvious, not reasonably in dispute; and (3) it
appears on the face of the record, i.e., the reviewing court
need [not] go outside the record to identify the error or
choose between competing inferences, and the facts consti-
tuting the error must be irrefutable.' "
Ramirez, 205 Or App at 115-16 (quoting State v. Reyes-
Camarena, 330 Or 431, 435, 7 P3d 522 (2000), which, in turn,
citesAiles u. Portland Meadows, Inc., 312 Or 376, 381-82, 823
P2d 956 (1991)).
The Court of Appeals then extensively reviewed this
court's recent decision in State v. Gornick, 340 Or 160, 130
Defendant also assigned error to the trial court's imposition of a consecutive
sentence on the unlawful use of a weapon conviction, and to the trial court's deci-
sion denying him eligibility for "good time" credits. The Court of Appeals did not
separately discuss those claims of error but remanded the entire case to the trial
court for resentencing. Ramirez, 205 Or App at 125. Consistent with that approach,
the state's petition for review and our own discussion of the case focus only on the
departure sentence issue.

510 	State v. Ramirez
P3d 780 (2006), a case in which a defendant, after waiving his
right to a jury trial and being convicted by a trial court,
claimed that the trial court committed plain error at sentenc-
ing by imposing an upward departure sentence based on
aggravating facts that the trial court found. The Court of
Appeals concluded that this court rejected that plain error
argument in Gornick, because we believed that it was per-
missible to infer, from the fact that the defendant had waived
his right to a jury trial respecting his guilt and had not
objected when the trial court found departure facts, that the
defendant did not wish to assert any right that he may have
had to have a jury determine those departure facts. Ramirez,
205 Or App at 118-22. The Court of Appeals then stated, with
respect to this court's decision in Gornick:
"Gornick stands for the proposition that, if we are able to
draw at least two inferences from the defendant's failure to
object, one of which suggests that the trial court erred and
another of which suggests that the trial court did not err,
then the error is not 'plain' within the meaning of ORAP
5.45(1). It further seems fair to say that Gornick holds that,
on the facts of that case-in which the defendant waived a
jury trial and expressly consented to the trial court's
authority to impose the maximum sentence-multiple
inferences could be drawn from the defendant's failure to
object to the trial court making aggravation findings. One of
those inferences was that the defendant did not waive his
right to a jury trial as to the departure sentence facts, in
which case the trial court erred. A second of those infer-
ences was that the defendant did waive his right to a jury
trial as to those facts, in which case the trial court did not
err. We do not read Gornick broadly to hold that, in all cases
in which a defendant failed to object to the trial court's
departure findings, we cannot properly conclude that the
trial 	court 	plainly erred 	in violation 	of Blakely 	and
Apprendi. Whether the trial court committed plain error
will depend on the facts of each case."
Ramirez, 205 Or App at 123 (emphasis in original).
Turning to the present case, the Court of Appeals
distinguished the facts from those in Gornick. The court
emphasized that, in the present case, defendant had not
waived his right to ajury before trial and had never expressly
consented to the trial court's authority to proceed without the

Cite
aid of a jury to find facts to support a departure sentence; nei-
ther had defendant admitted those departure facts. From
that procedural history, the Court of Appeals concluded that,
unlike in Gornick, it could not infer that defendant intended
to forgo his right to have a jury determine whether departure
factors were present in the case. It followed, the court held,
that no competing inferences arose out of defendant's failure
to object when the trial court made those findings. Accord-
ingly, the Court of Appeals held that the trial court commit-
ted plain error when it made those findings itself and relied
on them to impose a departure sentence. Ramirez, 205 Or
App at 124-25. The court then elected to exercise its discre-
tion to address that error, citing the interests of the parties
and the gravity of the error. Having done so, the Court of
Appeals vacated defendant's sentence and remanded the
case to the trial court. Id. at 125. We allowed the state's peti-
tion for review. 6
In reviewing the Court of Appeals' determination to
consider the error at issue as plain error, we ordinarily would
approach the matter using the same two-step analysis that
we employed in Gornick. First, we would consider the three
"plain error" criteria set out in Ailes (was the claimed error
one oflaw, was it obvious and not reasonably in dispute, does
it appear on the face of the record without requiring the court
to choose between competing inferences). Next, we would
determine whether, assuming that theAiles inquiry discloses
6 Before turning to the state's challenge, we briefly address an argument that
the defendant raised, for the first time, in his brief on the merits in this court.
Defendant argues that, in addition to any other error that the trial court might
have made, the trial court committed plain error by failing to employ the "beyond a
reasonable doubt" standard of proof to its departure factor findings. Defendant
observes that the court did not state on the record that it found those factors
"beyond a reasonable doubt." According to defendant, because case law at the time
of the sentencing hearing permitted sentencing courts to employ a lesser standard
than "beyond a reasonable doubt" in finding the departure factors, this court can-
not reasonably infer that the trial court in this case found those facts beyond a
reasonable doubt. Moreover (according to defendant), a defendant never can be
presumed to have waived the reasonable doubt standard of proof and, therefore,
the error is plain. Whatever the merits of defendant's argument, we do not reach
them here. As noted, defendant not only failed to raise his point in the trial court,
he also failed to raise it in the Court of Appeals. Defendant's argument simply
comes too late to be entitled to discussion now. We focus on the errors that defen-
dant did raise in the Court of Appeals and that that court elected to consider.

