In these three consolidated cases, defendant was convicted of numerous offenses, including two counts of felony assault in the fourth degree in Case No. 02C-48280. On the first count, the trial court imposed a dispositional departure sentence based on the fact that “prior probations have not deterred criminal behavior in this case.” The trial court imposed a dispositional departure on the second count based on the facts that defendant was “on supervised probation when this act was committed, and also because this was a much more vulnerable victim.” Without specifying a particular count, the court also found that defendant’s “adamant denial of the crime committed is a barrier to treatment success” and to deterrence. The court found that each of the aggravating factors was sufficient by itself to support the departures. The court also ordered that those sentences, and several of the sentences imposed on his other convictions, be served consecutively to each other. Defendant did not object to the sentences at trial.
On appeal, he argues that, under
Blakely v. Washington,
The state responds that, where the trial court found that any one departure factor was sufficient and, where defendant admitted his probationary status, the imposition of the departure sentences did not violate the rule of
Apprendi.
The state also argues that, even if the departure
*149
sentences are erroneous, they are not plainly so and that, even if they are plain error, we should not exercise our discretion to reach them. As to the imposition of consecutive sentences based on facts not admitted by defendant or found by a jury, the state argues that, under
State v. Fuerte-Coria,
We reject defendant’s evidence-based assignment of error without discussion and therefore affirm defendant’s convictions. We also decline to reach defendant’s unpre-served
Apprendi
challenge to his consecutive sentences.
Fuerte-Coria,
We turn to defendant’s Apprendi challenge to the imposition of two departure sentences in Case No. 02C-48280 based on facts not found by a jury or admitted by him. Again, the trial court imposed a dispositional departure sentence on one count of felony fourth-degree assault based on the fact that “prior probations have not deterred criminal behavior in this case”; imposed a dispositional departure on a second count of that crime based on the facts that defendant was “on supervised probation when this act was committed, and also because this was a much more vulnerable victim”; and, without specifying a particular count, found that defendant’s “adamant denial of the crime committed is a barrier to treatment success” and to deterrence. The court also found that each of the aggravating factors was sufficient by itself to support the departures. Accordingly, we consider each factor separately.
The factor relating to the vulnerability of the victim requires little discussion. That factor indisputably is not within the exception in
Apprendi
for the fact of a prior conviction; basing a departure sentence on that factor therefore is plain error.
See State v. Ross,
Next, as noted, defendant admitted that he was on probation when he committed new criminal conduct. However, as we explained in
State v. Allen,
Finally, we consider the trial court’s finding that previous probations had not deterred defendant from criminal behavior. Consistently with the reasoning in Allen, a finding that previous probations did not deter a defendant also encompasses facts and inferences about a defendant’s qualities and circumstances that are subject to the jury trial right.
In sum, the trial court plainly erred in respect to each of the factors relied on in imposing departure sentences in Case No. 02C-48280. For the reason stated in
Perez,
Sentences in Case No. 02C-48280 vacated; remanded for resentencing; otherwise affirmed. Case No. 01C-34354 and Case No. 01C-55059 affirmed.
Notes
Defendant’s appeal raises no issues relating to the remaining two consolidated cases.