State v. Colin

Court of Appeals of Oregon

State v. Colin

120 P.3d 1259, 202 Or. App. 233, 2005 Ore. App. LEXIS 1321

CourtCourt of Appeals of Oregon

DecidedOctober 12, 2005

DocketC961860CR; A125566

StatusPublished

This text of 120 P.3d 1259 (State v. Colin) 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. Colin, 120 P.3d 1259, 202 Or. App. 233, 2005 Ore. App. LEXIS 1321 (Or. Ct. App. 2005).

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Opinion

PER CURIAM

Defendant appeals his sentence on a conviction for kidnapping in the second degree, ORS 163.225. He argues that the trial court abused its discretion in failing to grant a continuance before resentencing him. He further 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 a departure sentence based on a finding that the harm to the victim was substantially greater than typical for the offense, because defendant did not admit, to that fact and the court did not submit it to a jury, in violation of his rights under the Sixth Amendment to the United States Constitution. We do not reach defendant’s first argument because we conclude that he is entitled to resentencing based on his second argument.

Although he did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. Under our decisions in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), and State v. Sawatzky, 195 Or App 159, 96 P3d 1288 (2004), the sentence is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant appeals his sentence on a conviction for kidnapping in the second degree, ORS 163.225. He argues that the trial court abused its discretion in failing to grant a continuance before resentencing him. He further 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 a departure sentence based on a finding that the harm to the victim was substantially greater than typical for the offense, because defendant did not admit, to that fact and the court did not submit it to a jury, in violation of his rights under the Sixth Amendment to the United States Constitution. We do not reach defendant’s first argument because we conclude that he is entitled to resentencing based on his second argument.

Although he did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. Under our decisions in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), and State v. Sawatzky, 195 Or App 159, 96 P3d 1288 (2004), the sentence is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

120 P.3d 1259, 202 Or. App. 233, 2005 Ore. App. LEXIS 1321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-colin-orctapp-2005.

Opinion

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