plan to start with the question of prejudice and then address the issue of performance and then the issue of deference under the age the prejudiced standard is a familiar standard i have to show on behalf of the petition aggravating one or more aggravating factors then when the judge just the judge still doesn't have to give the enhancement right correct in deciding whether to give the enhanc you only look at the official aggravating factors into siding which tends to get even though he doesn't he is still discretionary the judge must give the presumptive guideline sentence which here was fifty five to sixty six months unless he finds substantial and compelling reasons to depart and wear it there's an interplay between the blakely cunningham federal line of cases and that substantial and compelling reason so the jury has to find those aggravating factors so if a judge if he says well the jury found aggravating factors i agree with those aggravating factors and so that allows me to give a higher so i'm going to give the higher sentence because of those aggravating factors and also because he cannot do that and that's essentially what happened here to find out why he cannot rely on any aggravating factor that's not proven to the jury and for which he doesn't articulate the substantial and compelling reasons so the judge could have if i understand you independently relied on those three factors that the jury found and simply reached the sentence that he reached here that is true authority to give this sentence and i'm going to give it and here is why i'm going to get it right aggravating factors is a term of art under oregon law oregon law requires the presumptive sentence unless a substantial and compelling reason is found and aggravating factors is whether there's a reasonable probability that the result would have been different this different this judge explained that he relied on those factors found by the jury as well as age and had he been had the attorney objected and made him aware that age was an impermissible factor we cannot have confidence that he wouldn't rely on his on his criminal record and set one of the aggravating factors that was found he lists that as an aggravating factor was that one of the once a jury found the well the jury found factors that were similar to that but that's not the wording of the factors the jury found and it's also something that goes into the presumptive guideline sentence that would have been the fifty five to sixty six months that the judge had permission to give absent finding of any substantial and compelling reason to depart the reason that i argue we have prejudice here is because this judge listed several factors that he felt were important and taking away any one of those factors he might have done something different and that is the test under strickland whether we can have confidence that the same result would have obtained could he have gotten to the same number yes but the defense attorney here asked for no departure at all there was obviously a substantial sentence that had just been imposed a couple months earlier this gentleman was going to do two hundred mandatory months on another case he was going to be in custody until he was age eighty seven and so the defense was asking for no no departure at all had the judge understood that age could not be relied upon he may have reached a different calculus i'm not complaining that he weighed the factors incorrectly but i'm saying that we don't know what he was how he would have weighed those factors if he had known he couldn't rely on age he mentions age twice it's the first factor he mentions when he describes the aggravating factors in his mind as opposed to those he had already listed that the jury had found and then the last thing he says before he imposes the departure is the age of the victim will result in a departure because of that repetition because the court clearly lists age as an important factor in his calculus we don't know or we cannot be reasonably certain what he would have done if he had known that could not be considered briefly i'll address the a t p really the jury consider the victim's age in the context of whether or not mr bravo was guilty of this offense it necessarily did find his age or her age was under the age of eighteen in order to depart or age as an adult there was testimony about the victim's age in order yes that was a factor but in order to depart based on age you can't in oregon depart on age was within the guidelines no and under oregon law the guideline sentence was fifty five to sixty six months he departed nearly doubling that sentence t hundred twenty months oregon law requires that is a departure under oregon law he was within the statutory maximum but not not within what oregon considers the presumptive range which would have been the fifty five t choosing valid whether to use the higher of the valid sentences is restricted to the particular factors that have already been that have made it the available sentence rather than  the departure has already been proven i e the availability of the higher sentence it's already been proven so now we have the question are we going to use the lower sentence or are they available higher  requirement of increasing the maximum has already been met so the maximum is now you know a plus x instead of eight and the question is should he get a or a plus x and i want page seventeen of my brief which is an oregon case but the law generally in oregon is that for each aggravating factor the court has to state on the record that factor in the substantial and compelling reasons that allow the court to depart so the oregon law is clear that for each fact that it the court finds that it's using to depart has to explicitly describe that which of course this court does but age alone without some particular vulnerability or some reason that age made this person this victim more vulnerable than the average person is captured by the conduct in this crime was not demonstrated please the court counsel jeff payne on behalf of the state has made i want to begin with this court's questions about the distinction