State v. Cobb

153 P.3d 143, 211 Or. App. 94, 2007 Ore. App. LEXIS 244

Opinion

PER CURIAM

After a trial to a jury, defendant was convicted of first-degree burglary, ORS 164.225, criminal conspiracy, ORS 161.450, and tampering with, physical evidence, ORS 162.295. On the burglary conviction, the court imposed an upward departure sentence of 75 months’ imprisonment based on its finding that defendant was on supervision at the time of the offense.

On appeal, defendant argues that the departure sentence violates the Sixth Amendment under the principles articulated in 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), because it was based on facts that were not admitted by defendant or 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. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1, 139 P3d 981 (2006), rev allowed, 342 Or 256 (2007), 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.