State v. Ramirez
a "plain" error, the appellate court properly exercised its dis-
cretion to consider that error. Gornick, 340 Or at 166.
That ordinary line of inquiry immediately presents
us with two choices in this case. The first choice would be to
omit any discussion of the first step of the plain error analysis
because, if we are of the view that the Court of Appeals erred
in the manner in which it dealt with the second step of the
plain error analysis (and we are of that view), there is no need
to address the first step.
This court could, if it chose, nonetheless undertake to
review the Court of Appeals' approach to the first half of the
analysis. Under that analysis, it could be argued, inter alia,
that, having had a jury trial respecting guilt, defendant
needed to speak up when the trial judge thereafter dismissed
the jury without submitting the alleged departure factors to
them if, as he now claims, defendant in fact was opposed to
the trial court following that procedure. On the other hand,
that argument, although interesting, may not arise again in
future cases because the legislature has seen fit to enact a
statutory procedure governing the issue. Or Laws 2005, ch
463, §§ 1-7, compiled as a note at ORS chapter 136 (2005); see
also Or Laws 2007, ch 16, § 1 (repealing Oregon Laws 2005,
chapter 463, section 20, which provided for sunset of sections
one through seven on January 2, 2008). In this case, we think
that it is more expeditious to assume that the judge's act in
dismissing the jury was error and to move directly to the sec-
ond half of the Ailes analysis, viz., a determination whether
the Court of Appeals properly exercised its discretion to
review the alleged error. We turn to that inquiry.
Respecting 	that 	issue, 	the 	Court 	of 	Appeals
reasoned:
"Considering the interests of the parties and the gravity of
the error, we conclude that it is appropriate [to reach it].
The state has no valid interest in requiring defendant to
serve an unlawful sentence; for defendant, however, a signif-
icant liberty interest is at stake."
205 Or App at 125 (emphasis added). That sentiment not-
withstanding, we think that even a brief consideration of
defendant's Sixth Amendment claim in the context of the

Cite as 343 Or
facts of this case establishes that the Court of Appeals erred
in exercising its discretion to reach that claim.
As noted, the trial court explained that it would have
imposed an enhanced sentence in this case based solely on its
finding that the victim suffered a permanent injury as a
result of defendant's crimes. See OAR 213-008-0002(l)(b)(I)
(listing "permanent injury to the victim" as a basis for impos-
ing a departure sentence). The undisputed evidence in the
record on that issue is that the victim lost her right eye as a
result of being shot in the head. That loss unquestionably is
permanent.
In light of those facts, consideration of the competing
"interests of the parties"-the factor on which the Court of
Appeals relied-leads to precisely the opposite conclusion
from the one that the Court of Appeals reached. If, as the rec-
ord reveals, there is no legitimate debate that the victim suf-
fered 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 appro-
priate case in which to consider defendant's unpreserved
error.
The Court of Appeals also relied, in choosing to exer-
cise its discretion, on the "gravity of the [trial court's] error."
Again, viewed in context, the failure to submit the question
whether the victim sustained a permanent injury to a jury
can hardly be described as grave. On this record, no reason-
able factfinder (whether a judge or a jury) could conclude
anything other than that the victim suffered a permanent
injury. Once again, this consideration does not support the
Court of Appeals' discretionary choice.
Furthermore, this court has listed a number of other
factors that bear on whether an appellate court should exer-
cise its discretion to reach an unpreserved error.Ailes, 312 Or
at 382 n 6. One of those factors, "the ends of justice in the par-
ticular case," requires a court to consider whether, in the con-
text of an individual case, reaching the unpreserved error

State v. Ramirez
would advance the ends of justice. When, as in this case, the
evidence on a sentencing factor is overwhelming, it would not
advance the ends of justice to remand for an unnecessary
hearing.
Finally, there is the court's assertion that the state
"has no valid interest in requiring defendant to serve an
unlawful sentence." Although that rationale has a nice ring
to it, it makes little real-world sense in cases like the present
one, in which the record all but demands imposition of pre-
cisely the sentences that the trial court elected to impose.
That factor does not, on the facts of this case, justify the Court
of Appeals' exercise of discretion. See also State v. Fults, 343
Or 515, 173 P3d 822 (2007) (further elaborating on limited
utility of the "no valid interest" rationale).
It follows from the foregoing considerations that the
Court of Appeals abused its discretion and, therefore, erred
in considering the allegedly plain error committed by the
trial court. The Court of Appeals decision to do so is reversed.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.