State v. Bradley

Court of Appeals of Oregon

State v. Bradley

142 P.3d 513, 207 Or. App. 524, 2006 Ore. App. LEXIS 1231

CourtCourt of Appeals of Oregon

DecidedAugust 30, 2006

Docket03CR0635; A122844

StatusPublished

This text of 142 P.3d 513 (State v. Bradley) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Bradley, 142 P.3d 513, 207 Or. App. 524, 2006 Ore. App. LEXIS 1231 (Or. Ct. App. 2006).

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Opinion

PER CURIAM

Defendant was convicted after a jury trial of felony driving under the influence of intoxicants, ORS 813.010. On appeal, defendant raises several challenges to his sentence. Because we agree with his first argument, we do not reach his remaining arguments. The sentencing court imposed an upward durational departure sentence based on a finding that defendant had persistently been involved with similar offenses. Defendant argues 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 that 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. See State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1, 139 P3d 981 (2006). For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted after a jury trial of felony driving under the influence of intoxicants, ORS 813.010. On appeal, defendant raises several challenges to his sentence. Because we agree with his first argument, we do not reach his remaining arguments. The sentencing court imposed an upward durational departure sentence based on a finding that defendant had persistently been involved with similar offenses. Defendant argues 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 that 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. See State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1, 139 P3d 981 (2006). For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

142 P.3d 513, 207 Or. App. 524, 2006 Ore. App. LEXIS 1231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bradley-orctapp-2006.

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