State v. Jenkins

111 P.3d 782 (2005) 199 Or. App. 384

STATE of Oregon, Respondent,
v.
Alexander JENKINS, aka Alexander Jenkins, II, Appellant.

0204-32547; A120295.

Court of Appeals of Oregon.

Argued and Submitted March 31, 2005. Decided April 27, 2005.

James N. Varner, Dundee, argued the cause and filed the briefs for appellant.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA,^[*] Judges.

PER CURIAM.

Defendant appeals his convictions and sentences for felon in possession of a firearm, ORS 166.270, unlawful use of a weapon, ORS 166.220, and unlawful possession of a firearm, ORS 166.250. We affirm defendant's convictions without discussion. On defendant's conviction for felon in possession, the trial court imposed an upward durational departure sentence based on a finding that defendant was on supervision at the time of the crime. Defendant asserts that the imposition of the departure sentence violates his Sixth Amendment rights as set forth in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and that the error, although unpreserved, is apparent on the face of the record. We agree. See State v. Perez, 196 Or.App. 364, 371-72, 102 P.3d 705 (2004) (treating similar departure sentence as plain error).

The state contends that Perez is distinguishable because, in this case, defendant admitted at sentencing that he was on supervision. We noted in Perez, however, that this departure factor implicates whether "parole or probation ``failed to deter' defendant from committing further offenses." Id. at 372, 102 P.3d 705. Thus, while defendant may have acknowledged that he was on supervision, additional factfinding was required for imposition of a departure sentence under the circumstances. We conclude therefore that Perez is not distinguishable and that error is apparent on the face of the record. Accord State v. Allen, 198 Or.App. 392, 108 P.3d 651 (2005) (same).

Reversed and remanded for resentencing.

NOTES

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