State v. Espitia-Arrequin

Court of Appeals of Oregon

State v. Espitia-Arrequin

118 P.3d 833, 201 Or. App. 393, 2005 Ore. App. LEXIS 1147

CourtCourt of Appeals of Oregon

DecidedAugust 31, 2005

Docket03C-40086; A121564

StatusPublished

This text of 118 P.3d 833 (State v. Espitia-Arrequin) 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. Espitia-Arrequin, 118 P.3d 833, 201 Or. App. 393, 2005 Ore. App. LEXIS 1147 (Or. Ct. App. 2005).

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Opinion

PER CURIAM

Defendant was convicted of assault in the third degree, ORS 163.165, and driving under the influence of intoxicants, ORS 813.010. On the assault conviction, the trial court imposed an upward dispositional departure based on a finding of persistent involvement and a durational departure based on, among other things, multiple victims. On appeal, defendant challenges only that departure sentence, arguing 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 facts that defendant did not admit and that the court did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted of assault in the third degree, ORS 163.165, and driving under the influence of intoxicants, ORS 813.010. On the assault conviction, the trial court imposed an upward dispositional departure based on a finding of persistent involvement and a durational departure based on, among other things, multiple victims. On appeal, defendant challenges only that departure sentence, arguing 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 facts that defendant did not admit and that the court did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

118 P.3d 833, 201 Or. App. 393, 2005 Ore. App. LEXIS 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-espitia-arrequin-orctapp-2005.

Opinion

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