State v. Robertson

125 P.3d 20 (2005) 203 Or. App. 18

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

20-02-20627; A121423.

Court of Appeals of Oregon.

Submitted on Record and Briefs August 31, 2005. Decided December 7, 2005.

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

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

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM,^[*] Judges.

HASELTON, P.J.

Defendant appeals his sentences on two counts of first-degree rape, ORS 163.375, three counts of first-degree sexual penetration, ORS 163.411, one count of first-degree sexual abuse, ORS 163.427, two counts of first-degree burglary, ORS 164.225, four counts of menacing, ORS 163.190, two counts of reckless endangerment, ORS 163,195, one count of stalking, ORS 163.732, one count of telephonic harassment, ORS 166.090, and two counts of attempting to elude police, ORS 811.540. We decline to treat as plain error defendant's unpreserved challenges to the court's determination of his criminal history score and to the court's imposition of consecutive sentences. See generally State v. Taylor, 198 Or.App. 460, 108 P.3d 682, rev. den., 339 Or. 66, 118 P.3d 802 (2005); State v. Yashin, 199 Or.App. 511, 112 P.3d 331, rev. den., 339 Or. 407, 122 P.3d 65 (2005) (declining to reach similar unpreserved arguments).

On one of the counts of first-degree burglary, the sentencing court imposed an upward departure sentence based on findings that defendant was on probation at the time of the offense, there was a threat of actual violence, defendant was persistently involved in similar offenses, and defendant intended to terrorize the victim. The court further found that any of those factors independently would support a departure sentence. On appeal, defendant argues that, under 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), the court erred in imposing a departure sentence based on facts that were not found by a jury or admitted by defendant, in violation of his rights under the Sixth Amendment to the United States Constitution.

Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. We agree. We have held that judicial factfinding on aggravating factors such as those applied in this case runs afoul of the rule of law announced in Blakely. See, e.g., State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005); State v. Muyingo, 197 Or.App. 320, 105 P.3d 899 (2005); State v. Smitherman, 200 Or.App. 383, 114 P.3d 540 (2005). For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

NOTES

[*] Rosenblum, J., vice Ceniceros, S.J.