between an aggravating factor and a consideration of other facts in the oregon sentencing law because the court has hit the nail on the head and must be determination of whether the factor so proved provide a substantial and compelling reason that justifies imposing a sense beyond the presumptive range and i don't know so if you read that literally i suppose it would only be those factors that have to be considered and but that wasn't the issue in the case and is there any other discussion in the case about that well i think that the way that i interpret upton is a once the jury has found those aggravating factors which increases the statutory limit the judge is authorized within the statutory limit to consider any number of factors just as he is before say authorized to consider any number of factors and what it actually says compelling reason to do so in determining what constitutes substantial and compelling reasons the court can also consider the other things other factors for instance one of the things that frequently comes up in these is the court may say ok i have this range in a sentence here i've noticed during the trial that the defendant's demeanor is bad he's shown no remorse he has been dismissive of the proceedings based on that i'm going to go to the upper end of the sense and i can go to the upper end of the that likewise on the other hand the court could say i've noticed the defendant's demeanor has been exemplary he has taken responsibility for his crimes he has cooperated here therefore i'm going to go on the lower end that works with both the statutory limit and when you get that statutory limit increases by virtue of the aggravating factors found by the jury and that's what we have in this case and the court the excuse me the state p c r court understood the distinction between the aggravating factors and the circumstance that the the age that the court was considering the actual written finding from the state c r court said although the judge mentioned her age as a consideration it doesn't mean used it is an aggravating factor and that distinction is why under strickland here there is no failure to exercise professional judgment because the court as a matter of law was allowed to consider the age once the jury had found those factors so the first prong of  stems prejudiced the petitioner has to show a reasonable probability of the but for counsel's errors the result of the proceeding would have been different and here it's in far too speculative to establish a reasonable on the record in this case where the court specifically sense in court specifically cited the three factors and said it found those conclusive and it concurred with them you've got sort of three possibilities actually two possibilities that might have  probability that had counsel spoken up and said your honor you shouldn't consider age that he would have resulted in a lower sense because that's the the pivotal point here in determining what is the difference in the outcome is would it have been a shorter sentence on this record given what the trial court considered it's purely speculation to say that it would have been a shorter sentence had defense counsel objected  excuse me the three factors were more than sufficient the three jury factors were more than sufficient for the court to do that and fact the court discussed each of those factors and said there were strong factors it did not have any question about of the jury's finding of those so at best there are two possibilities had counsel piped up and objected the court could have said i'm not going out and i'm not considering age i'm still going with the sentence because i have these and the other option is a yes the the same sentence still holds the it's purely speculative to say that had counsel said you can't consider age that the court would have somehow said ok i'll knock off six months or a year or whatever off of the sen obviously opted for the higher end there were three very strong factors and the nature of those factors i think weighs heavily here you had persistent involvement in similar offenses i believe the record show that he had nine prior person felonies the other finding failure of prior sanctions to deter petitioner there was much discussion about that the hit had been since a number of times it involved in so many crimes and that he was still continued to engage in this behavior and the third  factor was that incarceration of the petitioner was necessary for the pub for the protection of the public so given the strength and the of those three factors to say that if  defendant had counsel hads mentioned age that there would have been a lower sense is is far too speculative to meet the reasonable probability standard for that and i think when you've got the doubly deferential in the way that the oregon sentencing works that the judge can consider other factors besides the aggravating factors when it imposes the sentence and because the sense the court  that the state p c r court's findings are not an unreasonable application of federal law it correctly found that counsel had not failed to exercise professional skill and judgment because that objection would have been futile in this case because the court had the sense the court had the lawful authority to do what it did it also correctly found that there was no prejudice under strickland and i believe unless the court has any other questions tell me what you think is a reasonable probability of a different result i think there's a reasonable probability of a different result because the judge had a number of factors in front of him that he found important he didn't tell us through the record which factors were most important perhaps age weighed significantly in his calculus we don't know bad had age been taken out of that calculus he might have done something different in he is allowed to give any sentence from fifty feet less than now has a rage let's say it's i don't know who years or three years with enriching consent as long as he doesn't rely on a factor that was not also proven as long as he bases that departure wholly on factors that were proven