State v. Erickson

Court of Appeals of Oregon

State v. Erickson

134 P.3d 1114, 205 Or. App. 555, 2006 Ore. App. LEXIS 577

CourtCourt of Appeals of Oregon

DecidedMay 3, 2006

Docket03FE0823ST; A123652

StatusPublished

Cited by2 cases

This text of 134 P.3d 1114 (State v. Erickson) 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. Erickson, 134 P.3d 1114, 205 Or. App. 555, 2006 Ore. App. LEXIS 577 (Or. Ct. App. 2006).

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Opinion

*556 PER CURIAM

After a jury trial, defendant was convicted of four counts of first-degree sodomy, ORS 163.405, five counts of sexual abuse, ORS 163.425, and one count of attempted rape, ORS 161.405 and ORS 163.375. On appeal, defendant challenges his sentences. We vacate and remand for resentencing but otherwise affirm.

On one of the convictions, the trial court imposed an upward departure sentence based on its findings that the victim was particularly vulnerable, that there was a violation of trust, and that there was significant cruelty or harm greater than typical. Defendant argues that the trial court’s imposition of a departure sentence violated 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 the sentence was based on aggravating facts that were not admitted by defendant nor found by a jury. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we exercise our discretion to correct the error. 1

Sentences vacated; remanded for resentencing; otherwise affirmed.

1

Because we remand the entire case for resentencing, ORS 138.222(5)(a), we need not address defendant’s other assignment of error regarding his sentences.

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*556 PER CURIAM

After a jury trial, defendant was convicted of four counts of first-degree sodomy, ORS 163.405, five counts of sexual abuse, ORS 163.425, and one count of attempted rape, ORS 161.405 and ORS 163.375. On appeal, defendant challenges his sentences. We vacate and remand for resentencing but otherwise affirm.

On one of the convictions, the trial court imposed an upward departure sentence based on its findings that the victim was particularly vulnerable, that there was a violation of trust, and that there was significant cruelty or harm greater than typical. Defendant argues that the trial court’s imposition of a departure sentence violated 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 the sentence was based on aggravating facts that were not admitted by defendant nor found by a jury. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we exercise our discretion to correct the error. 1

Sentences vacated; remanded for resentencing; otherwise affirmed.

1

Because we remand the entire case for resentencing, ORS 138.222(5)(a), we need not address defendant’s other assignment of error regarding his sentences.

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Bluebook (online)

134 P.3d 1114, 205 Or. App. 555, 2006 Ore. App. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-erickson-orctapp-2006.

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