State v. Grittman , 203 Or. App. 120 ( 2005 )

PER CURIAM

Defendant appeals from a conviction for manufacture of a controlled substance within 1,000 feet of a school. ORS 475.999. The trial court imposed an upward departure sentence based on findings that defendant was on supervision when he committed the offenses and that defendant had a pattern of persistent involvement in similar offenses. On appeal, defendant challenges only the sentence, arguing that, under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the court erred in imposing a departure sentence based on facts that defendant did not admit and that were not found by a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. Under our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the trial court’s upward departure is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.