State v. Robertson , 205 Or. App. 549 ( 2006 )

134 P.3d 1112 (2006) 205 Or. App. 549

STATE of Oregon, Respondent,
v.
John Allen ROBERTSON, Appellant.

02CR-1795; A122733.

Court of Appeals of Oregon.

Submitted on Record and Briefs March 24, 2006. Decided May 3, 2006.

Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Robert M. Atkinson, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and DEITS, Judge pro tempore.

PER CURIAM.

After a trial to a jury, defendant was convicted of first-degree burglary, second-degree assault, fourth-degree assault, harassment, and interference with making a report. On the conviction for first-degree burglary, the trial court imposed a 144-month departure sentence, citing "persistent involvement in similar offenses," defendant's "lengthy record," and the victim's vulnerability.

On appeal, defendant argues that the trial court's imposition of a departure sentence violated the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the sentence was based on aggravating facts that were not admitted by defendant nor found by a jury. Defendant did not advance that challenge below, but argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or.App. 113, 133 P.3d 343 (2006), the sentence is plainly erroneous. For the reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.