State v. Frazey , 203 Or. App. 122 ( 2005 )

125 P.3d 31 (2005) 203 Or. App. 122

STATE of Oregon, Respondent,
v.
Gary James FRAZEY, Appellant.

0307-33540; A124084.

Court of Appeals of Oregon.

Submitted on Record and Briefs August 12, 2005. Decided December 7, 2005.

James N. Varner, Dundee, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Solicitor General, filed the brief for respondent.

Before LINDER, Presiding Judge, and EDMONDS^[*] and WOLLHEIM, Judges.

PER CURIAM.

Defendant was convicted of robbery in the first degree, ORS 164.415, assault in the second degree, ORS 163.175, animal abuse in the second degree, ORS 167.315, and tampering with a witness, ORS 162.285. On appeal, defendant challenges the trial court's imposition of an upward departure sentence on his conviction for robbery in the first degree. He argues that the court's upward departure was erroneous under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because it was based on facts that were not admitted by defendant nor found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005), the trial court's upward departure-based on its findings that defendant was "on supervision at time of offense" and that "repeated periods of incarceration have failed to deter defendant"—is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error. See also State v. Allen, 198 Or.App. 392, 108 P.3d 651, adh'd to on recons., 202 Or.App. 565, 123 P.3d 331 (2005).

Sentences vacated; remanded for resentencing; otherwise affirmed.

NOTES

[*] Edmonds, J., vice Richardson, S.J.